Australia: Non-driving drunk finally gets justice

A Benleigh man found guilty of drink-driving after trying to help his sister start a broken-down car had his conviction quashed on appeal. In a bizarre case, both a magistrate and a District Court judge had held David Brian Egglemosse intended to use a vehicle parked in a vacant lot alongside the Pacific Motorway at Loganholme, south of Brisbane, in September 2005.

However, a new ground was raised in the Court of Appeal which showed Egglemosse had a defence under a section of the Transport Operations (Road Use Management) Act, that was not argued before either original hearings.

A summary trial in the Magistrate's Court heard Egglemosse's sister Norma got a lift home as a passenger in the car which stopped and rolled into a vacant lot. Believing the car had run out of petrol, she rang her brother David, a mechanic, but when she returned the driver of the vehicle had left.

Meanwhile, David Egglemosse walked a short distance to the vehicle, put fuel into the car and worked on the disconnected battery. He then went to the driver's side to lean in to it to see if it would start. He found there were no keys in the ignition and returned to the front of the car where the bonnet was still up.

Police arrived and breathalysed Egglemosse, who returned a blood-alcohol reading of 0.15 per cent. Egglemosse pleaded not guilty on the basis he had not intended to drive the car and did not even have a key to it. However, the magistrate convicted him, fined him $720 and disqualified him from driving for nine months. Egglemosse appealed to a District Court judge who threw out the appeal and ordered he pay $900 in court costs.

He then went to the Court of Appeal yesterday and in a unanimous judgment his appeal was granted. The Court of Appeal set aside the conviction, fine and disqualification imposed in the Magistrate's Court and also set aside the order that he pay $900 in District Court costs. A verdict of not guilty was substituted for the Magistrate's Court verdict.

Court of Appeal president Margaret McMurdo said Egglemosse had established on oath that he had no intention to drive the vehicle and the car was not a traffic hazard.

Original report here



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