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Queensland Police Service v Russell-Brereton

 

[2019] QMC 19

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Queensland Police Service v Russell-Brereton [2019] QMC 19

PARTIES:

Queensland Police Service

(prosecution)

v

Shayne Peter Russell-Brereton

(defendant)

FILE NO/S:

MAG-00176283/18(1)

DIVISION:

Magistrates Courts

PROCEEDING:

Criminal

ORIGINATING COURT:

Atherton

DELIVERED ON:

11th December, 2019

DELIVERED AT:

Mareeba

HEARING DATE:

21 November 2019

MAGISTRATE:

Braes, T.J.

ORDER:

Not guilty/ defendant discharged

CATCHWORDS:

Circumstantial evidence – motive – defendant not giving evidence

COUNSEL:

Sergeant Nagy appeared for Prosecution

Mr Feeney of Counsel appeared instructed by Northern Plateau Legal

SOLICITORS:

 
  1. [1]
    The defendant Shane Peter Russell-Brereton appeared before me on 21 November 2019 in the Magistrates Court at Atherton charged by way of Notice to Appear that on the 23rd day of September 2017 at Mount Surprise in the Magistrates Courts District of Cairns in the State of Queensland he wilfully interfered with a mechanism of a vehicle namely an ambulance on a road namely Springfield Road, Mount Surprise without the consent of Queensland Ambulance Service Commissioner the owner of the said vehicle.
  1. [2]
    To the charge the defendant pleaded Not Guilty and was represented at trial by Mr Feeney of Counsel. Sergeant Nagy appeared for the prosecution.
  1. [3]
    In order for me to find the defendant Guilty of the charge I must be satisfied all of the elements of the charge have been proved to the standard required, that being beyond reasonable doubt. The onus of proving those elements and of negativing any excuse raised to such standard is, of course, upon the prosecution. Should the prosecution fail to prove those elements to the standard required then I must, of necessity, acquit the defendant of the charge.
  1. [4]
    At the commencement of the proceedings I was informed by the prosecutor, and Mr Feeney confirmed, the defendant admitted the last element of the charge namely: “without the consent of Queensland Ambulance Service Commissioner the owner of the said vehicle”. All other elements of the offence were to be proven by the prosecution.
  1. [5]
    The evidence took some time, the prosecution calling fourteen witnesses in all. At the end of the hearing I invited the parties to make written submissions.
  1. [6]
    The defendant did not give or call evidence. That is his right. He is not bound to give or call evidence. The defendant is entitled to insist the prosecution prove the case against him, if it can. The prosecution bears the burden of proving the guilt of the defendant beyond reasonable doubt, and the fact the defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution. It proves nothing at all. I do not assume that because he did not give evidence that adds in some way the case against him. The fact he did not give evidence cannot be considered at all when deciding whether the prosecution has proved its case beyond reasonable doubt, and most certainly does not make the task confronting the prosecution any easier. It cannot change the fact the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.
  1. [7]
    Sergeant Nagy submits at paragraph 6 of her written submissions: “The defendant did not call any evidence in contradiction to the averments listed in the charge, therefore these elements were not in fact in issue before the court”.  I reject the submission, at the end of the day nothing is proven (if not admitted) until the prosecution has satisfied the court the evidence supports that finding.  If the submission is intended only to relate to the averments that the ambulance is a motor vehicle and Springfield Road is a road, then I accept these points were not challenged and I accept on the evidence these things are established.  The defendant although not giving evidence did participate in two records of interview where he denied the allegation of interfering with the mechanism of the ambulance.
  1. [8]
    The evidence was as usual recorded; I proceed without a transcript although I do have notes taken by me at the time the evidence was given. No doubt I will refer to some aspects of the evidence, obviously I will not refer to all of the evidence. I wish to point out that though I may refer to some of the evidence, I have considered the whole of the evidence presented, and because matters have not been stated does it mean I have disregarded them or not given them sufficient weight nor because matters have been mentioned does it follow I have given them undue weight.
  1. [9]
    During the course of the trial I have had the opportunity listening to and observing the demeanour of each of the witnesses whilst they gave their evidence. This has assisted me in assessing the credibility or otherwise, including the reliability, of these witnesses which is of paramount importance.
  1. [10]
    Credibility is not such an issue in this particular case, nevertheless I direct myself as in Devries v Australian National Railways Commission,  (1993) 177 CLR 472;479 Brennan, Gaudron & McHugh JJ said: “More than once in recent years, this court has pointed out that a finding of fact by trial Judge, based on the credibility of a witness, is not to be set aside because an appellant court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial Judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable””.

Similarly, in Fox v Percy, (2003) 214 CLR 118, [26]- [30]Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases, as to the correct approach of an appellate court where findings of fact based on credibility are challenged, this way:

“[28] … the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.”

“[29] … In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.

[30] It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.”

  1. [11]
    In this case there has been limited challenge of any of the witnesses by cross examination. However I did observe them and have made assessments as to the reliability of their evidence based on their performance in the witness box, the logic of the evidence and the evidence of other witnesses.
  1. [12]
    There are a number of inconsistencies which are evident in the evidence of the witnesses, the most relevant of which would be between the versions of Mr Anderson and the defendant, where the defendant says Mr Anderson was present when he lifted the bonnet of the ambulance when stopped at the intersection of Springfield Road and Kennedy Highway. The evidence of Mr Anderson and Mrs Dunstone is also at odds when it comes to the speed of the ambulance at the time of the crash with the quad bike.
  1. [13]
    As pointed out by Mr Feeney in his submissions there is also an inconsistency between the evidence of the defendant, Mr Andrews, Mr Hutchinson and Mr Major. The defendant was driving the ambulance, he experienced the event first hand. He said there was a failure of the brakes with some subsequent recovery. Mr Andrews who did not drive the vehicle and saw it for the first time on the 25th September said the pedal went straight to the floor.  Mr Hutchinson said brake failure would exclude any recovery. In his email exhibit 24 he said; “When Merc brakes actually fail they stay failed.” He inspected the vehicle in Cairns a few days after the event.  He did not drive it. Mr Major inspected the vehicle on the 30th October, a week after the event. He said the brakes were working in two out of the four wheels.  I don’t believe he drove the vehicle either.
  1. [14]
    Whilst the evidence contains discrepancies where these inconsistencies exist, it is not that I have disregarded the whole of that witness’s evidence, rather I have disregarded that part which I think is better supported by other evidence, and where the evidence is unsupported opinion.
  1. [15]
    Although I make no adverse finding against any of the witnesses’ honesty Mr Anderson was the least impressive of the witnesses. He was unsure of some of his evidence. He said his memory had faded. Where there is conflict between the evidence of Mr Anderson and the defendant I prefer the evidence of the defendant, bearing in mind of course the defendant did not give evidence but participated in two records of interview.
  1. [16]
    I also have concerns about the evidence of Mrs Dunstone. She was a very forthright witness, almost too forthright. Her evidence of the speed of the ambulance prior to the collision is inconsistent with that of Mr Anderson. She has an axe to grind, understandably, as she was sitting on the quad bike prior to the crash. I was also left with a concern as to how she repositioned the quad bike after being asked to do so by Constable Conradie. He said Mrs Dunstone’s quad bike had confused him as to where the roadway was, and it was if a vehicle was travelling towards him. Mr Anderson gave evidence he could see headlights ahead (meaning the quad bike) and he thought the road went straight but it veered to the left. The defendant also said he could see lights ahead.
  1. [17]
    Mrs Dunstone gave evidence that the ambulance returned to her after the crash with the quad bike to see if she was ok. She refused to travel in the ambulance as it had no brakes. She also said Mr Anderson said in relation to the brakes: “oh they are working now”.  She was not cross examined about this, and Mr Anderson did not give that evidence.  This suggestion the brakes might have been working after the crash, particularly as the actual evidence is the defendant drove slowly and with the use of the handbrake after the crash, is at best, an exaggeration of what the defendant said.
  1. [18]
    I also accept in assessing the weight to be given to Mr Anderson’s evidence that while Mr Feeney did cross-examine him, he did not challenge him on that aspect of the evidence I have referred to.
  1. [19]
    The majority of the witnesses were not cross-examined by Mr Feeney. The only witnesses who were present at the time it is alleged the defendant committed the offence were George Anderson a trainee paramedic who was travelling in the ambulance with the defendant and Daryl Thompson an advanced care paramedic from Ravenshoe who was tasked to meet up with the stranded vehicle and bring the defendant and Mr Anderson back to Mount Garnet.
  1. [20]
    In Mr Anderson’s evidence he stated that prior to the collision of the ambulance with the quad bike he thought the road went straight but it actually veered to the left. The ambulance vehicle did not veer to the left but continued straight ahead and collided with the quad bike. Mr Anderson told me the defendant said; “we had brake failure” and that he had said this as the ambulance vehicle collided with the quad bike.
  1. [21]
    Mr Anderson said radio reception had been very poor in the area but when they were driving back towards Mount Garnet still on Springfield Road he obtained reception and put a call though, I believe to the Operations Centre in Cairns. He said he was asked if he could jump in the driver’s seat and drive the vehicle back. He said he did that but although he applied the brakes and he felt they were okay he was not comfortable driving the vehicle after it had suffered brake failure. The evidence supports a finding Mr Anderson did sit in the driver’s seat but he did not drive the vehicle as he was not prepared to do so.
  1. [22]
    Mr Anderson said they drove the vehicle to the highway and waited for the tow truck, he did not inspect the vehicle, neither he said did the defendant. He said he heard someone say the cap from the brake was on the ground, he couldn’t recall who said that. He said he did not access the engine bay of the Mount Garnet vehicle and he did not touch anything in the engine bay. He said he was not sure if the defendant had touched anything at the scene in the engine bay.
  1. [23]
    Mr Anderson’s evidence is important notwithstanding my concern about him being unable to remember precisely the entirety of the evening, in that he confirms the defendant exclaimed whilst the collision with the quad bike was occurring that the vehicle had suffered brake failure.
  1. [24]
    Mr Thompson an advanced care paramedic from Ravenshoe station said when he arrived at the intersection of the Kennedy Highway and Springfield Road to meet with the defendant and Mr Anderson he saw the bonnet of the vehicle was up and the lid off the brake reservoir was stuck under the brake pipes, and there were splashes of brake fluid around the engine bay.
  1. [25]
    At the commencement of the trial the prosecutor gave a brief opening of the prosecution case. She said that on the 23rd September 2017 at Mount Surprise the defendant whilst driving a Queensland Ambulance Service vehicle to a call out collided with a quad bike and that the defendant claims this was due to brake failure. She said that it would be alleged by the prosecution that during the time the defendant and passenger waited for the tow truck the QAS vehicle was wilfully interfered with by the defendant. She said that it would be alleged the defendant’s motive for interfering with the vehicle was due to the previous collision with a quad bike. She said it would be alleged that this collision was not due to brake failure but in fact due to him not driving to the conditions of Springfield Road. The defendant had stated the cause of the collision as brake failure and needed to make the vehicle look as though that is what had occurred.
  1. [26]
    Is it suggested the defendant also caused the brake fluid splatter while stopped at the intersection? It would appear it is alleged the defendant must be responsible for that splatter as there is no other explanation or reason put forward as to why there would be brake fluid splatter under the bonnet when the vehicle stopped at the intersection of the Kennedy Highway and Springfield Road.
  1. [27]
    There is no direct evidence the defendant interfered with the mechanism of the vehicle at all. The prosecution case is entirely circumstantial.
  1. [28]
    There is no issue with the evidence that the Queensland Ambulance Service vehicle driven by the defendant collided with the quad bike, all of the evidence supports this.
  1. [29]
    As already stated the prosecution now asks that I should find beyond reasonable doubt that while waiting at the intersection of Springfield Road and the Kennedy Highway the defendant wilfully interfered with the brakes of the ambulance.
  1. [30]
    If I was satisfied on the evidence the defendant had interfered with the mechanism of the ambulance then I would be satisfied he had done so wilfully; that is deliberately with the intent to support the fictitious claim that the brakes had failed. I might add however that although section 135 of the Transport Operations (Road Use Management) Act 1995 defines the term “interfere with” it does not define the term “wilfully” and I have not received any submissions as to whether or not that term, as might ordinarily be understood in criminal law, applies to this particular circumstance. I note with interest I have also not received any submissions on whether or not the allegation, which I presume is removing the cap from the brake fluid reservoir and undoing a nut on the hydraulic brake line where it enters the master cylinder, would amount to “interfering with” as that term is defined in section 135.
  1. [31]
    Circumstantial evidence is evidence of circumstances which can be relied upon as not proving a fact directly but instead of pointing to its existence. It differs from direct evidence, which tends to prove a fact directly: typically, when the witness testifies about something which that witness personally saw, or heard. Both direct and circumstantial evidence are of course to be considered by me in this matter. To convict the defendant on the circumstantial evidence as presented it is necessary that his guilt should not only be a rational inference but that it should be the only rational inference that could be drawn from the circumstances. In other words I must be satisfied by the evidence beyond reasonable doubt that the defendant wilfully interfered with the ambulance mechanism.
  1. [32]
    The prosecution says the defendant had motive, that motive being to support his story that the collision with the quad bike was due to brake failure.
  1. [33]
    There is no actual evidence of motive, it being an inference I am asked to draw from the evidence. The existence of motive can be an important factual issue, particularly in a circumstantial case where the prosecution asks I infer guilt in that the defendant intentionally acted to interfere with the mechanism of the ambulance. If there is motive than what might otherwise be inexplicable becomes explicable, however the existence of motive without anymore is not sufficient upon which to found a finding of guilt.
  1. [34]
    The defendant is an experienced long serving paramedic, not the sort of person to act in the manner alleged, and risk his career over an event which could be explained by the urgency of the matter, the state of the road, the unsuitability of the van for the conditions and the lights of the quad bike.
  1. [35]
    I am asked to find; that after a collision with a quad bike, which occurred on a rough gravel road in the darkness whilst travelling to a code one emergency in a Mercedes Sprinter Van, (a vehicle hardly suited to the task), and where it was so dark the passenger was not sure where the road went, the defendant; after causing the crash, acted to exculpate himself from the fallout from the crash with an instrument, which I am to infer was a tool of some sort, (there being no evidence of the existence of such a thing), acted with criminal intent by interfering with the mechanism of the ambulance.
  1. [36]
    The evidence from the inspections of the vehicle confirmed the vehicle had no brakes or very minimal brakes when inspected.
  1. [37]
    The evidence from Mr Anderson is the defendant exclaimed during the collision with the quad bike the ambulance had suffered brake failure.
  1. [38]
    The evidence is when Mr Thompson inspected the vehicle at the intersection of Springfield Road and the Kennedy Highway the reservoir cap was off and there was brake fluid splatter in the engine bay.
  1. [39]
    It appears to me that this is a case where people who have no direct involvement in the matter have jumped to conclusions without any direct evidence and then have been stuck fast to that opinion, never stopping to evaluate the evidence or question their initial assumption.
  1. [40]
    Mr Morgan, a Senior Operations Supervisor at Queensland Ambulance was initially sceptical of the defendant’s story, in fact he said in evidence “I was not convinced the brakes failed but I was not there. Nor in my mind. From my experience.” The die was therefore cast.
  1. [41]
    The conspiracy theory of Mr Morgan and Mr Hutchinson is based in part on Mr Morgan’s advice to Mr Hutchinson that the officers had performed numerous checks on the vehicle since the incident and the brakes have worked effectively. Mr Hutchinson perpetuates this theory with his comment that the vehicle brakes were working fine after the event.
  1. [42]
    The only evidence the brakes were working after the event is from Mr Anderson. He did not drive the vehicle, he sat in the driver’s seat for a very short time and applied the brake pedal. He did not want to drive it. The defendant who was driving the vehicle was driving slowly and utilising the hand brake to assist with braking.
  1. [43]
    Sergeant Duncan, an experienced forensic crash investigator, gave evidence he took a series of photographs of the ambulance on the 26th September 2017 while it was being stored in the Queensland Ambulance Service holding yard at 42 Anderson Street, Manunda Cairns.
  1. [44]
    Sergeant Duncan was shown a photograph, exhibit 5, taken by Mrs Dunstone the day following the collision between the ambulance and quad bike. Sergeant Duncan made the comment that the marks he observed in the photograph were of a rolling tyre not of brake marks. Clearly there has been some activity in the area since the marks on the road were made given the footprints and cow droppings shown in the photograph, but assuming the marks referred to are marks made by the ambulance one might query whether a rolling tyre is consistent with brake failure; as if there had not been brake failure as is being alleged; one might expect there to be skid marks. Mr Anderson’s evidence is that prior to the collision the vehicle was going slower than it had been, although this is inconsistent with the evidence of Mrs Dunstone. There is no direct evidence the defendant did not apply the brake at all although the prosecution would ask that I infer he simply drove straight into the quad bike.
  1. [45]
    Could these marks be consistent with Mr Major’s evidence of some brakes? The photo of the marks on the ground are such as to be an unreliable source of evidence.
  1. [46]
    Mr Anderson gave evidence that at the time of the crash with the quad bike the ambulance was travelling slower than it had been. He said Mrs Dunstone asked him how fast they were going, he said he didn’t know but it felt like a safe speed. Mr Dunstone gave evidence that when the ambulance followed him to the primary crash site he was doing about 40-50 kilometres per hour (a fairly inexact estimate) and the ambulance was some distance behind him. This was after the collision with the quad bike. Mrs Dunstone said the ambulance was going way too fast. She said 70-80 kilometres per hour was not ridiculous on that road. She said the ambulance was going faster than that. This is also a very imprecise estimate of speed in difficult circumstances at night in a very dark place.
  1. [47]
    The evidence of speed of the ambulance at the time of the crash with the quad bike is only relevant to my considerations in trying to determine if the crash with the quad bike was caused by the defendant’s manner of driving in that he failed to drive to the conditions of the road. If I could be satisfied of that, then I would naturally find the crash was not caused by brake failure. This then would perhaps be evidence of motive to make up the brake failure story.
  1. [48]
    Mrs Dunstone’s evidence is inconsistent with Mr Anderson who as a passenger in the vehicle would have had a good appreciation of the speed of the vehicle. He said it felt like a safe speed. Her evidence is also inconsistent with the physical evidence. Although substantial damage was done to the ambulance and the quad bike I would think the damage would have been greater if the Mercedes Sprinter van had driven straight into the quad bike at a speed greater than 80 kilometres per hour. The crash scene itself was relatively clear of physical signs save for a few wheel tracks and a push mark where the quad bike had been pushed.
  1. [49]
    The ambulance has not been put into evidence, only photographs were received, continuity of possession of the ambulance has not been established. Police did not take the vehicle into possession on the evening, or at any time subsequent.
  1. [50]
    After the ambulance was involved in the collision the defendant and Mr Anderson attended the scene of the serious car accident and then, at one point driving in convoy with two police vehicles, drove to the intersection of Springfield Road and the Kennedy Highway where they stopped and waited to be picked up by Mr Thompson. Later a tow truck arrived at that same rendezvous point and the vehicle was taken into the sole possession of Mr Larney, a part-time RACQ roadside assist person and pensioner. He drove the vehicle to the Mount Garnet Ambulance Station where he put it in their carport/shed. On Monday Mr Larney again on his own transported the ambulance to the Queensland Ambulance Service Depot in Anderson Street Manunda Cairns. The vehicle was unloaded there in the presence of two officers being Mr Morgan and Mr Andrews. Notwithstanding the suspicions of Mr Morgan the vehicle was still not taken into the possession of the Queensland Police Service.
  1. [51]
    Mr Larney also gave evidence that while he was getting ready to drive away from the Ambulance Depot at Anderson Street Manunda the officers lifted the bonnet of the vehicle and one of them said “that’s loose”. He said one of the brake lines was loose and he saw the officer’s hand over the brake line and he was twisting the nut.
  1. [52]
    Mr Morgan confirmed Mr Andrews was working with him and when the vehicle arrived late in the afternoon and was offloaded, they did an external inspection of the vehicle and they looked under the bonnet. He noticed the master cylinder cap was not in the correct position and there was some spray in and around the engine bay. He said Mr Andrews pointed out that the nuts coming out of the master cylinder were loose. Mr Andrews speaking about the same incident said he noticed a spray pattern from the reservoir and noticed the bolt on the front pressure line where it goes into the brake reservoir was further out than the rear line and that it was obviously loose as it was so far out. He could not recall if he touched it.
  1. [53]
    The loose brake line had not been referred to by anyone up to that point including Mr Thompson who had looked under the bonnet with the defendant while waiting for the tow truck to arrive. It is plausible that if the defendant had in fact loosened that nut for the purpose of supporting his claim of brake failure he might have at that first opportunity pointed it out to Mr Thompson.
  1. [54]
    Mr Visser, a diesel mechanic said he inspected the ambulance on the 29th September 2017. He said he “found spanner marks on the outlet pipe of the brake reservoir”. There was no explanation why marks appearing to be spanner marks would be found on the nut securing the outlet pipe. He surmised that some repair had been carried out with the pipe being loosened or tightened but he could not say why. Maybe there had been?
  1. [55]
    Mr Hutchinson is a Queensland Ambulance Service business manager and also a qualified motor mechanic. He also inspected the vehicle and found the front brake line union was loose. He said he had not seen a brake line union come loose on its own and that it required human intervention to make the line loose or leak. He said he believed the union had been undone but he was uncertain how this would have occurred. He confirmed he did not know what had occurred but thought that there must have been human intervention.
  1. [56]
    The evidence is the cap on the brake reservoir is a screw cap with thread. There was no evidence whether that might become loose and unscrew other than with a need for human intervention. Bumpy corrugated roads can in my experience have that effect on machinery.
  1. [57]
    The vehicle was serviced by CA Auto’s on the 14th September 2017 at which time it had travelled 17,986 kilometres. At the time of this incident on the 23rd September or at least when the Vehicle Checklist and Fault Report, exhibit 26, was prepared the vehicle had travelled 19,415 kilometres a distance of approximately 1,500 kilometres.  Where it had travelled, who had driven it, what had been done to it (including the daily inspections) after the service are all a mystery.
  1. [58]
    It is clear the reservoir cap was off when Mr Thompson inspected the vehicle while waiting for the tow truck to arrive. It is clear there was brake fluid splatter inside the engine bay at that time. This would support a finding the cap was off the reservoir prior to stopping at that location; unless of course it is suggested by the prosecution the defendant also caused this splatter somehow while waiting for the tow truck; there has been no such suggestion.
  1. [59]
    The opinion evidence suggests the brake line union nut would only be loosened with the aid of human intervention, and Mr Sutton says that when the vehicle was serviced the union nut would not have been loosened. Could someone at the time of the service applied a tool to it to check it?
  1. [60]
    While I accept that ordinarily the brake cylinder union nut would not undo of its own accord there is evidence that there was damage to the front of the ambulance as a consequence of the collision with the quad bike. In particular the photographs taken by Sergeant Duncan which are exhibit 27 show what appears to be an engine surround, depicted particularly in photos 8691 and 8692, which has completely broken away from its mounting. It is not possible to tell by looking at the photographs whether this surround is of metal or other construction but it is clearly snapped indicating substantial impact force to the vehicle. Photographs 8700 and 8701 also show a snapped or broken mount which appears to be connected to an air intake, again indicating a degree of impact force to the front of the vehicle.
  1. [61]
    While witnesses have given evidence that the brake line union nut would not become loose as a consequence of a collision there has been no other explanation put forward other than that I should draw an inference that the defendant applied a tool to it and thereby loosened it. As pointed out as well as the impact damage to the vehicle the vehicle was in for a service on the 14th September , the nut may have been checked then as Mr Visser says, either tightened or loosened.  As well the ambulance was not secured in police custody after the incident and Mr Andrews was seen by Mr Larney to be twisting the union nut. There is also a gap in the service performed by the vehicle after it was serviced at C A Autos. I believe the evidence is ambulance vehicles are inspected at the start of each shift.  How many times had this vehicle been inspected since it was serviced, and by whom?
  1. [62]
    No evidence has been given to explain to me the photograph 8691 which shows what appears to be an open box containing a filter element, I query whether or not that box would ordinarily be covered and if that is the case why it is not covered in the photograph. Obviously there is no evidence on this matter whatsoever and it cannot assist me in any way in determining the factors which are relevant to my consideration.
  1. [63]
    This is a circumstantial case which grew out of the suspicion harboured by Mr Morgan who, whilst not being there, was not convinced the brakes had failed.
  1. [64]
    Two police officers who were present on the evening were not alerted to a suspicion although they were told upon the arrival of Mr Anderson and the defendant they had had a complete brake failure and had hit a quad bike on the way.
  1. [65]
    Sergeant Smith who spoke to Mr and Mrs Dunstone at the scene of the quad bike collision also took no action to breathalyse the defendant, inspect the vehicle, nor take the vehicle into his possession.
  1. [66]
    There is no direct evidence which implicates the defendant interfered with the mechanism of the vehicle wilfully or at all. The evidence is circumstantial at best and speculative based on suspicion at worst.
  1. [67]
    There is insufficient evidence to contradict the defendant’s version of brake failure and in fact the evidence that he commented to Mr Anderson as the collision was occurring and immediately thereafter to Mrs Dunstone that there had been a complete brake failure supports his version of events.
  1. [68]
    It is alleged the interference occurred whilst the vehicle was parked at the intersection of Springfield Road and the Kennedy Highway, however the brake fluid splatter was already evident when Mr Thompson inspected under the bonnet of the vehicle.
  1. [69]
    The prosecutor draws an inference of guilt from the fact the defendant raised the bonnet of the ambulance at the point where it was parked waiting for the tow truck. The purpose of lifting the bonnet as explained by the defendant was to notify anyone who might come along the ambulance was out of service. This seems to me to be a perfectly reasonable explanation, a practice which is adopted widely by people who experience mechanical failure.
  1. [70]
    I am not satisfied the prosecution has proven the crash with the quad bike was due to the defendant not driving to the conditions of the road.
  1. [71]
    To find the defendant guilty on the evidence presented I must be satisfied that his guilt is not only a rational inference but also the only rational inference that could be drawn from the circumstances. I am not satisfied the prosecution allegation is a rational inference, (based as it is on the vibe so to speak) certainly not the only rational inference as alleged by the prosecution. 
  1. [72]
    I am satisfied there are other rational inferences, including of course, that the reservoir cap became loose and came off the brake fluid reservoir due to the rough road, causing brake fluid to splash out of the reservoir and around the engine bay, thereby causing brake failure. It is not my function however to develop theory or find rational inferences, it is for the prosecution to prove the allegations to the requisite standard.
  1. [73]
    There is no evidence the defendant had an instrument with which to loosen or tighten the union nut, there is absolutely no evidence he did loosen, or tighten the union nut.
  1. [74]
    The only circumstantial evidence in relation to the loosening of the union nut is that it was observed in Cairns to be loose, that Mr Andrews was twisting it, and that Mr Visser and Mr Major noticed some tool marks on it. There is no evidence whether the union nut had ever been tightened or loosened by anyone at any time prior to these inspections. Did someone apply a tool to it at the service? Was it checked after the service and before the crash? Did it loosen as a consequence of the crash with the quad bike? Is there another explanation for the marks on the nut; like being hit by a reservoir cap?
  1. [75]
    It is not possible to draw a rational inference on the evidence that the defendant did in fact tighten or loosen the union nut.
  1. [76]
    The union nut is a bit of a distraction, the overwhelming evidence is the brake fluid reservoir cap was off the reservoir and brake fluid splatter was present at the time Mr Thompson looked under the bonnet.
  1. [77]
    The prosecution has failed to satisfy me beyond reasonable doubt that the defendant wilfully interfered with the mechanism of the ambulance vehicle.
  1. [78]
    I find the defendant Not Guilty. The charge is dismissed and he is discharged.

Magistrates Chambers

11th December, 2019.

 

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Editorial Notes

  • Published Case Name:

    Queensland Police Service v Russell-Brereton

  • Shortened Case Name:

    Queensland Police Service v Russell-Brereton

  • MNC:

    [2019] QMC 19

  • Court:

    QMC

  • Judge(s):

    Magistrate Braes

  • Date:

    11 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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