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  • Unreported Judgment

Stancombe v Commissioner of Police (No 2)

 

[2020] QDC 173

DISTRICT COURT OF QUEENSLAND

CITATION:

Stancombe v Commissioner of Police (No 2) [2020] QDC 173

PARTIES:

ANNA-MARIE STANCOMBE

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

2712 of 2018

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

7 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2020

JUDGE:

Loury QC DCJ

ORDER:

  1. Appeal against conviction dismissed.
  2. Appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – FAILING TO STOP AT YELLOW TRAFFIC LIGHT – APPEAL – APPEAL AGAINST CONVICTION – where the appellant was convicted at a retrial for failing to stop at a yellow traffic light – whether evidence of two police officers was tainted – where Magistrate took into account comments made in appeal judgment in relation to an earlier trial – whether upon a rehearing the guilt of the appellant was proved beyond reasonable doubt

CRIMINAL LAW – FAILING TO STOP AT YELLOW TRAFFIC LIGHT – APPEAL – APPEAL AGAINST SENTENCE – where the fine imposed after retrial was higher than that imposed at first trial – whether first penalty was manifestly inadequate – whether appellant’s financial circumstances were taken into account

Allesch v Maunz (2000) 203 CLR 172
Fox v Percy (2003) 214 CLR 118
Stancombe v Commissioner of Police [2017] QDC 276
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679
R v Lawrence [2002] QCA 526
R v Peterson [1999] 2 Qd R 85

McDonald v Queensland Police Service [2018] 2 Qd R 612

Criminal Code 1899 (Qld) s 17
Justices Act 1886 (Qld) ss 48, 149, 222, 223, 225
Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) ss 57, 61
Penalties and Sentences Act 1992 (Qld) ss 48, 179C

COUNSEL:

Self-represented for the appellant
L Maleckas for the respondent

SOLICITORS:

Self-represented for the appellant
Office of the Director of Public Prosecutions (Qld) for the respondent

  1. [1]
    The appellant was charged with an offence of failing to stop at a red traffic light. The date of the offence was 18 March 2016. She was arraigned on that charge and her trial proceeded in the Magistrates Court on 17 January 2017. At the close of the evidence the charge was changed to failing to stop for a yellow light. She was convicted of the yellow light offence. The appellant successfully appealed her conviction. Clare SC DCJ allowed the appeal on the basis that there had been a fundamental failure to try the charge for which the appellant was convicted. She overturned the finding of guilt and remitted the matter to the Magistrates Court.[1]
  1. [2]
    On 25 June 2018 the appellant’s trial for the offence of failing to stop for a yellow traffic light commenced. She was convicted of that offence on the same date. She now appeals her conviction and sentence. The grounds of her appeal against conviction as set out in the Notice of Appeal are:
  1. the conviction was unsafe and unsatisfactory in all the circumstances;
  1. there was no evidence upon which a reasonable Magistrate could make findings of fact necessary to support a guilty verdict;
  1. the testimony of two police officers was hearsay; and
  1. the testimony of one of the police officers was tainted due to having discussed it with the other officer over lunch.

Nature of the appeal

  1. [3]
    The appellant appeals pursuant to section 222 of the Justices Act 1886. Such an appeal is by way of rehearing on the evidence before the Magistrate together with any new evidence adduced by leave.[2] I must conduct a real review of the evidence before the Magistrates Court and make up my own mind about the case including what inferences are to be drawn from the evidence.[3] In doing so I must pay due regard to the advantage that the Magistrate had in seeing the witnesses give evidence and attach a good deal of weight to his view.[4] Given that this is an appeal by way of rehearing, the court’s appellate powers are only exercisable where the appellant can demonstrate that the order, the subject of the appeal, is the result of some legal, factual or discretionary error.[5]

The evidence at trial

  1. [4]
    Acting Sergeant Ian Turner together with Acting Sergeant Carolyn Greg were conducting mobile patrols on the northbound lanes of Morayfield Road at around 8:30 am on 18 March 2016. Officer Turner said that as they approached the intersection of Esme and Elliott Streets he saw the appellant’s vehicle in the left-hand lane. Officer Turner was driving the police vehicle in the right-hand lane of the road. The appellant’s vehicle was several car lengths in front of him. He observed the lights change to orange and saw the appellant continue driving. As the appellant’s vehicle crossed the solid white line the traffic lights turned red. The appellant continued through the intersection.
  1. [5]
    The intersection was identified via a photograph. The road to the left of Morayfield Road is Elliot Street and the road to the right of Morayfield Road is Esme Street. Whilst there was a dispute at trial about what the intersection was called, it was not contentious that the intersection was as indicated in the photograph.
  1. [6]
    Officer Turner drove through the intersection and pulled up behind the appellant’s vehicle. Officer Greg approached the appellant’s vehicle and told her to stop when safe to do so, through the next intersection. Once stopped, Officer Turner spoke to the appellant. He recorded their interactions on his body worn camera. That footage was tendered and played.
  1. [7]
    During the course of Officer Turner’s engagement with the appellant he returned to his police vehicle to write an infringement notice. The appellant approached Officer Turner’s vehicle. She was directed back to her vehicle and drove away despite being told to wait. The police drove to a school a short distance ahead and issued the appellant with two infringement notices, one of which was the yellow light ticket and the other for her conduct in driving away from police.
  1. [8]
    When first approached by Officer Turner, he asked whether there was any reason why the appellant didn’t stop before the light went red. The appellant said “I just, I went through the orange I was going through”. The appellant shortly after said “I can’t. Please don’t do this to me. Seriously, I have had so much trouble, man, with you guys, I’m taking my daughter to school, it was an orange light, the guy in front of me just then did the same thing”. Officer Turner said to her that the light was red and again the appellant repeated “I thought it was orange, like it was traffic, we weren’t going to go anywhere”. Officer Turner responded “exactly, all the more reason you probably had plenty of time to safely stop”. Again the appellant repeated “I honestly think it was orange.” The appellant begged the officer to exercise his discretionary powers. Again she repeated that she went through an orange light. The appellant became argumentative towards the officer when he would not exercise his discretion and not issue the infringement notice.
  1. [9]
    Officer Turner estimated that the appellant’s vehicle was travelling at not much more than 20 kilometres per hour when she proceeded through the intersection. The traffic was banked up as a consequence of another set of lights a little further north.
  1. [10]
    The appellant cross-examined Officer Turner about his having said that the appellant went through a red light. He explained that he considered that she had gone through a red light because the front wheels of her vehicle had gone past the solid white line even though the back wheels had not. He confirmed that when the front wheels of the appellant’s car went over the line, the light was yellow. Her back wheels were still behind the solid white line when the light changed to red. He considered that conduct constituted going through a red light.
  1. [11]
    Similarly, the appellant established that in his statement Officer Turner had said “I saw the traffic lights turn red just after the front wheels of the Mitsubishi crossed the solid white line.” She also established that she was issued with an infringement notice for a red light offence. The appellant cross-examined Officer Turner about his having chosen not to exercise his discretionary powers. He said that it was more than safe for the appellant to have stopped at the orange light. He confirmed that had her back wheels been over the solid white line when the light turned orange he would have exercised his discretionary powers not to issue a ticket. He also said that he would have exercised his discretionary powers if the appellant was unable to stop safely. He considered that she was able to stop safely at the orange light.
  1. [12]
    The appellant cross-examined Officer Turner about his having said in his statement that he turned off his blue and red lights on the police vehicle when the body worn camera footage clearly showed that his blue and red flashing lights were operating. He explained that when the appellant drove away from the police after having been told to remain he followed her with the lights off as he knew that the appellant was going to drop her daughter off at the nearby school. When he stopped the car at the school he turned them back on.
  1. [13]
    After the luncheon adjournment Acting Sergeant Carolyn Greg gave evidence. She said that they were heading outbound on Morayfield Road and were approaching the Esme/Elliot Street intersection on Morayfield Road. She saw the appellant’s car which was in the left-hand lane approach the intersection and pass through it. She noticed that the lights were red. Once through the intersection Officer Greg approached the appellant’s car and asked her to stop when it was safe to do so. The appellant pulled over.
  1. [14]
    Officer Greg said that the appellant became upset when Officer Turner spoke to her. When Officer Turner returned to the police car the appellant approached the car. Officer Greg directed her to go back to her own car. The appellant returned to her car and told Officer Greg that she was going to drive away. The appellant was cautioned that she would be committing another offence if she left. She drove away. The officers again approached the appellant at the school. She became difficult and argumentative. She refused to keep her window wound down. It was necessary for the officer to open her door at which time she was issued with two infringement notices.
  1. [15]
    In cross-examination Officer Greg agreed that she had lunch with Officer Turner because she hadn’t seen him in a long time. She was then stationed at the MacLeay Island police station. She agreed that there was some conversation about the case. She said that they spoke of being glad that the appellant had turned up to court because Officer Greg had travelled a long distance to attend court. They also discussed that it was the second hearing for the matter.
  1. [16]
    Officer Greg agreed that she hadn’t mentioned Elliot Street in her statement. She denied discussing the street names with Officer Turner. She was asked what her understanding of when a vehicle enters an intersection and she said “it turns out when the whole of the vehicle crosses the line”. When asked where the rear wheels of the appellant’s vehicle were, she said that she couldn’t say with complete certainty because when she looked up she saw the red light and the appellant’s vehicle was in the intersection. She did not recall where the white line was or where the wheels were in relation to that white line. Officer Greg agreed that she did not observe the vehicle at any time when the lights were orange. When she saw the appellant’s vehicle it was in the intersection and the light was red.
  1. [17]
    The appellant made a no case submission which was refused. She then gave evidence in her defence. The appellant said that when she entered the intersection the lights were “basically green”. The traffic was moving slowly and the car in front of her entered the intersection on a green light. The appellant said that the traffic was moving “slightly slower” than 20 kilometres per hour. The traffic had backed up. She was already in the intersection when the lights changed from green to orange. She had to leave the intersection because it would not be safe to remain.
  1. [18]
    In cross-examination the appellant said that when she told the police at the roadside that the car in front of her did the same thing, that is went through an orange light, she explained that she was speaking about another set of lights. On the second occasion when she said she went through an orange light she said she was very upset at the time because being pulled over by police brought back memories of a violent road rage incident in which she was involved. She said she was upset at being accused of going through a red light. She was not disputing that as she went through the intersection the light turned orange. She was already in the intersection when that occurred.
  1. [19]
    On each of the five occasions when the appellant said that she went through an orange light she was intending to convey that the light had turned orange when she was in the intersection. When asked why she didn’t explain at the roadside her account of entering the intersection and the lights changing, she said that the officers kept insisting she had run a red light.
  1. [20]
    It was suggested to the appellant that at her previous trial she had said “I have always maintained that I went through the orange light.” When asked why she now said that she entered the intersection on a green light she said “I don’t believe that I have. I am still not changing what I have said in regards to already being in the intersection, okay, that the traffic being banked up and that I proceeded through the intersection to clear it as the light was yellow. I’m not disputing that. I can’t be any more clear. I am not disputing that the light had changed to yellow as I was proceeding through.”
  1. [21]
    The appellant accepted that at her previous trial she had said “I haven’t denied I went through an orange light, but I total deny the fine which is here today. What we are disputing that it was a red light because it was not.”
  1. [22]
    The appellant again said that she was conveying by that answer that the light changed from green to orange as she proceeded through the intersection which she had already entered.

The Magistrate’s Decision

  1. [23]
    The learned Magistrate referred to the burden of proof falling on the prosecution to the standard of beyond reasonable doubt.
  1. [24]
    The learned Magistrate referred to the evidence not in dispute being that the appellant was the driver of the vehicle at 8:30 am on 18 March 2016 and that she was approaching traffic lights where there was a stop line at the intersection of Esme and Elliot Streets and Morayfield Road.
  1. [25]
    He identified the issue in dispute as being whether when the appellant went through the intersection she was facing a yellow light and whether it was necessarily safe for her to stop behind the line when the lights were yellow.
  1. [26]
    The learned Magistrate found that Officer Turner’s evidence was “unhesitating, professionally disinterested, apparently frank and persuasive while cross-examined at length”. He considered that the weight he should give Officer Turner’s evidence was not materially affected by the cross-examination. He considered Officer Greg’s evidence to be probable, credible and to a large extent consistent with that of Officer Turner. He acknowledged that there was an inconsistency in Officer Greg’s evidence as to whether the appellant alighted from the vehicle whilst stopped at the school, however he considered that her evidence was otherwise largely consistent with that of Officer Turner. The learned Magistrate acknowledged that Officer Greg did not observe the appellant’s vehicle at exactly the same time that Officer Turner did. He considered that Officer Greg observed the appellant’s car at a time after Officer Turner as when she saw the vehicle it was in the intersection and the lights had already turned red.
  1. [27]
    The learned Magistrate considered that the appellant’s evidence that when she entered the intersection the light was green and it turned yellow while she was in the intersection, was different and inconsistent with the responses that she gave at the initial roadside interception, as captured on the body worn camera footage. He referred to the appellant having, very early in the exchange, said that she went through an orange light and having repeated that a number of times. He considered that her account in evidence was different to that given at the time of the interception. He also considered it different to “what she has said previously on appeal”. (This appears to be a reference to what she had said in evidence at her first trial as established in cross-examination).
  1. [28]
    The learned Magistrate referred to the appellant’s evidence before him that upon entering the intersection the light was green. The appellant, he said relied upon section 61(5) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 to say that she was required to exit the intersection once she had entered it. He referred to section 61(2) which provides that if the traffic lights or arrows change to red or yellow whilst a driver is stopped and the driver has not entered the intersection, the driver must not enter the intersection.
  1. [29]
    The learned Magistrate referred to the cross-examination of the appellant at the previous trial where she maintained that she went through an orange light.
  1. [30]
    He considered that the appellant’s evidence before him was very different to what she said at the roadside. He considered that the appellant’s account at the roadside was more reliable given that it was said at a time much closer to the event and was an instinctive and reflexive response to the police officers. He rejected her evidence where it was inconsistent with that of the prosecution witnesses.
  1. [31]
    The learned Magistrate then said “I also have regard in reaching a decision in respect of the matter, the reasons given by Her Honour District Court Clare in her decision of 27 October 2017, when commenting on exactly the same evidence that the court has referred to in these reasons where Her Honour says at paragraph 18 of her decision: ‘The admissions she made at the scene seem so clear that her claim of the green light at the trial was just not credible. Further, her testimony of stopping on the green light would tend to contradict a claim that it was unsafe to stop.’ And, earlier, she says that the evidence at the trial of Ms Stancombe ran the yellow light was compelling”.
  1. [32]
    The learned Magistrate was satisfied that at approximately 8:30 am on 18 March 2016 the appellant was the driver of a black Mitsubishi vehicle heading along Morayfield Road in a northerly direction when she came upon the intersection of Morayfield Road with Esme Street and Elliot Street. He found that she was approaching traffic lights showing a yellow traffic light. He was satisfied that there was a stop line near the traffic lights. He found beyond reasonable doubt that the appellant could stop safely before reaching that stop line and did not stop as near as practicable to but before the stop line. He was further satisfied that the prosecution had negatived beyond reasonable doubt any exculpatory provision raised on the evidence. He found the appellant guilty.

The legislative provisions

  1. [33]
    Section 57 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 provides:

“57Stopping for a yellow traffic light or arrow

  1. (1)
    A driver who is approaching, or at, traffic lights showing a yellow traffic light—
  1. (a)
    must stop—
  1. (i)
    if there is a stop line at or near the traffic lights and the driver can stop safely before reaching the stop line—as near as practicable to, and before reaching, the stop line; or
  1. (ii)
    if there is no stop line at or near the traffic lights and the driver can stop safely before reaching the traffic lights—as near as practicable to, and before reaching, the nearest traffic lights; or
  1. (iii)
    if the traffic lights are at an intersection and the driver can not stop safely under subparagraph(i) or (ii), but can stop safely before entering the intersection—before entering the intersection; and
  1. (b)
    must not proceed until the traffic lights—
  1. (i)
    change to green or flashing yellow; or
  1. (ii)
    show no traffic light.

Maximum penalty—20 penalty units.

  1. (2)
    A driver who is approaching, or at, traffic arrows showing a yellow traffic arrow, and turning in the direction indicated by the arrow—
  1. (a)
    must stop—
  1. (i)
    if there is a stop line at or near the traffic arrows and the driver can stop safely before reaching the stop line—as near as practicable to, and before reaching, the stop line; or
  1. (ii)
    if there is no stop line at or near the traffic arrows and the driver can stop safely before reaching the traffic arrows—as near as practicable to, and before reaching, the nearest traffic arrows; or
  1. (iii)
    if the traffic arrows are at an intersection and the driver can not stop safely under subparagraph(i) or (ii), but can stop safely before entering the intersection—before entering the intersection; and
  1. (b)
    must not proceed until the traffic arrows—
  1. (i)
    change to green or flashing yellow; or
  1. (ii)
    show no traffic arrow.

Maximum penalty—20 penalty units.

  1. (3)
    If the traffic lights or arrows are at an intersection and the driver can not stop safely under subsection(1) or (2) and enters the intersection, the driver must leave the intersection as soon as the driver can do so safely.

Maximum penalty—20 penalty units.

  1. (4)
    If there is a bicycle storage area before any traffic lights referred to in subsection(1) or (2), a reference to the stop line in subsection(1)(a) or (2)(a)—
  1. (a)
    in the case of a driver of a motor vehicle (other than a motorbike), is a reference to the first stop line that the driver comes, or came, to in approaching the lights; or
  1. (b)
    in the case of a rider of a bicycle or a motorbike, is a reference to the stop line that is nearest to the intersection.”
  1. [34]
    Section 61 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 provides

“61Proceeding when traffic lights or arrows at an intersection change to red or yellow

  1. (1)
    This section applies to a driver—
  1. (a)
    at an intersection with traffic lights showing a green traffic light who has stopped after the stop line, stop here on red signal sign, or nearest or only traffic lights, at the intersection and is not making a hook turn at the intersection; or
  1. (b)
    at an intersection with traffic arrows showing a green traffic arrow who is turning in the direction indicated by the arrow and has stopped after the stop line, stop here on red arrow sign, or nearest or only traffic arrows, at the intersection.

Example—

A driver may stop after the stop line at an intersection with traffic lights showing a green traffic light, and not proceed through the intersection, because traffic is congested.

  1. (2)
    If the traffic lights or arrows change to red or yellow while the driver is stopped and the driver has not entered the intersection, the driver must not enter the intersection.

Maximum penalty—20 penalty units.

  1. (3)
    However, if the traffic lights are at an intersection with a left turn on red after stopping sign and the driver is turning left at the intersection, the driver may turn left after stopping.
  1. (4)
    Also, subsection(2) does not apply to a driver if section58(1) applies to the driver.
  1. (5)
    If the traffic lights or arrows change to red or yellow while the driver is stopped and the driver has entered the intersection, the driver must leave the intersection as soon as the driver can do so safely.

Maximum penalty—20 penalty units.”

Grounds of appeal

  1. [35]
    The appellant’s outline raises grounds of appeal not identified in her Notice of Appeal.
  1. [36]
    She firstly argues that section 17 of the Criminal Code 1899 provides a complete defence to the appellant. Suffice to say that section 17 provides a defence to a person convicted or acquitted upon indictment. The appellant was not convicted upon an indictment. The provision has no application. In any event, Judge Clare SC overturned the finding of guilt made at an earlier time and remitted the matter to the Magistrates Court in accordance with section 225 of the Justices Act 1886. No certificate of dismissal was issued pursuant to section 149 of the Justices Act 1886. There existed no bar to the prosecution of the appellant.
  1. [37]
    The appellant also argues that because she was issued with an infringement notice for failing to stop at a red light that her trial was unfair because she was convicted of the offence of failing to stop at a yellow light. At the commencement of the trial the learned Magistrate informed the appellant that the charge before him was one of failing to stop as near as practicable to a stop line associated with a yellow light. To that charge the appellant pleaded not guilty. The trial proceeded on that charge. There was no amendment sought or made to that charge. That is the charge of which the appellant was convicted. Whilst the appellant was initially issued an infringement notice for failing to stop at a red light, that charge was amended at the conclusion of the evidence at her first trial to the charge of failing to stop as near as practicable to a stop line associated with a yellow light. The power to amend a charge is found in section 48(1)(c) of the Justices Act 1886. That is the power the Magistrate exercised at the first trial. The appellant was well aware of the nature of the charge when her trial commenced on 25 June 2018 and had been on notice that that was the charge that she was facing from the time of her appeal on 27 October 2017.
  1. [38]
    The appellant argues that Officer Turner wrote the wrong intersection on the infringement notice. He wrote Morayfield/Esme Street. That is the southbound intersection. The northbound intersection is Morayfield Road/Elliot Street. The appellant argues that the charge should have been dismissed at her first trial as this was a “totally different intersection”. That was a matter for her to argue at the first trial.
  1. [39]
    Irrespective of how the intersection was described in the infringement notice it was not contentious in the trial which I am considering, that the intersection was Morayfield Road, Esme Street and Elliot Streets. More significantly a photograph of the intersection was tendered. That photograph was taken from the northbound lanes looking in a northerly direction. The appellant accepted at trial that the intersection depicted in the photograph was the intersection at which the incident occurred. The learned Magistrate in his reasons referred to it as the “intersection of Esme and Elliot Streets and Morayfield Road.”
  1. [40]
    No error arises in the reasons of the learned Magistrate in how he identified the intersection.
  1. [41]
    The appellant also argues that the evidence of the police was tainted because they had lunch together and discussed their evidence. Officer Greg was cross-examined about her conversations with Officer Turner. They were limited to a discussion on the distance that she had travelled and that she was thankful that the appellant had appeared at court. Such an innocuous conversation does not give rise to any suggestion that the two officers colluded with each other to give a false account of events. There was nothing in the cross-examination of either of them to suggest that they had said something inconsistent at the earlier trial. The learned Magistrate had the benefit of seeing and hearing the two officers give evidence. His finding that Officer Turner was professionally disinterested, frank and persuasive was open to him as was his finding that Officer Greg was credible and largely consistent with that of Officer Turner.
  1. [42]
    The appellant’s grounds of appeal also state that the evidence of the two police officers was hearsay. No argument was made in her outline of submissions as to why that is so. It was not hearsay. They each gave viva voce evidence of what they saw on the day. The recording from the body worn camera was hearsay however it was admissible as an exception against the rule against hearsay on the basis that it contained statements against the appellant’s interest.
  1. [43]
    The appellant’s other grounds of appeal relate to whether the evidence was sufficient to found the conviction.
  1. [44]
    At the hearing of the appeal I raised with the respondent the comments of the learned Magistrate in his reasons quoted at paragraph [31] of this judgement where he took into account in reaching his decision the remarks of Judge Clare SC about the compelling nature of the prosecution case at the first trial and the lack of credibility associated with the appellant’s then claim that the light was green. The evidence that Judge Clare SC remarked on which was called at the first trial was irrelevant to the matters that the learned Magistrate had to decide. His decision could only be made on the evidence before him. The respondent concedes that by taking into account the comments of Judge Clare SC made in relation to a different trial, he fell into error.
  1. [45]
    The findings that the learned Magistrate otherwise made including his assessment of the credibility of the two police officers and his rejection of the appellant’s account on the basis that it was inconsistent with her account at the time of the interception, were sufficient to found the conviction. However, by taking into account a matter irrelevant to his determination he fell into error.

Rehearing

  1. [46]
    As this is a rehearing I must conduct a real review of the evidence before the Magistrate. If I conclude that the learned Magistrate has erred I must make my own findings of fact and formulate my own reasoning based on those findings.[6] If having reviewed the evidence given at the trial and giving weight to the view of the Magistrate given his advantage in having seen and heard the evidence of the witnesses, I conclude that the evidence proves the guilt of the appellant, the appeal should be dismissed.
  1. [47]
    Officer Turner’s evidence clearly establishes the following facts:
  1. that as he was approaching the intersection the lights changed from green to yellow;
  1. the traffic was moving slowly, including the appellant’s vehicle;
  1. despite the lights changing to yellow the appellant continued driving;
  1. as the front wheels of the appellant’s vehicle crossed the solid white line, the lights changed from yellow to red; and
  1. the appellant continued to drive through the intersection.
  1. [48]
    Consistent with that evidence is Officer Greg’s evidence that she saw the appellant’s vehicle in the intersection when the lights were red.
  1. [49]
    Irrespective of whether Officer Turner described the appellant’s conduct as going through a red light or going through a yellow light, the appellant is charged with the offence of going through a yellow light. That required proof that:
  1. the appellant was approaching or at traffic lights showing a yellow traffic light;
  1. because there was a stop line at the traffic lights, that she could stop safely before reaching the stop line; and
  1. that she proceeded despite the traffic lights not being green.
  1. [50]
    Section 61 applies only if the appellant had stopped after the stop line when the lights were showing green. If the traffic lights changed to yellow while she was so stopped and she had not entered the intersection she must not enter the intersection.
  1. [51]
    The appellant was approaching the intersection at a time when the lights were green. When they changed to yellow she continued driving. She was driving at a relatively slow speed as was all the traffic. There is nothing in the evidence to suggest that she could not stop before the stop line or that it was unsafe to stop before the stop line. The appellant did not stop before the stop line, she did not even stop before entering the intersection. Rather she continued driving her vehicle despite the lights changing to yellow and then to red. Officer Turner’s evidence was considered by the learned Magistrate to be credible. There is nothing in the cross-examination of him to suggest that his evidence wasn’t credible and reliable. He gave evidence prior to lunch so the appellant’s contention that his evidence is tainted because of a conversation had with Officer Greg at lunch should be rejected. Officer Turner’s evidence clearly establishes that the appellant failed to stop before the solid white line when the lights were yellow. Further it establishes that it was safe for the appellant to so stop because on all accounts the traffic was moving slowly.
  1. [52]
    I have viewed the body worn camera footage. The appellant becomes very upset shortly after her vehicle has been intercepted. When it is apparent that the officer will not exercise his discretion and not charge her, she becomes argumentative. Towards the end of the recording as the officer is about to hand the tickets to her she winds her window up, effectively obstructing him in his duty. Officer Greg is forced to open the door of her vehicle in order for the tickets to be given to the appellant. She is by that stage belligerent in her attitude towards the officers. In my view the two officers showed considerable restraint in dealing with the appellant.
  1. [53]
    Significantly, however, is that the appellant repeatedly said that she went through the “orange” light. At no stage did she indicate that the lights changed to orange when she was already in the intersection. When asked “the light on Esme Street, is there any reason you didn’t stop at that before it went red?” the appellant responded “I just, I went through the orange.” When the officer said “you had more than enough time to stop. You were going extremely slow then that light went red before your back wheels had even crossed over those lines” the appellant responded “I can’t. Please don’t do this to me. Seriously, I have had so much trouble, man, with you guys, I’m taking my daughter to school, it was an orange light, the guy in front of me just then did the same thing”. The appellant repeated that she thought the light was orange and that the traffic wasn’t going anywhere. She said “I was talking to my daughter, we’re doing her spelling words whatever, I saw the car, the car went, I went. I honestly think it was orange”. A little later the appellant said “The car in front went, I went. I look up and it’s an orange light.” When told by the officer that the rear wheels of her car had not crossed the solid white line when the lights went red the appellant begged the officer not to issue her a ticket. Importantly she did not dispute his statement that her rear wheels had not crossed the solid white line.
  1. [54]
    The evidence the appellant gave at the trial when asked “what was the lights when you entered the intersection?” was “it was – it was basically green”. She went on to say “I slowed right down and then I’m already in the intersection. Okay. I noticed the lights change then to an orange. I had to leave the intersection because it wouldn’t be safe not to leave the intersection.”
  1. [55]
    The appellant’s evidence is contrary to the account given by her at the scene of the incident. She clearly stated multiple times that she thought that the light was orange when she proceeded through it. At no time did she give any indication that she had entered the intersection on a green light, that the lights then turned orange and then she left the intersection. The account the appellant gave in evidence does not allow for the evidence of either Officer Turner or Officer Greg who both saw the appellant’s car in the intersection when the lights were red. The account the appellant gave in evidence gives the appearance that it has been reconstructed. It is unsurprising that the learned Magistrate rejected the account given by the appellant at trial. I too consider it ought to be rejected.
  1. [56]
    However, rejecting the appellant’s account of the event given at trial does not mean that I should automatically leap to a conclusion that she is guilty. I find, consistent with the account that the appellant gave at the scene, that she was driving slowly towards the green light and it changed to yellow. She continued to drive slowly such that when the lights changed from yellow to red her vehicle was positioned with the front wheels over the stop line. Her vehicle had not entered the intersection.
  1. [57]
    Given that the traffic on all accounts was moving slowly there is nothing in the evidence to suggest that it was unsafe for the appellant to have stopped when the light changed to yellow prior to her reaching the stop line. I am satisfied therefore that she could stop safely before the stop line but did not do so. She continued to drive the car into and through the intersection.
  1. [58]
    The appellant at trial made reference to section 61(5). Even if the appellant had driven past the stop line when the lights were green, by the time the lights progressed through their phases until red when the wheels of her vehicle were straddling the solid white line, there was no reason for the appellant to have then entered the intersection. Section 61(5) does not assist the appellant. The road rules required her to stop and not proceed until the lights changed to green.
  1. [59]
    Having assessed the evidence and paying due regard to the findings as to the credibility of the two police officers, I am able to reach a decision as to the guilt of the appellant. I am satisfied beyond a reasonable doubt that the appellant failed to stop for a yellow traffic light in breach of section 57 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009.
  1. [60]
    The appeal against conviction is dismissed.

Appeal against sentence

  1. [61]
    The appellant was fined $353 and ordered to pay the costs of the court set at $98.90. A conviction was recorded. The learned Magistrate declined to order the appellant pay witness expenses. The Magistrate specifically had regard to the appellant’s financial circumstances in considering the appropriate penalty. The fine imposed was no higher than as contained in the infringement notice.
  1. [62]
    The appellant asserted that she was still required to pay the fine she received for the first offence which was the subject of the appeal, and that the fine imposed after the first trial was $100 less than that imposed by the learned Magistrate. The respondent relies upon new evidence filed by leave (without objection) on the date of the hearing. That evidence relates to the state of the appellant’s debts with the State Penalties Enforcement Registry (“SPER”).
  1. [63]
    On 17 January 2017 the appellant was fined $253 and ordered to pay the offender levy. On 17 January 2017 the particulars of the fine were given to SPER. The particulars were withdrawn by the Court on 16 November 2017 following the appellant’s successful appeal against conviction. The registration of the fine with SPER for collection was cancelled.
  1. [64]
    SPER is currently taking action in relation to the appellant’s outstanding debts. There are amounts dating back to 2014 which have not been paid. Interests in the appellant’s property were registered by SPER with the Land Titles Office and Personal Property Securities Register. The appellant’s contention that she is still liable to pay the fine imposed after the first trial is rejected.
  1. [65]
    The $98.90 referred to by the learned Magistrate as court costs is the offender levy applied pursuant to section 179C of the Penalties and Sentences Act 1992. Section 48(3A) of the Penalties and Sentences Act 1992 provides that in considering the financial circumstances of the offender, the court must not take into account the offender levy imposed under section 179C. That levy does not form part of the penalty.[7]
  1. [66]
    The fine imposed by the learned Magistrate was $100 more than the fine imposed after the appellant’s conviction in the first trial (of the same offence). In R v Peterson[8] the Court said that where an offender is to be re-sentenced following a successful appeal and retrial, the second sentencing Judge should start from the position that the offender ought, in general, not receive a harsher sentence than that imposed after the first trial. Ordinarily, only if the second sentencing Judge concludes that the earlier sentence was outside the appropriate range or the facts as they appear at the time of the re-sentence are significantly different from those upon which the first sentence was based should he/she impose a heavier sentence.
  1. [67]
    Unfortunately, a transcript of the sentencing submissions is not available. The learned Magistrate did not specifically indicate when passing sentence that this case came within the principles found in R v Peterson however it is unknown whether this was a matter addressed in submissions. I should therefore consider whether the fine of $253 was manifestly inadequate.
  1. [68]
    The fine contained in the original infringement notice was $353. A fine less than the infringement notice has the effect of tending to give others the financial incentive to contest such infringement notices when the purpose in issuing infringement notices is to avoid the expense involved in matters being brought before the courts and the expense involved to government agencies in investigating and prosecuting matters through the courts. The appellant has not placed any material before me as to the circumstances in which the earlier fine was imposed and why it was less than the infringement notice. I consider that a fine less than the infringement notice is manifestly inadequate.
  1. [69]
    The maximum penalty the learned Magistrate could have imposed was a fine of up to $2356, the value of a penalty unit at the time being $117.80. The fine imposed on the appellant was a modest one in circumstances where she contested the matter. It clearly took into account her financial circumstances. It was no more than the fine contained in the infringement notice.
  1. [70]
    The appeal against sentence is dismissed.

Footnotes

[1] Stancombe v Commissioner of Police [2017] QDC 276.

[2] Justices Act 1886 (Qld), s 223.

[3] Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; McDonald v Queensland Police Service [2018] 2 Qd R 612.

[4] McDonald v Queensland Police Service [2018] 2 Qd R 612.

[5] Allesch v Maunz (2000) 203 CLR 172 [22] – [23].

[6] Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at 686 – 687.

[7] Penalties and Sentences Act 1992 (Qld), s 179C(4).

[8]  [1999] 2 Qd R 85 followed in R v Lawrence [2002] QCA 526.

Close

Editorial Notes

  • Published Case Name:

    Anna-Marie Stancombe v Commissioner of Police (No 2)

  • Shortened Case Name:

    Stancombe v Commissioner of Police (No 2)

  • MNC:

    [2020] QDC 173

  • Court:

    QDC

  • Judge(s):

    Loury DCJ

  • Date:

    07 Aug 2020

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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