Riley v Doyle & Grimsey[1997] QCA 112

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.15 of 1997

C.A. No.16 of 1997

Brisbane

E.L. RILEY

v.

CONRAD ALFRED DOYLE

STEVEN WILLIAM GRIMSEY

Appellants

Fitzgerald P

McPherson JA

Mackenzie J

Judgment delivered  9 May 1997

Judgment of the Court

APPEALS AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE BY GRIMSEY REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment Delivered 9 May 1997

Each of the appellants was convicted by a Magistrate of dangerous driving.  Each has appealed against conviction and Grimsey has also appealed against sentence.  Although the appeal against sentence was not abandoned it was not pressed because the appellant had served about 4 months of the 6 months sentence and had been released from actual custody by the time of the hearing of the appeal.

The charges arose out of an incident on Pine Mountain Road, Pine Mountain.  The road was a 2 lane carriageway with gravel shoulders at the relevant location.  The Magistrate heard irreconcilable accounts of the incident from the prosecution and the defence.

The prosecution version was given principally by Wayne Robert Cook, who was driving an orange Datsun sedan and his sister Paula Fay Cook who was a passenger in it.  Occupants of the other vehicles gave evidence for the defence.  The appellant Conrad Doyle was the driver of a bronze Holden sedan in which his brothers Rodney Doyle and Joe Doyle were passengers.  The appellant Steven Grimsey was the driver of a blue Toyota utility with a tray with a metal strip along the edge.  Karen Doyle, the appellant Doyle's sister, was a passenger in Grimsey's vehicle.  She was in a relationship with Grimsey at the time of the incident but it had ceased by the time of trial before the Magistrate.  All of the persons named except Joe Doyle gave evidence before the Magistrate.

The prosecution version was that while the Datsun was proceeding along Pine Mountain Road the Holden came close behind it, swerving within the lane in which it was travelling.  It came out to overtake and when it did so there was a noise as if something had hit a vehicle, but no collision.  However when the Holden began to come back to the correct side of the road its rear clipped the front of the Datsun.  After that, the Holden began braking sharply and then accelerating as if the driver was trying to cause the Datsun to collide with it.  The Holden remained ahead and not involved further in any collisions. Then the Toyota  utility began to pass the Datsun and, when doing so, it was driven in such a manner that the tray hit the side of the Datsun several times as if the driver was trying to force it off the road.  The Datsun was forced onto the shoulder of the road and was forced to take evasive action to avoid colliding with a tree and a guide post.

During the course of the incident Paula Cook used a mobile phone to phone her parents, as a result of which the police were called immediately.  Mrs Cook, the mother of the Datsun's occupants, gave evidence that her daughter was screaming during the phone call and that she heard "crashing metal sounds". She also gave evidence that there had been trouble, the nature of which was not elaborated on, in dealings with the Doyle family over a period of years. 

In outline the defence version was that the Holden had caught up to the Datsun which was travelling considerably slower and a normal passing manoeuvre was begun. As the vehicles were passing there was a noise like a stone hitting a car, but no impact between the vehicles.  The Holden proceeded on its way.  Then when the Toyota utility commenced to pass the Datsun, the Datsun swerved out and collided with the front portion of it.  None of the defence witnesses were certain whether there had been any other impact between the Toyota and the Datsun.  The Toyota proceeded on its way and passed the Holden which had slowed down when Doyle saw the incident between the Toyota and the Datsun.  Then the Datsun was driven onto the shoulder of the road to the left of the Holden and collided with the Holden, pushing it to the wrong side of the road.  The vehicles then locked together and travelled in that manner for some distance before they became disentangled.

The issue of credibility was therefore critical.  The Magistrate summarised his impressions of the witnesses. He said there was very little conflict in the evidence of the prosecution witnesses, while noting that his attention had been drawn to a discrepancy between Cook's description of the collision between the Holden and the Datsun and the location of the damage on the vehicles.  He referred to the difficulty of determining facts from the presence of damage to a vehicle and observed that the damage was also inconsistent with the defence version that the vehicles had travelled side by side locked together. He concluded that there were inconsistencies, a number of which he listed, the evidence of the defence witnesses. He concluded that they were not only inconsistent in their own evidence but were inconsistent with each other.  He also attached significance to differences between what had been said to Sergeant Prain shortly after the incident and what had later been stated in a record of interview to another police officer and given in  evidence before him.  That comment refers to the initial version given to Sergeant Prain which was, in the case of Doyle, that while he was overtaking the Datsun it "swerved out and collected the front of (his) car".  Then the Datsun went off the edge of the road and came back on and ran into the side of his car again.  Even allowing for the explanation that the conversation with Sergeant Prain was brief and therefore lacking in detail, this version varies from Doyle's evidence.

In Grimsey's case, he told Sergeant Prain that he was about 4 or 5 car lengths behind Doyle and went to overtake the Datsun which "came over and wiped out the side" of the utility by ramming into it.  In a later taped record of interview Grimsey told a police officer that while trying to keep the Toyota on the road he hit the Datsun in the side "pretty hard".   In cross-examination, Grimsey initially denied saying that but later accepted that he must have hit the Toyota when correcting it to keep it on the road after the Datsun had run into the front of the Toyota and was pushing it off the road. 

The appellants were legally represented before the Magistrate.  Submissions before this court were made by leave by the appellant Doyle's sister who presented an analysis of the evidence of the witnesses with a view to establishing that the Magistrate should not have convicted the appellants because of discrepancies and other matters set out in a document prepared for us.  Where credibility is the critical issue and the Magistrate has made findings based on credibility an appellant cannot succeed unless it can be shown that the Magistrate has failed to use or has misused his advantage in seeing the witnesses or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable (Devries v. Australian National Railways Commission (1992-3) 177 CLR 472). 

The Magistrate's reasons show that he gave careful consideration to matters relevant to credibility and decided that issue adversely to the defence.  A perusal of the record in light of those reasons reveals no basis for thinking that the decision is affected by any of the flaws which would entitle this court set aside his findings.  The appeals against conviction must therefore be dismissed. 

With regard to the appellant Grimsey's appeal against sentence, he had no history of criminal offences but had a traffic record which included 2 offences of driving with more than the prescribed concentration of alcohol and several offences of exceeding the speed limit by substantial amounts.  He was 30 years of age at the time of the offence.   The facts accepted by the Magistrate reveal a serious offence of dangerous driving and in our opinion a sentence of 6 months imprisonment was not manifestly excessive.  The application for leave to appeal against sentence should be refused.

The order will be that the appeals against conviction be dismissed and that the application for leave to appeal against sentence by Grimsey be refused.