SUPREME COURT OF QUEENSLAND

1. PINCUS JA:   I have read the reasons of Helman J and agree with his Honour that the appeal should be dismissed.  The witness H J Kemp, who was called for the Crown, gave evidence that she put a slip of paper on the centre of the steering wheel of her vehicle and wrote on it the registration number of the car which, according to her evidence, was being driven dangerously.  The number written was that of the appellant's car.  A number of other pieces of evidence would have assisted the jury towards the conclusion that it was the appellant's vehicle which was, according to the evidence, being driven dangerously. 

2. A Mr Williams gave evidence that the vehicle in question was a cream and yellow Falcon sedan and that there appeared to be a small child in a seat in the back of the sedan. According to the appellant's evidence, the colour of her Falcon was a faded beige, she had a child aged seven and had had a car seat in the back of her car; according to her evidence that car seat had been removed in 1997, before the date of the alleged offence. Mrs Kemp said she saw a "handicapped" sign on the right‑hand side rear window of the overtaking car;  the appellant's evidence was that there was a permit on the windscreen indicating that she was disabled and a health promotion sticker on the right-hand side of the rear window.

3. There was also the fact that the appellant admitted having driven her Falcon along the road in question, but she said her journey had taken her past the place which was the subject of the Crown evidence somewhat earlier than the time to which the observations of the witnesses Mr Williams and Mrs Kemp related. In these circumstances, there was no improbability about the proposition that the Falcon sedan about which Mr Williams spoke was the appellant's and it must have been rather easy for the jury to conclude that, if Mrs Kemp's evidence was honestly given, she was right about the registration number.

4. At the trial, Mrs Kemp was not cross-examined on the basis that she had any motive wrongly to accuse the appellant, nor was it suggested that her evidence was deliberately falsified. The appellant's argument in this Court suggested that Mrs Kemp was simply not truthful and that she had a motive to secure a wrongful conviction of the appellant.  It does not appear to me that this Court should order a new trial to permit these suspicions to be aired.  Nor, in my opinion, does the new evidence which is allegedly available warrant a new trial.

5. I would remark that it has become common for convicted persons who appeal without counsel to seek to rely upon evidence not called at the trial; in my view this Court should be slow to upset jury verdicts on such a ground.

6. The trial judge, who appears to have regarded the case as a fairly simply one, directed the jury in terms which must have conveyed that opinion to them. Although I can understand the appellant expressing dissatisfaction about that, his Honour's remark did not go so far as to warrant the conclusion that there was an attempt to overbear the jury, or to deprive the appellant of a fair opportunity of acquittal.

7. Subject to these observations, I am in respectful agreement with the reasons of Helman J and agree that the appeal should be dismissed.

8. THOMAS JA:  I agree with the respective reasons of Pincus J.A. and Helman J.

9. HELMAN J:  On 24 March last year the appellant came before the District Court at Cairns charged under s. 328A of the Criminal Code that, on 31 March 1998 at Gordonvale, Queensland, she operated a vehicle on the Gillies Highway dangerously.  She pleaded not guilty, the trial proceeded, and on 25 March 1998 the jury found her guilty.  The learned judge fined her $1,000.00 and disqualified her from holding or obtaining a driver’s licence for six months.  She has appealed against her conviction on six grounds to which I shall refer in greater detail later.  She has made no application for leave to appeal against the sentence imposed on her.

10. There were six witnesses at the trial - four called by the Crown, the appellant,  and another called in support of her case.  The Crown witnesses were Mr Andrew Williams, Mrs Helly Kemp, Senior Constable Rodney Venn, and Ms Lynette Coyle.  The witness called for the appellant was Mr James Cavill.  Mr Williams and Mrs Kemp said they were driving on the Gillies Highway on the morning of the day in question when they witnessed a Falcon motor car cross unbroken double white lines marked on the middle of a winding two-lane bitumen road and overtake other vehicles.  The Crown case was that that driving was dangerous, and that it forced the driver of an oncoming car to drive off the road in order to avoid a collision.  

11. Mr Williams, truck driver, said he was driving a prime mover with a loaded refrigerated pantechnicon marked with the words ‘Malanda Milk’. He had, he said, left Malanda at approximately 7:30 a.m. and then driven down the Gillies Highway towards Cairns. He said that at approximately 8:00 or 8:05 a.m., when he was travelling at approximately twenty-five or thirty kilometres an hour, he saw in his rear-vision mirror a creamy-yellow Falcon sedan cross double lines and overtake several vehicles following his.  Then, after he had driven around a bend, the Falcon again crossed the double lines and overtook his truck.   As the Falcon did so, a red car approached from the opposite direction in the path of the Falcon.  The red car then left the road.  Mr Williams said the driver of the Falcon was wearing a dress and had what appeared to be a ponytail.  He said he saw what appeared to be the head of a small child who was sitting in a seat in the back of the Falcon.

12. Mrs Kemp, pharmacist, said she was driving to work down the Gillies Highway towards Cairns from her home near Lake Barrine.  She had left home at about 7:45 a.m. and at about 8:15 a.m. she was travelling behind a big Malanda Milk truck on the left-hand side of the road.  She said she then saw, in her rear vision mirror, a ‘smallish yellow car’ overtake at least half a dozen cars on ‘very tight bends’ in the road.  It then overtook her car and the milk truck across unbroken double white lines.  As the yellow car overtook the truck a red sedan approached from the opposite direction on the other side of the road and came to a ‘total stop’ off the road  on its side, in a place where ‘there was hardly any space for it to stop’.  Mrs Kemp said she then wrote the registration number of the overtaking car down on a bank slip as she drove along.  Mrs Kemp recorded the registration number as 275-PZQ.  She said that she noticed a ‘handicapped’ sign stuck to the right-hand bottom corner of the back window of the overtaking car.  She did not notice whether the driver of the overtaking car was male or female.  She said that the overtaken vehicles were not travelling faster than about twenty-five kilometres per hour.

13. Senior Constable Venn gave evidence that in 1998 he was stationed at the Atherton police station, and was assigned to investigate the incident about which Mr Williams and Mrs Kemp spoke.  He inspected the scene and interviewed the appellant twice.  Both interviews were tape-recorded.  The first interview was a brief one at her house in Atherton on the afternoon of Sunday 3 May 1998, and the second was a longer interview on the following afternoon at the Atherton police station.  The audiotape of both interviews was heard by the jury, and they were provided with transcripts.

14. The evidence of Ms  Coyle, a senior advocate with Outright Independence Incorporated, concerned a workshop held by that organization on 30 March 1998.

15. The appellant, a nurse born in 1953, gave evidence that at 6:45 a.m. on 31 March 1998 she set out from her home in Atherton in her Falcon sedan registration number 275-PZQ to drive to Cairns to attend a workshop which was to start at 9:00 a.m.  There were no passengers in her car.  She travelled to Yungaburra and then down the Gillies range, the top of which she reached after twenty-five to thirty minutes from home.  She did overtake other vehicles - but in an overtaking lane, she said.  She said she had never gone over double white lines.  She reached the Bruce Highway at Gordonvale at about 7:45 a.m., and later stopped for fuel at the Shell Edmonton roadhouse leaving there at 8:05 a.m.  She proceeded from the roadhouse at Edmonton to her destination, a conference centre at Earlville, arriving at about 8:25 a.m.  Shortly afterwards she met there her former de facto husband, Mr Cavill, whom she had arranged to meet so that he could leave their young son with her.  The appellant said that she had had her hair very short from November 1996.  As a result of suffering from poliomyelitis she was sometimes confined to a wheelchair, and on 31 March 1998 there was fixed to her car a blue permit issued by a Queensland Government department indicating that she was disabled.  The permit entitled her to park her car in parking places reserved for the cars of the disabled.  The permit was, she said, on the driver’s side of the windscreen. She had had such a permit on the left-hand side of the rear window of her car, but it had been removed in early 1997.  She said that in March 1998 there was, on the right-hand side of the rear window, a health promotion sticker.  She described the colour of her car as faded beige, almost white.  In March 1998 there was no child’s seat in the back of the car, she said.

16. Mr Cavill gave evidence that he met the appellant at Earlville at about 8:30 a.m. on 31 March 1998, and left their son Timothy Cavill, then aged seven years, with her.  Asked if he thought that the child’s car seat had been removed from the appellant’s car ‘over the last year’, Mr Cavill replied, ‘Yeah’.  He said later however that he could not say if it was there on 31 March 1998 as he did not look.

17. It would follow from the appellant’s and Mr Cavill’s evidence that it could not have been the appellant’s car observed by Mr Williams or Mrs Kemp because the appellant had driven well beyond the Gillies Highway and onto the Bruce Highway when the car Mr Williams and Mrs Kemp observed was overtaking in the way they described.  In addition, other evidence of the appellant could have cast doubt on the Crown case that the overtaking car was the appellant’s:  her evidence as to the length of her hair;  her evidence as to the absence of a disabled permit on the back window of her car;  and her evidence that there were no passengers in her car.

18. The Crown case was, however, a strong one. There could have been little doubt that the car observed by Mr Williams and Mrs Kemp was driven dangerously, and Mrs Kemp’s noting of the registration number of the car she observed identified that car as the appellant’s.  There is nothing in the record of proceedings of the trial that would support a conclusion that it was not open to the jury to accept Mrs Kemp’s evidence in its entirety, corroborated as it was by Mr Williams’s evidence.

19. The appellant was not represented by counsel or solicitor before us. She argued her case herself. She relied on the grounds that appeared in her notice of appeal, but also sought to raise other matters which were not referred to in those grounds.

20. The first ground of appeal concerned the admission of evidence of the interviews by Senior Constable Venn.  That evidence, the appellant asserted, should have been excluded as having been illegally obtained.  But the evidence was not objected to by counsel who represented the appellant at the trial.  In the interviews Senior Constable Venn asked the appellant questions concerning the incident.  As I understand the notice of appeal, in which there are footnotes to five of the grounds, the appellant’s chief complaint is that Senior Constable Venn refused to allow her to speak to a solicitor, and persisted in questioning her despite her having asked that she be permitted to consult a solicitor.  There is, however, no factual basis for that  complaint.

21. On Monday 3 May 1998 Senior Constable Venn, after telling the appellant what he was investigating and that he wished to interview her at the Atherton police station, told the appellant that she had a right to consult a solicitor about the matter and to have a solicitor present while she was questioned.  That advice was repeated a number of times in the interview on the following day.  After the first occasion on Tuesday 4 May 1998 when Senior Constable Venn referred to the appellant’s right to seek legal advice she responded that she did not ‘really want to drag it out’, adding, ‘I would prefer to sort of – if we can tie it up today, it would be much better’.  At an appropriate time on 4 May Senior Constable Venn warned the appellant that she had the right to remain silent, and that anything further she said would be recorded and might later be used in evidence.  Later in the interview Senior Constable Venn returned to the subject of the appellant’s right to seek legal advice and she replied, ‘I don’t think I really need it, I’ve got nothing to hide, I don’t, I don’t believe I’m guilty of anything, that you’ve already mentioned, dangerous driving while crossing a double line’.  Soon after, she said that she did not believe that she had anything to hide, but that she was confused about what she should do.  She asked whether, if she were to speak to a solicitor on either the Wednesday or Thursday, that would create ‘any big inconvenience of police service’.  She asked Senior Constable Venn if he could leave the investigation for ‘another week or a couple of days’.  Senior Constable Venn replied that in three weeks time he would no longer be attached to the Atherton police station, and was being transferred 1,300 kilometres away added,  ‘So it’s a matter I have to deal with, but that in no way puts you in a position that you have to just make up your mind right here and now’.  Later again in the interview, speaking about legal advice, the appellant said, ‘I’ll get legal advice, all I can do is still tell the truth.  Tell what happened, you know, I’ve got nothing to hide, even if I get legal advice, it’s not going to, you know, what’s the solicitor going to say?’  Senior Constable Venn responded to that by saying it was not incumbent upon him to advise her of that.  Later the appellant said that she thought she should ‘get on to the commissioner in Cairns, as well as some sort of legal, legal aid.  And maybe Outright Independence as well.  I might even need a support group to come with me and that might be the way to go.’  Her mention of ‘the commissioner in Cairns’ appears to be a reference to the ‘anti-discrimination commission’ to which she had referred previously in the interview.  The interview of 4 May 1998 concluded when Senior Constable Venn advised the appellant to think about the matter, not to try to think about it all at once, and telling her that the following day or Thursday 7 May would be convenient to continue the interview.

22. In the course of the interview the appellant made certain admissions, e.g., as to the registration number of her car, but did not make any admissions that she was the driver of the vehicle observed to be driven over the double white lines on the morning in question.

23. The appellant’s assertion that illegally obtained evidence was wrongly put before the jury derives, it appeared from her oral argument, from Division 3 of Part 12 of the Police Powers and Responsibilities Act 1997 which commenced on 6 April 1998 and provides for safeguards ensuring rights of, and fairness to, persons questioned for indictable offences.  Section 95(1) provides:

(1)Before a police officer starts to question a person in custody for                         an indictable offence, the police officer must inform the person he or she may –

 (a) telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning;  and

 (b) telephone or speak to a lawyer of the person’s choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning.                           

Section 94(1) provides that a person is ‘in custody’ for Part 12 if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an offence.   The transcripts of the interviews of 3 and 4 May 1998 show that s. 95(1)(b) was complied with, but that s. 95(1)(a) was not.  That non-compliance did not render the evidence inadmissible, but could have been the foundation of an application to exclude the evidence in the exercise of the judge’s discretion.  As I have related, no such application was made.  In any event the likelihood of the success of such an application was negligible in the circumstances.  The appellant is a mature woman who, the transcripts show, was well aware of her rights, including the right to have a supporter present during the questioning - as her reference to a support group indicates.  It follows that there is no merit in the appellant’s first ground of appeal. 

24. The appellant’s second ground of appeal is not altogether clear, but in substance it appears to be an assertion that at the trial she was the victim of ‘a sinister vendetta by the person who said she witnessed a “handicapped” driver committing an offence’. That is obviously a reference to Mrs Kemp.  There is nothing in the record of proceedings that would indicate any factual basis for such an assertion.  Confining attention then to the record of the proceedings of the trial, one must conclude that there is no merit in the appellant’s second ground.  The assertion that Mrs Kemp’s evidence was untruthful and motivated by malice was, however, made in the context of another complaint made by the appellant in the course of the hearing of the appeal which was not one of her grounds of appeal.  I shall return to that later. 

25. The appellant’s remaining grounds of appeal all relate to the conduct of the trial by the learned trial judge.

26. In the third ground of appeal it is asserted that certain questions asked of the appellant in cross-examination should have been disallowed. The appellant was cross-examined by the Crown prosecutor concerning telephone and other enquiries she had made of Mr Williams’s employers a short time before the trial.  The Crown prosecutor had provided a supplementary statement to the appellant’s counsel but agreed not to elicit evidence of matters referred to in the statement in the Crown case.  But those matters were used as the basis for cross-examination of the appellant when she came to give evidence. The appellant’s counsel objected unsuccessfully to that course.  The matters raised in the questions were matters that could properly be regarded as relevant to the credit of the appellant, and I can see no error in the learned trial judge’s overruling the objection. 

27. The appellant’s fourth ground of appeal consists of assertions that the learned trial judge allowed ‘his own bias and personal experiences to cloud the issues’ and that he misdirected the jury ‘due to his prejudice against a person with a disability who is receiving a Disability Support Pension’. There is no merit in this ground. His Honour’s directions to the jury do not reveal any bias. On matters of fact his Honour focussed on the chief issue at the trial, which was of course the identification of the overtaking vehicle as that of the appellant. He referred to    Mrs  Kemp’s evidence of her noting down the registration number of the overtaking vehicle, and to the evidence of the appellant as to the times at which she said she was travelling on the roads from Atherton to Cairns.  His Honour pointed to possible weaknesses in the appellant’s case but, in doing so, did not, in my view, present to the jury an unbalanced view of the case.

28. The appellant’s fifth ground of appeal is an assertion that the court’s application of the law was incorrect, and that the Crown did not at any time prove beyond a reasonable doubt that she had committed the offence. The appellant adds that his Honour ‘directed the jury very clearly to return a “guilty” verdict in his summing up of the evidence’ and that ‘there was no doubt that he was convinced by the prosecution and he made it very clear that there was no other verdict which the jury could reach’. His Honour made it quite clear to the jury that they could convict the appellant only if they were satisfied of her guilt beyond a reasonable doubt and that the onus of proving her guilt lay with the Crown.

29. In the sixth ground of appeal the appellant asserts that his Honour failed to direct the jury correctly as to the standard of proof. There is no basis for that assertion.

30. At the hearing of the appeal the appellant sought to make further complaints about her trial not referred to in her grounds of appeal. These complaints all concerned the conduct of her case by her solicitor and counsel. She complained that they had failed to adduce evidence in support of her contention that she was not at the place where the overtaking car observed by Mr Williams and Mrs Kemp was when they observed it.  The evidence consisted of three documents.  The first document was a receipt for $20.00 for 27.81 litres of petrol purchased from the Shell Edmonton Driveway at 75 Bruce Highway, Edmonton on 31 March 1998.  The document had ‘275-PZQ’ and the ‘8.05AM’ written on it, and bore a signature.  The second document was a letter, a copy of which was not produced to this court, from a Mrs Julie Fry, a solicitor, who, according to the appellant, could have corroborated her evidence that she was at the workshop at 8:30 a.m. on 31 March 1998.  The third document was the written complaint by Mrs Kemp   about the incident which gave rise to the charge against the appellant. The appellant asserted that Mrs Kemp had not written the registration  number of the appellant’s car down just after the overtaking incident, but had written it down later ‘when she had time to construct the correct registration to identify me’. The appellant also alleged that she and Mrs Kemp knew each other and had had an altercation in the past, and that Mrs Kemp was biased against her because of her disability.  The appellant said that her counsel had failed to raise that matter in cross-examining Mrs Kemp, and he had told her that he did not believe it would ‘help’. The appellant further complained that her counsel had failed to cross-examine Mrs Kemp vigorously enough.

31. Although none of the complaints to which I have just referred was raised in the appellant’s notice of appeal, the appellant was permitted some latitude to canvass them in making her submissions. If it were to appear that there could be any substance in those matters then it would be possible to entertain an application to amend the notice of appeal to include them, and to invite further submissions on them.

32. The appellant did not explain why it was that the receipt was not made use of at the trial. Presumably, if it is genuine, it could have led to the production of the proprietor or an employee of the Edmonton service station who could have sworn to selling petrol to the appellant at the time referred to in the receipt. The appellant did not however suggest that any such witness was available.

33. The appellant said that her counsel told her that Mrs Fry was not available to be called at the trial and that an adjournment of the trial to a date when she would be available would not be granted.  No written evidence of what Mrs Fry could have said was produced to us, and we should not presume, in the absence of such evidence, that it would have been as cogent as the appellant asserted.

34. An attack on Mrs Kemp along the lines suggested by the appellant could have had serious detrimental effects on the appellant’s case.  In the first place what may have emerged from Mrs Kemp’s response to a suggestion of a mendacious complaint motivated by intolerance of the disabled may have backfired on the appellant.  It may have emerged that the suggestion of there having been an altercation between the two was demonstrably false or, if there had been such an altercation, that it had been the appellant rather than Mrs Kemp who had been at fault.  In addition, counsel may well have been mindful of the possibility – a substantial one I should have thought – that cross-examination on that line, which clearly enough would have involved imputations on the character of Mrs Kemp, may have opened the way to the introduction, in cross-examination of her, of a topic of considerable embarrassment to the appellant and her case.  The appellant’s criminal history, which was tendered to the trial judge after the appellant was found guilty, shows that in the Cairns Magistrates Court on 14 January 1999 – a little over two months before the trial – the appellant had been convicted of stealing.  No conviction was recorded but that would not have prevented the Crown prosecutor’s asking permission of the learned trial judge under s. 15(2)(c) of the Evidence Act 1977 to ask questions about the stealing.  Although s. 12(3)(a) of the Penalties and Sentences Act 1992 makes it a general rule that a conviction without recording the conviction is taken not to be a conviction for any purpose, an exception to that general rule is to be found in s. 12(4)(a) which provides that a conviction without the recording of a conviction does not stop a court from making any other order that it may make under that or another Act because of the conviction.  Permission under s. 15(2)(c) of the Evidence Act would be an order that might be made under an Act other than the Penalties and Sentences Act.  The appellant’s guilt of an offence of dishonesty would, it appears to me, have been a matter of some weight in considering the credibility of the appellant’s evidence.

35. The principles applicable to complaints of the kind made by the appellant against her former legal advisers were considered recently by the Court of Appeal in R. v. Paddon [1998] Q.C.A. 248.  As Chesterman J. observed, what emerges from the authorities is that before a Court of Criminal Appeal will set aside a conviction on the ground that the conduct of an accused person’s case occasioned a miscarriage of justice it must fit the description of ‘flagrantly incompetent’ (para. 24).  The other members of court agreed with Chesterman J.’s reasons.

36. Taking all of the matters raised by the appellant at their highest, I am unable to conclude that she has shown any proper basis for our permitting her to pursue them further. What is before us falls short of enabling one to conclude that the appellant could have a case demonstrating flagrant, or any, incompetence in the conduct of her defence. The absence of any suggestion that a witness might have been available to corroborate her account of having purchased fuel at the Edmonton service station, and the absence of any details of the evidence that might have been given by Mrs Fry tell against those aspects of her complaints against her legal representatives.  The pitfalls in suggesting that Mrs Kemp was not just mistaken but guilty of making a malicious complaint against the appellant are obvious, and demonstrate that it could well have been counsel’s decision not to pursue such a line to the possible severe detriment of his client’s case.  I should add that in the cross-examination of Senior Constable Venn, and in the appellant’s evidence, there was a suggestion that the car observed by Mr Williams and Mrs Kemp was not that of the appellant but that of another disabled person who lived in the same street in Atherton as the appellant.  The line taken at the trial then appears to have been that Mr Williams and Mrs Kemp were mistaken and could well have observed the appellant’s neighbour’s car rather than hers.  Such a suggestion is of course at odds with the suggestion now levelled at Mrs Kemp that hers was a malicious act in identifying the appellant’s car.

37. In the result I am not persuaded that there is any merit in any of the grounds in the appellant’s notice of appeal, or in any of the assertions she made of matters not referred to in the notice of appeal. The appeal should be dismissed.