R v Pollock[2003] QCA 119

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: I agree with the reasons for judgment of Philippides J and with the order she proposes.

[2]  DAVIES JA: I agree with the reasons for judgment of Philippides J and with the order she proposes.

[3]  PHILIPPIDES J:  The appellant appeals against his conviction after trial of dangerous operation of a vehicle causing grievous bodily harm to David Gilbert on 26 July 2000.  The grounds of appeal as stated in the Notice of Appeal are unfairness on the part of the trial judge “because all the facts were hidden by the court as [the appellant] could not reveal [he was] in prison or was extradited, also the whereabouts of a so-called truck and the place a person said he was and where he was”.

Circumstances of the offence

[4] On 26 July 2000 both the complainant and the appellant were working as part of a kerb and channelling construction gang at the Old Orchard Estate at Palmwoods, near Yandina.   The appellant had the job of driving an eight tonne company truck and the complainant was a concreter. Whilst he was driving this truck, the appellant ran over the complainant’s legs, resulting in the complainant suffering serious injury. The prosecution case was that the appellant operated the vehicle dangerously, in that he either deliberately ran over the complainant, or that he carelessly ran over the complainant. 

[5] It was common ground that the complainant and the appellant had not been getting on very well for a couple of days before the incident.  The complainant said that prior to the incident he was finishing a corner area of the kerbing of a traffic island in Old Orchard Drive, which needed to be moulded by hand.  He said that the appellant was told by Steven Swain, another member of the construction team, to get the crane-truck which was parked in a side street off Old Orchard Drive, in order to load the kerbing machine.  The complainant’s evidence was that, as the appellant walked by the complainant, he told the complainant to let the concrete dry before he finished it off.  The complainant responded by putting his finishing tool down and telling the appellant that he could do it himself.  The complainant said that he then went over to another area across from the traffic island and sat down on the kerb.  The kerb had a raised back, permitting the complainant to sit on the upper level of the kerb with his feet in the gutter and his heels against the raised wall of the kerb.  The complainant’s recollection was that he sat on the kerb in the manner described for a couple of minutes, when suddenly everything went dark.  The complainant looked up and heard a noise causing him to look to his right.  The front of the truck passed missing his legs by a few inches.  He saw the rear wheels coming towards him and threw himself backwards to get out of the way, but his legs were still on the kerb and the truck ran over them.  Afterwards, the complainant heard someone call out to the appellant that he had run the complainant over and the appellant respond saying “he was sitting in the fucking gutter”.  The complainant gave evidence of the presence, also in the side road off Old Orchard Drive, of a slurry truck with an attached concrete mixer. His evidence was that that truck had been parked some distance up the side street and did not pose any difficulty to the appellant in manoeuvring his truck into Old Orchard Drive. 

[6] The appellant gave evidence that the complainant was lounging back in the kerb of the road and that his feet and legs protruded about 1.2 metres out onto the road.  The appellant said that, pursuant to a directive from Mr Swain, he drove the truck to retrieve the kerbing machine.  The appellant said that he stopped the truck as the complainant was still “laying across the kerb” and that he sounded the horn to attract the complainant’s attention, but that the complainant ignored him.  The appellant’s evidence was that he drove slowly up to where the complainant was lying, keeping as far from the complainant’s side of the road as he could.  As he was about to stop, the complainant moved back up onto the kerb and had his feet flush with the kerb.  The appellant had a good metre clearance to then proceed.  He proceeded forward and the complainant pushed himself out from the kerb and put his legs under the truck’s rear wheels and he ran over them.

[7] Mr Swain gave evidence that on the day in question he had been operating the kerbing machine.  He recalled that the crane truck and the slurry truck were both in the side street off Old Orchard Drive. He said that the slurry truck had been parked some distance up the side street.  He said that he had asked for the kerbing machine to be removed so that the remainder of the kerbing could be finished off. He said that he saw the complainant sitting on the kerb with his legs over the kerb, but he did not see the collision.

[8] Mr Dor, also a member of the construction gang, saw the complainant sitting on the kerb, but did not see the collision. However, he said that he thought the appellant was travelling too quickly immediately before he heard the complainant cry out and that he did not recall the appellant sounding the horn of his truck immediately before the incident.  His evidence was that, after the incident, he went up to the appellant and told him that he had run over the complainant and that the appellant replied “so, who cares?” and continued to unload machinery from the truck.  He gave evidence that later, at another site, the appellant made a joke to the effect of not wanting to have another “squashed” Dave, alluding to the incident and remarked that the complainant had “got what he deserved”. 

[9] Another member of the gang, Mr Haslam, gave evidence that he was working on the bull nose of the kerbing and saw the complainant sitting on the kerb with his feet on the road and pushed up against the edge of the kerb. He said he saw the rear wheels of the truck driven by the appellant strike the complainant and that he heard the truck bounce off the kerb and the complainant scream. He said that prior to the incident the appellant did not sound his horn. He also gave evidence along the lines given by Mr Dor about the appellant’s joke about the incident and the appellant’s  remark that it served the complainant right.  He said the complainant did not put his legs under the truck, rather he had his hands around his knees and pulled back. 

[10] The incident was witnessed by Mr Kurtz, who worked for another company, and did not know any of the men in the complainant’s team.  He was working on a section of kerbing in the side street off Old Orchard Drive.  Mr Kurtz heard a man, who must have been the appellant, tell another man, who must have been the complainant, to leave a section of concrete kerbing alone as it was too wet to work on.  He said that the complainant threw his trowel in the air and said “do it yourself” and then went off and sat on the kerb. Mr Kurtz said that at the time that this occurred the appellant had been on the back of the cement mixer, referring to the slurry truck.  He said that the appellant got down from the slurry truck and went over to another truck, which he then drove around the corner into Old Orchard Drive, running over the complainant, who was still sitting on the kerb.  He said that the front wheels of the truck went over the complainant’s toes and that the rear wheels went over the complainant’s legs.  Mr Kurtz saw the back wheels of the truck come up off the ground but whether that was due to the wheels hitting the complainant’s legs or going up onto the kerb he could not say.  Mr Kurtz said the complainant did not extend his legs into the truck’s path of travel.  He said the complainant had  been undoing a shoe lace, or something like that, and that, as the front wheel of the truck went by, the complainant went backwards, but it was too late to avoid being run over by the back wheels.  The appellant stopped the truck and got out and said “well if you’re going to sit there you deserve it”.

[11] The jury also heard evidence from three Northern Territory police officers about a conversation that occurred on an aeroplane flight on 17 May 2002.  Detective Sergeant Chalker gave evidence that he asked the appellant what had got him in strife.  The appellant replied that he had run over a man. Chalker asked what had happened and the appellant said the complainant was lying on the ground in front of the truck and that he had twice asked the complainant to move.  The appellant told Chalker that when the complainant refused, he got into the truck, sounded the horn and then drove forward and had driven over the complainant’s legs.  When asked why the complainant had not moved, the appellant said “he’s an ignorant prick”.  The appellant also told Chalker that he had told the police all about it.  The fact a conversation occurred was not disputed by the defence, but the officer’s recollections of the detail was challenged.

[12] Sergeant Malley, who was also on the aeroplane, gave similar evidence as to this conversation and said that the appellant had told him that he had run over the complainant deliberately.  The details of that conversation were also challenged.

The evidence of the Northern Territory police

[13] The appellant’s complaint in respect of the evidence of the police officers centred on his submission that their evidence was untruthful. However, the learned trial judge reminded the jury of the challenge to the evidence of the Northern Territory police officers. The assessment of that evidence was a matter for the jury.  It was entirely a matter for them whether, and to what extent, they accepted the evidence of those officers. This ground raises nothing of substance and must fail.

“The whereabouts of a so-called truck”

[14] This ground concerns the conflict in the evidence as to the location of the slurry truck.  The appellant’s case at trial was that the slurry truck was positioned near the corner which the appellant was required to negotiate, thereby hampering his ability to negotiate the corner and avoid the complainant.  The appellant referred to the differing evidence as to the position of the slurry truck and in particular the discrepancy between the evidence of Mr Kurtz and the other witnesses present as to whether the slurry truck was parked in the side street.  The extent to which that inconsistency affected the weight to be given to Mr Kurtz’ evidence was a matter for the jury. The inconsistency in the prosecution evidence was not a matter calling for special direction.  Nor was the inconsistency of such a nature as to render the jury’s verdict unsafe. Mr Kurtz’ evidence on other significant matters accorded with that of the other witnesses present at the time of the incident.  The appellant’s assertion as to the position of the slurry truck was a factor the jury were able to consider in determining the issue of whether the appellant’s driving was dangerous in all the circumstances.  There is no merit in this ground.

[15] The appellant raised an additional matter concerning the discrepancy in the prosecution evidence. That concerned the evidence of Mr Haslem that he was working on the bull-nose part of the kerbing immediately prior to the incident. The appellant maintained that that was not possible, because that work could not be done until the kerbing machine had been moved.  The appellant pointed out that it was that machine that the appellant had been asked to move with the crane on his truck.  Such inconsistencies in the evidence were matters for the jury to consider in assessing the evidence. The jury were entitled to reach the verdict they did notwithstanding such inconsistencies. The submission does not raise a matter of substance.

“The place a person said he was and where he was”

[16] This ground of appeal concerns the appellant’s argument that the injuries suffered by the complainant were inconsistent with the proposition that the complainant received those injuries when sitting in the manner referred to in the evidence of the complainant and the other witnesses present. The appellant submitted that, given the nature of the injuries sustained, the only way the complainant could have suffered the injuries he did was if he had pushed his legs forward immediately before impact, as maintained by the appellant.  There is no medical evidence supporting the appellant’s submission.  The appellant’s contention was not put to Dr Rogers, the medical expert called by the prosecution, who gave evidence that most of the trauma sustained by the complainant was to the complainant’s forefoot, ankle and the distal part of the leg.  The appellant’s version that the complainant must have placed his legs into the truck’s path of travel was a matter for the jury.  They clearly rejected it. This ground must also fail.

[17] In the circumstances, the appeal should be dismissed.