McDonald v Queensland Police Service
[2014] QDC 7
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- Unreported Judgment
- McDonald v Queensland Police Service[2014] QDC 7
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McDonald v Queensland Police Service[2014] QDC 7
McDonald v Queensland Police Service[2014] QDC 7
DISTRICT COURT OF QUEENSLAND
CITATION: | McDonald v Queensland Police Service [2014] QDC 7 |
PARTIES: | PETER JOHN McDONALD (appellant) V QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 1086/13 |
DIVISION: | Civil |
PROCEEDING: | Appeal under s 222 |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 30 January 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 November 2013 |
JUDGE: | Butler SC DCJ |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – appeal against conviction for crossing a continuous white line – where appellant sought to lead new evidence |
COUNSEL: | The appellant appeared on his own behalf. R J Marks for the respondent. |
SOLICITORS: | The appellant appeared on his own behalf. Director of Public Prosecutions for the respondent. |
- [1]This is an appeal under s 222 of the Justices Act 1886 (Qld) from the decision of a Magistrate convicting the appellant of driving across a single, continuous dividing line to perform a u-turn. The offence was alleged to have occurred on Caxton Street, Paddington, outside Suncorp Stadium. The matter was tried at Brisbane on 6 March 2013.
- [2]Upon an assessment of the evidence, it is apparent the ultimate issue for resolution by the learned Magistrate was whether at the time of the alleged offence, namely 21 July 2012, a continuous dividing line existed at the place where the appellant turned his vehicle.
Appeal provisions
- [3]Section 223 of the Act provides as follows:
“Appeal generally a rehearing on the evidence
(1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
(2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
(3)If the court gives leave under subsection (2), the appeal is—
(a)by way of rehearing on the original evidence; and
(b)on the new evidence adduced.”
- [4]An appeal by way of rehearing under s 222 must be distinguished from an appeal de novo. Muir JA in Teelow v Commissioner of Police adopted the following observation by MacPherson JA as being applicable to an appeal by way of rehearing under s 222:
“On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses ... Further evidence may be received on appeal, but only on special grounds: see r 766(1)(c) ...”[1]
- [5]Muir JA went on to say, citing Allesch v Maunz, that:
“It is a normal attribute of an appeal by way of rehearing that ‘the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ... At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.’ On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.”[2]
- [6]The authorities make it clear that on an appeal by way of rehearing in accordance with s 223 of the Act a Judge is required to conduct a real review of the evidence, drawing on his or her own inferences and conclusions, while giving due respect to the decision of the Magistrate and bearing in mind any advantage he or she may have had in seeing and hearing the witnesses give evidence.[3] This approach is in accordance with the decision of the High Court in Fox v Percy:
“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.’ In Warren v Coombes, the majority of this Court reiterated the rule that:
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’
As this Court there said, that approach was ‘not only sound in law, but beneficial in ... operation’.”[4]
- [7]In accordance with these authorities, I have reviewed the entire record, and after having regard to the decision of the learned Magistrate, I have reached my own conclusions on the evidence.
New evidence
- [8]At the commencement of the hearing of the appeal, the appellant sought to lead evidence not admitted at the trial before the Magistrate.
- [9]Firstly, the appellant sought to tender three photographs depicting a break in the centre line outside Suncorp Stadium. Two of these photographs had been tendered at first instance but had been returned to the appellant. All three were admitted on the appeal without objection.
- [10]Secondly, the appellant applied to tender photographs showing breaks in white centre lines at other locations around the inner metropolitan Brisbane area. He basis explained he wished to rebut an argument that the gap in the white line which he said existed outside Suncorp Stadium was too small to justify the action he took. In this regard his purpose was misconceived as the prosecution accepted that if the gap shown in the photographs he originally tendered existed at the relevant time and he had turned through it, then he would not have committed any offence. It followed that the true issue was whether a gap existed at the time of the alleged offence rather than what the size of that gap in the line was. Accordingly I held the photographs to be irrelevant to an issue to be determined on the appeal and refused to admit them as fresh evidence.
- [11]Finally, the appellant sought to tender emails dated later than the Magistrates Court hearing which were responses from three public utilities to a request by him as to whether they had performed roadworks on Caxton Street. The emails were not sought to be tendered pursuant to any statutory provision facilitating their admission and consequently are inadmissible hearsay. Furthermore, even if received into evidence, they would not be logically capable of establishing the matter sought to be proved, namely that no roadwork able to obscure the centre line was carried out after the date of the offence charged. In the absence of evidence as who all the bodies were who might have carried out work on that roadway, the evidence sought to be led would necessarily fall short of establishing the proposition contended for by the appellant. Accordingly I denied the application to lead the emails as new evidence.
Appellant’s submissions
- [12]The appellant’s grounds of appeal raised the following points:
- (a)there was a break in the white line at the time;
- (b)the police officer was an unreliable witness;
- (c)the police witness’s description of “recent” roadworks was not supported by other evidence;
- (d)given the unreliability of the police witness the appellant should have been given the benefit of the doubt;
- (e)photographs of the locations where there are similar sized breaks in white lines were not accepted by the Magistrate;
- (f)the Magistrate failed to give sufficient weight to a contemporaneous diary note tendered by the appellant;
- (g)the Magistrate said she accepted there was a continuous white line when the police witness admitted that the break existed;
- (h)the prosecution failed to serve the appellant with a copy of the brief of evidence until the start of the proceedings.
- [13]The appellant provided an outline of argument in which he mistakenly said he only had a right to appeal on the ground of error of law. I advised him that he was not so limited. The matters raised in the outline were:
- (a)the police witness’s statement that there were recent 2013 roadworks is disproved by the photographs;
- (b)Origin Energy, Brisbane City Council and Urban Utilities deny having done roadworks at the site since July 2012;
- (c)the Magistrate’s refusal to receive evidence on the basis “it’s too late for evidence” was an error of law.
- [14]The last mentioned refusal appears at p 30 of the transcript where the appellant asked to submit “other photos from around town” at the conclusion of his being cross-examined by the Prosecutor. It is clear these were the photographs from other locations and the same or similar to those I refused to accept into evidence on the appeal as being irrelevant to any issue. For the reasons I gave on that application I consider the Magistrate’s decision involved no error.
- [15]On the appeal the appellant’s argument ultimately focussed on two primary grounds:
- (a)failure of the prosecution to provide the brief of evidence in a timely way;
- (b)issues pertaining to the existence of an alleged break in the white line on the relevant night.
Ground 1: No timely provision of brief
- [16]In the course of cross-examining the police witness before the Magistrate, the appellant commented that he had only seen the photographs tendered by the prosecution that morning. In response to an inquiry from the Magistrate, the Prosecutor advised that unsuccessful attempts had been made by another officer to contact the appellant to advise that the brief was ready for collection. The appellant disputed this explanation, saying that he was at all times contactable. This issue was re-canvassed in argument on the appeal.
- [17]This ground does not provide a basis upon which the appellant can found a successful appeal. The issues in the prosecution were not complex. The appellant was not taken by surprise on any aspect of the prosecution evidence. He sought no adjournment, and only raised the issue after the hearing had commenced. He went to the Magistrates Court hearing prepared with his own photographs to meet the prosecution case and conducted an effective cross-examination of the prosecution witness.
- [18]There was no statutory obligation upon the prosecution to supply the brief in advance, although in an appropriate case failure to make the statements available may have been a basis for granting an adjournment as a matter of fairness. After having reviewed the evidence adduced before the Magistrate and having regard to the appellant’s conduct of his case, I do not consider that the late provision of the prosecution brief operated unfairly against the appellant so as to deny him a fair trial before the Magistrate. His appeal cannot succeed upon this ground.
Ground 2: Existence of break in line on night
- [19]The appellant submits that the Magistrate erred in concluding beyond reasonable doubt that he turned across a continuous white line. He argues that her Honour gave insufficient weight to his evidence and failed to acknowledge the unreliability of the police officer’s evidence.
The evidence
- [20]Both the investigating officer and the appellant testified before the learned Magistrate. Photographs of the location were tendered by the prosecution and photographs of the break in the white line were tendered by the appellant. In addition the appellant tendered notes, without objection, which he said he recorded about a half hour after the incident.
- [21]There was no dispute about the appellant having executed a u-turn in front of Suncorp Stadium on Caxton Street. At issue was the exact location of the point where the turn was made and whether a continuous white line divided Caxton Street on the relevant date.
- [22]Immediately following the incident the appellant was intercepted and questioned by the police officer. That conversation was recorded and is not in dispute. Relevantly the conversation included the following exchange:
“Why did you do a u-turn there?
I thought I could, I’m sorry.
Ah, it’s a continuous single white line. Are you allowed to do a u‑turn over a continuous white line?
No, officer.
Is there an emergency tonight?
No, officer.”
- [23]Senior Constable Kerr testified he could on the night clearly see there was a continuous white line from the position at which he was standing looking down Caxton Street.[5]
- [24]Later in his testimony, the officer affirmed the following:
“I could clearly see, on the night, there was no break in the white line whatsoever …”[6]
- [25]The appellant put to the officer that he was standing in a location from which he could not have viewed the centre line.[7] The officer rejected that assertion, explaining he changed location when he moved to the appellant’s vehicle to speak to him.
- [26]During cross-examination Senior Constable Kerr readily volunteered that when he returned to photograph the scene, closer in time to the hearing, there was a gap in the line of about two metres that he said was caused by fresh roadworks. That gap is visible in photographs tendered by the appellant. From the photographs the gap does not appear to be a planned space in the line but, from the ragged state of the line at the ends of the gap, appears rather to be an interruption caused by activity subsequent to the laying of an original continuous line. In putting the gap down to road works the police officer was relying only on his own observation of the road surface. But that conclusion does not appear to have been in contest as the appellant, in the course of his submissions, suggested to the Magistrate that the gap was caused by roadworks.[8] What was in dispute was whether the roadworks that gave rise to the gap occurred before or after the date of the offence charged.
- [27]The defendant challenged the officer’s account that the gap in the line was not there on the night in question. He testified that he noticed the break in the line before executing the u-turn.[9] He tendered photographs of the break but could not place a date on when he took the photographs, saying he took them “during the last six or seven months”.[10] He explained that he took them since he knew he would be going to court about it.[11]
- [28]The appellant also tendered in support of his testimony two pages torn from a notepad which he said contained handwritten notes he made within a half hour of the incident. One note reads:
“Photograph. There is a break in the white line outside Suncorp.”
- [29]He explained that the reference to “photograph” in the note was to remind himself to photograph the break in the white line.[12]
- [30]The appellant submitted that the break in the line existed on the night and the officer would not have been able to see the centre line from where he was standing.
Discussion
- [31]The learned Magistrate gave a reasoned decision in the matter. Her Honour correctly applied the criminal onus and standard of proof. The Magistrate accepted the evidence of Senior Constable Kerr that he was standing where he said and that he saw a continuous white line on the night in question.[13] Her Honour specifically rejected the appellant’s contention that the officer was not telling the truth.
- [32]The Magistrate rejected the appellant’s account in a number of respects. Her Honour did not accept the appellant’s evidence that when questioned he failed to correct the officer’s assertion that there was a continuous white line because “there’s no point in arguing with a police officer”. In my view there is merit in concluding, as the Magistrate did, that if the appellant was aware of the break in the line on the night and had executed the turn in reliance on its existence, he would have brought that to the officer’s attention when the opportunity arose.
- [33]Her Honour also found the appellant’s account of how he executed the turn to be implausible.
- [34]The Magistrate gave “little weight” to the notes produced by the appellant, observing that they were undated and not part of a diary but rather leaves torn from a notebook. In my view, the her Honour was correct to treat those notes as self‑serving documents. The reference in one note to a photograph seems to be an unusual record to be made at such an early opportunity. As the appellant said, he only took the photographs when he knew he would be going to court.
- [35]In accepting the testimony of the police officer and rejecting that of the appellant, the learned Magistrate had the benefit of seeing both testify and be cross‑examined. Her Honour specifically found the police officer to be a truthful witness.
- [36]The Magistrate acknowledged that more recently a short break existed in the white line. She specifically noted that the lines “peter out at each end” of the break. This she attributed to roadworks. Her Honour accepted beyond reasonable doubt that there was a continuous white line in existence on the night in question.[14]
- [37]On an independent assessment of the evidence, I detect no error in her Honour’s approach. The Magistrate’s reasoning does not disclose any logical error nor overlook any relevant consideration.
- [38]Having reviewed all the evidence, including new evidence admitted on the appeal, and bearing in mind the advantage the Magistrate had in seeing and hearing the witnesses, I am satisfied beyond reasonable doubt as to the guilt of the appellant on the offence charged. The appeal is dismissed.
Footnotes
[1] [2009] QCA 84, per Muir JA at [3]; Mullins J agreeing.
[2]Teelow v Commissioner of Police [2009] QCA 84 at [4].
[3]Rowe v Kempler [2008] QCA 175 at [3]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7].
[4]Fox v Percy (2003) 214 CLR 118 at 126, per Gleeson CJ, Gummow and Kirby JJ.
[5] Transcript 1-5, lines 25-35.
[6] Transcript 1-14, line 5.
[7] Transcript 1-20, line 40 to 1-21, line 40; 1-35, lines 1-12.
[8] Transcript 1-36, line 18.
[9] Transcript 1-25, line 47.
[10] Transcript 1-28, line 8.
[11] Transcript 1-28, line 30.
[12] Transcript 1-29, lines 55-60.
[13] Decision, p 4, lines 5-30.
[14] Decision, p 5, lines 10-15.