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Williams v Commissioner of Police[2015] QDC 134

Williams v Commissioner of Police[2015] QDC 134

DISTRICT COURT OF QUEENSLAND

CITATION:

Williams v Commissioner of Police [2015] QDC 134

PARTIES:

TAMMY ANN WILLIAMS

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

72/14

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Rockhampton

DELIVERED ON:

22 May 2015 ex tempore

DELIVERED AT:

Rockhampton

HEARING DATE:

22 May 2015

JUDGE:

Samios DCJ

ORDER:

  1. Appeal against conviction allowed.
  2. Appellant is found not guilty of the charge of failing to stop a motor vehicle.
  3. Set aside the orders made by the learned Magistrate made on 15 September 2014.
  4. Order the respondent to pay to the Registrar of the District Court at Rockhampton the appellant’s costs in the sum of $1800 within 28 days for payment to the appellant’s solicitors.

CATCHWORDS:

VEHICLES AND TRAFFIC – OFFENCES – where the appellant was convicted after a summary trial before the learned Magistrate of failing to stop  a motor vehicle pursuant to section 754 of the Police Powers and Responsibilities Act 2000 (Qld) – where the learned Magistrate sentenced the appellant to a $5500 fine and disqualified the appellant from holding or obtaining a driver licence for 2 years – where the appellant was intoxicated whilst driving – where it was unclear how far away the police officers were when they began pursuing the appellant on lights and siren – whether the appellant stopped the motor vehicle as soon as reasonably practicable – whether a reasonable person would stop the motor vehicle in the circumstances

APPEAL AND NEW TRIAL – CRIMINAL LAW – whether the appeal against the appellant’s conviction and sentence for failing to stop a motor vehicle should be allowed

Legislation

Justices Act 1886 (Qld) ss 222, 223

Police Powers and Responsibilities Act 2000 (Qld) ss 748, 754

Cases

Allesch v Maunz (2000) 203 CLR 172

Fox v Percy (2003) 214 CLR 118

Mbuzi v Torcetti [2008] QCA 231

Warren v Coombes (1979) 142 CLR 531

COUNSEL:

Mr C Heaton QC for the appellant

Mr H McIntyre (Legal Officer) for the respondent

SOLICITORS:

Mulcahy Ryan Solicitors for the appellant

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    HIS HONOUR: The Commissioner of Police alleged against the appellant that, at about 12.30am on 26 January 2014 at Mount Morgan, the appellant committed four offences. These offences are: (1) dangerous operation of a motor vehicle while intoxicated; (2) unlicensed driving; (3) driving whilst over the blood alcohol limit – mid range; (4) failing to stop a motor vehicle, in breach of section 754(2) of the Police Powers and Responsibilities Act 2000.
  1. [2]
    On 28 March 2014 before the learned Magistrate, the appellant pleaded guilty to the first three of these offences. She was sentenced for the dangerous operation of a motor vehicle whilst intoxicated to a period of probation for nine months, and disqualified from driving for a period of six months. For the unlicensed driving she was convicted and fined $300. For the driving whilst over the blood alcohol limit, alcohol limit mid range, she was convicted and fined $800 and disqualified from holding or obtaining a driver’s licence for a period of eight months. The disqualification periods were imposed on a cumulative basis and, therefore, the appellant was therefore ineligible to apply for a driver’s licence for a period of 14 months. No convictions were recorded with respect to these three offences.
  1. [3]
    Via her solicitors the appellant made a submission to the Commissioner of Police with respect to the failing to stop the motor vehicle charge. The submission was rejected. Therefore, the prosecution of the failing to stop the motor vehicle charge proceeded before the learned Magistrate here in Rockhampton on 15 September 2014. To that charge, the appellant pleaded not guilty. After a hearing, the learned Magistrate found the appellant guilty of the offence of failing to stop a motor vehicle. He convicted her and sentenced her to a fine of $5500 and referred payment of the fine to SPER and disqualified her from holding or obtaining a driver’s licence for two years. No conviction was recorded.
  1. [4]
    The appellant appeals against the learned Magistrate’s decision convicting her and the sentence, pursuant to section 222(1) of the Justices Act 1886. The grounds of her appeal are: (1) the learned Magistrate erred in convicting her and in the sentence imposed; (2) the learned Magistrate erred in basing the conviction on a belief that she should have seen police in her rear-vision mirror during a period of five seconds and/or another period of five to 10 seconds; (3) the learned Magistrate erred in failing to find that the second period of time should have been, in her favour, of five seconds only; (4) the learned Magistrate erred in finding that she evaded police, based upon two extremely short periods of time, and she could only have seen the police in the rear-vision mirror, if at all;: (5) the learned Magistrate was uncertain as to the penalty he could impose for the offence, initially indicating his interest in imposing probation;: (6) the learned Magistrate erred in not rejecting the submissions and ordering probation as an alternative sentence.
  1. [5]
    Pursuant to section 223(1) of the Justices Act 1886, the appeal is by way of re-hearing. As was held in Allesch v Maunz (2000) 203 CLR 172 at paragraph 23 with a re-hearing:

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.

  1. [6]
    Further, in Fox v Percy (2003) 214 CLR 118 at paragraph 25 the majority of the High Court held with respect to an appeal:

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.

Further, that:

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’.

  1. [7]
    In Fox v Percy the majority reiterated what the majority said in Warren v Coombes (1979) 142 CLR 531 at 551:

in 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.

  1. [8]
    Similar considerations were endorsed in Mbuzi v Torcetti [2008] QCA 231 at paragraph 17 where, with reference to an appeal under section 223(1), the Court of Appeal said:

On such an appeal a judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions.

  1. [9]
    The prosecution called four witnesses. The appellant also gave evidence. There is no dispute that on the night in question the appellant was driving a white Holden Calais. She drove from Butler Street, turning left into Dee Street, Mount Morgan. She was facing the police officers, who had completed a random breath test in Dee Street. The police officers then conducted a U-turn, with the view to following the appellant’s motor vehicle.
  1. [10]
    Constable White, who was the driver of the police vehicle, said that the appellant’s motor vehicle was heading up the hill towards Central Street, after having proceeded from Dee Street. She also said there was an intersection at Dee Street with Central Street, and there was a pizza shop located in that area. There is no dispute that the appellant drove her motor vehicle that night from that point at the intersection of Butler Street and Dee Street along Dee Street, then turning left into Central Street, crossing a bridge called Carmody Bridge, then proceeding along Central Street that became James Street and then turning right into Murphy Street and then ultimately stopping in Pepperina Lane.
  1. [11]
    What the police officers gave evidence about, to a large extent, is the speeds and distances that were travelled by the appellant’s motor vehicle and the police motor vehicle. It was also not in dispute that it was dark and there were no obstructions on the roadway. Regarding when the police officers activated lights and sirens, Constable White said that the lights were activated at about Carmody Bridge.
  1. [12]
    Going back, I should say that, at the corner of Dee Street and Central Avenue, there was evidence from a layperson, Ms Bowen who was in a position to see the appellant’s motor vehicle that it did a 180 and came up on the traffic island into the zebra crossing. Her evidence was “She collected it and then it spun into another 180 and it was heading towards us at the pizza shop; and then she straightened it up and then she got control of the vehicle and sped off up to James Street.”
  1. [13]
    Although I do not have the specifics of what was put before the learned Magistrate on sentence for the dangerous operation of the motor vehicle while intoxicated, although the appellant could not remember much of what happened, she did concede that she may have hit the gutter. There is no dispute that when the police were following up from that U-turn they performed in Dee Street when they got to the pizza shop, that lay witness, Ms Bowen, and another lay witness, Ms Cox, spoke to the police about the vehicle being driven by the appellant.
  1. [14]
    Nevertheless as the evidence shows the police did turn on the lights, according to Constable White. She did not say that the lights and the siren came on at the same time. When Constable Bowden, who was the other police officer in the police vehicle, gave evidence, he said there was a button that, when pressed, activated both lights and siren. However, at transcript 1-20 line 40, Constable White then said her partner activated the lights and siren at the start of Carmody Bridge. At that stage, the appellant’s vehicle was on James Street, on the other end of the bridge and just a bit further up from it.
  1. [15]
    Constable Bowden when he gave evidence said he could not say exactly where he activated the lights and siren. However, he did later say he activated the lights and siren on Central Street, before the bridge. Other evidence from Ms Bowen one of the lay witnesses was that the police had their lights “and that” just before or just after the bridge. Ms Bowen said the police activated the lights and sirens probably 30 seconds after she spoke to them. That is, outside the pizza shop.
  1. [16]
    Ms Cox also confirmed that the police headed up James Street. The evidence shows Central Street becomes James Street, although it is basically the highway through Mount Morgan. However, she said the lights and sirens were on. She said they were turned on after they left her, which was at the pizza shop. She said they were turned on at the dip near Carmody Bridge. She added:  within seconds of the bridge. She also said that after they activated their lights and sirens, she saw the white car – and there is no dispute that was the appellant’s motor vehicle, its tail-lights, probably only about five or 10 seconds.
  1. [17]
    A number of photographs were tendered in evidence through Constable White. They show the roads travelled by the vehicles. There was no dispute through questions asked during the hearing there were two hills, during which the appellant’s motor vehicle could be obscured, although for not-long periods. It was accepted by Constable White that these streets were long streets, and she had the appellant’s motor vehicle under observation.
  2. [18]
    Constable White also gave evidence that the appellant’s motor vehicle was “hightailing”. When asked about distances, though, she said she is not good with measurements. However, she said the vehicle did not slow or hit its brakes, and it was accelerating. The police also accelerated.
  1. [19]
    She was asked to mark a number of photographs on Exhibit 10, she has placed numerals on the photograph. These were to indicate where the appellant’s motor vehicle was when the police were at the pizza shop. However, it is difficult to gauge distance from the photograph. Constable White did not give distances regarding that photograph. At a later point in time, an attempt was made by the learned prosecutor to try and establish some distance between the appellant’s motor vehicle and the police vehicle. The attempt, at transcript 1-36 to 1-38, in my mind was a complete failure.
  1. [20]
    At a later point in time, with other landmarks in mind, Constable White was asked for a distance between the crest adjacent to the Railway Hotel where she would have lost sight of the appellant. She confirmed that it would have been about a 500 metre distance between them, as I understand her evidence.
  1. [21]
    Constable Bowden, when he gave evidence, was asked also to give distances. However, his evidence contains language like “I am only guessing” and “at a guess” and “but again, that’s a guess”. Specifically with respect to the question:  how far would you say that was when you were on top of the Railway Hill Hotel – that is, the distance between them – that is, how far was it, this vehicle?  He said:  “It could have been 300 metres but, again, I’m only guessing.”
  1. [22]
    Then, at the end of his evidence-in-chief, he was asked at transcript 1-71 line 5:

When you were on Central Street and you activate the lights and the sirens, from that point when the defendant crests that first hill leading to the Railway Hotel, what was the amount of time that you had the defendant under observation for?

Answer: At a guess, between five and 10 seconds.

Question: Five and 10 seconds?

Answer: Her car was travelling at quite some speed by that point, so it was difficult to keep her in eyesight.

Question: If I could just have one moment, your Honour? Sorry. I just didn’t make a note. Again, you’ve crested the first hill at the Railway Hotel. Can you just confirm: how long did you have the defendant’s car under observation for before it crested the second hill?

Answer: It would have been less than 10 seconds. Maybe five. Enough for her to drive over the hill.

  1. [23]
    The two lay witnesses gave relevant evidence about what happened at the pizza shop. Otherwise, they do not give any substantial evidence or evidence of a significant nature regarding how far the appellant’s motor vehicle may have been ahead of the police vehicle.
  1. [24]
    By reference to a side street on the right-hand side in the direction of travel of these vehicles, Constable White was asked a question about the photograph showing that street, and she said:  “That’s about where she was starting to pull away from us again, and we thought she was getting too far ahead.”
  1. [25]
    There is no dispute that the police considered making a decision to stop the pursuit of the appellant’s motor vehicle. At transcript 1-27, Constable White says:

As we came up to that intersection was when my partner and I came to the realisation that we didn’t think she was going to stop. She was going to proceed out towards the highway. He then picked up the radio as we went past Nicholson Street towards Murphy Street, and we’ve seen the defendant hit her brakes. We’ve just seen the red lights. And then she’s just –

  1. [26]
    As the evidence shows, and it is not disputed, the police were considering calling off the pursuit, and then they saw the appellant’s vehicle turn into Murphy Street. So they followed into Murphy Street. Then Murphy Street led on to Pepperina Lane, where the appellant’s motor vehicle was seen stationary.
  1. [27]
    When the appellant gave evidence, she said the first time she heard or saw the police vehicle that night was when she was on Murphy Street and they came down Murphy Street. She was already parked and they came up behind her and they came over the hill. She said she had not seen them at any time prior to that, because once she went over that first hill, that was it. She said, “You cannot see anything behind you”. The appellant accepted when cross-examined that there were no other vehicles on the road. She readily accepted driving whilst adversely affected by alcohol. And, as I said earlier, that she may have clipped the gutter at an earlier point in time. She confirmed that she did not fail to stop and she didn’t see anyone behind her. The learned Magistrate said in the course of his judgment that it was conceded, and rightly so, that the activation of lights and siren would constitute a direction and that was not in dispute. He noted that the evidence suggested that siren and lights were, indeed, activated.
  1. [28]
    He noted that Constable White was unreliable because of her poor ability to estimate distances and where she had been giving evidence regarding distances. It was accepted that Constable Bowden gave the impression of giving his evidence in a more reliable manner. It was conceded by Mr Ryan, who appeared for the appellant before the learned Magistrate, that Constable Bowden was an honest and reliable witness. In coming to his decision the learned Magistrate noted the evidence from Constable Bowden of having the appellant’s vehicle under uninterrupted observation for about five to 10 seconds after the activation of lights and sirens and further after the police vehicle reached the Railway Hotel crescent he again had the appellant’s vehicle under uninterrupted observation for about five seconds. On that evidence the learned Magistrate concluded that the appellant could have had visual evidence of lights being activated. That is, I take the learned Magistrate to be saying that if the police could see her then she could see their lights. The learned Magistrate noted there may have been times where the appellant’s vehicle may have been obscured by the hills. In the end, he concluded there was, at best, a period of five to 10 seconds followed by another period of five seconds. He posed the question, “Would this have been sufficient for a reasonable person in the circumstances to have acted and stopped their vehicle accordingly?”  Section 754(1) of the PPRA provides:

This section applies if, in the exercise of a power under an Act, a police officer using a police service motor vehicle gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving.

Subsection (2) of section 754 is as follows, relevantly:

The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances.

  1. [29]
    Section 748 of the PPRA regarding the giving of a direction states, relevantly:
  1. (1)
    […] a police officer gives a direction to the driver of another motor vehicle if—
  1. (a)
    the police officer is in, or on a police service motor vehicle that is being used to attempt to intercept the motor vehicle the driver is driving; […]
  1. (b)
    the driver of the police motor vehicle brings the motor vehicle to a position in relation to the other motor vehicle where the driver or another police officer in or on the police service motor vehicle can give the driver of the other motor vehicle a direction to stop the motor vehicle; […]
  1. (c)
    the police officer signals to the driver of the other motor vehicle to stop the motor vehicle—
  1. (i)
    by giving a physical or audible signal; […]
  2. (ii)
    by displaying a warning light or warning lights and sounding an alarm.
  1. (2)
    […] subsection (1), a police officer gives a direction to the driver of a motor vehicle when whichever of the following first happens—
  1. (a)
    the police officer gives a physical or audible signal to the driver of the motor vehicle;
  1. (b)
    the police officer displays the warning lights and sounds an alarm fitted to the police service motor vehicle being used to attempt to intercept the motor vehicle.
  1. [30]
    In the end, the learned Magistrate concluded that a reasonable person in the position of the appellant would have taken it as a direction to stop. That is, a reasonable person driving the vehicle and in the position of the appellant that is without intoxication. He went on to say:

But further in cross-examination the appellant did accept that there could have been a police vehicle coming down Dee Street, but she did add she did not remember. Shortly after in her cross-examination she was inconsistent and said she didn’t see them coming from the opposite direction.

  1. [31]
    The learned Magistrate notes that this is an inconsistency which may well be the result of her intoxication. In the end, the learned Magistrate said he believed that a reasonable person would have seen police coming the other way. There were no other vehicles on the road and with 10 seconds at least, 15 seconds at the most, of activation of lights and sirens that a reasonable person in that position would have stopped their vehicle. He stated:

I am satisfied that the prosecution has proved its case beyond a reasonable doubt and I do find the defendant guilty of the offence as alleged.

  1. [32]
    Clearly, the learned Magistrate was in the position of advantage of having seen and heard the witnesses and having seen them and heard them give evidence about the photographs and markings that were made on the photographs. Nevertheless, there is more to this case. That is, there were attempts made to estimate distances between the appellant’s motor vehicle and the police motor vehicle. However, that attempt to my mind failed. The way I see the learned Magistrate’s approach to the case was to take the view that if there was, according to Constable Bowden, a period of five to 10 seconds for an observation of the appellant’s motor vehicle and then another five seconds observation of the appellant’s motor vehicle when the vehicles were going over these crests, that therefore by inference the appellant could have also seen the police lights and, presumably, also heard the siren.
  1. [33]
    However, in my view, the evidence was largely unsatisfactory. It did not clearly show what were the distances between the appellant’s motor vehicle and the police. Constable White, although poor with distances, said there might have been 500 metres between the vehicles at one stage, although she thought it might have been less. Constable Bowden thought there could have been 300 metres between them at one stage. While the authorities show that I must give respect and weight to the conclusion of the learned Magistrate, it seems to me the evidence in this case was lacking in clarity.
  1. [34]
    Even if the police vehicle was 300 metres or 500 metres behind the appellant’s vehicle in my view it does not follow that a reasonable person in the circumstances of this case would have stopped the motor vehicle. The long and the short of it is that the police motor vehicle just did not get in close enough to the appellant’s motor vehicle for there to be no dispute that a reasonable person would take the police as giving a direction to stop. I am fortified in my view by the evidence that the police were considering abandoning the pursuit. In my view, that carries with it an inference that they were not close to the appellant’s vehicle.
  2. [35]
    I accept the submission made by Mr Heaton of Queen’s Counsel who appears on behalf of the appellant today that the police vehicle on the evidence was not in a position to unequivocally give a direction or that it would by a reasonable person be accepted as a direction to stop. An ordinary person would not understand that the police actions in this case were directed at the appellant. There could have been another emergency to which the vehicle was proceeding. Even if the appellant noticed the police they were just not close enough, in my view, to amount to the giving of a direction required that a reasonable person would accept meant they should stop. The evidence that the Magistrate had before him lacked that quality for him to be satisfied beyond a reasonable doubt that a reasonable person would understand the police vehicle in this instance was giving them a direction to stop. Because of the distances that were talked about and having the failings I have mentioned, I come to the view that the learned Magistrate should have had a reasonable doubt in all the circumstances of this case. Therefore, the appeal against conviction is allowed. The appellant is found not guilty of the charge of failing to stop a motor vehicle. I set aside the orders made by the learned Magistrate on 15 September 2014.
  1. [36]
    HIS HONOUR: I order the respondent to pay to the Registrar of the District Court at Rockhampton the appellant’s costs in the sum of $1800 – within 28 days, Mr McIntyre. Would that allow the wheels to turn?
  1. [37]
    MR McINTYRE: That would be suitable, your Honour.
  1. [38]
    HIS HONOUR: Within 28 days for payment to the appellant’s solicitors. No other orders?
  2. [39]
    MR HEATON: No, thank you, your Honour.
  1. [40]
    MR McINTYRE: No, thank you, your Honour.
  1. [41]
    HIS HONOUR: I apologise if those reasons are a little disjointed. I just wanted to deliver the best reasons I could ex tempore.
  1. [42]
    MR HEATON: Thank you, your Honour.
  1. [43]
    HIS HONOUR: Thank you.
Close

Editorial Notes

  • Published Case Name:

    Williams v Commissioner of Police

  • Shortened Case Name:

    Williams v Commissioner of Police

  • MNC:

    [2015] QDC 134

  • Court:

    QDC

  • Judge(s):

    Samios DCJ

  • Date:

    22 May 2015

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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