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- Unreported Judgment
Graham v Commissioner of Police QDC 164
DISTRICT COURT OF QUEENSLAND
Graham v Commissioner of Police  QDC 164
MICHAEL DAVID GRAHAM
COMMISSIONER OF POLICE
Maroochydore Magistrates Court
24th June with reasons published 30th June
24 June 2016
APPEAL: where appellant convicted of 2 drink driving offences; where he left the scene of a crash which he caused; where he failed to co-operate with police when located within an hour of the crash; where police officers did not request a breath sample; where police and one civilian gave evidence of indicia of intoxication; where appellants’ housemates gave contrary evidence; where Magistrate preferred the evidence of the police and civilian to that of the housemates; where only contested issue was intoxication; where only ground of appeal is that guilty finding was contrary to the evidence
Walsh, DJ of Counsel for the Appellant
Gawrych, M of Counsel for the Respondent
Guest Lawyers for the Appellant
The Office of the Director of Public Prosecutions for the Respondent
- After a short trial in the Maroochydore Magistrates Court on 7 October 2015 the appellant was convicted of two offences, namely: (1) on 21 March 2015 at Sippy Downs he drove a motor vehicle on Varsity View Court at Sippy Downs whilst under the influence of liquor or a drug and; (2) on 21 March 2015 he was in charge of a motor vehicle whilst under the influence of liquor or a drug in Ashburton Crescent, Sippy Downs. On the day of trial, after being convicted on the two drink driving offences, the appellant pleaded guilty to two other offences committed the same day; namely, failing to stop at the scene of a motor vehicle crash and obstructing a Police officer.
- The appellant relies on two grounds, which essentially relate to the same alleged error, namely that his Honour’s decision was against the weight of the evidence and, as such, was unsafe and satisfactory, and that he erred in not allowing a no case submission in relation to the s 79(1)(A) TORUM charge.
- As confirmed by the Court of Appeal in Commissioner of Police v AL Shakarji  QCA 319, an appeal of this nature is by of rehearing on the evidence before the magistrate.
- In accordance with the High Court’s judgment in Fox v Percy (2003) 214 CLR 118 at ; this Court is required, pursuant to s 223(1) of the Justices Act 1886 “to conduct (the rehearing) as a new hearing and to make its own assessment of the evidence and to form its own conclusions upon the issue of the appellant’s guilt, having due regard to the findings and conclusions of the magistrate”: Gobus v Queensland Police Service  QCA 283.
- In AL Shakarji, Margaret Wilson AJA said (at ):
“Section 223 provides for a rehearing on the evidence given at the trial… a rehearing in the technical sense of a review of the proceedings below rather than a completely fresh hearing.”
- It is well established that to succeed on his appeal, the appellant must establish some legal, factual or discretionary error: Teelow v Commissioner of Police  QCA 84. Such appeals are governed by the principles laid down by the Higher Court: in House v The King (1936) 55 CLR 499 at 505. Under s 225(1) of the Justices Act on the hearing of an appeal the Court may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
- Given that the magistrates’ conclusions that are criticised here are essentially based on his assessments of reliability of evidence it is appropriate to keep in mind what was said in Devries v Australian National Railways Commission (1992) 177 CLR 472:
“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.”
The evidence below
- The only disputed factual issue was whether the prosecution could satisfy his Honour beyond a reasonable doubt that at the time of driving in charge 1, and being in charge of his motor vehicle in charge 2, the appellant was under the influence of liquor or a drug.
- It was common ground that the defendant was a driver of a red Ford Falcon which collided with two parked vehicles at around 4.30pm on 21 March 2015 at Varsity View Court, Sippy Downs. The evidence before this magistrate established that significant damage was done to the other vehicles and the appellant’s vehicle was also damaged.
- When Police officers, Percy and Black, arrived at the scene soon after 4.50pm they observed a blue Holden Rodeo on its side, and a white Ford utility with damage to the rear, and a red bumper bar which came from the appellant’s vehicle. It was common ground that the defendant had driven away from the crash without providing his particulars. Police obtained details of the registration of the red Falcon and proceeded almost immediately to the address of the appellant at 21 Ashburton Circuit, Sippy Downs. There were various estimates of time as to when Police arrived at the house but, on any view, it was between 5pm and 5.30pm, that is, within an hour of the motor vehicle accident.
- Senior Constable Percy gave evidence that upon arrival at the house he noticed a red Falcon in the garage of the house up a drive way and with the engine running. He could see someone in the front seat. He later observed damage to the front end of the vehicle. As he approached he asked the driver – who was the appellant – to get out of the car. He had a short conversation with the appellant. He then observed him climb out through the driver’s window, and stumble as he entered the house into a hallway. The appellant than ran through the house, out a back door and the Police officers saw him scale a side rear fence. The Police officers commenced a chase, the witness calling “stop Police” several times. He proceeded out onto the street and could see the appellant running and jumping fences and saw him in the rear of the house at number 17 Ashburton Circuit trying to scale the rear fence. He noticed another male in the yard (who was Mr Norman who lived there) and the Police officer called out to the male to stop the appellant which he did. The Police then proceeded through the house to where Mr Norman was holding the appellant with the aid of a neighbour. Senior Constable Percy noted the appellant was struggling but stopped when Police arrived. Police placed him on the ground and he commenced to struggle violently. He was arrested and handcuffed, and Police then walked him to the Police vehicle. Senior Constable Percy told his Honour that the appellant was extremely aggressive, yelling incoherently, and that his speech was slurred. He said that he and his partner basically had to carry the appellant to the Police vehicle. He noted the smell of liquor on his breath and that his eyes were bloodshot. He was taken to the watch house.
- The Police officer accepted in cross-examination that at no time did he require the appellant to give a sample of his breath. He gave as an explanation that he did not do so because the appellant was not listening to anything Police were saying and was clearly intoxicated and incoherent. He also accepted that he spoke to Rachel O'Hanlon (the appellant’s housemate) at the house, and she told him that the appellant did not appear to be affected by liquor, but that the Police officer had not recorded that in her statement. He also spoke to one Todd Bridges (housemate of the appellant and boyfriend of Rachel O'Hanlon) who told him that he had spoken to the appellant minutes before Police arrived, and told the Police that the appellant did not appear intoxicated. The Police officer agreed that he did not record that in Bridge’s statement. Both of these people gave evidence in the prosecution case. As I have noted, they were in a relationship and housemates of the appellant. The Police officer also accepted that in his statement he had said that when he spoke to the appellant the following day the appellant had admitted he was intoxicated when driving. Upon listening to the recording of that conversation the Police officer accepted that no admission as to intoxication was made and he could not explain why that was in the statement.
- Mr Bridges gave evidence. He lived with his girlfriend Rachel at the time in the house with the appellant. He recalls him getting home about 5pm and noticing the appellant’s vehicle parked on the side of the road with one set of wheels on the grass and one set off, such as to impede traffic in the narrow street. With his girlfriend steering, he then pushed the car into the driveway. He saw the appellant inside. He appeared scared and panicked. The appellant said that he had “fucked up”. He did not seem intoxicated. He said that he saw the appellant drive the vehicle into the garage (he described it as a shed), and Police arrived. He also gave evidence that Mr Norman had come to the house at a later time demanding an apology and saying things such as he would make “our lives hell and he knew people”.
- Rachel O'Hanlon gave evidence that she was at home at about 4.40pm and heard the appellant come in. She was with a friend watching television on the couch when the appellant walked past. He then came out and appeared “really stressed” saying over and over again “I fucked up”. He told her to look at the car, and she and her friend, Chloe, went out and saw the car parked in the middle of the street and noted that the front was crushed in. She said he was stressed but did not appear intoxicated. She had seen him drunk before and he had been very loud. She noticed that a car could not get around the appellant’s vehicle so she and Todd moved it “off onto the driveway and grass”, while the appellant was “at the top of the driveway”. She said nothing about him driving the car. She and Chloe returned inside the house, then she saw the appellant run through the house and around the corner. She said Police ran past “about five to ten minutes after that” and asked “where he went”. She never saw the car in the garage.
- Jonathan Norman gave evidence. He was in his backyard playing with his small children when the appellant, who he did not know, jumped a fence into his yard. The appellant said “do you mind if I run through your yard”. Mr Norman noticed the Police and asked the appellant was he running from the Police, to which he responded it was in relation to a noise complaint. The Police called out to Mr Norman to grab the appellant, which he did, and his neighbour, Shayne, assisted as the appellant attempted to escape. The Police came through his house and arrested the appellant. In his interaction with the appellant he said he looked intoxicated; his pupils were small, his eyes were glassy, his actions were very uncoordinated and he was slow moving. At first he did not know whether he was affected by drugs or alcohol, but when he got closer he smelled a slight smell of alcohol on his breath. Although the appellant was not aggressive at first, he got angry when they held him.
- He agreed that he was upset with the appellant because of the presence of his children, and he admitted going down to the appellant’s house at 10.30pm one night after returning from a football match in Brisbane where he had been drinking, and speaking to Todd and demanding an apology and making threats that he knew people.
- The final witness was Senior Constable Black who had worked with Senior Constable Percy that afternoon and attended at the accident scene. He recalled that as he and Percy approached the driveway he saw the appellant climbing out of the front window of the car. He recalls some conversation between Percy and the appellant, saying he was having trouble getting out, but would come around through the front door and talk to the Police. He said the appellant was slurring his speech, appeared intoxicated, was very uncoordinated and he saw him stumble into the hallway of the house. He gave evidence about the chase and apprehending the appellant, and confirmed that the appellant struggled violently, was rambling and he could smell alcohol and that they had great difficulty getting him into the Police vehicle. During this process, the appellant knocked the Police officer’s prescription sunglasses from his face and they fell on the ground and broke. He said no requirement for a sample of breath was made at the scene or at the watch house because of the appellant’s behaviour. He conceded that at the watch house he heard the appellant give his correct name and address to watch house staff and admitting that he was the driver of the vehicle involved in the crash.
His Honour’s decision
- His Honour gave an ex tempore decision. He was critical of the Police for not taking a breath test. He summarised the evidence of each witness. He referred to the defects in the evidence of the Police officers and Mr Norman identified by Mr Walsh in cross-examination. He then dealt with the evidence of Senior Constable Black. He referred to other evidence not mentioned in the summary above, such that the appellant was not listening to anything the Police were saying. He then dealt with Mr Norman’s evidence and referred to the criticisms of the witness about demanding an apology and making threats. In referring to Senior Constable Percy’s evidence, his Honour said he did not recall the Police officer mentioning the smell of alcohol. Unlike me, his Honour did not have the benefit of a transcript which indicates that the Police officer did say that.
- He then properly summarised the evidence of the housemates, Miss Rachel O'Hanlon and Mr Todd Bridges, which, on the disputed issue, conflicted with the evidence of the Police and Mr Norman.
- He concluded by saying:
“So I think that briefly goes through all the evidence [indistinct] and it comes down to, really, whether I’m satisfied beyond a reasonable doubt that Mr Graham is guilty of the two charges in the hearing today. I’ve come to that. Yes. I am satisfied beyond reasonable doubt. It is quite – the two housemates’ evidence does differ from the other, but I’ve – the evidence I’ve got and the evidence which I’m accepting is that of the two Police officers, as verified by Mr Norman.
Despite what Mr Walsh has submitted – and I understand why he made the submission – I was a bit impressed with Mr Norman’s evidence. I think he was rightly upset that Mr Graham went into his backyard, and his children were upset, and he wanted an apology. But – and just – and putting – and taking into account what he said to Mr Graham about knowing people and all that, it still didn’t, in my view, affect the clear evidence that he had a clear view of what occurred that afternoon, and it’s his observations on the indicia to me does not seem inconsistent with the two Police officers. It’s when I work those three together, I come to the view I am satisfied beyond a reasonable doubt that on both charges, the defendant is guilty.”
The appellant’s arguments
- As this is an appeal under the Justices Act 1886 the proper approach is as set out above. M v R (1994) 181 CLR 487 guides the manner in which intermediary courts of appeal approach the “unsafe and unsatisfactory” grounds. In reality, the proper approach, as mandated by the authorities referred to above, is not materially different.
- The outline is short in detail, but essentially it is argued that his Honour erred in preferring the evidence of the Police and Mr Norman in circumstances in which he made “no findings on the evidence of the witnesses O'Hanlon and Bridges”. It is clear from the reasons, when read as a whole, that he took into account their evidence but, by inference and by reference to his actual words, his Honour clearly did not accept their evidence, nor did it cause him to have a reasonable doubt about the issue of intoxication on the basis of his acceptance of the evidence of the Police and Mr Norman on that issue. He had the advantage of seeing and hearing all the witnesses, and I can find no error in his fundamental conclusion whereby he accepted the evidence of the Police and Mr Norman that the appellant was intoxicated at the time they saw him which was within 30 to 60 minutes after he had driven his motor vehicle into the parked vehicles causing serious damage. His Honour was entitled to infer (as I do on the rehearing) that the indicia of intoxication observed by the witnesses was such as to enable him to conclude that the only rational inference was that the appellant was under the influence of liquor at the time of the driving in Varsity View Court, Sippy Downs. There was no evidence that he had consumed alcohol after the crash, or before Police apprehended him. His Honour was quite right to reject the no case submission. The case relied upon by the appellant in his outline of Noonan v Elson; ex-parte Elson  St R Qld 215 is of no assistance. The findings of his Honour went way beyond a finding merely that the appellant had consumed liquor. His acceptance of the evidence of the Police and Mr Norman included evidence that could readily be described as showing a “difference from the normal in the particular person’s physical appearance, actions, conduct, speech or behaviour”.
- The appeal is dismissed.
- Published Case Name:
Graham v Commissioner of Police
- Shortened Case Name:
Graham v Commissioner of Police
 QDC 164
30 Jun 2016