Malezer v QPS[2016] QDC 311

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: On 29 April 2016, the appellant was convicted after a summary trial in Ipswich Magistrates Court on one charge of failure to stop a vehicle at the scene of a crash, and give required particulars when practicable to do so in contravention of 287 of the Transport Operations (Road Use Management) Road Rules 2009. Section 287, (2) provides that the driver must stop at the scene of a crash and give the driver’s required particulars within the required time and, if practicable, at the scene of the crash to, relevantly, the owner of any property damaged in the crash.

The appellant was fined $250 and no conviction was recorded. He appeals against his conviction. The offence was alleged to have been committed in a car park at the Riverlink Shopping Centre on the afternoon of 28 October 2014. It was alleged that the appellant’s vehicle collided with a vehicle owned by a Mr Walcraft, and that the appellant failed to leave his particulars.

The central witness in the Prosecution case was Ms Catherine Ruediger. Ms Ruediger gave evidence that whilst she was at her vehicle which was parked in the car park and attending to putting her children in the vehicle, she heard a loud crunching sound. She did not witness anything which caused the sound, in the sense that she did not observe what caused the sound. She looked up toward a car park which was diagonally across from where she was parked. She saw a vehicle which she described as a blue ute attempting to park.

She said that that vehicle had “obviously crashed” into a vehicle which she described as another ute that was then parked beside the blue ute. She has then seen the vehicle which she believed had crashed into the other vehicle reverse out. She described this as making another crunching sound. She said that she then observed the blue ute start to drive away, and she asked her son to grab her a piece of paper which he did. She noticed that there was a P-plate on the blue ute. She observed the blue ute drive to another car park and the driver alight from the vehicle. She said he walked around the front of his vehicle and had a look at the damage on his vehicle, and then hopped back into his car and drove out the bus exit.

She recorded the registration number of the vehicle on the piece of paper that her son had provided her, and ultimately left that information under the windscreen wiper of Mr Walcraft’s car.

Mr Walcraft himself gave evidence. When he came back to his vehicle, he noticed no damage but at some point driving along the road he noticed the note under the windscreen, and became informed through it of the information which Ms Ruediger had left.

There was no contest in the proceedings that the registration which was left – which was 973VAC – was, indeed, the registration of the appellant’s vehicle which, indeed, is a blue ute. Ms Ruediger was able to place the time of this incident at or about 3 pm on the basis that she had her children with her, and she had collected them from school and was taking them to a swimming lesson after visiting the shopping centre.

Ms Ruediger gave evidence that when she saw the person alight from the vehicle, he was wearing just a pair of shorts and a t-shirt. She was asked whether she noticed anyone else in the vehicle, and she said that she did not notice anyone. All that she remembered seeing was the driver getting out and having a look at the car. Saying that she said that she didn’t notice anyone else, she said that she didn’t see – that she didn’t recollect. That is, she was not stating positively that she did not see anyone else in the vehicle – that is, that there was an absence of another person.

The appellant’s partner, Ms Murphy, gave evidence in the Defence case. She gave evidence that on the afternoon of the day in question she went with the appellant to the Riverlink Shopping Centre to purchase some groceries because they were having a friend over for dinner. And that at the time at which she was with the appellant in the vehicle there was no collision.

In giving her evidence, Ms Murphy was asked by her Honour whether she had a recollection of the events of 28 October 2014 at about 3 or 3.30 in the afternoon. She responded that she had provided a statement which was taken close to the time which she said would be more relevant, but that she did have a recollection. She was asked if she knew what time it was, and she said it was in the afternoon. When asked questions by the defendant, she was asked if she remembered approximately the time at which they arrived at the shopping centre, and she responded that she knew it was in the afternoon as at the time of giving her evidence, but that her statement said that it was around 3 o’clock.

She referred to the circumstances of the afternoon as being that she recalled that the appellant had come home early from work because he had quit his job, and that he decided to have some friends over for dinner. When cross-examined, she could not recall how early the appellant had arrived home, explaining it had been over two years since the events occurred. She could not remember how long he was at home before they went back to Riverlink.

It was put to her by the Prosecutor that her statement made at the time said that it was 3 pm. She had earlier said in response to the Prosecutor that they had arrived “in the late afternoon.”; She went on to explain, however, that she had had a day off and she wasn’t staring at the clock. She said that it wasn’t dark, and it was at that stage that the Prosecutor put her earlier statement that she had said that they had arrived at 3 pm.

In response to having been reminded of her statement, she said, “Well, that statement was taken a lot closer to the event and right now, so I would say that if what I’ve written down is correct because that was taken ---.”; She was, in that evidence, adopting her earlier statement as being more reliable than her memory at the time of giving evidence. It was put to her that it could have been considerably later than 3 pm when she went to shopping centre, and her response was, “It could have been.”

The appellant himself had given evidence. He referred to having gone to work on that day to work his regular shift at Target where he was then employed. His evidence, which was unchallenged, was that his regular hours of work were 5 am to 1 pm. He said that shortly before 1 pm he had resigned his employment because some expectations which he had as to a potential promotion had not come to fruition. He gave further evidence that when he resigned from his position at about 1 o’clock, he went to the medical centre at the Riverlink Shopping Centre – which I pause to say is also where his work at Target was located – and that he walked there, taking about 10 minutes to arrive. He said that he was waiting for a period of time, and his evidence was that he left the medical centre at a quarter to 2, that is, some 45 minutes after he had originally left the Target premises.

It was also his evidence that when he went to work, routinely, and on that day in particular, he parked his vehicle in the back dock near the Target roller doors, that is, not in the car park in which the accident was alleged to have occurred. His evidence was that he drove away from the dock at a quarter to 2, and drove down the ramp and went to his home where he lived with his girlfriend. None of that evidence was challenged.

The nature of appeal under section 222 is that the Court is required to conduct a real review of the trial and the learned magistrate’s reasons, see Fox v Percy [2003] 214 CLR 118 at 126/127 [25] per Gleeson CJ, Gummow, and Kirby JJ. In doing so, the Court must give due deference to and attach a good deal of weight to the views of the learned magistrate: Stevenson v Yasso [2006] 2 Qd 150 at 162 [36] per McMurdo P. But it remains for this Court to draw its own conclusions on the evidence.

In Fox v Percy at [27] their Honours the Chief Justice and Justices Gummow and Kirby observed:

If making proper allowance for the advantages of the trial judge they conclude that an error has been shown they are authorised and obliged to discharge their appellate duties in accordance with the statute.

Further on, at [29] their Honours said:

But in every appeal, by way of re-hearing a judgement of the appellate, Court is required both on the facts and the law.

In her reasons, the learned magistrate said the follow in respect of Ms Murphy’s evidence:

She does not now exactly recall the time, though apparently in a statement she made she may have said – she seems to have said that it was about 3 o’clock. And she says that the statement given to the police at the time was made closer to the time and therefore her recollection would have been better. However, she does now say that certainly he was upset on the day. Certainly that seemed – that he seemed quite depressed about the situation and was certainly upset, although it was not her assessment of him that she considered him unsafe to drive. She describes the behaviour as more quiet and contemplative.

She does not recall the exact time that he got home after work. It was her description that they got to Riverlink in the late afternoon and she was unable to, apart from saying that it wasn’t dark, that the vehicles were not driving with headlights on, or that there were no street lights in operation, she cannot really say the time. It has been postulated that perhaps Mr Malezer didn’t arrive home until after 3 o’clock and that the journey back to Riverlink was at a later point in the afternoon and, of course, Ms Murphy’s unable to really take that matter too much further.

Sorry, her Honour then went on to say:

This is a difficult matter in the sense that, of course, Ms Ruediger gives a version substantially different to that of Mr Malezer and also Ms Murphy. Ms Murphy, I certainly accept, was an honest witness in that she hasn’t tried to gild the lily or specifically say things occurred at certain times. She simply says it is now some 18 months since the incident occurred and there are matters which she no longer really recalls, and certainly her evidence is – and I have no reason to disbelieve this aspect of her evidence – that in the time that she was in the company of Mr Malezer there was no collision. (emphasis added)

Her Honour then went on to say of Ms Ruediger’s evidence:

I do not think that this is a situation which Ms Ruediger has been mistaken. She has been very clear and concise in what she’d said and she has been very particular to write down the registration number of this vehicle contemporaneously with the events occurring. That is, it’s not a situation in which she has gone home and some hours later endeavoured to recall a registration number and written it down. It is not a situation which she has even driven off to the swimming lessons and written it down. It is her clear evidence that she wrote it down at the time the incident occurred, and immediately after observing this particular vehicle.

Mr Malezer has suggested that perhaps she’d heard this incident, looked up, and seen his vehicle. He was honest in saying that. Well, perhaps he does find it a little bit difficult to suggest that she could have seen his vehicle driving by if this incident as described by Ms Ruediger was effectively occurring simultaneously. As I say, she is a compelling witness and I have no hesitation in accepting her version of events.

In those two passages, her Honour does not, with respect, deal with the basis upon which she resolves to accept Ms Ruediger’s evidence over that of Ms Murphy. Mr Anoozer who appears for the respondent in very detailed and careful submissions, submits that it is implicit in her Honour’s finding that she concluded that Ms Murphy was incorrect as to the events in which she participated occurring at or about 3 o’clock, but rather they occurred at a time later in the afternoon. Whilst her Honour does not expressly make any such finding in her reasons, even assuming that to be correct, conducting a full review of the evidence, I am of the view that such a view was not open on the uncontested evidence.

In Fox v Percy their Honours the Chief Justice and Justices Gummow and Kirby observed at [28]:

However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases, incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous even where they appear to be, or are stated to be, based on credibility findings.

The matters to which I have already referred concerning the uncontested evidence of Mr Malezer, that his work hours were 5 am to 1 pm, that he resigned at or about 1 pm, that he then walked to the doctor taking about 10 minutes, and that he departed 45 minutes later from the loading dock where his vehicle was parked, not the car park in which the accident occurred, and that he was wearing his uniform at the time that he was at work and departing from Riverlink on that occasion, in my view do not leave open a finding that the events of which Ms Murphy spoke occurred at some much later time. That is, that the alleged offence was committed at the time at which Mr Malezer was first leaving Riverlink after he finished work.

That view of the evidence which I have formed is also consistent with the evidence given by Ms Ruediger, also accepted by her Honour, that Mr Malezer was wearing shorts and T-shirt when he alighted from the vehicle. That is, he was not wearing a Target uniform which he would have been certainly on the uncontested evidence if he was only, at that time, leaving work. For his part, Mr Malezer had said that he thought that he was still wearing his uniform when he returned at the later time, but that he was only 90 per cent sure of that.

The standard bench book direction suggested to be given to juries in circumstances in which there is defence evidence called includes the following:

Where –

Where, as here, there is defence evidence, usually one of three possible results will follow: (a) you may think the defence evidence is credible and reliable and that it provides a satisfying answer to the prosecution’s case. If so, your verdict would be not guilty. Or, (b) you may think that although the defence evidence was not convincing it leaves you in a state of reasonable doubt as to what the true position was. If so, your verdict will be not guilty. Or, (c) you may think that the defence evidence should not be accepted, however if that is your view be careful not to jump from that view to an automatic conclusion of guilt. If you find the defence evidence unconvincing, set it to one side, go back to the rest of the evidence, and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.

Those directions have been cited with approval by the Court of Appeal in both R v Armstrong [2006] QCA 158 and R v McBride [2008] QCA 412.

In my view, giving due deference to the finding of credibility by the learned magistrate and her finding that she had no reason to disbelieve that aspect of Ms Murphy’s evidence, that there was no collision, when taken together with those other matters to which I have referred, it seems to me that one can only be left in a state of reasonable doubt as to what the true position was. In those circumstances, directing myself in accordance with authority, the verdict which ought to be returned is one of not guilty.

In my view, the appellant has demonstrated error on the part of her Honour. The appeal should be allowed, the conviction below set aside. In lieu thereof, the charge is dismissed.

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