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- Unreported Judgment
Shaw v Commissioner of Police QDC 327
DISTRICT COURT OF QUEENSLAND
Shaw v Commissioner of Police  QDC 327
COLIN WILLIAM SHAW
COMMISSIONER OF POLICE
Magistrates Court, Bundaberg
Ex tempore reasons given 9 December 2016
9 December 2016
TRAFFIC LAW- OFFENCES- APPEAL- whether sufficient evidence of identification of the appellant as the driver of the vehicle
Justices Act 1886 (Q) s 222
Domican v R (1992) 173 CLR 555
Ms Rodriguez for the respondent
Office of the Director of Public Prosecutions (Q) for the respondent
- The appellant appeals pursuant to section 222 of the Justices Act 1886 (Q) against his conviction of the following charges:
- (a)That on 15 July 2015 at Bargara in the Magistrates Court district of Bundaberg in the state of Queensland he did drive a vehicle, namely, a motor car on a road, namely, Woongarra Scenic Drive, Bargara, without consideration for other persons using that road;
- (b)That on 15 July 2015 at Bargara in the Magistrates Court district of Bundaberg in the state of Queensland the appellant did drive a motor vehicle, namely, a motor car, on a road, namely, Woongarra Scenic Drive, Bargara, the defendant not being at that time a holder of a driver’s licence authorising him to drive that vehicle on the road, and at the time of committing the offence the defendant was disqualified by Court order from holding or obtaining a driver’s licence;
- (c)On 15 July 2015 at Bargara in the Magistrates Court district of Bundaberg in the state of Queensland, the appellant being a driver of a motor vehicle, namely, a motor car, having been given a direction to stop the said motor vehicle by a police officer, namely, Senior Constable Matthew Findlow exercising a power under an Act and using a police service motor vehicle, failed to stop the said motor vehicle as soon as reasonably practicable in circumstances where a reasonable person would stop the motor vehicle.
- The following penalties were imposed:
- (a)Driving without due care and attention or driving without reasonable consideration, convicted and fined $450, in default nine days’ imprisonment, to be paid within 28 days;
- (b)Driving without a licence, disqualified by Court order, 9 months’ imprisonment wholly suspended for an operational period for two years, disqualified from holding or obtaining a driver licence for three years; and,
- (c)For failing to stop motor vehicle, convicted and fined $5,890 to be paid within 28 days, in default five months’ imprisonment, disqualified from holding or obtaining a driver licence for a period of two years.
- On an appeal under this section, the Court is to conduct a real review of the evidence below giving due weight to the Magistrate’s conclusions. It is usual for legal, factual or discretionary error to be established in order for an appellant to succeed. The appellant, in his notice of appeal, alleges the Magistrate failed to take into account police camera evidence. Further, in a document headed Outline Of Appeal, he alleges no photo line up was conducted, there was no identification of the driver, the identification evidence was insufficient, and the actual offender is in custody and willing to admit the offence. As to the last point, no evidence, either oral or by affidavit, was placed before the Court. In oral submissions, Mr Shaw submits that the identification was flawed in that the observation was, at best, fleeting and affected by the sun. As to the admissions relied on, he says he falsely made those to protect others. The difficulty with his last point is he did not give evidence in the Magistrates Court or file affidavit material in this Court.
- The Crown submits there was sufficient evidence to convict, and it submits it was proved beyond reasonable doubt the appellant was the driver of the silver car in circumstances where three police officers were accepted as honest and reliable by the Magistrate. Their evidence was corroborated by the full admissions made in the record of interview. The Crown points out the appellant elected not to give evidence, and there was no error, and the appeal should be dismissed.
- Constable Findlow gave evidence that at 5 pm on 15 of July 2015 he was conducting mobile speed enforcement duties on Woongarra Scenic Drive with Senior Constable Lock. This is a 50 kilometre stretch of road near Bargara. The speed in the police vehicle was set to 50 kilometres per hour using cruise control so they maintained a constant speed. He observed a silver sports wagon which he believed to be driving at an excessive speed driving towards them on the road. He activated the speed detection device which gave a reading of 78 or 79 kilometres per hour in a 50 kilometre per hour zone. The vehicle appeared to be crossing lines towards him, and he took minor action to avoid being struck by the vehicle. At that point, he observed the appellant as the sole occupant of the vehicle.
- The vehicle continued past, and when safe, the police vehicle was turned around and followed the silver vehicle. It was slowed down by a white van, and then turned left into Wilfred Street. As they turned left into Wilfred Street the emergency lights were activated, but despite this the silver vehicle accelerated in speed. It did not stop for them, and accelerated in speed further up Wilfred Street. He did not activate a police pursuit and pulled over, turning off his lights and waited. He saw the vehicle, at speed, head over a blind right at the top of Wilfred Street and disappear out of view. He then radioed police communication to let them know what had happened, and he then continued up Wilfred Street in an attempt to locate the vehicle. I might say, having seen exhibit 6, the DVD car footage, his evidence is corroborated in material respects by that footage.
- Later that evening, he received information in relation to the identification of the driver and the vehicle. They went to the Eagle Boys pizza shop at Bargara and saw the vehicle, which had been involved in the earlier incident, outside, with leaking water coming from a damaged radiator. The appellant and another male, who did not match the driver seen earlier, were standing next to the vehicle. He asked the appellant to provide his details and to identify himself, which he did, and a copy of his licence was handed over. The appellant was arrested, initially, for dangerous operation and then interviewed. I have heard the record of interview, in this Court, exhibit 7. It commenced at 2244 hours. The appellant was given his rights.
- He admitted owning the relevant vehicle and said that he was living at Deepwater temporarily. He admitted his licence had been suspended. He admitted he had been driving that day from Innes Park to the shop, a distance of about two kilometres. He admitted no one else was driving. He admitted he had been seen by the police. He was shown a photo from the dash cam and did not dispute it was him in the vehicle at 5.08 pm. He explained how the damage to the vehicle was caused. He did not deny the speed when it was put to him. He admitted trying to get out of sight. He could not recall the names of the streets he turned down and denied seeing activated lights, but admitted trying to get away from the police because he did not want to be arrested or charged.
- He also said he pulled over and waited for five minutes until the police passed him. He said that he had fines and other problems in his life. He admitted seeing the police do the u-turn, but claimed, again, he did not see the lights. He accelerated away because he did not want to get arrested and wanted to get home. He was aware the police were behind him. He admitted seeing them do the u-turn in the rear vision mirror. He admitted he had gone near the white lines in the photo. He did not dispute crossing the lines at 78 kilometres per hour. He admitted coming around the bend. He admitted “I might have gone too fast.” He wanted to get home without being arrested for disqualified driving. His intent was not to be stopped by the police to avoid charges and arrest.
- He explained the route he took home. Again, he admitted looking in the mirror. He said he turned left and then turned right, and then parked, turned the car off, and the police drove past. He admitted to disqualified driving and initially did not admit his driving was substandard but then seemed to concede that and said, “you’ve got me now”. He said no promises or inducements were held out to him and he made the interview of his own free will. It was completed at 11.05 pm.
- The appellant’s traffic history was tendered, relevant, of course, to the second charge. The appellant, according to Officer Findlow, initially told him he was not driving but the officer said that he had seen him and he was the driver. In cross-examination the officer said that the appellant admitted to being the owner of the vehicle outside of Eagle Boys, and he also admitted the appellant claimed he was not driving the vehicle, at that stage. He also said at page 12, line 20, the reason he did not arrest the other person with the appellant was because he was confident the appellant was the driver.
- Constable Lock gave evidence he was with Senior Constable Findlow patrolling Woongarra Scenic Drive. He described the driver as having unkempt hair to about shoulder length with a short beard. When they arrived at the Bargara Central Shopping Centre later, he identified the appellant as the driver. He said he had a clear view of the driver and was able to recognise him in Court. He said the other male was different. He admitted in cross-examination the appellant told him he was not driving the vehicle.
- Constable Hedges gave evidence that at around 5 pm he had picked up his children from Kindergarten at the end of Woongarra Scenic Drive. He said he looked in his rear view mirror and saw a vehicle approaching him quickly from behind which was unusual. He described the driver. The car was weaving across lines on the road. The car pulled out, and he made a decision it was unsafe to stay on the road and to pull his vehicle over. The vehicle was a Nissan Skyline coupe silvery grey to golden colour. He said the driver was the appellant. In cross-examination he conceded that other people could look similar to the appellant.
- It was explained to the appellant by the Magistrate that he had the choice of giving evidence or not. The appellant chose not to give evidence.
- The Prosecution submitted to the Court that it would accept the evidence of the Prosecution witnesses. It relied on the admissions made by the appellant in the interview and submitted the Prosecution had proved each of the charges.
- On the other hand, the appellant submitted to the Magistrate that the video evidence did not support the claim that he was driving.
- In his decision, the Magistrate referred to each of the charges and to the elements of each offence. He noted the onus of proof lay on the Prosecution to prove each element beyond reasonable doubt. He accepted the evidence given by the prosecution witnesses and accepted the appellant made admissions in the record of interview. In relation to the allegation of driving the motor vehicle without reasonable consideration, he found the facts established the charge proved, particularly, the speed and the weaving of the vehicle. This constituted an unacceptable danger to road users. He found the prosecution had discharged the onus placed on it, and found each element of each charge proved beyond reasonable doubt and convicted the appellant of each charge.
- It is my conclusion that there was sufficient evidence in this case to prove that the appellant was the driver of the silver Nissan coupe at the relevant time. There is no doubt on the evidence it was the appellant’s vehicle which was observed by the two officers at about 5.08 pm on 15 of July 2015. The vehicle is identifiable because of the damage to its front which can be seen in the camera footage. The three witnesses who gave evidence all stated they observed the appellant as being the driver of the silver Nissan. The mere fact that the footage may not depict the identity of the driver does not answer the Prosecution case. As I have said, all three witnesses identified him as being the driver at the material time. Of course, there are potential dangers of identification evidence, and I have regard to the weaknesses here. See Domican v R (1992) 173 CLR 555. But in this case, the identification by each of the police witnesses was supported by the admissions made, the fact it was this car involved and the fact this car was owned by the appellant. It can also be readily inferred, bearing in mind the appellant’s admissions that he knew the police were following him, that he failed to stop for the police vehicle.
- It is my determination on the evidence, as reviewed, that the prosecution had proved beyond reasonable doubt that the appellant was the driver of the silver Nissan coupe by reason of the evidence of Constables Findlow, Lock and Hedges, which was accepted by the Magistrate, and as supported by the admissions made in the record of interview. In the circumstances, I am satisfied the Magistrate was entitled to reach the conclusion that the prosecution had proved each element of each offence beyond reasonable doubt. I do not consider any error has been established by the appellant, and in those circumstances dismiss the appeals against conviction. My formal orders are firstly, the appeal is dismissed, and two, the orders below are confirmed.
- Published Case Name:
Shaw v Commissioner of Police
- Shortened Case Name:
Shaw v Commissioner of Police
 QDC 327
09 Dec 2016