Storry v Commissioner of Police
[2017] QDC 282
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Storry v Commissioner of Police[2017] QDC 282
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Storry v Commissioner of Police[2017] QDC 282
Storry v Commissioner of Police[2017] QDC 282
DISTRICT COURT OF QUEENSLAND
CITATION: | Storry v Commissioner of Police [2017] QDC 282 |
PARTIES: | VENETIA LOUISE STORRY (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 1344/17 |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 1 December 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 October 2017 |
JUDGE: | Dearden DCJ |
ORDER: | 1.Appeal dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – where the appellant was stopped at an intersection controlled by a stop sign and white line – where the appellant commenced entering the intersection – where the appellant collided with the driver’s door of another vehicle with the front of the appellant’s vehicle – whether the learned magistrate improperly took into account the damage sustained by the vehicles involved to determine whether the vehicle into which the appellant collided was speeding before the accident – whether the learned magistrate failed to take into account the appellant’s defence that the vehicle into which the appellant collided was speeding and caused the collision with the appellant – whether the learned magistrate improperly took into account aspects of Senior Constable Wilson’s evidence concerning the issue of speed – whether the learned magistrate reversed the onus of proof in rejecting evidence of a purported admission by the driver of the vehicle into which the appellant collided to Senior Constable Wilson about his speed – whether the learned magistrate was wrong to accept Mr Weir’s evidence that he took evasive action upon seeing the appellant’s vehicle |
LEGISLATION: | Transport Operations (Road Use Management – Road Rules) Regulation 2009 s 67, Schedule 5 Justices Act 1886 s 223 |
CASES: | Gallagher v The Queen (1986) 160 CLR 392 Johnson v Queensland Police Service [2014] QCA 195 McDonald v Queensland Police Service [2017] QCA 255 Powell v Chief Executive Officer of Customs [2012] QCA 338 |
COUNSEL: | M R Fitzpatrick for the appellant Gallagher for the respondent |
SOLICITORS: | Direct brief for the appellant Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant, Venetia Storry, was found guilty at the Brisbane Magistrates Court on 24 March 2017 of one charge of failing to give way to a vehicle at an intersection with a stop sign.[1] The appellant was fined $475, ordered to pay costs to the court of $93.20 and witness expenses of $104.
Grounds of appeal
- [2]The grounds of appeal are set out in the appellant’s amended notice of appeal filed 20 April 2017. The appellant’s outline of these grounds conflates grounds and submissions and is difficult to follow. Helpfully, the respondent, Commissioner of Police, has distilled these grounds of appeal into five identified grounds as follows:-
Ground 1: The magistrate improperly took into account the damage sustained by the vehicles involved to determine whether the Hyundai (the vehicle into which the appellant collided) was speeding before the accident.
Ground 2: The magistrate failed to take into account the appellant’s defence that the Hyundai was speeding and caused the collision with the appellant.
Ground 3: The magistrate improperly took into account aspects of Senior Constable Wilson’s evidence concerning the issue of speed.
Ground 4: The magistrate reversed the onus of proof in rejecting evidence of a purported admission by Mr Weir (driver of the Hyundai) to Senior Constable Wilson about his speed. The appellant seeks to adduce fresh evidence in support of this ground.
Ground 5: The magistrate was wrong to accept Mr Weir’s evidence that he took evasive action upon seeing the appellant’s vehicle.[2]
Facts of the case
- [3]The respondent accepted the summary of the proceedings set out at paragraphs 2-4 of the appellant’s outline, subject to further observations at paragraphs 5-8 of the respondent’s outline. It is useful then to recite the agreed summary prepared by the appellant and the respondent’s observations.
- [4]The appellant’s outline is as follows:
“2.The appellant on 28 July 2016 at 7:45am was travelling west on Elizabeth Street and stopped at the intersection of Dean Street, Toowong, the intersection being controlled by a stop sign and white line for traffic travelling east-west on Elizabeth Street and vehicles travelling north-south on Dean Street having no traffic control signs or lights. Both Dean Street and Elizabeth Street are 50km/h zones.
- The appellant was driving a Holden Sedan [registration no.] 597SUU and having stopped prior to the stop line on Elizabeth Street, remained in that position for a period of time. Witness, Jonathan David Weir, was travelling south in a Hyundai hatchback [registration no.] 129TCC along Dean Street after having passed a pedestrian crossing and observed the appellant’s vehicle 15 metres prior to the intersection. Witness Weir stated he was going 50km/h, having accelerated from the pedestrian crossing from 40km/h. The appellant at that time had commenced to enter the intersection from a hill start, accelerating from the incline of a ridge and collided at the apex of the ridge in the middle of the intersection with the driver’s door of the Hyundai hatchback with the front of the appellant’s Holden sedan.
- After impact the Hyundai hatchback travelled across a traffic island that posted a keep left sign for west bound traffic, sequentially the Holden sedan post impact has travelled in a diagonal direction across the intersection and come to stop in a security awning on a veranda of [the residence at] 29 Dean Street. Police have then attended the scene and the appellant was interviewed by way of a body worn camera. During the interview the appellant admitted to being the driver of the Holden sedan and maintained that the driver of the Hyundai was speeding prior to [the point of collision]. The appellant being then issued with an infringement no. A54951699 for the offence pursuant to s 67(3) Transport Operations (Road Use Management – Road Rules) Regulation 2009 (TOR).”[3]
- [5]The respondent’s further observations are as follows:
“5. The photographs tendered as Exhibits 1 and 5 confirm that a vehicle approaching Dean Street from Elizabeth Street must give way to vehicles on Dean Street. They show that a vehicle stopped at the intersection on Elizabeth Street should have an uninterrupted view of Dean Street to the pedestrian crossing from which Mr Weir approached. Mr Weir did not disagree with the suggestion that ‘approximately 90 metres’ separated the crossing and the intersection.
- When Mr Weir first saw the appellant’s vehicle, it was already entering the intersection from the western side of Elizabeth Street. He estimated he was, at that time ‘about three or four car lengths… about 15 metres’ from the intersection and was travelling at ‘about 50km per hour’. One second elapsed before he reacted: he ‘blasted the horn’, tried to ‘swerve’ around the appellant and brake.
- The appellant’s vehicle impacted the driver’s side of Mr Weir’s vehicle. His vehicle ‘was pushed’ over a traffic island at the eastern side of the intersection and came to rest. The appellant’s vehicle veered into a fence of a house on the south-east corner of the intersection. Photographs of the damaged vehicles were tendered [Exhibit 1 and 2].
- The appellant did not give or call evidence at her trial. In a recorded conversation with police at the scene, she said she entered the intersection when she ‘thought it was safe to go’, having ‘waited for a long time’. She said ‘all of a sudden, I saw that car coming out of – it seemed to go very fast… I think that he was going very fast’. She said she first saw Mr Weir’s vehicle when she was ‘crossing the road’. She said ‘I think I felt it, I turned to my right and there it was, and then I swerved to stop it from going any further’.”[4]
The law – appeals to the District Court
- [6]In McDonald v Queensland Police Service [2017] QCA 255, Bowskill J (with whom Fraser and Philippides JJA agreed) restated the basis of an appeal to the District Court from the Magistrates Court in these terms:
“It is well established that, on an appeal under s 222 [Justices Act 1886] by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”[5] [citations omitted]
The law – fresh evidence
- [7]Where, as here, leave is sought to adduce additional evidence, Justices Act s 223(2) relevantly provides:
“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”.
- [8]Those grounds were identified by Henry J in Powell v Chief Executive Officer of Customs [2012] QCA 338, adopting with approval the statement by Gibbs J in Gallagher v The Queen (1986) 160 CLR 392, in these terms:
“1.Whether the evidence relied on could, with reasonable diligence, have been produced by the accused at the trial;
2. Whether the evidence is apparently credible or at least capable of belief;
3. Whether the evidence if believed might reasonably have led a tribunal of fact to return a different verdict.”
Discussion – fresh evidence
- [9]The fresh evidence sought to be led by the appellant is a report by Adam Pekol of Pekol Traffic and Transport, which presumably purports to be an expert report, although the report on its face contains no reference to the report writer’s qualifications, experience and expertise. Mr Fitzpatrick, who appeared for the appellant, identified the “fresh evidence” on which the appellant sought to rely, firstly as a passage on p 2 of the report headed “Local Road Network” which identified Dean Street as a neighbourhood (i.e. minor) road with a speed limit of 50km/h and then provided some background information as to the significance of the classification of a “neighbourhood road” pursuant to the Brisbane City Council 2014 City Plan.[6]
- [10]The second portion on which Mr Fitzpatrick sought to rely was headed “Intersection Site Distance” and contained a table headed “Safe Intersection Site Distance” with design speeds between 40 and 80km in the left hand column and driver reaction times, and tables of 1.5 second driver reaction time and 2 second driver reaction time under headings “Normal Design Domain” and “Extended Design Domain”.[7]
- [11]The appellant also sought to rely on an email attached to Mr Pekol’s report from one Karl Brough to the appellant which identifies that “Dean Street” is “presently classified as a neighbourhood/local access street” which is “the lowest classification in the road hierarchy and applies to the majority of streets in Brisbane”. The email does not identify (other than by inference from the email address) who Mr Brough is, (although it appears that he works for the Brisbane City Council) nor does it identify his qualifications, experience or expertise.
- [12]The appellant’s argument for the admission of the fresh evidence is as follows:-
“In the present case [the learned magistrate] held the view that Dean Street historically [was] a main arterial road. It is submitted that the appellant’s legal counsel could not have known exercising reasonable diligence that her Honour would have misdirected herself in relation to the nature of Dean Street. The evidence is both credible and plausible and is cogent evidence which is relevant to [the learned magistrate’s] reasoning in rejecting the conversation between Weir and Senior Constable Wilson as given by Senior Constable Wilson under cross-examination.”[8]
- [13]Setting aside the issues in respect of the lack of expert witness qualification provided, the application for leave to adduce fresh evidence can easily be dealt with. In my view, the evidence, even if it were admissible, could quite easily, with reasonable diligence, have been produced by the appellant at her trial. The issue as to the classification of Dean Street as an arterial road or otherwise is, with respect, completely irrelevant to the issues on the trial. Accordingly, even if the evidence were admitted, it would not reasonably have led a tribunal of fact to return a different verdict.
- [14]Accordingly, the application for leave to adduce fresh evidence is refused.
Discussion – substantive appeal
- [15]The relevant provisions of TOR s 67 are as follows:-
“(1) This section applies to a driver at an intersection without traffic lights who is facing a stop sign or stop line.
(2) The driver must stop as near as practicable to, but before reaching—
- (a)the stop line; or
- (b)if there is no stop line—the intersection.
Maximum penalty—20 penalty units.
- (3)The driver must give way to a vehicle in, entering or approaching the intersection except—
- (a)an oncoming vehicle turning right at the intersection, if a stop sign, stop line, give way sign or give way line applies to the driver of the oncoming vehicle; or
- (b)a vehicle turning left at the intersection using a slip lane; or
- (c)a vehicle making a U-turn.
Maximum penalty—20 penalty units.”
- [16]TOR Schedule 5 (Dictionary) defines “give way” as follows:-
“give way, for a driver or pedestrian, means—
- (a)if the driver or pedestrian is stopped—remain stationary until it is safe to proceed; or
- (b)in any other case—slow down and, if necessary, stop to avoid a collision.”
- [17]In Johnson v Queensland Police Service [2014] QCA 195, Muir JA (with whom Morris JA and North J agreed) identified the relevant test as follows:
“The question to be decided was whether it was safe…to proceed. That question must be resolved by consideration of all relevant facts.”[9]
- [18]The appellant in this matter therefore was subject to an obligation not to proceed into the intersection (she having stopped at the stop sign) and to “remain stationary until it was safe to proceed”.
- [19]On the uncontroverted evidence, the appellant collided with Mr Weir’s vehicle in the intersection, she having been stopped prior to the collision in her vehicle at a stop sign on Elizabeth Street, driving east. During the course of her record of interview with police officer Constable Axon the appellant was asked:
Q: “So um, when did you first see the vehicle?”
A: “I first saw the vehicle when I was actually crossing the road, like so when I was actually on the road.”
Q: “Yep?”
A: “I turned to my right, I think I felt it and I turned to my right, and there it was, and then I swerved to stop it going any further…but I did watch for some time, so I certainly wasn’t just carelessly driving past, because this is a frequent spot for accidents.”
- [20]The relevant question then is whether it was “safe to proceed”. With respect, on the evidence, it clearly was not. The appellant’s rationalisation in her record of interview (noting that the appellant did not give evidence at the trial) was that the driver of the other vehicle must have been speeding, because she didn’t see his vehicle until she collided with it. However, his undisputed evidence was that he was driving at the speed limit (50km/h). In those circumstances, whether because the appellant failed to look, failed to look properly, was looking elsewhere or for some other unidentified reason, she clearly proceeded when it was not safe to do so, and collided with Mr Weir’s vehicle (in other words the appellant failed to give way to Mr Weir’s vehicle on the intersection). Neither at the trial, nor on appeal, has the appellant sought to raise any relevant defence which would have required the prosecution to negative any such defence beyond reasonable doubt.
Ground 1: The magistrate improperly took into account the damage sustained by the vehicles involved to determine whether the Hyundai (the vehicle into which the appellant collided) was speeding before the accident.
- [21]The learned magistrate (appropriately in my view) stated in her reasons that “the issue of speed in the matter is not an issue in respect of the matter”.[10] The learned magistrate was entitled to draw inferences as to speed from the damage sustained to the Hyundai. However, any such inferences had no effect on the outcome of the learned magistrate’s decision. This ground must fail.
Ground 2: The magistrate failed to take into account the appellant’s defence that the Hyundai was speeding and caused the collision with the appellant.
- [22]The appellant in her recorded interview said “I think it [the other vehicle] was going very fast”. However, the appellant subsequently says that she “first saw the vehicle when I was actually crossing the road” and that she “turned to my right, I think I felt it and I turned to my right and there it was”. With respect, it would be impossible for the appellant to have formed any view about the speed of the Hyundai if she only saw it at or immediately before the point of collision. Regardless of any evidence (by way of her record of interview) that the appellant provided as to her (unfounded) belief that Mr Weir’s vehicle was speeding, it is clear that the appellant proceeded into the intersection when it was unsafe to do so. Ground 2 must fail.
Ground 3: The magistrate improperly took into account aspects of Senior Constable Wilson’s evidence concerning the issue of speed.
- [23]The evidence from Constable Wilson was inadmissible hearsay (i.e. the version of a conversation between Senior Constable Wilson and Mr Weir, the driver of the Hyundai). Mr Weir’s evidence was clear that his speed was no more than 50km/h. This ground must fail.
Ground 4: The magistrate reversed the onus of proof in rejecting evidence of a purported admission by Mr Weir (driver of the Hyundai) to Senior Constable Wilson about his speed.
- [24]Although the learned magistrate did indicate that she was familiar with the area, that knowledge played no part in the learned magistrate’s determination of the facts. On the evidence, there was no inconsistency in respect of Mr Weir’s evidence about his speed. The learned magistrate did not fall into error and this ground also fails.
Ground 5: The magistrate was wrong to accept Mr Weir’s evidence that he took evasive action upon seeing the appellant’s vehicle.
- [25]The learned magistrate concluded that Mr Weir was a “credible, reliable [witness]” who was “prepared to qualify his answers in cross-examination”. Further, the learned magistrate accepted that “that part of [Mr Weir’s] evidence that he was not speeding and had a clear and uninterrupted view, and he reacted as soon as humanly possible”.[11]
- [26]It follows that the learned magistrate, in accepting Mr Weir’s evidence in respect of evasive action, was doing no more than assessing that his evidence was relevant, admissible and credible on the key issue, which was whether it was safe for the appellant’s vehicle to proceed into the intersection. The learned magistrate was entitled to accept this evidence, and did not fall into error. This final ground also fails.
Conclusion
- [27]I have reviewed all of the evidence given at the trial. That evidence, in my view, leads inexorably to the following conclusions:
- (a)The appellant was stopped at the stop sign at Elizabeth Street, driving east.
- (b)Mr Weir was driving from the south in his vehicle.
- (c)The appellant drove onto the intersection and collided with Mr Weir’s vehicle (i.e. failed to give way) in circumstances where, on her own record of interview, she first saw Mr Weir’s vehicle when her vehicle was actually crossing the road.
- (d)Whatever the explanation might be for the appellant failing to see Mr Weir’s vehicle, it is clear that she has driven her vehicle into the intersection when it was not “safe to proceed”.
- (e)The appellant has not raised any defence which the prosecution is required to exclude beyond reasonable doubt, either before the learned magistrate or on appeal to the District Court.
- [28]It follows that the appellant has failed to demonstrate any legal, factual or discretionary error on the part of the learned magistrate, and therefore, the appeal should be dismissed.
Order
- Appeal dismissed.
Footnotes
[1]Transport Operations (Road Use Management – Road Rules) Regulation 2009 s 67(3).
[2]Outline of submissions on behalf of the respondent para 3.
[3]Outline of submissions (appellant) paras 2-4.
[4]Outline of submissions (respondent) paras 5-8.
[5]McDonald v Queensland Police Service [2017] QCA 255 at [47] per Bowskill J.
[6]Appeal Transcript 1-3.
[7]Appeal Transcript 1-3.
[8]Outline of submissions (appellant) para 20.
[9]Johnson v Queensland Police Service [2014] QCA 195 per Muir JA at [17].
[10]Decision, p 3.
[11]Decision, p 2.