Peauril v Commissioner of Police
[2018] QDC 136
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- Appeal Determined (QCA)
- Peauril v Commissioner of Police[2018] QDC 136
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Peauril v Commissioner of Police[2018] QDC 136
Peauril v Commissioner of Police[2018] QDC 136
DISTRICT COURT OF QUEENSLAND
CITATION: | Peauril v Commissioner of Police [2018] QDC 136 |
PARTIES: | DAMIAN THOMAS PEAURIL (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | Appeal 2043/2017; Mag-254163/15(5), Mag-10687/16(1) |
DIVISION: |
|
PROCEEDING: | Criminal Appeal |
ORIGINATING COURT: | Magistrates Court at Gympie |
DELIVERED ON: | 24 July 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 April 2018 |
JUDGE: | McGill SC, DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | APPEAL AND NEW TRIAL – Findings of fact – whether magistrate justified in rejecting evidence of defence witnesses – whether findings of guilt justified – whether sentence manifestly excessive – appeal dismissed. Justices Act 1886 s 222, s 223. Allesch v Maunz (2000) 203 CLR 172 – applied. Blacktown City Council v Hockin [2008] Aust Torts Reports 81-956 – cited. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – applied. Commissioner of Police v Al Shakarji [2013] QCA 319 – applied. Fox v Percy (2003) 214 CLR 118 – applied. House v R (1936) 55 CLR 499 – applied. McDonald v Queensland Police Service [2017] QCA 255 – followed. Pavlovic v Commissioner of Police [2006] QCA 134 – applied. Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 539 – cited. R v Gray [1977] VR 225 – cited. R v Lawley [2007] QCA 243 – applied. R v LSS [2000] 1 Qd R 546 – followed. R v Noltenius [2014] QCA 303 – applied. R v WBD [2001] QCA 250 – cited. Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 – applied. Rowe v Kemper [2009] 1 Qd R 247 – applied. Schmidt v Schmidt [1969] QWN 3 – cited. Shambayati v Commissioner of Police [2013] QCA 57– applied. Siganto v R (1998) 194 CLR 656 – cited. Walker v Davlyn Homes Pty Ltd [2003] QCA 565 – applied. White v Commissioner of Police [2014] QCA 121 – applied. |
COUNSEL: | The appellant appeared on his own behalf C Ahern for the respondent |
SOLICITORS: | The appellant was not represented Office of the Director of Public Prosecutions for the respondent |
- [1]On 24 March 2017 the appellant was convicted by a magistrate after a trial of failing to give way to another vehicle at an intersection controlled by a give-way sign, and of obstructing police. No convictions were recorded. On the first charge he was fined $440 and ordered to pay compensation of $400, and disqualified from holding or obtaining a driver licence for one month. On the second he was ordered to perform 40 hours unpaid community service. He was also ordered to pay witnesses expenses of $1,200. His appeal is against both conviction and sentence. The appellant argued the appeal himself, and had represented himself at the summary trial in the Magistrates Court, which extended over three days.
- [2]The appeal is under the Justices Act 1886, s 222, and is by way of rehearing on the evidence given before the Magistrate: s 223. The appeal is a “rehearing” in the technical sense of a review of the record of the proceedings at the trial, rather than a completely fresh hearing.[1]The appellant filed in this court, and sought on the hearing of the appeal to rely on, four affidavits, three by himself and one by his mother. He and his mother gave evidence at the trial, so this could not satisfy the requirement for the admission of fresh evidence on appeal,[2]that that evidence was not then available to the appellant.[3]As well, the affidavits exhibited a number of documents which were not within the Evidence Act 1977 s 93, and were not admissible in a criminal trial. They are also inadmissible on this appeal. There are no special grounds for giving leave to adduce this evidence, and I have disregarded it.[4]
- [3]On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind, particularly in relation to matters involving the drawing of inferences from primary facts, having due regard to the advantages that the magistrate had in seeing and hearing the witnesses, and in being aware of the atmosphere of the trial generally.[5]In the proceeding before me, the onus is on the appellant to show that there was some error in the decision under appeal.[6]In so far as this is an appeal against sentence, the principles in House v R (1936) 55 CLR 499 at 504 – 5 apply: it must appear that some error has been made in the exercise of the sentencing discretion.[7]
Background
- [4]The Bruce Highway passes through Gympie, although it avoids the CBD. In the southern part of Gympie there is an overpass where another road passes above the highway. To the east of the highway it is Hughes Terrace, which runs downhill to the overpass; to the west of the highway the road becomes Mary Valley Road, and continues on to the Normanby Bridge over the Mary River. There is a slip lane running from the north bound side of the highway to an intersection west of the overpass, and another slip lane running from the other side of that intersection down to the north bound lane of the highway. Each of those slip lanes is one way. There is a give way sign at the intersection facing traffic coming from the highway up the slip lane to the intersection. So much was uncontroversial at the trial.
Evidence – the other driver.
- [5]The first charge arose out of a collision which occurred between a vehicle driven by the appellant and another vehicle at that intersection at about 6.45 am on 11 September 2015. The driver of the other vehicle gave evidence for the prosecution. Her account was that she had driven down Hughes Terrace and was driving towards the Normanby Bridge when a white utility came in from her left at the intersection and crashed into her vehicle.[8]She later marked on a diagram where she said the collision occurred, and where the cars ended up. She said she saw the appellant’s vehicle only just before the collision.
- [6]She said that after the collision she came onto the median of the road and came to a stop and sat in her car. An off-duty ambulance officer came to her aid, and then the driver of the other vehicle came to her door and said words to the effect of “I didn’t see you”: p 1-9. She said that police, ambulance and fire brigade came on the scene, she left her car and went to the side of the road. She identified photographs of her vehicle and the appellant’s vehicle. Subsequently her partner arrived on the scene, and later she and her partner walked over to her vehicle to talk to a fire brigade officer. While that was happening she saw an exchange between the appellant and a police officer, the appellant raised his voice and there was a scuffle: p 1-10. Another police officer came up and the appellant was put into the back of a police vehicle. She could not state any particular words said by the appellant. She said that at the time it was a fine clear sunny morning: p 1-11. She had not seen the appellant’s vehicle until he was about to hit her vehicle: p 1-10.
- [7]The appellant’s cross-examination of the other driver was often quite improper. He made statements rather than asking questions, and multiple statements, and asserted propositions the witness was not in a position to comment on. The Magistrate tried to control this, and to ensure that the cross-examination was conducted correctly, and explained to him how to put a version different from the version given by the witness, but the appellant did not do that. At different times he appears to have put to her that after the accident the first thing she said was “I did not see you” three times, that she was hysterical, that he had assessed her injuries, and that her “entire story is mixed up and out of order”: p 1-14. He later put that he was the first person who spoke to her while she was sitting in her vehicle after the accident, which she rejected. He also put that the accident did not occur at an intersection: p 1-15.
- [8]When asked by the Magistrate to formulate what he was trying to put to the witness the appellant said that he was alleging that her vehicle came down the road faster than the speed limit, and cut the corner in the process of turning right onto the slip lane down to the Bruce Highway as she came off the overbridge, and collided with the appellant’s vehicle just at the point where the concrete of the overbridge adjoins the bitumen of the road past the overbridge: p 1-17. The Magistrate had some difficulty in following what the appellant was saying. At the foot of p 20 the Magistrate asked whether his version was that the other driver’s vehicle was basically straddling the centreline, and the appellant agreed that that was correct: p 1-21. The Magistrate eventually said that she understood what he was alleging, though she added the comment that it was not believable: p 1-22.
- [9]The Magistrate then pointed out that he should ask the witness where she said the accident happened, and then put to the witness his contrary version. However he did not do that, but then asked the witness about whether she recalled his passing a phone that was already ringing to someone who was then arriving, which she said she did not: p 1-23. He then suggested that this was inconsistent with her earlier testimony, which it obviously was not. She denied that the appellant assisted her from her vehicle and said that her husband arrived at the scene about 10 minutes after the accident, after the ambulance, the police and the fire brigade had arrived: p 23. She did not recall saying to her husband “I didn’t see him” three times. The appellant then put that her husband had said something to her, which she denied. When the witness was given the opportunity sometime later, she also denied that she was on the wrong side of the road, that she was speeding, and that she was using a mobile phone while she was driving: p 1-27. At one point she estimated that her speed before the accident would be about 55 kilometres per hour, but this was simply on the basis that that was the speed at which she travelled: p 1-36.
- [10]Later, after being shown some photographs, the other driver conceded that they showed that the appellant’s car had been hit at the front: p 1-31. The Magistrate had the witness draw a diagram showing where she said the collision occurred, and where her vehicle stopped after the collision: p 1-36. That became exhibit 1. The Magistrate then suggested to the appellant that if he would put on the diagram his version of where he said the collision occurred, that would enable him to satisfy the requirement to put his version of events to the witness. After the appellant had marked the diagram, he said that he was on it trying to describe the bitumen area before the concrete where initially the front of his vehicle was pushed sideways, and then both vehicles were travelling sideways down the road, and the length of the incident was approximately two car lengths, followed by his then driving forward another two car lengths: p 1-37. The witness said that she totally disagreed with that version.
- [11]The appellant put to the witness that during the accident both cars were together with the windscreens in line and he had been looking sideways at her, which she said she did not recall: p 1-38. The appellant later said that in the accident his vehicle turned about 180 degrees so that it was facing the other way and then travelled beside her down the road to where the two vehicles were stopped: p 1-39. There was then some further cross-examination which appeared to be directed to the credit of the other driver, but which did not elicit anything damaging to her credit. The other driver was not re-examined.
- Senior Constable Mundt
- [12]Two police officers attended the scene of the accident. Senior Constable Mundt said that after they arrived he took some photographs of the vehicles as they were on the road, so that they could be moved, as they were blocking the road: p 1-45. He identified three photos taken of the vehicles at that point which became Exhibit 2. He said that his partner spoke to the female who he understood was the driver of the other vehicle, he took some photographs of the scene and then he spoke to the appellant: p 1-51. He said the appellant identified himself as the driver of the white Toyota shown in a photograph: p 1-48. He was not aware if there was anyone else in the appellant’s vehicle at the time of the accident. The officer had a wearable video camera which he described as a GoPro, which he activated when he spoke to the appellant: p 1-46.
- [13]The video recording of his conversations with the appellant became Exhibit 3. In it the appellant, when asked what happened, said that he had just come from the petrol station where he cleaned the windscreen, he waited and waited until he could not see anyone, when it was all clear he moved across, but it takes a while to go when it is full of petrol, and this car had shown up really quickly.[9]At one point he said “If someone speeds down the hill …”. He also claimed the other driver said she did not see him. He gave no explanation of just how the collision occurred, despite being pressed by the police to explain it. He said nothing which was consistent with the version of the accident he gave in evidence.
- [14]Senior Constable Mundt said that after the first conversation the appellant asked him for his driver licence, and he told the appellant his partner had it. The appellant then began to walk towards the police car. He followed, and when he got there he activated his camera again, because the appellant was yelling at his partner to give him his licence back: p 1-48. He said the appellant had tried to reach into the car behind his partner to obtain the licence, his partner had to hold him back, and he grabbed the appellant’s arm to keep him from going into the vehicle.
- [15]The cross-examination of Senior Constable Mundt was difficult to follow, and it was difficult to identify a version which was being put. The witness agreed that he had not recorded everything that happened while he was at the scene, saying that his camera could not record for that length of time: p 1-52. In one point the appellant put that the witness had said earlier that after he took photographs he “got the tow trucks in”: p 1-54. What the witness had said initially was that he took some photographs of the vehicles because they were blocking the road, so that if he took photos “I could get the tow trucks in and get, at least, the roads clear”: p 1-45. Later in evidence-in-chief when he was asked whether there were other conversations he had with the appellant that were not recorded he said: “I think that was pretty much it. All of that was recorded, because, once I’ve asked him that first one, I took the cars away, got them going, and then that’s when I’ve walked over to where Senior Constable Richards was talking with him, that you saw in that second one, to give him a breath test …”: p 1-48. In context he was obviously speaking about authorising the tow trucks to remove the vehicles, rather than making arrangements with them to do so.
- [16]The appellant put certain conversations to the officer, which the officer denied: p 1-57. The appellant asked why it had taken two hours at the police station before he could be released to receive emergency medical attention: p 58. The officer said that it was less than two hours, and had earlier said that there did not appear to be any injuries adversely affecting the appellant: p 1-57. There was no basis upon which the police officer could conclude that the appellant required emergency medical attention, none was suggested to him in cross-examination, and again the questioning in this respect was improper. It had the effect of annoying the Magistrate, who also pointed out that the length of time he was at the police station was irrelevant to the charge: p 1-59. The appellant suggested that certain photographs that he had taken had been taken from the position of a driver who was stationary at the give-way sign, but the police officer said he was not able to comment on whether that was the case: p 1-61. The witness agreed that there was approximately 200 metres of visibility up Hughes Terrace from the position from which one of the photographs was taken: p 1-63.
- [17]The appellant in effect suggested that the police officer had shoulder charged him and struck him in the head with his forearm, which the officer denied: p 1-65, 66. He asked the officer whether the collision actually happened at the end of the overbridge rather than the intersection, which the officer rejected: p 1-68. The officer said that that was because of what was shown in the photographs rather than because of any version given by the other driver: p 1-69. The appellant tried to cross-examine the officer about the forces that would be involved in the sudden deceleration of a car over a short distance, which the Magistrate stopped on the basis that that involved expert evidence and the witness was not an expert: p 1-72.
- [18]The appellant’s cross-examination was very unsatisfactory. He repeatedly put questions which assumed factual propositions which the witness had not previously admitted, such as asking him why something had happened without eliciting evidence first that it had in fact happened. Generally it emerged that the factual presumption inherent in the question was disputed by the witness. He also frequently asked questions which had two or more separate propositions in them, which is not proper cross-examination.
- [19]For example, at the foot of p 73 he asked a question which involved three factual assumptions the last of which was that the other police officer had winked at him, and asked him what the wink meant. The witness in fact denied that there had been any winking, but there was no response to the other two factual assumptions in the question. He then put the double question that the police set him up for the purpose of the charge and that he did not physically touch his licence, and the officer answered the second, but not the first: p 1-74. He then asked a question about his own motivation for a particular action, which of course the witness could not answer. The whole process must have been very frustrating for the Magistrate. Later however the first part of the question was put again and the proposition was denied: p 1-76.
- [20]The appellant then asked whether the witness had been intimidated by him at the police station as a result of finding out that he had a military background; the witness denied that he was intimidated and had no recollection of discovering any military background at the police station: p 1-77. The Magistrate commented that that was irrelevant anyway. The appellant then suggested that up until that day he was not aware of what it was alleged constituted the obstructing of police: p 1-78. At that point the Magistrate pointed out that he had received the statements of the two police officers and the video footage which was the evidence, and the prosecutor added that he would have been given the QP9 material, which contains a summary of the case alleged: p 1-79. The officer said he could not recall any conversation taking place before the first conversation with the appellant which he had recorded, but he did not deny that any such conversation occurred: p 1-79.
- [21]At one point the appellant put to the witness that in fact he was standing still and pointing at the licence that was in the car with the other officer, at which point he was cut off by the Magistrate on the basis that what had happened was recorded on the video recording, and she would look at that again. Strictly speaking the fact that there is a video recording of the incident does not mean that a witness can not be cross-examined about what happened, but in a practical sense it is not going to be helpful for the appellant to suggest that something happened if the video recording showed that what happened was different. In any case, the appellant did not cross-examine further. The trial was then adjourned to 23 March.
– Senior Constable Richards
- [22]On that day evidence was given first by Senior Constable Richards, the other police officer, who said that he attended the scene of the collision where he saw the two vehicles. When the police arrived the ambulance and fire brigade were already there, the appellant was there with his father and the driver of the other vehicle was there with her partner: p 2-3. He said later that there were also tow truck operators present at the scene: p 2-7. He said the two vehicles were both facing west along the Mary Valley Road one to three metres from the intersection. There were no visible skid marks. It was a fine day, clear and dry: p 2-4. He spoke to the driver of the other vehicle, then spoke to the other officer, then he went to the appellant and informed him that he would be getting an infringement notice for failing to give way.
- [23]He received from his partner the appellant’s driver licence, and then went back to his police vehicle to check on the licence and write the infringement notice. While he was doing this the appellant came to the police vehicle. He was upset and aggressive, and shouting that he wanted his licence back. The officer activated the video camera on his equipment, and told the appellant that he would return the licence once he had issued the infringement notice. A copy of the recording became Exhibit 4. The officer said he got out of the police car but left the licence in the car, and the appellant attempted to reach behind him into the police car, apparently to retrieve his licence. He said at this time he had not completed doing what he needed the licence in order to do, namely undertake a check on the current validity of the licence, and obtain details to write the infringement notice: p 2-6.
- [24]Exhibit 4 shows the appellant asking for his licence back, and when told the officer was not finished with it, said “This is all bullshit” and moved in a way consistent with his attempting to push past the officer to get into the car, although because he was so close to the camera at the time, that was not clearly shown on the video. He was restrained, and told he was under arrest for obstructing police, and he proceeded to resist arrest loudly and vigorously, until three police forced him to the ground, and held him there until he agreed to behave. He was then placed in a police vehicle. Another version of this incident appears on Exhibit 3, which came from the camera on Mr Mundt, but which does not include the start of the incident.
- [25]On 24 February Mr Richards went back to the scene and took a series of photographs of it; he went through what each photograph showed and they were then admitted as Exhibit 5, a set of photographs numbered 1- 6. He was not aware of any independent witnesses to the collision. He could not say definitely whether the appellant’s father was already there when he arrived, or arrived soon after he arrived: p 2-7. He did not speak to the appellant’s father, having been told by someone that the father had arrived to get his son; he could not recall who told him this: p 2-7. Later in cross-examination the witness said that the appellant’s father was there when he arrived, but he was not sure when the other driver’s husband arrived, except that it was by the time he spoke to her: p 2-14. This was apparently inconsistent with what he said at p 2-7, about whether the appellant’s father was there.
- [26]Under cross-examination the officer denied that there were five conversations between him and the appellant before the two that he had spoken of, and said that there had been only those two: p 2-8. The appellant later clarified to the Magistrate that he said there were five separate conversations with the officer, at the end of which the officer went and spoke to the other driver: p 2-9. That was denied by Mr Richards. The appellant cross-examined the officer to attempt to elicit an admission that a photograph of the vehicle of the other driver, Exhibit 2 photograph 8, showed some maroon paint which was the same colour as the maroon number plate on his Toyota: p 2-12. The witness agreed that it could be maroon, but could not say positively that it was the same colour. There was an objection that this involved eliciting expert evidence, which the Magistrate dealt with by saying that if it was paint from the number plate it supported the version of the other driver: p 2-13.
- [27]The officer said that when he spoke to the other driver, her husband was present, though he did not recall the husband saying anything in particular during that process: p 2-14. The appellant cross-examined the officer apparently with a view to showing that at the time he was speaking to the other driver the other driver’s spouse had arrived on the scene. The other driver had testified that her husband arrived about ten minutes after the accident, after the police had arrived (p 1-23) and the appellant may have been seeking to show that this evidence was inconsistent with her testimony, with a view to damaging her credibility: p 2-16. The Magistrate however commented that this was too inconsequential to be significant: p 2-17. Later the appellant said that what he was trying to establish was that the other driver had told the police officer a story fabricated by her husband, presumably on the basis that the husband was there before the witness spoke to the police officer: p 2-20. That was actually consistent with the evidence of the officer, that the husband was with the other driver at the time he spoke to her.
- [28]The appellant then sought to cross-examine the witness about how far a vehicle had to get into an intersection before the give way sign ceased to be relevant, which is really a question of law: p 2-20. The question was reformulated by reference to Exhibit 1, the diagram, but the witness ultimately said he could not answer the question. Later however he did answer the question by reference to whose fault the accident would be: p 2-22, 23. The application of the statutory provision to a particular factual situation, that is, whether a particular factual situation constitutes the offence charged, is a question of law, and not a matter properly the subject of cross-examination. The officer expressed the view that the accident could not have happened just off the overpass, because, for the vehicles to have collided there but ended up where they did would have required a much more substantial impact than was shown by the damage, there would be skid marks on the road which were not present, and there would be debris from the collision on the road at the point of impact which was also not present: p 2-23.
- [29]The defendant attempted to cross-examine the officer on a photograph of a vehicle, but it appeared that it had not been taken at the scene, and the magistrate commented that the vehicle later might not have been in the same state as immediately after the accident: p 2-27. The appellant put that he told the officer that he required his driver licence because he needed identification to be taken in the ambulance, and the officer positively denied that: p 2-28. He said that he had never heard of such a requirement from the ambulance in his 14 years’ experience: p 2-30. The officer said he could not recall when he arrived at the scene, possibly at 6.50 am: p 2-29. He did not recall how long he was there, perhaps between 5 and 15 minutes.
- [30]The appellant claimed during cross-examination that he was delayed in attending the hospital for “emergency surgery” (p 2-31), but when pressed by the magistrate conceded that he was speaking about having stitches put in his knee: p 2-33. He was pressed about the number of stitches, but did not answer directly. He produced a document from the hospital which did not refer to surgery: p 2-33. The magistrate became annoyed at this, on the basis that there had been no surgery, and was critical of this line of cross-examination. Thereafter she would not allow repetitive or argumentative questions. At one point he asked a question he had asked before, and the magistrate reminded him of what the witness had said when the question was asked earlier; he responded (p 2-38): “This is horse manure. It really is.” The appellant did not cross-examine further, and the prosecution closed its case.
- the appellant
- [31]The appellant gave evidence that he had been at the petrol station to the south and had driven north along the highway and up the slip lane where he stopped behind two other vehicles waiting at the intersection. After they had departed he stopped behind the dotted line at the intersection where his visibility to the right was to some extent obstructed by the post on the end of the overpass: p 2-40. He waited some time for traffic to clear, then moved forward and saw traffic was completely clear in both directions, and then he turned right heading towards the overpass. He had travelled about three car lengths and he had noticed some small stones like gravel on part of the road and had moved his vehicle to the left of his lane, and the front wheels of his vehicle were at the join between the bitumen and the concrete of the overpass when the collision occurred: p 2-41. His evidence reads as though he was unaware of the approach of the other vehicle until the collision occurred.
- [32]The appellant said that the other vehicle pushed his vehicle backwards and the front of his vehicle was turning around. The other vehicle had progressively become side on. He said that in this position he could look down into the car and saw that the driver had a mobile phone in her left hand near the gear lever. However the vehicles continued to turn so that he ended up facing the opposite direction to that in which he had originally been facing; both were facing towards the Normanby Bridge. As this occurred the vehicles moved back across to the left so that they ended up in the middle of the road. He claimed that he had a severe injury to his upper shin below his left knee. He got out of his vehicle and went to the other vehicle, and the driver said a number of times “I didn’t see you”.
- [33]The appellant said that the other driver was hyperventilating and slouched in her seat, and although he did not touch her, he could see that she had a weak rapid pulse by signs on the wrist and neck. He said she told him she had hurt her right wrist, and admitted that she had only one hand on the wheel. He said that the woman handed him a phone which was ringing, he answered it and spoke to a man on the other end and explained the situation briefly, then he handed the phone to a bystander. Another vehicle pulled up and a man came from it and asked if everyone was okay, and the appellant said that he told him that he had a serious cut to the leg and he would need emergency surgery: p 2-42. He said he asked a bystander to call an ambulance and after the ambulance had been called he went to his vehicle to give himself first aid: p 2-44.
- [34]The appellant said he had five conversations with Senior Constable Richards, at the end of which the police officer had said that he had two completely different versions. He also said that he had a conversation with Senior Constable Mundt, when he had been trying to transfer stuff from his vehicle to his father’s vehicle. He said he had spoken to the ambulance paramedic and was told he needed ID to go in the ambulance, and said that he asked Senior Constable Richards for his licence back for that purpose. After five or ten minutes he approached Senior Constable Richards a second time and asked for his licence back, and was told they were still determining what had happened and he needed to wait. He said that about ten to fifteen minutes later he was told by a female paramedic that he required his identification to come in the ambulance and they had been waiting for more than 20 minutes. He spoke to Senior Constable Richards again and asked him for his licence back, and was told that they were still determining what had happened and that he would get it back when they were done with it: p 2-46. He said when he spoke to Senior Constable Richards he was sitting in a police car, but then he put the licence on the seat and got out of the car, the door was open, and Senior Constable Richards went to Senior Constable Mundt who shoulder charged him at an angle and assaulted him: p 2-46.
- [35]Under cross-examination the appellant denied the version of the other driver: p 2-48. In relation to the second charge he admitted that when he asked for his licence back at the police car he had a frustrated tone in his voice: p 2-50. The appellant denied that he went to push past Senior Constable Richards to take his licence back, and denied that the officer was standing between the door and the body of the car, claiming that Senior Constable Richards had actually moved behind him before he was assaulted.[10]Essentially the prosecutor simply put the prosecution case, which was denied by the appellant.
- The appellant’s mother
- [36]The appellant also called two witnesses, who were his parents. His mother Ms Hughes gave evidence first. She said that that morning she was taking her usual morning walk which involved crossing Hughes Terrace, the road that runs down to the overpass, at Blake Street, walking by herself: p 2-53. She said that she saw a black coloured car speed down the road and cut the corner, and was on its incorrect side as it approached the overpass. She saw another white vehicle on the overpass, and then because of the glare she turned away. She then took a couple of steps, heard a bang, and continued home to Harkin Street. She gave the number plate of the black car which matched that of the other vehicle in the collision, and said it was definitely speeding, with no brake lights showing.
- [37]The appellant then apparently wanted to get the witness to interpret some medical records without the records going into evidence, which was improper, and the Magistrate would not allow it. In the event the prosecutor did not object to the documents going into evidence[11]but noted that all they recorded was that the appellant had a laceration to the left knee which was cleaned and closed with four stitches with the wound then dressed. In fact the clinical notes record a history of a motor vehicle accident at low speed, with the ambulance on the scene “advised to attend ED”. It was noted that he walked in and looked well, the laceration was described as superficial and partial thickness, with little bleeding, no bony pain and a full range of motion, no neurovascular issues.
- [38]The defendant then asked about a photograph of Hughes Terrace, which the witness said she did not take but which might have come from her phone: p 2-58. She identified the photograph as looking down Hughes Terrace to the overpass, and described the road as very, very steep and very, very curvy; at one point she said it was about three to one: p 2-59. This prompted some exchange between the Magistrate, who lives in Gympie and walks around several streets herself, and the witness about the relative steepness of various streets in Gympie: p 2-59. The appellant produced four photographs marked A, B, C and D, but the Magistrate would not admit them because they could not be proved by the person who took them: p 2-60.[12]That in my opinion was an error on the part of the Magistrate. It is not necessary to prove a photograph by the evidence of the person who took the photograph, so long as a witness who is familiar with what is shown in the photograph can by admissible evidence identify it as showing something which is relevant to the proceeding.
- [39]This was the approach adopted by the Full Court in Schmidt v Schmidt [1969] QWN 3, where the Court endorsed a statement from Wigmore on Evidence 3rd edition:
“It is immaterial whose hand prepared the thing, provided it is presented to the Tribunal by a competent witness as a representation of his knowledge”.[13]
This error had no effect, however, because the photographs were later admitted as an exhibit. The witness was then directed to look at some photographs in another exhibit, apparently Exhibit 7. She said she turned away before the accident occurred, but nevertheless expressed the opinion that the accident occurred on the overpass: p 2-62. She also claimed that for a person driving down the hill the glare reflected back from the bridge was “absolutely unbelievable”: p 2-62.
- [40]The cross-examination was very brief, simply establishing that she had not seen the collision and after she heard the bang she did not attend the scene. In re-examination the appellant sought to ask why she remembered the number plate of the car she says she saw, but the Magistrate ruled that this did not arise out of cross-examination and would not allow him to ask that question: p 2-66. It follows that at no point was the witness asked to explain how it came about that she remembered this.
- The appellant’s father
- [41]The other witness was the appellant’s father. He said that that morning he was driving down the highway, and also stressed how very glary it was: p 2-67. He said the appellant was ahead of him on the highway, and as he was coming through where the overpass goes to the Normanby Bridge there was an accident on the overpass: p 2-67. He said the accident happened before he went under the overpass. He said:
“The bang happened and I looked up and the two vehicles seemed to be locked together and doing a turn, a sort of a turn so they ended up facing the same way and I kept going and then when I looked in my rear vision mirror I realised it was probably my son’s vehicle.”
- [42]He said he kept going until he could turn around, came back and then went further south to a position where he could do another U-turn, so that he approached the accident scene from the same direction the appellant had, and parked his vehicle: p 2-70.[14]He repeated that he saw the accident, that it was just in front of him: p 2-70. He said the accident happened opposite the point where the balustrading on the over bridge changed to a more conventional steel crash barrier. He also claimed to have been able to tell, on the basis of the height of the vehicle as against the height of the balustrading, that the two cars were on the opposite side of the bridge from where he was, that is, on the other driver’s incorrect side: p 2-76.[15]
- [43]The appellant sought to lead from this witness evidence of a conversation he claimed he had heard between the other driver and the other driver’s husband while he was waiting at the scene. The appellant had cross-examined the other driver and put to her that she had been told to say certain things by her husband before she spoke to the police, which she denied: p 23. Just what the appellant’s father would have said did not emerge, because of the Magistrate’s ruling that this evidence could not be given, but assuming he was going to give evidence to say that the conversation he overheard was along the lines put to the other drive by the appellant in cross-examination, a question could arise as to whether this evidence was properly excluded. Prima facie it is evidence which only goes to the credit of the other driver as a witness, and therefore is evidence of a collateral fact which cannot be led to contradict an answer given in cross-examination.[16]
- [44]There are however exceptions to this rule, one of which is bias, and it has been said that coaching a witness by a person who is hostile to the party against whom the witness’ evidence has been tendered is evidence which is admissible under this exception. This was the conclusion of the Court of Appeal in R v LSS [2000] 1 Qd R 546. Thomas JA with whom the other members of the court agreed held that evidence by a brother of the complainant that the complainant had been coached in his evidence by their mother ought not to have been excluded by the trial judge because it fell within this exception to the collateral evidence rule. His Honour said at [30]:
“In my view evidence demonstrating the coaching of a witness, when there is a clear opportunity for a person apparently hostile to the accused to influence the witness, ought to be able to be called by an accused person.”
- [45]His Honour went on to note that the mere fact that this involved allegations of sexual offences was not a sufficient basis for departing from the general rule of finality, but such evidence fell within the exception in favour of evidence of bias or partiality in a witness. The difficulty in the present case in applying that approach is that it is clear that the court treated evidence of coaching of the witness as admissible specifically in circumstances where there was bias against the defendant on the part of the person doing the coaching, the mother. In the present case, on the hypothesis that there was coaching of the other driver by her husband, there is no reason to think that there was any bias on his part against the appellant. On the face of this decision therefore the rule of finality did properly exclude evidence of the father to show coaching of the other driver by her husband, though in circumstances when the Magistrate did not accept the evidence of the father anyway on the ground that he was not a credible witness, and where I am not persuaded that that finding was in error, the question strictly speaking does not arise. Further, it was not argued by either party at the hearing of the appeal. Accordingly I do not propose to consider it further.
- [46]The father also purported to say that at that time of the morning, sun shining on the balustrading reflected back along Hughes Terrace in the direction from which the other driver was coming, and that sometimes it was so bad that drivers coming down that hill could not see a thing: p 2-76.[17]The father also gave evidence that he took the photographs in Exhibit 7[18]at a tow yard on the day of the accident between 9 and 9.30 am. A little later he purported to give evidence reconstructing aspects of the collision from an examination of the photographs of the damage done to the vehicles: p 2-88. His expertise to give such evidence was not established, and accordingly his opinion as to the inferences that could be drawn about how the collision occurred from looking at the photographs was inadmissible. A ruling that this evidence was inadmissible was obviously correct. The photographs taken by the appellant’s father of the road in the vicinity of the overbridge became Exhibit 8: p 3-5.
- [47]While the father was giving his evidence the mother, who had previously given evidence, was sitting in the public gallery. The Magistrate on more than one occasion objected to the mother’s reacting visibly to evidence being given by the father, on the basis that this amounted to endorsement or encouragement of the father or his evidence. Such behaviour could only have reinforced the obvious conclusion that she was not an unbiased witness.
- [48]On the third day of the trial the Magistrate raised with the appellant’s father the plausibility of his account that he saw what was going on on the overbridge while driving north along on the highway, based on her own experience of that road: she stated that she had lived in Gympie herself for 34 years and driven on that road quite frequently during that period: p 3-5, 6.
- [49]In relation to the second charge, the appellant’s father gave some generalised evidence of police speaking to the two drivers at the scene, and then gave evidence of some conversation when he said that Senior Constable Mundt was very aggressive towards the appellant: p 3-9. He also said that the ambulance people were pestering the appellant to get his licence back so they could take him to the emergency services. The father said that the ambulance officer said that to him (p 3-11), which evidence was not admissible: the fact that it was said to the witness was irrelevant, since the only thing that could have been relevant was that it had been said to the appellant. This was something the appellant could and did give evidence of, but the Magistrate was sceptical of that evidence, and pointed out that the relevant paramedic had not been called as a witness for the defendant.
- [50]The father then said that he asked Mr Richards to return the appellant’s licence, and Mr Richards told him that he was still using it, and at that point he (the father) backed off. He said that subsequently the appellant came and asked the police officer again for his licence because he said the ambulance people were waiting for him, whereupon Mr Richards put the licence on the seat of the car, put the pad that he was using on the dash and got out of the car. As he did so he winked at Mr Mundt who then aggressively knocked the appellant in his shoulder: p 3-11. What followed was some speculation about the thought processes of the appellant, which was inadmissible. He said that the appellant pointed to his licence: p 3-12. He said the two officers just started grabbing him and roughing him up, and that the appellant kept his hands “beside him here”: p 3-12. That must have involved some demonstration, because the Magistrate then characterised that as the appellant’s holding his hands straight down his side.[19]
- [51]The father then gave some evidence about what happened afterwards, the appellant being restrained on the ground and placed in the police vehicle. He went on to speak about the appellant being later taken to and treated at hospital, which was plainly not relevant, as the Magistrate said: p 3-14. Finally the father maintained that he saw the accident from start to finish, until the vehicles came to rest, but he was not specific about how long that took: p 3-17. The appellant then asked him in effect whether in his opinion the appellant had obstructed police, which was also not a proper question and was correctly disallowed by the Magistrate, as swearing the issue: p 3-17.
- [52]Under cross-examination the father said that he was travelling at the time along the highway between 40 and 50 kilometres per hour: p 3-20.[20]He said that his attention was drawn to what was going on on top of the overpass when he saw a flash of movement: p 3-20. The father said later under cross-examination that the appellant had asked for his licence back a number of times but he had never become agitated, but he got a bit disturbed that things were taking so long: p 3-27. Subsequently he withdrew the word “disturbed” but said that he was getting anxious. When it was put to him that the appellant had lunged towards the vehicle he denied that, and said the appellant had just pointed at it and asked how they could be using it when it was sitting there: p 3-28. At one point he said that while the police were struggling with the appellant one police officer came and “thumped the hell out of me”: p 3-29.[21]
- [53]In cross-examination the father said that he saw the collision and saw the twisting of the vehicles, though he may not have seen them come to a complete stop “down there”: p 3-30. He said he was watching the accident until he could not see it, but did not put a time on it. In re-examination the father said that the appellant raised his voice to the police officer when told that he was going to receive an infringement notice: p 3-33.
Decision of the Magistrate, and analysis
- [54]The Magistrate delivered her decision on 11 May 2017. She summarised the evidence in considerable detail, but rejected the version of the collision given by the defendant, for three reasons: first, the absence of debris at the point of impact that he described, whereas there was debris on the road in the area opposite the give way sign, near where the vehicles came to rest, as shown in the photographs in Exhibit 2. By contrast, the photographs taken that same day by the appellant’s father (Exhibit 8) showed no debris in the area where the appellant said the collision occurred.[22]
- [55]Second, the damage to the vehicles was inconsistent with the collision occurring in a way described by the appellant. The damage to the other vehicle started on the front left hand corner and extended along the left hand side of the vehicle, with the major damage being suffered ahead of the front door, though there was some additional damage further back. By contrast the front of that vehicle was virtually undamaged. On the other hand, the appellant’s vehicle had damage right across the front. That seemed to the Magistrate to be inconsistent with a head-on collision or even partial head-on collision between the two vehicles as described the appellant in his evidence. On the other hand, it appeared to be entirely consistent with the description of the accident given by the other driver. The Magistrate also commented on the damage which appeared to have been done to the other vehicle by the number plate of the appellant’s vehicle, which she said supported the prosecution version.[23]
- [56]Third, the appellant’s account of the way the vehicles had moved after the collision to the point where they ended up as shown in the photographs taken by the police was not plausible. She also said that, given the very good visibility of traffic approaching from the right from the position the appellant was in, even if the other vehicle was doing three or four times the speed of the appellant’s vehicle it would have been visible at the point where he moved off from the give way sign. Accordingly the Magistrate rejected the evidence of the appellant.
- [57]She also rejected the evidence of his two witnesses. The Magistrate did not find the mother’s evidence plausible, where she could not say where she was standing in Hughes Terrace when the vehicle went past her, yet she could remember the number plate, and that after she heard the bang she simply went home, and did not report the number plate she had seen to the police. The Magistrate took notice that driving on the highway the father would have only had a view of the overpass for a distance of 20 to 40 metres, and at the speed he claimed to have travelled that would have been between one and a half and three seconds. His view was further impeded by a traffic sign and a large tree. It was an extraordinary coincidence that the accident happened precisely in that time period. She expressed the view that he could not possibly have determined that the vehicles were on the incorrect side, or just where the point of impact occurred, while driving along the highway about to disappear under the overpass. She also found highly implausible his account that he did not immediately return to the accident scene, but turned off at or near the Woolworths complex to purchase something before going back to retrieve his son’s belongings.
- [58]Apart from these reasons, in my opinion a significant point was that the father’s evidence supported the appellant’s version, and was just as inconsistent with the objective facts of the location of debris on the road, the location of the damage on the vehicles, and the location of the vehicles after the accident. The father’s evidence was properly rejected for the same reason as the appellant’s evidence, that it was inconsistent with objective facts. It also seems to me that if the appellant’s version were correct it had the other driver’s vehicle moving across the line of travel of the appellant’s vehicle, particularly if as he claimed her vehicle was moving as if she were heading down the slip road onto the northbound side of the highway, in effect turning right at the intersection and cutting the corner. If her vehicle had actually been moving in that direction, particularly at significant speed, its momentum would have tended to carry both vehicles away from the centre line in the road rather than towards it and indeed across it, as the defendant’s version required.
- [59]There were other reasons to reject the appellant’s account of the collision. In the version he gave to police on the day, recorded in Exhibit 3, there was no mention of any part of the version he gave during the trial, and put to the other driver. Indeed, there was a significant difference between the version he put and the version he gave in evidence, as to how far over the centre line the other driver was at the point of impact. There were no skid marks on the road, yet on his account at one stage after the collision and before the vehicles came to rest they were sliding sideways along the road, which I expect would have left marks. His claim that he had to go to the hospital for emergency surgery was quite inconsistent with the medical records of his attendance, Exhibit 6. Overall his evidence was not credible.
- [60]On the other hand, the account of how the collision occurred given by the other driver was entirely consistent with the location of debris on the road, the damage to the vehicles as shown in the photographs, and the location of the vehicles after the accident, as shown in the photographs and as described by the police witnesses. In those circumstances I consider the Magistrate was entitled to reject the evidence of the appellant and his father, and to accept the evidence of the other driver. On her evidence, the appellant moved his vehicle forward of the give way sign into the side of her vehicle, so he failed to give way to it as required by the sign. In my view the Magistrate was clearly correct to accept the evidence of the other driver, and on the basis of it to find the appellant guilty of the offence of failure to give way.
- [61]The appellant’s argument on appeal involved rearguing on the facts the proposition that his account of the collision ought to be accepted. I found what he said to me as implausible as the Magistrate regarded it. The Magistrate’s decision in relation to the first count has not been shown by the appellant to be wrong in any respect. Indeed, on the evidence that I have considered, I entirely agree with her conclusion that the appellant was guilty of the offence of failing to give way at a give way sign.
- [62]With regard to the second charge, the Magistrate accepted Mr Richards’ account, which included that he had to do a licence check on the appellant using the equipment in the police vehicle, and also had to write details of the licence in his record of the incident, and complete an infringement notice. All of that would obviously take time. I consider that the police officer was entitled to retain the licence until he had completed the various tasks he referred to. In these circumstances the appellant was not entitled to demand the return of his licence until the police officer had finished with it, and was not entitled to attempt to remove it from the police officer’s control by force. The Magistrate found that that was what occurred, accepting the evidence of Mr Richards supported as it was by the video recording of his interaction with the appellant. The fact that when Mr Richards moved to prevent him from seizing the licence he resisted violently supports the evidence that he had just before then attempted to recover the licence by force. By interrupting the police officer in the performance of his duties, namely issuing the infringement notice to him, the appellant was obstructing the police officer in the execution of his duty.
- [63]The Magistrate rejected the notion that there was any medical emergency or any urgent need to provide the licence as identification of the appellant for the purpose of an ambulance transport to a hospital. It is clear to me from the content of Exhibit 6, the medical records from when the appellant did attend the hospital that morning, that his injuries were minor, and there was no need for medical treatment as a matter of urgency. The history recorded as provided by the appellant in Exhibit 6 speaks of his being advised by the ambulance people to attend the emergency department, which is inconsistent with the paramedics’ wanting to take him by ambulance to the hospital at all; this suggests that in fact he was simply told to go there under his own steam.[24]
- [64]In any event, I agree with the Magistrate’s conclusion that the appellant was not suffering from any medical condition which required his attendance at the hospital as quickly as possible, nor that the appellant had been told by the paramedic that he was required to produce his driver licence for identification for that purpose. The police officer said that he had never heard of such a requirement being made by the ambulance service in his experience, and the appellant called no plausible evidence that any such requirement existed or had been communicated to him.[25]The Magistrate was entitled to find, and in my opinion correctly found, that there was no urgent need for the licence to be returned to the appellant. It follows that the performance put on by the appellant in attempting to recover his licence simply had the effect of obstructing the police officer.
- [65]In my opinion the Magistrate’s conclusion that the appellant was guilty of that offence beyond reasonable doubt has not been shown to be wrong. On the evidence, I entirely agree with that conclusion. Again on the appeal in relation to this charge the appellant’s argument really consisted of no more than rearguing the factual propositions advanced at the trial, that he had a good reason to obtain the return of the licence, that the police officer was retaining it for an excessive length of time, and that he did not attempt to take the licence by force anyway. The Magistrate was entitled to take into account matters damaging to the credibility of the appellant in relation to the first charge when considering his evidence in relation to the second charge; there was no reason to treat his evidence as being in different compartments for the purpose of assessing credibility. The evidence of the appellant’s father, that the appellant was not resisting but holding his arms down to his side, was not consistent with what appears in the videos taken by the two police officers. This is another reason to treat the appellant’s father as a thoroughly unreliable witness. Those videos in my opinion also show that he was doing his best himself to obstruct police, by impeding the police officers from effecting the arrest of the appellant for obstructing police. I consider he was fortunate not to be charged himself.
Sentence
- [66]The appellant also appealed against the sentence. On sentence the Magistrate took into account that the appellant had no previous convictions for criminal or traffic offences, though he had shown no remorse and was not entitled to the discount available because of a guilty plea. The Magistrate also appears to have treated his conduct of the trial as showing an absence of remorse, and indicating that he did not show good prospects of rehabilitation. The Magistrate on the first charge fined the appellant $440.00 which was referred to SPER, and ordered him to pay compensation of $400.00 to the other driver, along with witness expenses of $600.00 for her. As well his driver licence was suspended for a period of one month.
- [67]The maximum penalty for the offence was 20 penalty units; the fine imposed was the equivalent of 4 penalty units. Given the good conditions at the time of the collision, the fact that the weather was fine and dry and it was daylight, and the excellent visibility available from a vehicle at the give way sign to the right in the direction from which the other driver came, this was in my view a serious example of a failure to give way, which gave rise to a significant collision. Notwithstanding that this was a first offence, in view of the absence of remorse I consider the penalty involved was entirely justified. Indeed, in my opinion the Magistrate dealt leniently with the appellant on sentence.
- [68]The Magistrate did refer to the length of the trial, and the inefficiency with which it was conducted by the appellant, and the aggression shown in cross-examining the other driver. I have given some consideration to the question of whether in the circumstances the sentencing remarks reveal that the Magistrate dealt with the appellant more severely because of the fact that he did defended the charge, and because of the way in which he conducted the trial. Neither of these can be properly characterised as aggravating circumstances.[26]Overall however it seems to me that the Magistrate did no more than characterise this as demonstrating a lack of remorse on his part,[27]and as showing that there were not good prospects of rehabilitation. The Magistrate later acknowledged that the appellant was entitled to put the prosecution to proof: p 18. In circumstances where I consider the appellant was dealt with leniently for this count anyway, I am not persuaded that the Magistrate has imposed a more severe penalty as a result of having taken into account inappropriately the fact that the charge was defended and the conduct of the defence.
- [69]With regard to the second count, the Magistrate exercised her discretion not to record a conviction, which was in response to the fact that he had no previous convictions, and after the appellant argued that this would interfere with his ability to obtain work as a dental technician, a proposition the Magistrate appeared to greet with some degree of scepticism. Nevertheless, she did not record a conviction. The Magistrate ordered that the appellant perform 40 hours of unpaid community service. The Magistrate also ordered that the appellant to pay witnesses expenses of $600, half the amount claimed by the prosecution for police costs, on the basis that he had a right to put the police to proof, though she considered that the inefficient conduct of the defence and improper cross-examination meant that the matter took longer than it ought to have, so she would allow one day’s costs for the police witnesses.
- [70]The period of 40 hours community service is the minimum period for community service which could be ordered: Penalties and Sentences Act 1992 s 104(2)(a). The Magistrate could have imposed a fine in lieu of making a community based order, but may have been aware that the fines, compensation and costs of court otherwise ordered against the appellant were mounting up, and may have been concerned about the total financial burden imposed on him. It does not appear that any information about the appellant’s financial position was placed before the Magistrate, and the appellant said nothing on the subject before me either. Indeed, apart from an assertion of the proposition that the penalties imposed were excessive and unreasonable, there was no argument developed by the appellant in relation to penalty in the course of the appeal. In reply he suggested that the maximum penalty was imposed by the Magistrate, which was not the case, and said that there was an application pending in the Magistrate’s court to replace the community service order, which had not been finalised. I can only deal with the appeal on matters as they stand.
- [71]My impression is that the Magistrate on this charge also dealt with the appellant quite leniently. It is no part of the job of police to wrestle with offenders who seek to interfere with the performance of their duties in this way, and people who behave in this fashion can expect to be punished. The Magistrate was entitled to award court costs in respect of the police witnesses, and I consider that she was entitled to award one day’s court costs in respect of those witnesses because of inefficient and improper cross-examination, of which there was quite a lot. This was not an exercise on imposing an additional penalty simply because the charge was being defended, but in circumstances where additional costs were incurred because of the inappropriate way in which the defence was being conducted it was open to the Magistrate to make such an order.[28]Indeed, I agree with that approach. The payment of these court costs was not ordered because of the fact that the charge was defended, but because of the inappropriate way in which it was defended.
- [72]Overall I am not persuaded that any error has been made by the Magistrate in the exercise of the sentencing discretion, or that the sentence imposed in respect of either charge was manifestly excessive, or that the combined effect of both sentences was manifestly excessive. The appeal against sentence is also dismissed.
- [73]Overall therefore the appeal is dismissed. Counsel for the respondent told me at the hearing of the appeal that no order for costs was sought if the appeal were dismissed, so I do not need to consider that question.
Footnotes
[1] Fox v Percy (2003) 214 CLR 118 at [22].
[2] Pavlovic v Commissioner of Police [2006] QCA 134 at [30], [31].
[3] If on appeal the appropriate outcome is that the charge must be reheard, the witnesses have to be called again, and a rehearing before a magistrate would be appropriate: s 225(2).
[4] I did look briefly at the mother’s affidavit, which appears to be inconsistent with her evidence at the trial.
[5] Fox v Percy (2003) 214 CLR 118 at [22] – [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2017] QCA 255 at [47].
[6] Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [16]; Walker v Davlyn Homes Pty Ltd [2003] QCA 565 at [9]; Shambayati v Commissioner of Police [2013] QCA 57 at [23]; White v Commissioner of Police [2014] QCA 121 at [8]; McDonald v Queensland Police Service [2017] QCA 255 at [47].
[7] R v Lawley [2007] QCA 243 at [18].
[8] Transcript, p 1-4, 5.
[9] This is the effect of what he said, which was not so coherent.
[10] Had this occurred he could easily have reached into the car and retrieved his licence.
[11] They became Exhibit 6: p 3-4.
[12] They later became Exhibit 8: p 3-5.
[13] It has been suggested that the approach of the court in Schmidt to the use that can be made of photographs as evidence was too restrictive: Blacktown City Council v Hockin [2008] Aust Torts Reports 81-956 at 13,240. In the present matter no issue arises as to the use of inferences drawn from photographs as a foundation for findings not otherwise supported by the evidence, since the use made of photographs was to support the evidence of the other driver.
[14] He later conceded that he had stopped near the Woolworths centre first, to get something, surprising behaviour if he thought his son had been involved in a collision.
[15] A most implausible assertion!
[16] Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 539 at 545, per Latham CJ. This is the passage cited in Cross on Evidence (Australian Edition) at #19030, although this was a dissenting judgment as the majority of the court held the relevant evidence inadmissible under this rule.
[17] This was inadmissible opinion evidence. The other driver had not complained of glare in her evidence, and had not been cross-examined on it.
[18] The reference on p 2-77 to Exhibit 5 was in error.
[19] Not what was shown in the videos.
[20] The speed limit at that point is 60 kph.
[21] That also does not appear in the videos, although they do show an officer moving the father away, apparently to stop his interfering in the restraint of the appellant on the ground.
[22] As well, Senior Constable Richards said that there was no debris near the overbridge: p 2-23.
[23] This was in response to an argument that this damage supported the appellant’s version.
[24] Unfortunately the appellant was not cross-examined on this.
[25] In the circumstances the evidence of the appellant’s father was worthless, if for no other reason than his absence of credibility.
[26] See Siganto v R (1998) 194 CLR 656; R v Gray [1977] VR 225 at 238; R v WBD [2001] QCA 250 at [7], [8].
[27] R v Noltenius [2014] QCA 303 at [26].
[28] That is a proper consideration in relation to an order for costs, which is separate from any penalty imposed, and governed by different principles.