Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Gregory v The Commissioner of Police[2019] QDC 36

Gregory v The Commissioner of Police[2019] QDC 36

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Gregory v The Commissioner of Police [2019] QDC 36

PARTIES:

GREGORY, Paul
(Applicant)

v

THE COMMISSIONER OF POLICE
(Respondent)

FILE NO/S:

DC 1671 of 2018

DIVISION:

District Court

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

Magistrates Court at Wynnum

DELIVERED ON:

28 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2019

JUDGE:

Loury QC DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – where the appellant collided with a cyclist whilst turning right at an intersection controlled by traffic light – where the appellant failed to stop and exchange particulars with the cyclist – where the appellant was convicted of failing to give way and failing to stop at scene of the crash – where applicant sought leave to adduce new evidence – whether there was sufficient evidence for conviction – whether Magistrate pre-determined matter before evidence was called

Justices Act 1886 (Qld) s 222, s 223

Transport Operations (Road Use Management – Road Rules) Regulations 2009 (Qld) r 15, r 62, r 287.

Allesch v Maunz (2000) 203 CLR 172, cited

Commissioner of Police v Al Shakarji [2013] QCA 319, cited

Gallagher v The Queen (1986) 160 CLR 392, cited

Pavlovic v Commissioner of Police [2007] 1 Qd R 344, cited

SOLICITORS:

Self-represented litigant for the Appellant

Director of Public Prosecutions (Queensland) for the Respondent

  1. [1]
    At around 5.30 pm on 13 June 2017, the appellant turned right at an intersection controlled by traffic lights and collided with a cyclist who was travelling in one of the oncoming lanes. The appellant drove away without exchanging his details with the cyclist. On 19 April 2018, after a summary trial, the appellant was convicted of failing to give way when turning at an intersection with traffic lights and failing to stop at the scene of a crash and provide his particulars. 
  1. [2]
    The appellant represented himself at trial and on appeal.

The evidence given at trial

  1. [3]
    Mr Shane Crawford was riding a pushbike along Creek Road at Cannon Hill on 13 June 2017 at around 5.30 pm. His bicycle was a Canyon Aeroad road-bike valued at $8000. Mr Crawford was an amateur racer and built his own bicycle. It was fitted with a Garmin computer mounted on the handlebars. At the time of the incident the front and rear lights attached to the bicycle were on flashing mode. It was dark and the road was damp as it had rained earlier. The lighting at the intersection where the collision occurred was good. Mr Crawford was wearing yellow, high-visibility lycra with reflective bands on his ankles. 
  1. [4]
    Mr Crawford was riding his bicycle home from work. He had ridden from the airport and was travelling south along Creek Road to Mt Gravatt which was his regular route. As he approached the intersection with Edge Street, which was controlled by lights, he was travelling in the left hand lane of a two-lane carriageway. He estimated that he was travelling at between 45 and 50 kilometres per hour when he approached the intersection. The light was green so he proceeded through the intersection. He saw a car in one of the northbound lanes of Creek Road. That car turned across his path. He first saw the car start to turn when he was 15 to 20 metres away. Mr Crawford veered to the left and applied his brakes. He heard the car sound its horn. He impacted with the front left side of the car in the vicinity of the passenger side mirror. He was thrust over his handlebars. Upon getting to his feet the car stopped for one to two seconds and drove away into Edge Street. The driver did not stop to provide his particulars to Mr Crawford. Mr Crawford took note of the registration number of the car. He spent the next 30 minutes searching the nearby streets and eventually located the car parked outside a house. He called the police and awaited their arrival. Whilst waiting he saw a man come out of the house and linger around the car for a few moments (that man was the appellant).
  1. [5]
    In terms of damage, Mr Crawford said that his bicycle was in a rolling state however the componentry was bent and the drive-train wasn’t rotating. The handle bars and shifters were bent. The Garmin computer mount was broken and the Garmin computer was crushed on the roadway. Mr Crawford sustained bruising to his right elbow and bruising to his lower right calf.
  1. [6]
    Mr Crawford identified on a map of the intersection, the direction of his travel and the position where the collision occurred.  
  1. [7]
    The appellant’s cross-examination of Mr Crawford focused on which lane he, Mr Crawford, was travelling in just prior to impact. It was suggested that Mr Crawford was riding in the left turning lane into Edge Street. Mr Crawford denied that he was in the left turning lane. It was suggested to Mr Crawford that he was riding his bicycle from side-to-side as he approached the intersection. He denied that suggestion.  
  1. [8]
    It was suggested to Mr Crawford that he had bumped into the appellant’s car. The appellant asked “Are you okay?” to which Mr Crawford leaned on the appellant’s car and started thumping it with his fists. Mr Crawford denied all of those propositions. It was also put that Mr Crawford did not fall to the ground to which he said that the appellant’s car impacted with his right arm and he was projected over the handlebars.    
  1. [9]
    The appellant also suggested in his cross-examination that his own car was stationary at the time that Mr Crawford hit him. He suggested that there was a dip or depression in the road which caused him to stop his car. It was then that Mr Crawford rode his bicycle into his car. That too was denied.  
  1. [10]
    Mr Crawford was challenged that if his bicycle was damaged as he described he couldn’t have been riding around the streets looking for the car which hit him. It was established that in his statement to police he had said “I saw the car drive up and turn left into a side street. I rode around and saw the same car with the same registration.” To that suggestion, Mr Crawford said that he was walking with his bicycle which was in a rolling state. He said that the bicycle could still roll but the gears were not working as the componentry was damaged. He was able to sit on the bicycle and roll down the hills looking for the appellant’s car. 
  1. [11]
    Mr Crawford was challenged that he couldn’t possibly have seen the appellant’s car turn from Edge Street into a side street because the first side-street was 100 metres from the intersection where the collision occurred. Mr Crawford said that he could see the indicator was on and saw the appellant turn left into a side street.
  1. [12]
    Mr Crawford provided a statement to police in which it was established that in relation to the damage to his bicycle all that he said was “I noticed that my Garmin bicycle computer was damaged.” He was asked why he didn’t say to police that other parts of his bicycle were damaged. His response was that “it was visibly clear that the shifters were damaged and that the chain was off...and that’s what I said to police”.
  1. [13]
    Mr Crawford was asked why, if he had the registration number of the car which he claimed hit him, would he need to ride around the streets looking for the car. He responded that because he saw the car turn left, that indicated to him that the driver was a local resident. It was suggested to Mr Crawford that he was seeking revenge.  
  1. [14]
    Senior Constable Richard Meredith attended at the appellant’s address. In driving to that address he travelled along Creek Road and turned right into Edge Street. The intersection, he said, was controlled by traffic lights, however, there were no right turn arrows. The traffic lights appeared to be operating normally. He met with Mr Crawford who was wearing high-visibility cycling clothing. He noted some damage to the bicycle which included the Garmin computer and the derailleur gears. He took some photos of that damage which were tendered in evidence. He noted that the appellant’s Ford Falcon had some recent damage, scratches, to the front, left side of the bumper.   
  1. [15]
    Senior Constable Meredith spoke to the appellant. That conversation was recorded via a body-worn camera. The appellant confirmed that the cyclist had bumped into him. He said that he was in a stationary position and wasn’t moving when the bicycle skidded into him. He had turned right into Edge Street but had stopped as there was a bump on the roadway. He needed to stop or he would have damaged his car. He said that the cyclist was heading along Creek Road towards the Cannon Hill shopping centre. He thought that the cyclist’s brakes had failed which caused him to skid into the appellant’s car. He said that the cyclist was 100 metres from him when he commenced turning into Edge Street. He acknowledged that he heard the cyclist strike his car. The appellant said that he asked the cyclist if he was okay. The cyclist said “what happened?”.
  1. [16]
    When asked by Senior Constable Meredith why he didn’t stop and exchange details with the cyclist, the appellant responded that the cyclist ran into him so it was the cyclist’s fault. He said he didn’t know that he had to exchange details. He denied failing to give way and denied failing to give his details to the cyclist.  
  1. [17]
    Senior Constable Meredith said that there was some depression on one side of the road on the approach into Edge Street that allowed water to pass in flooding but that it didn’t affect him driving through the intersection. He travelled through that intersection often whilst on duty. He had never found there to be any memorable bump or divot or undulation in the roadway.  
  1. [18]
    The appellant gave evidence in his defence. He said that he was coming home from training college. When he came to the intersection at the corner of Creek Road and Edge Street he saw that the lights were not working. There were no lights displayed at all. He waited for five and one-half minutes for the lights to change. When there was no change he proceeded with caution through the intersection turning right. As he approached Edge Street he slowed down as he normally does as there is a dip in the road and as a result of all of the heavy rain that day, there was water in that dip. He noticed a cyclist to his left who was riding his bicycle from side to side. The cyclist bumped into his car on the left-hand side and caused two scratches to it. The cyclist said to him “what happened?”. The appellant said “Are you okay?”. The cyclist then started thumping his car. To avoid an altercation he drove away. He did not want to get out of his car and so he said to the cyclist “don’t worry about it” as it was such a minor collision and he drove away. The cyclist followed him on his bicycle into Edge Street. He then drove home a short distance away. He did not notice the cyclist follow him past Edge Street. A little later he noticed that there were a couple of scratches to his car. He said that he rang the police the following day and reported the event because he did not know the details of the cyclist.  
  1. [19]
    The appellant tendered some photographs that he had taken in December 2017, which showed the intersection from the southbound approach in the far left lane. They showed that a car travelling in the far left lane from which a turn into Edge Street would be made, could not travel straight ahead through the intersection as there was a guardrail on the opposite side of Edge Street preventing a car travelling straight ahead.
  1. [20]
    Under cross-examination, the appellant said that he first saw the cyclist when he was 30 metres away. When asked why he told the police on the night that he first saw the cyclist when he was 100 metres away he said that he actually meant to say that he first saw the lights on other cars when they were 100 metres away. The appellant confirmed that he did not stop and provide his details to the cyclist because he wanted to avoid an altercation. When asked why he didn’t tell the police that the cyclist was thumping his car he said that he didn’t understand why the police were at his house. He said that he also thought that the police might charge the cyclist with assault if he told them about the thumping of the car. The appellant claimed in cross-examination that he rang Police Link that evening and told them that a cyclist was thumping his car and he drove away from the scene.
  1. [21]
    When asked by the prosecutor if he was suffering any medical conditions at the time of the collision the appellant said that he had to go to the toilet, he had a stomach bug. He did not raise that with the police at his house because they did not ask him. The appellant claimed for the first time in cross-examination that the cyclist did not have his light on. He said that he didn’t tell the police this because they didn’t ask him.  
  1. [22]
    The appellant, under cross-examination, said that he did not turn across the cyclist’s path and that he was stationary at the time. He anticipated that the cyclist was turning left into Edge Street as he was in the far left lane from which he could not travel straight ahead.  
  1. [23]
    The appellant said that the lights were out at the intersection and that he referred that to the Brisbane City Council on 15 June 2017. 

The Magistrate’s decision 

  1. [24]
    The learned Magistrate referred to all of the evidence given at trial in his reasons. He said that there was no doubt in his mind that the bicycle had collided with the car. He paid particular regard to the point of impact between the bicycle and car. He said that if the appellant was through the intersection and his car was stationary (as his evidence suggested) it would have been easy for Mr Crawford to manoeuvre in such a way as to avoid a collision. He said that there was evidence corroborating the version given by Mr Crawford. He did not accept Mr Crawford was in the left hand turning lane. He said that Mr Crawford was an experienced bicycle rider who was travelling straight ahead through the intersection. He would have been aware of the guardrail in front of the left turn lane that would have prevented him travelling straight ahead. The learned Magistrate said that if the appellant’s car was stationary at the dip in the roadway there would not have been a collision as the appellant’s car would have been far enough through the intersection for Mr Crawford to be able to travel straight ahead without hitting the appellant. He said that if the appellant was a prudent driver he would have delayed travelling through the intersection until such time as all oncoming traffic had passed through safely. Accordingly, he considered that the appellant failed to give right of way to the cyclist at the intersection.  
  1. [25]
    In relation to the appellant’s evidence he said that he kept “chopping and changing”. He gave a version to the court, which was inconsistent with the version that he gave to police, captured on the body-worn camera. He did not report to police that he had been intimidated or threatened by the bicycle-rider. He did not mention that the bicycle-rider had thumped his car. He did not mention water on the road. There was no reason stated why he had left the scene. He said that there was no suggestion that the bicycle-rider did not have lights on. He considered that the appellant’s evidence was probably a recreation in his mind of what he thought happened.  
  1. [26]
    The learned Magistrate found beyond reasonable doubt that the appellant went through the intersection on a green light, which he was entitled to do but, by placing his car where it was allowing the bicycle-rider to collide with it, he had failed to give right of way to the bicycle-rider.  
  1. [27]
    In relation to the offence of failing to stop at a crash and provide his particulars, the learned Magistrate said that there would have been no need for the bicycle-rider to go to the appellant’s house if particulars had been provided. He said that he did not accept the account given by the appellant that he felt intimidated or threatened because he never mentioned to police that there had been a thumping on his car. He was satisfied that there was ample opportunity for a reasonably prudent driver to exchange the information. He found that the appellant failed to comply with that regulation.  

The nature of the appeal

  1. [28]
    The appellant appeals his conviction pursuant to section 222 of the Justices Act 1886 (Qld). Such an appeal is by way of rehearing on the evidence adduced before the Magistrate together with any new evidence for which leave to adduce is given pursuant to section 223(2).[1]  An appeal by way of rehearing requires this court to make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.[2]  In order to succeed the appellant must demonstrate that the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[3] 

Grounds of appeal 

  1. [29]
    The appellant’s grounds of appeal as set out in the notice are: “errors of facts, errors of law, error on judgements and person’s identity”.  
  1. [30]
    From the appellant’s written outline of argument together with his oral submissions, his arguments can be distilled to the following: 
  1. The person who gave evidence as Shane Patrick Crawford was not the person riding the bicycle on 13 June 2017 when the collision with the appellant’s car occurred; 
  2. If Shane Crawford was the person who was riding the bicycle his evidence was unreliable and ought not to have been accepted by the learned Magistrate;
  3. The appellant ought not to have been convicted of the offence of failing to stop at a crash and provide his particulars as there was a reasonable explanation for his having not done so; and
  4. That the learned Magistrate pre-determined the matter, that is he made a decision that the appellant was guilty prior to hearing any evidence in the trial.

The offences of which the appellant was convicted

  1. [31]
    The two offences of which the appellant was convicted are: 

62Giving way when turning at intersection with traffic lights

  1. (1)
    A driver turning at an intersection with traffic lights must give way to—
  1. (a)
    ….
  1. (b)
    ….
  1. (c)
    if the driver is turning right—any oncoming vehicle that is going straight ahead or turning left at the intersection (except a vehicle turning left using a slip lane).

Maximum penalty—20 penalty units.

Example 1  ….

Example 2  ….

Gregory v The Commissioner of Police [2019] QDC 36 

Example 3

Driver turning right does not have to give way to an oncoming vehicle that is turning left into the road the driver is entering using a slip lane

In example 3, vehicle B must give way to vehicle A.[4]

 287 Duties of a driver involved in a crash

  1. (1)
    This section applies to a driver involved in a crash.
  2. (2)
    The driver must stop at the scene of the crash and give the driver’s required particulars, within the required time and, if practicable, at the scene of the crash, to—
  1. (a)
    any other driver (or that driver’s representative) involved in the crash; and
  1. (b)
    any other person involved in the crash who is injured, or the person’s representative; and
  1. (c)
    the owner of any property (including any vehicle) damaged in the crash (or the owner’s representative), unless, in the case of damage to a vehicle, the particulars are given to the driver of the vehicle (or the driver’s representative).

Maximum penalty—20 penalty units.

  1. (3)
    The driver must also give the driver’s required particulars, within the required time, to the Queensland Police Service if –
  1. (a)
    anyone is killed or injured in the crash; or
  1. (b)
    the driver does not, for any reason, give the driver’s required particulars to each person mentioned in subsection (2); or
  1. (c)
    the required particulars for any other driver involved in the crash are not given to the driver; or
  1. (d)
    a motor vehicle involved in the crash is towed or carried away by another vehicle.

Maximum penalty—20 penalty units.

  1. (4)
    In this section—

required particulars, for a driver involved in a crash, means—

  1. (a)
    the driver’s name and address; and
  2. (b)
    the name and address of the owner of the driver’s vehicle; and
  3. (c)
    the vehicle’s registration number, if any; and
  4. (d)
    any other information necessary to identify the vehicle.

required time, for a driver involved in a crash, means as soon as possible but, except in exceptional circumstances, within 24 hours after the crash.[5]

Consideration of appellant’s arguments

  1. The person who gave evidence as Shane Patrick Crawford was not the person riding the bicycle on 13 June 2017 when the collision with the appellant’s car occurred;
  1. [32]
    There was no dispute at trial that a collision had occurred between the appellant’s car and Mr Crawford’s bicycle. The appellant did not suggest during the course of his cross-examination of Mr Crawford or in his own evidence before the Magistrate that Mr Crawford was not the cyclist with whom he collided.  
  1. [33]
    The appellant seeks leave to adduce new evidence. That evidence is contained in an affidavit sworn by the appellant on 19 June 2018. That affidavit contains an account of the events of 13 June 2017 as given by the appellant in his evidence at trial. It also contains a statement that the man who gave evidence in the Magistrates Court, who identified himself as Shane Crawford, was not the person into whom the appellant’s car collided.  
  1. [34]
    In Pavlovic v Commissioner of Police,[6] the court said of an application under section 223 (2) of the Justices Act 1886 (Qld) to lead new evidence that the “special grounds” that are required before leave will be granted indicate that there must be good reason identified to justify a departure from the ordinary application of section 222 that such an appeal is by way of rehearing on the evidence given in the proceedings below. The three matters referred to in Gallagher v The Queen by Gibbs CJ, provide a useful guide for identifying the kinds of special grounds that might justify the grant of leave.[7] The first is whether the evidence could, with reasonable diligence have been produced by the appellant at his trial. The clear answer to that question is yes that it could have. It was information solely in the knowledge of the appellant. The second matter referred to by Gibbs CJ is whether the evidence is apparently credible (or at least capable of belief). In my view in light of the fact that the appellant did not give this account when he gave evidence in his own defence means that it is not credible, that is I do not consider that it is capable of belief. It is therefore unnecessary to consider the third matter, whether if believed it might reasonably have lead the Magistrate to return a different verdict. I would refuse leave to adduce this new evidence.  
  1. If Shane Crawford was the person who was riding the bicycle his evidence was unreliable and ought not to have been accepted by the learned Magistrate
  1. [35]
    Mr Crawford’s account of what occurred did not lack plausibility and was supported by other evidence. The appellant argues that there was no medical evidence adduced which supported Mr Crawford’s statement that he was injured. An absence of such evidence does not detract from Mr Crawford’s credibility. He fell to the ground after colliding with a car, that he suffered some minor injuries (bruising to his elbow and calf) accords with common sense. The appellant argues that he didn’t ring an ambulance which is true however he did attend upon his medical practitioner the following day.  
  1. [36]
    The appellant argues that if Mr Crawford’s bicycle was inoperable after the collision he could not have ridden it to locate the appellant’s car. The evidence that the bicycle was inoperable arose from a question from the learned Magistrate to Mr Crawford as to whether the bicycle was rendered immobile? Mr Crawford answered yes. Mr Crawford’s consistent evidence however throughout the trial was that the bicycle was in a “rolling state” after the collision. The componentry were bent and the drive-train wasn’t rotating and the gears were damaged. The handlebars were bent and the pedals were “scrapped”.  Mr Crawford’s account that his bicycle was damaged was supported by the evidence of Senior Constable Meredith who himself saw the damage and photographed it. Photographs, which depicted the damage, were tendered in evidence in the trial. Mr Crawford was able to locate the appellant by traversing the streets in that area over the space of some thirty minutes before locating the appellant’s car. That was not in dispute in the trial. I do not consider that Mr Crawford’s positive answer to the question “was the bicycle rendered immobile” undermines his credibility generally or his evidence about the damage to the bicycle given the consistent explanation he gave throughout the trial of the damage sustained to his bicycle. 
  1. [37]
    The appellant further argues that the damage caused to the bicycle is inconsistent with the minor nature of the collision.  Mr Crawford’s bicycle collided with a car. That the bicycle would sustain some damage from such an impact is unsurprising. Mr Crawford’s bicycle was an expensive one valued at some $8000. Mr Crawford is a cycling enthusiast. He said that he built the bicycle himself by selecting all the components individually. It was fitted with a Garmin computer. That it cost $1737 to repair his bicycle is not surprising in light of its value. A quote for the damage was tendered during the course of the sentencing proceedings.  
  1. [38]
    The appellant argues that Mr Crawford changed his evidence as to which lane he was riding in when the collision occurred. Mr Crawford’s evidence was that he was riding his bicycle home from work. He was riding from the airport to Mt Gravatt. He was travelling southbound on Creek Road headed towards Mt Gravatt. That would necessitate him travelling straight ahead through the intersection at Edge Street. He said initially that he was travelling in the “left most lane of two lanes” when the appellant’s car turned across his path. In fact, at the approach to the Edge Street intersection the southbound lanes become three lanes with the left most lane a turning lane into Edge Street with a guard rail preventing a car travelling straight ahead from that lane. When shown a photograph of the intersection Mr Crawford identified the lane in which he was travelling as the left most lane of the two lanes which continued straight ahead through the intersection. He identified by reference to a van depicted in the photograph in which lane he was travelling. Consistent with his travelling to Mt Gravatt that put him travelling in the left lane continuing straight ahead through the intersection.  
  1. [39]
    The appellant’s evidence, which was not accepted by the learned Magistrate, was that the bicycle rider was in the far left turning lane. This inconsistency in Mr Crawford’s evidence as to which lane he was travelling in arose due to his initial belief that there were only two lanes of traffic rather than three. I consider that the inconsistency is adequately explained once regard is had to the photograph of the intersection. The appellant’s evidence that Mr Crawford was travelling in the far left lane is inconsistent with his intention of riding his bicycle home to Mt Gravatt. I do not accept that Mr Crawford was riding in the left hand turn lane. The appellant’s evidence that he anticipated that the cyclist was going to turn left is inconsistent with the path Mr Crawford would take to get home.  It is also inconsistent with what the appellant told Senior Constable Meredith that the cyclist was travelling along Creek Road towards Cannon Hill Shopping Centre. 
  1. [40]
    The appellant’s further argument on this point is that if the cyclist was in the left hand turn lane then the appellant did not need to give way to him as the cyclist was turning left using a slip lane.  He relies upon example 3 in the examples given to regulation 62 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009, referred to at [31]. Looking at the photographs of the intersection the left turn lane into Edge Street from Creek Road is not a slip lane. Accordingly, even if the cyclist were turning left into Edge Street which I do not accept, the appellant was required to give way to him.  
  1. [41]
    The appellant argues that Mr Crawford’s evidence that after the collision he watched the appellant’s car turn left into a side street off Edge Street was incapable of belief. He seeks leave to adduce new evidence of photographs he had taken in July 2018, which show the view from the intersection looking up Edge Street. I would grant leave to adduce this new evidence as it did not arise until after the cyclist had given evidence that he was able to see the appellant turn left into the side street. From the photographs it does seem difficult to see any side street from the intersection with Creek Road.  However the evidence of Mr Crawford was that he saw the appellant’s indicator was on and saw him turn left into a side street. That does provide an explanation for how Mr Crawford was able to ascertain that the appellant turned left. In any event, Mr Crawford did travel throughout the side streets for some 30 minutes before he located the appellant’s car. As there was no dispute that the appellant was the driver of the car with whom Mr Crawford collided I do not consider that much turns on this evidence.  
  1. The appellant ought not to have been convicted of the offence of failing to stop at a crash and provide his particulars as there was a reasonable explanation for his having not done so
  1. [42]
    The appellant’s arguments rely upon the evidence that he gave at the trial. His evidence was unsatisfactory in a number of ways. He accepted in evidence that he turned right into Edge Street, however, he denied turning across the path of the cyclist. He said that he stopped his car essentially at the commencement of Edge Street and that the cyclist ran into him. His evidence at trial was that he first saw the cyclist when he was approximately 30 metres from him. However, to the police on the body-worn camera, he said that the cyclist was approximately 100 metres away when he first commenced turning right into the intersection. He accepted that there was a collision, however, he said that he drove away because the cyclist started thumping his car and he wanted to avoid an altercation so drove home. He said that he rang the police the following day and reported what happened the following day to another police officer.  
  1. [43]
    The difficulty with the appellant’s explanation for driving away without giving his particulars to the cyclist is that he didn’t mention that the cyclist was acting in a threatening manner to him when the police spoke to him at his house. If indeed the cyclist had threatened him it would be expected that such a complaint would be made to police. The appellant was asked why he didn’t stop and provide his particulars.  His explanation was that he didn’t know that he had to. The appellant’s evidence that he reported the incident the following day to police does not change the fact that if there was no thumping of the appellant’s car there was no practical reason he couldn’t stop and exchange details with the cyclist at the time of the collision.  
  1. [44]
    The appellant also said in his oral argument that he had diarrhoea and had to go home. He said that he was on the toilet for one hour until the police arrived. This was not evidence that the appellant gave until he was asked in cross-examination whether there was any medical condition preventing him stopping at the scene. His evidence has the appearance in those circumstances of having been made up when asked the question. He did not mention this to the police upon their attendance at his house when asked why he didn’t stop at the scene. Further, he gave evidence of having checked his car and having noticed two scratches prior to the police arriving which is not consistent with him having spent one hour on the toilet. I do not accept this account given by the appellant. There is no logical reason why, if he was sick, that he would not have told the police upon their attendance at his house or that he would have given unprompted evidence of that.    
  1. [45]
    The appellant relies upon their being a dip in the roadway at the beginning of Edge Street to explain his failing to give way. He says that he had to stop his car prior to entering Edge Street as there was a puddle of water in the dip in the roadway. The appellant’s stopping his car on the roadway during the course of making a right hand turn at the lights does not change the fact that he was required to give the on-coming traffic right-of-way. He knew the street and was well aware of the dip and had deliberately stopped his car at the dip. Knowing that he was going to stop, required him to make an allowance for that action in giving way to the on-coming traffic. I do not consider that this provides an adequate answer for his not having given way to the cyclist.  
  1. [46]
    The appellant also argued that the time of the incident written on the tickets issued by police was not consistent with the time of the collision. Whilst that may be true that does not impact upon the evidence given at trial and on the live issue at trial as there was no contest that Mr Crawford’s bicycle and the appellant’s car collided at the intersection of Creek Road and Edge Street on 13 June 2017.  
  1. [47]
    The appellant in oral argument on appeal said that the cyclist was wearing different clothing to that which he described in his evidence. The appellant did not challenge Mr Crawford about the clothing he was wearing and in any event nothing would turn on that as there was no dispute that there was a collision between Mr Crawford’s bicycle and the appellant’s car at trial.  
  1. [48]
    The appellant in oral argument on appeal alleged some sort of conspiracy, in that the real person involved in the collision was perhaps a police officer. He said that the real person had run past the appellant’s house three months before the trial and was a friend of his next door neighbour. This theory does not impact upon the uncontested evidence given at trial that there was a collision between the appellant’s car and Mr Crawford’s bicycle.  
  1. That the learned Magistrate pre-determined the matter, that is he made a decision that the appellant was guilty prior to hearing any evidence in the trial
  1. [49]
    The appellant finally argues that the learned Magistrate had already made a decision to convict him prior to hearing any evidence. The appellant could not point to where in the transcript of the proceedings the learned Magistrate said something that indicated that he had pre-determined the case. All he could point to was something allegedly said immediately prior to Mr Crawford giving evidence.  
  1. [50]
    The transcript of the proceedings does not reveal any irregularities in the trial process and does not suggest in any way that the learned Magistrate had predetermined the matter. The learned Magistrate read the two charges out to the appellant. He asked the police prosecutor to provide particulars of each of the charges which she did. The learned Magistrate asked how many witnesses there were which was answered. The appellant began to say something about the police, however, the learned Magistrate said to him that it was best he not say anything as he had indicated a plea of not guilty. He said to the appellant that he didn’t have to say anything or do anything. By putting the prosecution to proof they had the responsibility of having to put the evidence before the court. He said that he would make a determination at the end of the trial. After a short adjournment, again the charges were read to the appellant. He indicated that he was maintaining his plea of not guilty. The appellant was again told that the prosecution must prove his guilt beyond reasonable doubt and that he did not have to say or do anything. The learned Magistrate explained the trial process to the appellant. He said to the appellant that if there were any anomalies or inconsistencies or discrepancies in the version of events that any of the witnesses gave, that the appellant must challenge them when he cross-examined them. He went on to say that if there’s insufficient evidence to inculpate the person in establishing a prima facie case there could be a no case submission and the argument could be run that there is insufficient evidence to prove the charges beyond reasonable doubt.  
  1. [51]
    The learned Magistrate said to the appellant “you’re innocent of the charge until you’re proved guilty or until you enter a voluntary plea of guilty”. In the absence of a plea, the court would hear evidence and then, if satisfied beyond reasonable doubt “could reach a verdict of guilty”. If the evidence was deficient and it did not get to a point where the charges had been proved beyond reasonable doubt the court would acquit the appellant. The learned Magistrate further explained the process of making submissions. He also said to the appellant at the conclusion of the prosecution case that he would be called upon to consider whether he wished to give evidence. He was told that if he did not give evidence that no adverse inference would be drawn against him. He was reminded that the onus always rested with the prosecution to prove guilt beyond reasonable doubt.  
  1. [52]
    Shortly after that explanation Mr Crawford was called. There is no suggestion in any of the explanations given to the appellant that the learned Magistrate had predetermined the matter. Indeed, it is apparent that the learned Magistrate knew nothing of the charges until the particulars were provided to him. He went to considerable lengths to explain the trial process to the appellant and to re-enforce that it was for the prosecution to prove the charges beyond reasonable doubt. It is apparent from the manner in which the appellant ran his case that he understood the need to challenge the evidence and how to go about doing that.

Conclusion 

  1. [53]
    The appellant’s evidence was unsatisfactory in a number of ways. There was a clear basis for the learned Magistrate to reject his evidence, it being in some essential respects, inconsistent with his earlier statements to police. The learned Magistrate had the advantage of seeing and hearing the appellant give evidence. His view should be accorded weight. The evidence of Mr Crawford found support in other evidence. Photographs of his bicycle revealed the damage. That he was travelling straight ahead through the intersection was consistent with the direction of travel he would need to take to get home. It was open to the learned Magistrate to accept the evidence of Mr Crawford in its essential features. None of the matters raised by the appellant in his arguments led me to the view that Mr Crawford’s evidence could not be accepted beyond reasonable doubt.
  1. [54]
    In my view, the prosecution succeeded in establishing beyond reasonable doubt that the appellant failed to give way to an oncoming car. Further, the prosecution succeeded in establishing beyond reasonable doubt that the appellant failed to stop at the scene of the crash and give his particulars to Mr Crawford.  
  1. [55]
    The appellant has not established that the decision of the Magistrate was the result of any legal, factual or discretionary error. The appeal is therefore dismissed. 

Footnotes

[1] Justices Act 1886 (Qld).

[2] Commissioner of Police v Al Shakarji [2013] QCA 319 at [7] per Morrison JA referring to Fox v Percy (2002) 214 CLR 118 at [25].

[3] Allesch v Maunz (2000) 203 CLR 172 at [23].

[4] Transport Operations (Road Use Management – Road Rules) Regulations 2009 (Qld). A vehicle is defined in rule 15 of the Regulations to include a bicycle.

[5] Transport Operations (Road Use Management – Road Rules) Regulations 2009 (Qld).

[6] [2007] 1 Qd R 344.

[7] (1986) 160 CLR 392.

Close

Editorial Notes

  • Published Case Name:

    Gregory v The Commissioner of Police

  • Shortened Case Name:

    Gregory v The Commissioner of Police

  • MNC:

    [2019] QDC 36

  • Court:

    QDC

  • Judge(s):

    Loury DCJ

  • Date:

    28 Mar 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.