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Hamilton v Queensland Police Service[2021] QDC 60

Hamilton v Queensland Police Service[2021] QDC 60



Hamilton v Queensland Police Service [2021] QDC 60












Appeal s 222 Justices Act 1886 (Qld)


Magistrates Court, Gladstone


12 April 2021


District Court, Gladstone


18 March 2021


Clarke DCJ


The appeal is dismissed


CRIMINAL LAW – APPEAL AGAINST CONVICTION – s 222 Justice Act 1886 (Qld) – Leave to adduce fresh, additional or substituted evidence


Justices Act 1886 (Qld) ss 222, 223, 223(2), 228


Allesch v Maunz (2000) 203 CLR 172

Teelow v Commissioner of Police [2009] QCA 84

Fox v Percy (2003) 214 CLR 118

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679

McDonald v Queensland Police Service [2018] 2 Qd R 612

Clarke v Japan Machines (Australia) Pty Ltd [1984] Qd R 404

Langdale v Danby [1982] 3 All ER 129


The appellant appeared on his own behalf

Ms L Soldi, instructed by the Officer of the Director of Public Prosecutions for the respondent

  1. [1]
    On 13 January 2021 in the Magistrates Court at Gladstone the appellant was convicted, following summary hearing, of an offence of failing to drive to the left of the dividing line on the Bruce Highway at Benaraby, on 11 October 2019.[1]
  2. [2]
    The appellant, who appears for himself on the hearing of this appeal, was represented by a solicitor at the hearing and gave evidence in his own defence.  He appeals the order of the learned Magistrate convicting him of the offence, and on the rehearing seeks the leave of this court to adduce new evidence.[2]  Sensibly, no issue was taken with the fact the appellant had used the form used for appeals to the Court of Appeal.[3]

Appeal generally a rehearing on the evidence

  1. [3]
    Section 223 of the Justices Act 1886 (Qld) confirms an appeal under s 222 is by way of rehearing on the original evidence given in the proceeding the order is appealed against.
  2. [4]
    Courts have regularly determined the basic following principles apply: it is for the appellant to demonstrate some legal, factual or discretionary error;[4] the court is obliged to conduct a “real review”, and to make its own findings of fact, or draw its own inferences and conclusions.[5]

Leave to adduce new evidence

  1. [5]
    The appellant argues that his memory has been affected by a head injury suffered by him, when he was attacked by someone brandishing a metal bar on 15 November 2020.  Consequently, he says that injury has impeded his recollection of events, and given that he was still recovering from the trauma of that incident, was unable to process his thoughts at the hearing.  He says his lack of memory was a main contributing factor in the Magistrate’s decision to convict him.
  2. [6]
    The new evidence the appellant seeks to rely upon is a discharge summary from the Royal Brisbane and Women’s Hospital dated 17 November 2020. The discharge summary confirms his hospitalisation and treatment for facial fracture.  The discharge summary makes no mention of any head or brain injury leading to memory problems.
  3. [7]
    The prosecution argue leave to adduce the new evidence should be refused.
  4. [8]
    Section 223(2) Justices Act 1886 (Qld) contemplates a discretion to give leave to adduce new evidence, if the court is satisfied there are special grounds for giving leave. Authority for what may constitute “special grounds” is derived from Clarke v Japan Machines (Australia) Pty Ltd[6] as follows:

“That for the purposes of O. 70, r. 10 of The Rules of the Supreme Court to constitute special grounds for the reception of further evidence upon an appeal, three conditions must be fulfilled: (i) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (ii) the evidence must be such that, if given, it would probably have an influence on the result of the case although it need not be decisive; (iii) the evidence must be such as is presumably to be believed, though it need not be incontrovertible.”

  1. [9]
    The prosecution simply argue the appellant has failed to demonstrate any of these three grounds.  Ms Soldi states the evidence of the attack on the appellant in November 2020 was not relevant, nor could it have been admissible at the hearing.  Although the prosecution accept he was physically injured, it has not been established that could have been relevant to whether he was driving as alleged on 11 October 2019, especially in the absence of any evidence about memory deficit.  Ms Soldi otherwise points to the irreconcilable contradiction caused by the claim of memory deficit.  The appellant gave evidence at the hearing clearly stating he did not drive over unbroken white traffic lines.  On the hearing of the appeal (consistent with his written outline of argument), the appellant reiterated this, stating “And I know I overtook on a broken white line.[7]
  2. [10]
    The appellant referred to parts of the learned Magistrate’s decision, where he had criticised the appellant’s evidence, as being vague,[8] or that he appeared to have reconstructed his evidence.[9] The appellant maintains this demonstrates the Magistrate appreciated the appellant had a poor memory.  He disagrees those comments were part of his Honour’s careful consideration of the appellant’s evidence, where his Honour identified credibility issues, which ultimately caused him to decide to reject the appellant’s evidence.
  3. [11]
    Despite his apparent ability to give evidence and withstand cross-examination, while enjoying competent legal representation on the hearing, the appellant says he did not raise the difficulties with his memory as he was “actually embarrassed and afraid to say anything about the attack”,[10] and did not mention his resultant claimed head injury leading to memory loss.
  4. [12]
    I am not persuaded the appellant has established a basis for the grant of leave to adduce fresh evidence.  He has failed to establish the pre-conditions identified in Clarke v Japan Machines (Australia) Pty Ltd.[11] In any event, the new evidence the appellant seeks leave to adduce does not support his contentions about memory loss.

Real review

  1. [13]
    In conducting a rehearing I have had regard to the evidence given at the hearing before the Magistrate.  The prosecution case consisted of two police officers, who were travelling in a marked police car behind the defendant south bound on the Bruce Highway.  Senior Constable Sloan was driving the police car.  He explained his familiarity with the stretch of road, which he patrols “at least once or twice a shift, normally”.[12]  He explained that he was able to make observations of the appellant’s driving, due to a rise in the road.  He said he saw the appellant drive his grey Holden utility across a painted traffic island near the Jono Porter Drive intersection, overtaking a number of vehicles, remaining in the north bound lane for about 150 to 200 metres, before travelling back into the south bound lane and crossing painted double unbroken traffic lines.
  2. [14]
    Senior Constable Sloan gave evidence of the excessive speed the appellant was driving at, before he was able to complete his interception.  He confirmed that upon interception, the appellant complained the cars in front of him were travelling slowly, and overtook them because he thought they were committing an offence.  The appellant admitted overtaking, but said it had happened when he believed there had been a broken traffic line.  No emergent reason was provided by the appellant.
  3. [15]
    Senior Constable Sloan referred to photographs of the area where the overtaking manoeuvre occurred, which he took immediately after the incident, and also referred to a Google satellite map of the area, which were both tendered.
  4. [16]
    In cross-examination Senior Constable Sloan confirmed the only “divider” or broken lines were some considerable distance behind or in advance of the overtaking manoeuvre.  The appellant’s car was in front of a B-double truck.  He was able to explain where (and to what extent) his view was obscured by the truck (which was in front of the police car) or assisted by a rise in the road.  He recalled the traffic flow was normal (at about the speed limit) and there was “pretty minimal” traffic. He rejected suggestions the overtaking manoeuvre occurred elsewhere, and referred to other landmarks to confirm where he saw the appellant cross the unbroken white lines.
  5. [17]
    Constable McPhee was the passenger in the police car.  She saw the defendant overtake two or three cars, crossing the “white painted traffic island that formed into double white lines”[13] near Jono Poter Drive, before coming back over the double white lines, to rejoin the south bound lane.  She confirmed the only overtaking divider lines were approximately one and a half kilometres behind where they were.
  6. [18]
    The appellant gave evidence of a car towing a boat in front of him “doing at least 40 or 50 k’s under the speed limit”.[14]  He said his recollection was he overtook on a broken white line.  He said there were 50 cars behind him, but he did not see any trucks, nor did he see the police car, before correcting himself by saying there was a big truck three or four cars behind him.
  7. [19]
    After hearing submissions, the learned Magistrate adjourned before delivering his extempore decision.  His Honour correctly acknowledged the onus and standard of proof.  He confirmed the legislative exceptions to the offence were not relied upon; the defence case being the overtaking took place elsewhere and the prosecution allegation was denied.
  8. [20]
    His Honour conducted a thorough assessment of the evidence of Senior Constable Sloan and Constable McPhee, highlighted a minor discrepancy in their evidence, but otherwise provided reasons why he found their evidence to be “internally consistent and consisted in all material respects with each other”.[15]  He confirmed their evidence was “not damaged” during the course of cross-examination and the photographic evidence confirmed what the witnesses said about where the overtaking had occurred.  Being satisfied of the evidence of the prosecution witnesses beyond reasonable doubt, he determined the appellant was guilty of the offence charged.
  9. [21]
    I am satisfied, on a review of the evidence and reason for decision, there is no basis to assert any claimed lack of memory of the defendant was a main contributing factor in the Magistrate’s decision. His Honour provided reasoning for determining he was not a reliable or credible witness. Finding the appellant’s evidence unconvincing, he put it to one side and considered the evidence of the prosecution witnesses.
  10. [22]
    The appellant has failed to demonstrate any legal, factual or discretionary error in the order convicting him of the offence.


  1. [23]
    In the circumstances I consider it appropriate to make the following orders:
  1. Leave to adduce new evidence is refused;
  2. Pursuant to s 225 Justices Act 1886 (Qld), I confirm the order made in the Gladstone Magistrates Court on 13 January 2021; and
  3. The appeal is dismissed.


[1]Contrary to s 132(3), Transport Operations (Road Use Management–Road Rules) Regulation 2009.

[2]Section 223(2) Justices Act 1886 (Qld).

[3]Section 228 Justices Act 1886 (Qld).

[4]Allesch v Maunz (2000) 203 CLR 172; Teelow v Commissioner of Police [2009] QCA 84.

[5]Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; McDonald v Queensland Police Service [2018] 2 Qd R 612.

[6][1984] 1 Qd R 404 at 408, per Thomas J, by reference to the English Authority of Langdale v Danby [1982] 3 All ER 129 at 137-138.

[7]Appeal T19/30.

[8]Decision T7/16.

[9]Decision T6/24.

[10]Appeal T13/19.


[12]Hearing T8/35.

[13]Hearing T13/14-15.

[14]Hearing T15/15-16.

[15]Decision T6/37-38.


Editorial Notes

  • Published Case Name:

    Hamilton v Queensland Police Service

  • Shortened Case Name:

    Hamilton v Queensland Police Service

  • MNC:

    [2021] QDC 60

  • Court:


  • Judge(s):

    Clarke DCJ

  • Date:

    12 Apr 2021

Appeal Status

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

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