Harley v Commissioner of Police
[2023] QDC 33
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- Harley v Commissioner of Police[2023] QDC 33
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Harley v Commissioner of Police[2023] QDC 33
Harley v Commissioner of Police[2023] QDC 33
DISTRICT COURT OF QUEENSLAND
CITATION: | Harley v Commissioner of Police [2023] QDC 33 |
PARTIES: | SANDRA SANDI HARLEY (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | D232/22 |
DIVISION: | Appellate |
PROCEEDING: | S 222 Appeal |
ORIGINATING COURT: | Magistrates Court at Warwick |
DELIVERED ON: | 3 March 2023 |
DELIVERED AT: | Southport |
HEARING DATE: | 23 February 2023 |
JUDGE: | Kent KC, DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | APPEAL – appeal pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant was convicted in the Magistrates Court of driving without due care and attention under the Transport Operations (Road Use Management) Act 1995 (Qld) – where appellant is self-represented – whether the Magistrate’s finding of guilt was not adequately supported by the evidence – where there is no reasonable argument that there is any error to be corrected. |
LEGISLATION: | Justices Act 1886 (Qld) Transport Operations (Road Use Management) Act 1995 (Qld) s 83(1)(b) |
CASES: | Commissioner of Police v Al Shakarji [2013] QCA 319 Fox v Percy (2003) 214 CLR 118 Johannesen v Zeller; Ex parte Zeller, (1958) QR 366 McDonald v Queensland Police Service [2017] QCA 255 Rowe v Kemper [2009] 1 Qd R 247 Teelow v Commissioner of Police [2009] 2 Qd R 489 White v Commissioner of Police [2014] QCA 121 |
COUNSEL: | Appellant was self-represented K Thomas for the Respondent |
SOLICITORS: | Appellant was self-represented Office of the Director of Public Prosecutions (Southport) for the respondent |
Introduction
- [1]Ms Harley was convicted of driving without due care and attention, in breach of s 83(1)(b) of the Transport Operation (Road Use Management) Act 1995 after a two-day hearing in the Magistrates Court at Warwick concluding on 22 July 2022. She appeals against the finding of guilt but does not challenge the sentence imposed.
Nature of the appeal
- [2]An appeal pursuant to s 222 of the Justices Act 1886 (Qld) is by way of rehearing of the evidence.[1] This involves a rehearing in the sense of a review of the record of the proceedings rather than a completely fresh hearing ab initio. The procedure was described in McDonald v Queensland Police Service[2] at [47] per Bowskill J (as her Honour then was):
“However, in this case, the District Court judge did conduct the appeal appropriately, in accordance with law, by way of a rehearing, in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing.[3] It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.[4] Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[5]”
Grounds of appeal
- [3]The grounds of appeal relied upon by the self-represented appellant are not perfectly clear, however it seems that the complaints are best styled as a criticism that the Magistrate’s finding of guilt was not supported by the evidence.
Factual Overview
- [4]On 2 April 2020 Ms Harley was driving a motor vehicle, a utility, along Hutchison Lane at Cottonvale, a rural locality in the Southern Downs region of Queensland near the New England Highway between Stanthorpe and Warwick. Shortly after midday the utility driven by her (with her aged father as a passenger) entered the intersection of Hutchisons Lane and Pozieres Road and collided with a truck – a prime mover with two trailers attached – driven by William Peterkin along Pozieres Road. Mr Peterkin was a professional truck driver of some experience and was driving a load of apples from the Pozieres Cold Stores to Brisbane.
- [5]On the prosecution case as described by Mr Peterkin, he was travelling at approximately 70 or 80 kilometres per hour as he approached the intersection with Hutchisons Lane (the speed limit in the area is 100 kilometres per hour). He was familiar with the intersection, having been there regularly for three years.[6] He noticed Ms Harley’s utility approaching along Hutchisons Lane. The intersection, approached along Hutchison Lane, is a T-intersection, as described in a road sign on the lane shown in photographs produced by the prosecution. On the far side of Pozieres Road as Ms Harley was approaching the intersection, the roadway continues as Cosmo Lane, however Hutchisons Lane and Cosmo Lane do not line up exactly,[7] such that the intersection is a T-intersection.
- [6]Mr Peterkin said he could clearly see the utility as it approached along Hutchisons Lane a couple of hundred metres from the intersection.[8] As he approached some of the trees blocked some of the view, but upon passing those trees, he saw the utility again. It did not slow down and as he got closer to the intersection, he could see the driver; he began braking hard because in his observation the driver did not look towards him and did not acknowledge the presence of his truck and simply maintained their vehicle’s speed through the intersection. Accordingly, when the utility was about 20 metres from the intersection, he realised it was not going to stop and began braking hard causing the brakes to lock up. The collision, nevertheless, occurred and the utility was badly damaged, stopping on the corner of Cosmo Lane and Pozieres Road.[9]
- [7]Mr Peterkin gave evidence that his truck was in good condition mechanically including the brakes. He had been driving for approximately three hours that day and the brakes were performing properly.[10] He also knew the truck well and drove it every day. He had done a prestart inspection making sure that the tyres and condition of the truck generally were good and the truck was roadworthy for him to operate.[11]
- [8]Thus, the case advanced at trial for the prosecution was that Ms Harley had simply failed to keep a proper lookout and thus failed to give way to the vehicle on her right and thus was driving without due care and attention in breach of s 83.
- [9]The case advanced by Ms Harley at the trial, and on appeal, is broadly that her view of Pozieres Road as she approached the intersection was obscured by a tree or bush and thus it was not possible for her to see the truck. Secondly, she challenges whether the brakes of the truck were operating properly given that it was one set of tyres rather than both sets of tyres which left skid marks on the road; this is clearly shown in photographs.
The decision
The brakes
- [10]The Magistrate set out the evidence which had been led before her during the hearing of the matter. On the issue of the alleged problems with the brakes, she referred to Mr Peterkin’s evidence including that the truck when he braked heavily left “bunny hop” tyre marks where the tyre grabs traction, releases and then grabs again; thus the tyre marks are not continuous. He identified his tyre marks in photographs. He had braked from 100 to 150 metres back from the intersection as hard as he could but the collision could not be avoided. The skid mark on one side was because the other tyres did not lock up. There was nothing wrong with the brakes and the truck was not unroadworthy.[12]
- [11]Her Honour also noted that the investigating police officer, Senior Constable Cole found evidence from marks on the surface of the roadway indicating the brakes of the truck were working sufficiently to slow the truck, and the tyres must have locked because of hard braking to create the tyre marks.[13] As to the skid marks being on one side only, Senior Constable Cole also said tyres needed to be fully locked and sliding for enough time to heat up and leave a skid mark, and a vehicle can brake without leaving such a mark. Relevant factors include the load on the vehicle and the undulation of the road.[14]
- [12]I pause to note that the brakes issue seems to be something of a red herring. The issue was whether Ms Harley drove – entering the intersection when the truck was approaching from her right, making it unsafe to do so – without due care and attention. She was not charged, by the conclusion of the trial, with having thus caused the accident, although such causation would have been an issue on the original aggravated form of the charge and no doubt was in any case a relevant feature of the original decision to prosecute.
- [13]Thus the truck brakes, applied after, on the prosecution case, the driving without due care and attention had taken place – or at the very least, had commenced - seem to be a collateral issue. Even if there were an issue with the brakes – which on the evidence there was not – this does not impact the merits of the charge. Indeed, as was observed by Stanley J in Johannesen v Zeller, ex parte Zeller[15] at p 370, the Full Court has concluded that it is possible to have committed this offence without having been involved in an accident at all; thus, in the present case, whether Peterkin was able to avoid the collision or not.
- [14]In any case, the Magistrate concluded that the accident occurred because Ms Harley entered Pozieres Road from Hutchisons Lane and failed to give way as she was required to do to the truck.[16]
Visibility
- [15]Her Honour canvassed the evidence of Senior Constable Cole, including his descriptions and the various photographs. In particular, Cole’s evidence, as supported by the photographs, demonstrated that Hutchisons Lane as it approached Pozieres Road did have visibility of the area the truck approached from, although it was slightly obscured by trees at times and as he said “as you approach the intersection, visibility opens up. There are few trees and more open paddock.”[17]
- [16]The Magistrate also referred to Cole’s conclusions, from the evidence at the scene, supportive of the proposition that the path of travel of the utility was across the intersection from Hutchison Lane in the direction of Cosmo Lane; that is, there were no indications the utility had been turning into Pozieres Road.
- [17]The Magistrate also referred to the evidence of Ms Harley who said that she could not see the traffic because of the bushes obscuring her view and it is impossible to see traffic on the right-hand side. According to her evidence, there had been many near accidents on the same corner. Under cross-examination, she acknowledged that she did not remember much of the day because she was in a coma after the accident. She disputed that the intersection was a T-intersection although she was shown the photograph of the relevant sign.[18]
- [18]The Magistrate canvassed the evidence of Ms Harley when challenged as to giving way at a T-intersection in the following terms:
“…she replied:
When you see a bush, how do give way to a bush?
She was asked about giving way to the right, and she replied:
How do I give way to the right when a bush is blocking my view? Do I give way to the bush?
She was asked how the collision occurred and she said she didn’t see the truck and no recollection that she was in a coma afterwards, and that she couldn’t see him because of the bush. She was shown photograph 11P, which shows the view down Pozieres Road from the T-intersection,[19] and she maintained there was a big tree in the way, and it was not possible to see traffic coming. When it was pointed out that there was a car depicted in the photo, she replied:
The bush has blocked my view. It’s impossible to the traffic by the right-hand side.[20]
Findings
- [19]The Magistrate’s findings were that there was an advisory sign on Hutchisons Lane indicating the approach to a T-intersection, thus a driver is obliged to give way in accordance with s 73 of the Road Rules. However, even it were not a T-intersection, as contended by Ms Harley, a driver is still obliged to give way to traffic on the right pursuant to s 72 of the Road Rules. The Magistrate found Mr Peterkin to be an honest and reliable witness and refers to his evidence that he could see the white utility approaching (of course, if this is so, which the Magistrate seems to have accepted, it would seem to irresistibly follow that the driver of the white utility would equally be able to see the truck, a much larger vehicle); it did not slow at all but maintained its speed, and there was no sign the driver had seen him or was decreasing speed. He attempted to avoid the collision and could not.
- [20]On all of the evidence the Magistrate rejected Ms Harley’s claim that it was impossible to see a vehicle approaching on the right. She concluded that the relevant test for the offence of driving without due care and attention was whether or not the defendant exercised the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances -including circumstances created by the defendant driver - and is an objective one.[21] The Magistrate concluded beyond reasonable doubt that the collision occurred because Ms Harley entered Pozieres Road from Hutchisons Lane and failed to give way, as she was required to, to the truck being driven by Mr Peterkin. She found that the view was not obscured to the extent complained of by the defendant or her witnesses; in any case, if there were an obstructed or partially obstructed view or it was known, by Ms Harley, to be a dangerous intersection, a reasonable and prudent driver would have slowed down and checked that there was no oncoming traffic before entering the intersection. The Magistrate concluded that the defendant did not slow down or check for oncoming traffic, failed to give way to Mr Peterkin and continued into the intersection and into the path of his truck. In doing so, the defendant did not exercise the degree of care and attention that a reasonable and prudent driver would in the circumstances, and thus she was concluded to be guilty beyond reasonable doubt.[22]
The evidence
Prosecution Case
- [21]Much of the relevant evidence is canvassed above. Senior Constable Cole was a trained forensic crash investigator. He made observations at the scene and also produced a number of photographs which were collectively marked as exhibit 1. These show the areas of impact, and significant damage to, both vehicles; the intersection including the approach on Hutchisons Lane; the skid marks left by the truck and trailers, indicating that only one set of tyres had locked up; the road sign in Hutchisons Lane indicating that, from that approach, the intersection is a T-intersection; and the view from Hutchisons Lane towards Pozieres Road on the right, indicating that, although not unobstructed, it is possible to see vehicles (in this case, police cars, which are smaller than the truck) to the right as one approaches the intersection; see, for example, photographs 11F, 11H, 11J and particularly 11P.
- [22]The scale drawing produced by Senior Constable Cole, exhibit 2, shows that Hutchisons Lane and Cosmo Lane, although broadly being able to be regarded as continuous on either side of Pozieres Road, nevertheless do not line up directly with each other, no doubt giving rise to the Main Roads Authorities regarding the Hutchisons Lane/ Pozieres Road intersection as being a T-intersection. Ms Harley disputes the correctness of this, however obviously like all other road users she was bound by the traffic sign.
- [23]There was also some evidence from a Dr Sandhu as to Ms Harley’s father’s injuries – she was originally charged with the aggravating circumstance of having caused grievous bodily harm. However when no evidence was given in the prosecution case identifying the father as the injured passenger, this was dropped and thus the evidence of the doctor has no relevance.
Defence Case
- [24]Ms Harley gave evidence that the bushes blocked her view to the right.[23] She also said that the brakes were not working on the truck. This would appear to be a conclusion based on the fact that only one set of tyres locked up. It represents an unqualified opinion which in my view the Magistrate was entitled to reject. In cross-examination she said that the T-intersection sign on Hutchisons Lane was incorrect. She said that she thought she had slowed down but could not positively recall because she had been in a coma.[24]
- [25]Ms Harley’s father, Paul Huri, gave evidence through a Serbian interpreter. With respect, it is not clear to me that he gave any relevant evidence. He said that he was not driving and was a passenger and did not remember anything until after he got home from hospital.
- [26]Ms Harley’s mother, Maria Huri, also gave evidence through an interpreter. She gave evidence that a bush at the intersection restricts visibility.[25]
- [27]Ted Lewandowski gave evidence. He lives in the area. He had a near miss at the intersection previously. He said that bushes at the intersection obstructed his vision.
Arguments on Appeal
- [28]The respondent submitted that the findings by the Magistrate were more than justified on the evidence and no grounds of appeal have been made out.
- [29]Ms Harley argued that the bushes did obstruct her view and the truck brakes were not working. She also submitted her father was badly hurt. Clearly enough this is correct; it is not clear how this impacts the relevant issues.
Conclusion
- [30]As set out above, it is this court’s obligation to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed the appellant must establish some legal, factual or discretionary error.
- [31]As the above traverse of the facts, the evidence, and the Magistrate’s conclusions demonstrate, the challenges to the correctness of the Magistrate’s conclusions, so far as they can be distilled into identifiable grounds of appeal, are without merit. A fair consideration of the evidence, in my conclusion, amply provides a proper, indeed persuasive, basis for the conclusions reached by the learned Magistrate. The challenges advanced to the Magistrate’s conclusions seem, in my assessment, to come down to the idea that the Magistrate reached the wrong conclusion on the evidence. These arguments are simply without merit. In my view, the evidence clearly supported the Magistrate’s conclusions that, consistent with the evidence of Mr Peterkin, the appellant simply drove through the intersection without paying any, or any sufficient, attention to traffic potentially coming from her right. Had she looked to her right, despite some degree of obscuring of the view by the vegetation, nevertheless the approaching truck was clearly able to be seen. Of course, to the extent there was any visibility problem, it was Ms Harley’s obligation as she approached the intersection to slow down or stop until she did have sufficient visibility to enter the intersection safely; on the evidence she simply did not do this.
- [32]Thus in my conclusion the Magistrate was correct to conclude the visibility issue against Ms Harley. The brakes issue was also properly concluded against her, although as discussed above it was collateral to the true issues in the trial and the appeal.
- [33]The evidence clearly provided a proper basis for the Magistrate’s conclusions and no relevant appealable error is demonstrated. It follows that the appeal must be dismissed.
Footnotes
[1] See s 223(1).
[2] [2017] QCA 255.
[3] Fox v Percy (2003) 214 CLR 118 at [22]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at [3].
[4] Fox v Percy (Supra) at [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3]; White v Commissioner of Police [2014] QCA 121 at [6].
[5] Fox v Percy (Supra) at [27]; Teelow v Commissioner of Police (Supra) at [4]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7], [65]; White v Commissioner of Police (Supra) at [8].
[6] T1-55 l5
[7] See Exhibit 2
[8] As photographs taken on the day indicate, the weather was fine, clear and dry.
[9] See generally T1-52–54.
[10] T1-56 l45 – 1-57 l6
[11] T1- 59 ll 15-20.
[12] See generally the Magistrate’s decision, transcript pages 4-6.
[13] Transcript of decision, p 4.
[14] Transcript of decision, p 4 ll 18 - 22
[15] (1958) Qd. R. 366
[16] Transcript of decision, p 12 ll 3-6
[17] Transcript of decision, page 3.
[18] Transcript of decision, page 7.
[19] The photograph clearly shows that a vehicle – in the photograph, a police vehicle – is visible in the direction Mr Peterkin’s truck was coming from
[20] Transcript of decision, page 8.
[21] Johannesen v Zeller; Ex parte Zeller, supra, per Stanley J at p 371
[22] Transcript of decision, pages 11-12.
[23] T1-69, l 35.
[24] T1-73, l 45.
[25] T2-18.