Green v Department of Transport and Main Roads
[2025] QDC 52
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- Green v Department of Transport and Main Roads[2025] QDC 52
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Green v Department of Transport and Main Roads[2025] QDC 52
Green v Department of Transport and Main Roads[2025] QDC 52
DISTRICT COURT OF QUEENSLAND
CITATION: | Green v Department of Transport and Main Roads [2025] QDC 52 |
PARTIES: | RONALD GREEN (Appellant) v DEPARTMENT OF TRANSPORT AND MAIN ROADS (Respondent) |
FILE NO: | No 111 of 2024 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court at Maroochydore |
DELIVERED ON: | 14 April 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 February 2025 |
JUDGE: | Loury KC DCJ |
ORDERS: |
|
CATCHWORDS: | APPEAL – MAGISTRATES – APPEAL AGAINST CONVICTION – where the appellant was convicted of using an unregistered vehicle and driving an uninsured vehicle – whether the evidence sufficient to support finding of guilt – whether appellant received a fair trial – whether appellant was afforded the presumption of innocence – Magistrates’ duty to assist self-represented litigants |
LEGISLATION: | Justices Act 1886 (Qld) s 222 |
CASES: | Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Davies v Department of Transport and Main Roads [2024] QDC 41 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Forrest v Commissioner of Police [2017] QCA 132 Paixao v Commissioner of Police [2025] QCA 12 Robinson Helicopter v McDermott (2016) 90 ALJR 679; [2016] HCA 22 |
SOLICITORS: | Appellant self-represented. SJ Klemm for the Respondent. |
- [1]The appellant was convicted, after a trial, of using an unregistered vehicle and driving an uninsured vehicle. It was not in dispute at trial that the car was unregistered and uninsured. The real issue in dispute was whether the appellant was driving the vehicle. That issue turned on findings of credibility and reliability of the evidence of two police officers.
The circumstances of the offending
- [2]Senior Constable Ross Hamilton and Sergeant Nicholas Patterson were patrolling the Conondale area on the evening of 11 November 2023. Senior Constable Hamilton was driving a police car along Maleny Kenilworth Road when he saw the headlights of a vehicle to his left driving on Appaloosa Drive approaching the intersection with Maleny Kenilworth Road. Senior Constable Hamilton pulled his car over approximately 100 metres from the intersection to observe which direction the car would turn out of Appaloosa Drive, intending to intercept the driver to perform a random breath test. Senior Constable Hamilton said he could not see the vehicle from where he stopped. When the car did not emerge from Appaloosa Drive, he performed a U-turn before turning into Appaloosa Drive. Senior Constable Hamilton said he was stopped for approximately 30 seconds before he performed the U-turn.
- [3]Approximately 100 metres from the intersection, Senior Constable Hamilton saw a car parked on Appaloosa Drive with its headlights on. It was 30 to 50 metres closer to the intersection from where he had initially seen the vehicle. Senior Constable Hamilton said that he saw the appellant climbing out of the driver's seat into the passenger seat and his daughter, Ms Angela Green, move from the back seat into the driver's seat of the car.
- [4]Senior Constable Hamilton approached the appellant in the passenger's seat and asked why they had swapped seats. Ms Green responded that she was driving. That statement was captured on Senior Constable Hamilton's body-worn camera. The appellant did not say anything.
- [5]In cross-examination of Senior Constable Hamilton the appellant established that the police car might have been travelling at 40 kilometres per hour on Maleny Kenilworth Road which meant that it would have taken approximately one second for the car to drive past Appaloosa Drive. The appellant submits that Senior Constable Hamilton, driving the police car, had to look across Sergeant Patterson's large body to see into Appaloosa Drive.
- [6]Sergeant Patterson's evidence was that he was the passenger in the police car. As they drove past Appaloosa Drive, he saw a white car driving towards the intersection of Maleny Kenilworth Road. When they returned to Appaloosa Drive, he saw the appellant exit from the driver's seat and move into the passenger seat. Ms Angela Green moved from the back seat to the driver's seat. While in the presence of the appellant, Ms Green told Sergeant Patterson that they were getting water.
- [7]The appellant suggested to Sergeant Patterson that the police were persecuting him and that he was being treated unfairly by police in relation to a number of issues he had raised with them. Those matters included a stolen water tank, an assault on Ms Green, and a problem with a boundary fence.
- [8]The appellant submits that because of the short period of time Sergeant Patterson observed the car, he could not tell if it was moving or simply parked with its headlights illuminated.
- [9]Sergeant Patterson's evidence was that he believed that the only time that he did not keep the car under observation from when he first saw it moving on Appaloosa Drive was when Senior Constable Hamilton was performing a U-turn. He maintained that he could still see the vehicle when stopped on Maleny Kenilworth Road.
- [10]The appellant gave evidence and called his daughter, Ms Angela Green to give evidence. The appellant's account was that when the police drove past Appaloosa Drive the vehicle they saw was not moving and had not been driven. The appellant said he and his daughter had walked to a rainwater tank around 200-300 metres down the road to get some water. They had two 20-litre containers of water, which they had placed in the car and intended to drive home in the vehicle; however, they had not driven it when the police intercepted them. The appellant said that he had walked from his home, which was no less than three kilometres from where the police intercepted them to get the water. The appellant said the car had been loaded onto a trailer and moved to where the police intercepted it earlier that afternoon. He then returned home before walking back to the car to drive it home. The appellant agreed that the car was parked across what he referred to as a homemade entrance to a residence (although not a driveway). He said they intended to use the vehicle to transport the water home but were intercepted by police before the car was driven. The appellant accepted that his daughter said to police that she was driving. He claimed that she said this because the police would pick on him.
- [11]Ms Green's evidence was that the car had been taken on a trailer and left on the side of the road for a mechanic to service it, whose business was on Appaloosa Drive. She and her father returned home, and the car they had been driving ran out of petrol. They did not have any drinking water at home, so they walked from their home to Conondale to get some drinking water. After they retrieved the water it started to rain so they got into the car parked on Appaloosa Drive to shelter from the rain. When Ms Green got into the car, she dropped the car keys beside the driver's seat and centre console. She was reaching around into the back seat to try and find the keys when she noticed the flashing police lights. She positioned herself back in the driver's seat. Ms Green said that she had not decided how they would get home once in the car. They were trying to contact people to give them a lift home. Ms Green agreed in cross examination that she told Senior Constable Hamilton that she was driving. She was unable to provide an explanation as to why she said this to the police other than that she felt that police were targeting her father.
The reasons of the Magistrate
- [12]The learned Magistrate gave fulsome reasons. He referred to the evidence in some detail. He did not accept the evidence of Sergeant Patterson that he saw a white car driving along Appaloosa Drive. He did not accept Sergeant Patterson's evidence that he maintained sight on the car except for when the police car was performing a U-turn. The learned Magistrate considered that the challenge made by the appellant to Sergeant's Patterson's evidence was well made. He established through his cross-examination that it was a dark night and that the police car passed Appaloosa Drive in a very short space of time, perhaps in the vicinity of one second.
- [13]The learned Magistrate preferred the evidence of Senior Constable Hamilton that all he could see down Appaloosa Drive were the headlights of a car and that for a period when parked on Maleny Kenilworth Road he could not see the car at all. The learned Magistrate considered that Sergeant Patterson's evidence was a reconstruction and he preferred Senior Constable Hamilton's evidence on these points.
- [14]The learned Magistrate accepted the evidence of Senior Constable Hamilton and Sergeant Patterson, who each saw the appellant exit the driver's seat and move into the front passenger seat and saw Ms Green climb into the driver's seat from the back.
- [15]The learned Magistrate found that the appellant and Ms Green had made up an elaborate story about dropping the car off at the mechanic's place of business. He considered their evidence "nonsense." Their evidence did not explain why the headlights were illuminated on the vehicle.
- [16]The learned Magistrate was satisfied beyond reasonable doubt that the appellant was driving the car on Appaloosa Drive.
Nature of the appeal
- [17]An appeal pursuant to s 222 of the Justices Act 1886 is an appeal by way of rehearing. I must conduct a real review of the evidence given at the original proceeding and determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[1] I must bear in mind that I have not had the opportunity of seeing or hearing the witnesses myself and must pay deference to the learned Magistrate's findings of credit.[2] I should not interfere with a Magistrate's findings of fact which are likely to have been affected by impressions about the credibility and reliability of witnesses unless those findings are "glaringly improbable" or "contrary to compelling inferences".[3]
Consideration
- [18]The appellant's principal argument is that the evidence given at trial was not sufficient to establish his guilt beyond reasonable doubt. The evidence of Senior Constable Hamilton once accepted, established that a single vehicle was driving on Appaloosa Drive on the evening of 11 November 2023 when the police car drove past Appaloosa Drive. Whilst Senior Constable Hamilton lost sight of that vehicle for a short period, by the time he turned his car around and entered Appaloosa Drive, there was a car parked on the street a short distance from where he had initially seen it with its headlights illuminated. Senior Constable Hamilton saw the appellant moving from the driver's seat to the passenger's seat and Ms Green moving from the backseat into the driver's seat. The only reasonable inference that could be drawn from those facts is that the appellant had been driving the vehicle along Appaloosa Drive when Senior Constable Hamilton saw it moving towards the intersection with Maleny Kenilworth Road. The learned Magistrate accepted Senior Constable Hamilton as a credible and reliable witness. The appellant has not pointed to any evidence or reason that would cast doubt on that finding other than his own and Ms Green's evidence which the learned Magistrate did not accept.
- [19]The appellant's evidence and that of his daughter did not explain why the headlights on the car would have been illuminated when it was intercepted by police if it had not been driven and not been intended to have been driven as Ms Green indicated. The vehicle's parking across what clearly appears to be a driveway in the body-worn camera footage also supports a finding that the vehicle was being driven shortly before it pulled over to the side of the road and shortly before it was intercepted by police. Ms Green's statement to police said in the presence of the appellant and captured on the body-worn camera that she was driving was not disputed by the appellant at the scene. Had the vehicle not been driven at all I would have expected the appellant to have contradicted that statement. That statement by Ms Green also supports a finding that the car was being driven on Appaloosa Drive at the time Senior Constable Hamilton first saw it. Once Senior Constable Hamilton's account of seeing the driver of the vehicle moving into the passenger's side of the vehicle and a person moving from the backseat into the front seat of the vehicle was accepted all of the circumstances considered together supported the finding of the learned Magistrate that the appellant was driving the vehicle on Appaloosa Drive.
- [20]The learned Magistrate had the benefit of seeing and hearing the appellant and Ms Green give evidence. His finding that their evidence was a fabrication was open. The evidence of the appellant and Ms Green that it was never intended for the car to be driven is contrary to the statements made by Ms Green in the appellant's presence which were captured on the body-worn camera footage. At no time across much conversation captured in that footage did the appellant or Ms Green ever indicate that they had no intention of driving the vehicle on this night. Neither the appellant nor Ms Green explained why the vehicle's headlights were illuminated if they were simply seeking shelter from the rain.
- [21]The appellant's evidence that the vehicle was dropped some fifty metres from the mechanic's place of business across what appeared to be a driveway is very difficult to accept when the photographs adduced by the appellant demonstrate that there was ample space for a vehicle to be parked at the mechanic's place of business. Ms Green's evidence that they were sheltering from the rain was not supported by the body-worn camera footage, which did not demonstrate that it was raining or that the roadway was even wet.
- [22]The appellant accepts that Senior Constable Hamilton was truthful in his evidence but contends in effect that Senior Constable Hamilton may have been mistaken in his observation of what he said were the headlights of a vehicle travelling on Appaloosa Drive. The appellant contends that what he could have seen were two torch lights or the lights of another car either on the road itself or at the mechanic's workshop. I do not accept that the officer could be so mistaken. What he described were the headlights of a vehicle travelling along Appaloosa Drive. If there were another car driving on the street or a person/s with a torch/es on the street at the relevant time, I would expect that the appellant or Ms Green would have noticed the car and/or person and given evidence of someone else's presence.
- [23]I am satisfied that the evidence of Senior Constable Hamilton of seeing the appellant moving from the driver's seat to the passenger seat together with Ms Green's statement that she was driving the car; the headlights of the car being illuminated; and, the vehicle being stopped across a driveway together establishes beyond reasonable doubt that the car was being driven by the appellant on Appaloosa Drive when seen by the police officers. I am further satisfied that all innocent hypotheses consistent with innocence have been excluded beyond reasonable doubt.
- [24]There is no error of law or fact in the findings made by the learned Magistrate. I am satisfied that the evidence in the trial proved the offences charged beyond reasonable doubt.
- [25]The appellant also argues that he did not receive a fair trial because of the learned Magistrate's conduct. He claims that he was not given the benefit of the presumption of innocence and that the learned magistrate continually and deliberately interrupted his cross-examination.
- [26]It is well recognised that there exists a difficulty for a Court in assisting a self-represented litigant whilst at the same time maintaining balance and neutrality to all parties. In Davies v Department of Transport and Main Roads His Honour Judge Porter said:[4]
“A Court has a duty to assist a litigant in person to secure a fair trial. The scope of that duty is confined. It is confined by the need for the Judge not only to remain impartial, but to appear impartial. It is also confined by the duty of the Court to ensure that the other party, represented or not, gets the full measure of their legal rights. Exactly what this case requires varies from instance to instance. But it does include assisting the litigant in person to understand procedures of the trial and can extend to giving guidance on principles that apply” (citations omitted).
- [27]A review of the transcript reveals that the learned Magistrate took the time to explain the presumption of innocence; the burden and standard of proof; and the decision to give or not give evidence; the evidentiary effect of certificates issued by the Department of Transport and Main Roads; and the trial process including the taking of objections to evidence.
- [28]As the trial progressed the learned Magistrate experienced some frustration with the appellant's cross-examination on issues irrelevant to the real issue in dispute in the trial. Despite that frustration, the learned Magistrate permitted the appellant to cross-examine in depth on matters that ultimately were of limited, if any, relevance. The cross-examination of Senior Constable Hamilton took place over 2 hours and 23 minutes. It traverses 66 pages of transcript. After a little more than two hours of cross-examination the learned Magistrate placed a time limit on the appellant's cross-examination restricting him to a further 15 minutes. Similarly, the cross-examination of Sergeant Patterson was restricted. It took place over one hour with the learned Magistrate restricting the appellant after some 40 minutes of cross-examination.
- [29]Much of the cross-examination was irrelevant to the real issue in the trial. The appellant appears to have some theory that the police had failed to investigate complaints he and his daughter had made to police, which somehow was their motivation for charging him. Importantly the appellant has not identified in his outline or in his extensive arguments before me what he was not permitted to ask questions about. Whilst the appellant might have felt he was unfairly restricted in his cross-examination no error has been identified by him in respect of those matters about which he was restricted either in relation to the topic of cross-examination or the time he had to cross-examine. The appellant was able to give and call evidence himself. There is nothing before me to suggest that he was obstructed from bringing forth evidence as he claims. The appellant, despite submitting in argument before me that Senior Constable Hamilton was "being honest to the best of his ability" has resorted to a scandalous accusation that the learned Magistrate was protecting Sergeant Patterson and Senior Constable Hamilton.
- [30]A review of the whole of the transcript does not lead me to any concerns that the appellant was denied a fair trial. He was given considerable assistance by the learned Magistrate throughout the trial despite the frustrations he experienced in trying to limit the appellant to relevant evidence. The right to a fair trial did not give the appellant the right to waste the court's time by pursuing in cross-examination matters that were irrelevant to the credibility and reliability of the witnesses and irrelevant to the issues in dispute in the trial. As the Court of Appeal said recently in Paixao v Commissioner of Police[5], "Judicial officers have an obligation to conduct a trial fairly but they also must be mindful of the limited resources in the justice system. Trials must therefore be conducted both fairly and efficiently."
- [31]The only matter that the appellant has identified that he was not permitted to pursue in cross-examination was something to do with a food container in the police car, which he contends would prove that Sergeant Patterson was, in fact, asleep in the car. However, even if Sergeant Patterson was asleep in the car, Senior Constable Hamilton's evidence proved the offences, and the learned Magistrate accepted Senior Constable Hamilton's evidence in its entirety. The appellant argues that he was prevented from cross-examining Senior Constable Hamilton about the appellant's water pump having been stolen; the destroying of his water supply and other unregistered vehicles driving in and around Conondale. There was some cross-examination directed to at least some of these topics. Ultimately however the appellant has not identified any matter which, if allowed to cross-examine in greater detail, would have had any impact upon the assessment of the evidence.
- [32]The learned Magistrate inferred from the appellant's cross-examination that he was claiming that Senior Constable Hamilton and Sergeant Patterson were corrupt. He rejected that proposition as ludicrous and nothing more than a conspiracy theory that the appellant held. The learned Magistrate was entitled to reject such a proposition particularly when despite having been advised by the Magistrate that if he was making such a suggestion he would need to properly put that to the officers for comment, the appellant did not.
- [33]The appellant argues that he was not afforded the presumption of innocence because the learned Magistrate rejected the appellant's evidence and that of Ms Green as an "elaborate story and nonsense". The learned Magistrate made those statements in the context of explaining in his reasons why he rejected the evidence of the appellant and Ms Green. There is nothing in these statements which indicates that the learned Magistrate did not afford the appellant the presumption of innocence. The evidence given by the appellant and Ms Green was implausible and inconsistent with the statement made by Ms Green in the body worn camera footage. The appellant was presumed to be innocent however the learned Magistrate was ultimately persuaded, despite the appellant's evidence and that of Ms Green, that he was guilty beyond reasonable doubt.
- [34]The appellant otherwise contends that the learned Magistrate was biased. His argument is based upon his perception that he did not receive a fair trial, that he was not afforded the presumption of innocence and was prevented from cross-examining the witnesses. Whilst the learned Magistrate did use, from time to time, injudicious phrases such as "who cares", "that's a silly question" and "I've had enough of this" those interruptions were made during the course of the appellant's questioning about matters irrelevant to the issues to be decided. A review of the entirety of the transcript of the trial does not give rise to any concerns that the learned Magistrate did not bring an impartial and unprejudiced mind to the resolution of the dispute. The appellant's perception of his treatment does not equate to a fair-minded observer having a reasonable apprehension of bias[6] particularly once such an observer understands the relatively confined issue involved in proof of the offences.
- [35]The appeal is dismissed.
- [36]The respondent applies for costs in the amount of $800.00. The appellant submits that he should not pay costs because he was not driving the car. A costs order is granted to the successful party to compensate for expenses related to the preparation of the matter and appearance at the appeal. The application is granted. It is ordered that the appellant pay the respondents costs in the amount of $800.00.
Footnotes
[1]Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at 180 [23].
[2]Forrest v Commissioner of Police [2017] QCA 132 at [5].
[3]Robinson Helicopter v McDermott (2016) 90 ALJR 679; [2016] HCA 22 at 687 [43].
[4][2024] QDC 41 at [23].
[5][2025] QCA 12 at [27].
[6]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at 344.