Johnson v Queensland Police Service [2014] QCA 195

SUPREME COURT OF QUEENSLAND

CITATION: Johnson v Queensland Police Service [2014] QCA 195

PARTIES: JOHNSON, William Alistair (applicant/appellant) v QUEENSLAND POLICE SERVICE (respondent)

FILE NO/S: CA No 75 of 2014 / DC No 85 of 2013

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Ipswich

DELIVERED ON: 15 August 2014

DELIVERED AT: Brisbane

HEARING DATE: 8 August 2014

JUDGES: Muir and Morrison JJA and North J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **1.**Leave to appeal be granted. / **2.**The appeal be allowed. / **3.**The order made in the District Court on 7 March 2014 be set aside. / **4.**The applicant’s conviction be quashed.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the applicant was convicted in the Magistrates Court of the offence of failing to give way to a vehicle travelling in a lane or line of traffic – where the applicant was unsuccessful on his appeal against his conviction to the District Court – where the applicant applied under s 118(3) of the District Court of Queensland Act 1967 (Qld) for leave to appeal – whether the magistrate erred in concluding that it could not be safe for a driver to proceed if a vehicle was obliged to brake to avoid a collision – whether the judge adequately discharged his duty under s 223 of the Justices Act 1886 (Qld) – whether the magistrate’s decision and the judge’s decision were affected by significant errors of law, resulting in a substantial injustice to the applicant / District Court of Queensland Act 1967 (Qld), s 118(3) / Justices Act 1886 (Qld), s 222, s 223 / Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), s 87(1), Sch 5 / Commissioner of Police v Al Shakarji [2013] QCA 319, considered / Mbuzi v Torcetti (2008) 50 MVR 451; [2008] QCA 231, followed / Pickering v McArthur [2005] QCA 294, considered / Rodgers v Smith [2006] QCA 353, considered / Shambayati v Commissioner of Police [2013] QCA 57, considered

COUNSEL: The applicant/appellant appeared on his own behalf / B J Power for the respondent

SOLICITORS: The applicant/appellant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

1. MUIR JA: Introduction The applicant was convicted on 28 June 2013 in the Magistrates Court of the offence under s 87(1) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) (the Regulation) of failing to give way to a vehicle travelling in a lane or line of traffic. He was unsuccessful on his appeal against his conviction to the District Court. He now applies under s 118(3) of the District Court of Queensland Act 1967 (Qld) (the DCA) for leave to appeal.

2. The applicant relied on 11 grounds of appeal. Some of the grounds would not, even if made out, warrant the granting of leave. A number of others allege in different ways that the findings of the magistrate and the judge were against the evidence or the weight of evidence. Other allegations are that the applicant was denied a fair trial and that the prosecution placed irrelevant and prejudicial material before both Courts which affected their respective decisions.

The evidence

3. At around 8.40 am on 18 October 2011, the applicant, a tradesman, who had been travelling towards Ipswich in his van with his assistant pulled over onto the shoulder of the Ipswich Motorway in order to obtain directions. The weather was fine and the road was dry. In the back of the van there were tools, a drum full of adhesives and a two wheeled, steel trolley with pneumatic rubber tyres used for the manual transportation of heavy objects.

4. The van had a four cylinder engine which the applicant agreed did not provide “great pickup”. He said that he waited a lengthy period at the roadside before waiting for a suitable gap in the traffic. He then “accelerated hard … to get off the shoulder and into the flow of traffic. He wanted to “catch up with the flow of traffic, quickly” so as not to “slow everyone down”. According to him, there was ample room for him to pull into the traffic; 15 to 20 car lengths. The van moved off in second gear and was in third gear when the trolley rolled to the back of the van and out the van door. He agreed that despite his hard acceleration he would not have been going “that fast” when the trolley fell out as the van was “moving from the shoulder to the left lane.” His recollection was that the back door “flung open” as the van “accelerated away” and he could not tell whether at this time his van was fully in the left lane.

5. The applicant gave the following further evidence. He saw the car driven by Dr Konstantinos approaching. The trolley was in the middle of the road. The truck then hit the doctor’s stationary car. By this time he had stopped about 200 metres down the road and was “watching it all unfold”.

6. Dr Konstantinos gave evidence to the following effect. He was travelling in a Honda Accord with a male nurse towards Ipswich. He saw the applicant’s vehicle pull out from the side of the road and remarked to the nurse that “he didn’t leave a lot of time there and it’s a good thing [he, Dr Konstantinos] wasn’t speeding”. His perception was that if he had not braked he would have run into the van. He braked, his vehicle slowed down and he “thought, well, that was okay, nothing happened”. He then saw the back of the van open and the trolley come out and he “really had to brake to avoid hitting” it.

7. Asked if he could estimate the distance of the van from his vehicle when it pulled out onto the road, he referred to a conversation he had had with the nurse and said that they had said to police “approximately a cricket pitch … it was a small enough distance that I wouldn’t call it a full yard. It … was a small distance … and that’s why I probably said a cricket pitch.” He said he swerved after braking to miss the trolley and was getting ready to drive off again when a truck collided with his car.

8. In cross-examination Dr Konstantinos said:

“I can’t say I can make a very good judgment on distance. I said it was probably – the van was probably a football field in front of me. If – if I had to be honest that probably would have been where the van was when it took off. I probably would have gained on the van by the time it came onto the road. It – it all happened very quickly. I mean, the van was probably approximately that length. It could have been less or more, and, you know, to me I – I would make the argument if I saw – that I probably – travelling as I was and in the events of not even thinking that something was going to happen, I could perceive anything from 10 to 30 metres as being the distance of a – cricket pitch … as I said, I’m not very good at judging distances, and this happened very fast … I would never swear by the distance. What I can say is there was a car that was in front of me, that pulled out in front of me, and my perception was that I had to brake to avoid … hitting it. That’s all I can say.” (emphasis added)

9. The doctor added that “… in that sort of situation there could be a wide – wide variety of measures that I could have said were a cricket pitch. A cricket pitch to me was a small distance.”

[10] Mr Nicholls, the truck driver, gave evidence, much of which was irrelevant. He was driving a 22.5 tonne tip truck. Just after he entered the Ipswich Motorway and was accelerating to gain speed he noticed a traffic incident ahead of him. He observed the doctor’s car manoeuvring and stopping on an angle to the centre white line. He braked heavily and noticed a van “up front, the door up in the air … [and] there was like a fridge trolley, a furniture trolley thing laying in the middle of [his] lane.” As his truck hit the doctor’s car the trolley hit his windscreen. He did not see the van until after he stopped as he was concentrating on avoiding the doctor’s car. The doctor’s car “stopped or slowed down very quickly.” His truck was full of soil and heavy. He estimated his speed at 65–70 kph.

The magistrate’s reasons

[11] The magistrate summarised the evidence of the witnesses, dwelling on the evidence of Dr Konstantinos. The summary included matters that were inadmissible and/or irrelevant. The inadmissible material included what the doctor had said about his conversations with the nurse and his thoughts at various times during the incident.

[12] The magistrate also referred to inadmissible evidence of Mr Nicholls. She found the applicant’s “account to be implausible and inconsistent with the other evidence in this case.” She held that:

“The more likely scenario, and the scenario that I accept, based on the observations of Dr Konstantinos and the evidence of Dr Konstantinos, is that [the applicant] pulled out; he did not allow sufficient space before pulling out; he was forced to accelerate rapidly because he hadn’t allowed sufficient space. The trolley became dislodged, hit the door and opened, and the trolley fell out. Dr Konstantinos was travelling close enough behind this because [the applicant] had failed to leave sufficient space or allow for sufficient space, so Dr Konstantinos came from behind and encountered a moving object in the middle of the road and was forced to take evasive action and to brake heavily.”

[13] Accepting Dr Konstantinos’ evidence the magistrate said:

“It seems to me that Dr Konstantinos is correct, and I accept his evidence. He was a reliable witness. He maintained his account. His account was plausible in the circumstances. It fits with the other evidence, although there are no other eyewitnesses apart from [the applicant]. His evidence is supported, in my view, by the evidence of the observations of Mr Nichols and the observations of the positions of all the vehicles at the end of the incident. It seems implausible to me that Dr Konstantinos would falsely say that [the applicant] pulled out in front of him in circumstances where, shortly thereafter – very shortly thereafter – a trolley lands in the middle of the road and the resulting collision then followed.”

[14] The magistrate concluded her reasons in respect of conviction with the following observations:

“The definition of ‘give way’ is that give way means – for a driver or pedestrian, means that the driver is stopped and remains stationary until it is safe to proceed. Pulling out into traffic flowing at 80 kilometres per hour is – if it causes those vehicles travelling at the speed limit on the motorway to brake to avoid a collision is clearly unsafe to proceed, so I’m satisfied that the elements of the offence have been made out, and I convict you, Mr Johnson, of the offence.”

Consideration of the magistrate’s reasons

[15] Section 87(1) of the Regulation provides:

“A driver entering a marked lane, or a line of traffic, from the far left or right side of a road must give way to any vehicle travelling in the lane or line of traffic.”

[16] “Give way” is defined in Sch 5 to the Regulation in these terms:

“give way, for a driver or pedestrian, means—

(a)if the driver or pedestrian is stopped—remain stationary until it is safe to proceed; or

(b)in any other case—slow down and, if necessary, stop to avoid a collision.”

[17] The magistrate erred in concluding that it could not be safe for a driver to proceed if, as a result of his or her pulling into traffic flowing at 80 kph on a motorway, a vehicle was obliged to brake to avoid a collision. The question to be decided was whether it was safe for the van to proceed. That question must be resolved by consideration of all relevant facts. There will be many circumstances in which the movement of a motor vehicle on a road will not be considered unsafe even though it causes another vehicle or vehicles to brake to avoid a collision. For instance, a vehicle entering a road from a slip road which had stopped before entry would not necessarily be thought to be proceeding unsafely off the slip road merely because a motorist travelling on the road needed to apply his or her brakes to avoid a collision.

[18] Whether it was safe for the vehicle exiting the slip road to proceed would depend on whether the driver in exiting the slip road had by his or her actions created an unsafe situation. Whether the other driver was obliged to apply his or her brakes, the force with which they needed to be applied and whether such driver reacted in a reasonably timely way would be relevant to the assessment of safety.

[19] Drivers of vehicles on thoroughfares are often obliged to brake to avoid a collision with, and to make way for, vehicles coming out of side roads or moving out from the kerb. It is an everyday occurrence that vehicles leaving on ramps to join the traffic on motorways cause vehicles already in the stream of traffic to brake. Normally, such vehicles entering the motorway will not stop moving but that is not always the case, particularly if the traffic is heavy. If the drivers of such vehicles failed to give way merely by causing a driver on the motorway to brake, entering the motorway from on ramps at busy periods could become an extraordinarily protracted exercise.

[20] The van had relatively sluggish acceleration. Any reasonable driver of the van moving from the stationary position on the side of the road onto the left hand lane, as the applicant did, would have accelerated as rapidly as was reasonably possible in order to match the speed of the traffic flow as quickly as reasonably possible. The magistrate was unjustified in treating the applicant’s rapid acceleration as evidence that he had not allowed a sufficient gap in the traffic.

[21] The position of the trolley and the action Dr Konstantinos took in relation to it appeared to have weighed heavily in the magistrate’s reasoning:

“This evasive action was witnessed by Mr Nichols, who also observed other vehicles taking evasive action. In terms of Dr Konstantinos’s indecision, as described by Mr Nichols and by the [applicant], it is unrealistic to expect that somebody travelling at 80 kilometres per hour to avoid – have to take action to avoid a moving object on the motorway. To accept [the applicant’s] version, I would have to be satisfied that the trolley had come out of the back of the van, had slewed across the road, had stopped in a safe position, and this all occurred before Dr Konstantinos came across it and in circumstances where he could have easily and safely avoided it, and by this time the [applicant] being some 200 metres, on his version, further up the road and able to see the whole episode unfold.

It seems to me that Dr Konstantinos is correct, and I accept his evidence. He was a reliable witness. He maintained his account. His account was plausible in the circumstances. It fits with the other evidence, although there are no other eyewitnesses apart from [the applicant]. His evidence is supported, in my view, by the evidence of the observations of Mr Nichols and the observations of the positions of all the vehicles at the end of the incident. It seems implausible to me that Dr Konstantinos would falsely say that [the applicant] pulled out in front of him in circumstances where, shortly thereafter – very shortly thereafter – a trolley lands in the middle of the road and the resulting collision then followed.”

[22] But the question for determination had little, if anything, to do with the trolley and its avoidance. The focus of attention should have been on the risk created by the applicant as he drove the van into the left hand lane. The extent of the risk could be gauged in part by determining the nature and extent of the action Dr Konstantinos was obliged to take in order to avoid the van.

[23] The doctor said that as he was braking the first time he was talking to his nurse. He did not state, and the evidence does not suggest, that his braking on the first occasion, was hard or that he experienced any difficulty or even inconvenience, in avoiding the van. The fact that the doctor was able to also miss the trolley which fell from the van and was either coming in his direction, stationary or moving in the same direction as the van but at a much slower pace, also suggests that the doctor had no difficulty in avoiding a collision with the van. The doctor stated, in effect, that he braked heavily on the second occasion providing something of a contrast with his bland description of his first application of his brakes. It is also worth noting that the doctor had the van under observation as it drove along the shoulder for a distance of about the length of a football field before it entered the left hand lane. He does not assert that the van’s indicator lights were not on.

The reasons of the District Court judge

[24] The judge gave the following extempore reasons:

“The case in the Magistrates Court turned on the magistrate’s assessment of which witnesses her Honour believed insofar as the distance that you allowed space when you pulled out into the line of oncoming traffic is concerned. Her Honour accepted the evidence of Dr [Konstantinos] that there was only a short distance in front of his car before you pulled out. Your evidence was that there were some 15 car–lengths, or 60 or 75 metres. The police estimated it would be 50 to 60 or 75 metres, or thereabouts.

The magistrate, on hearing and seeing the witnesses, came to the conclusion that she found your account of what happened, pulling out into the traffic, to be implausible and inconsistent with other evidence in the case. And her Honour found that the scenario she accepted was that set out by Dr [Konstantinos]. I’ve read your written submissions and had regard to what you’ve said today, and of course read what the respondent had to say. But I am unable to see any error that the magistrate made. Her Honour was entitled to form the view that her Honour did. And unless some error on her Honour’s part can be pointed to, and I don’t think there is, the result is that the appeal will have to be dismissed.

I’ve considered everything that you said, Mr Johnson, and the submissions that you put in via your advocate. But in the end, I can’t see that the magistrate made a mistake, given that the case turns on credibility of witnesses. It’s a heavy onus that you have in cases like this. Magistrates have to make decisions based on the magistrate’s perception of which witness they believe and which witness they don’t believe. The magistrate made that assessment. I think that assessment was open to her Honour and I just don’t see that your submissions are such that I should interfere with her Honour’s judgment.

So the result is that the appeal will be dismissed.”

[25] The appeal to the District Court was pursuant to s 222 of the Justices Act 1886 (Qld). By operation of s 223, such an appeal is by way of rehearing on the evidence below and the Court is required to make its own determination of the issues on the evidence.

[26] Section 223 of the Justices Act 1886 (Qld) provides:

“It the court gives leave [to adduce fresh, additional or substituted evidence] under subsection (2), the appeal is –

(a)by way of rehearing on the original evidence; and

(b)on the new evidence adduced.”

[27] In Mbuzi v Torcetti, Fraser JA with whose reasons the other members of the Court agreed observed:¹

“The appeal proceeded under s 223(1) on the evidence given in the Magistrates Court. On such an appeal the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions.” (citations omitted)

[28] The judge did not approach his task on appeal in the manner identified in the above passage from Mbuzi. Instead he appeared to confine his role to determining whether the magistrate was entitled to accept the evidence of the prosecution witnesses and to reject the evidence of the applicant where it conflicted with the evidence of prosecution witnesses. The judge did not appear to have turned his mind to the provisions of s 87(1) and to the question whether the evidence established beyond reasonable doubt that the applicant had failed to remain stationary until it was safe to proceed. The judge thus erred in law.

[29] Leave to appeal is usually granted under s 118(3) of the DCA only where there is both a reasonable argument that there is an error to be corrected and an appeal is necessary to correct a substantial injustice to the applicant.² I note that in Shambayati v Commissioner of Police³ the disjunctive “or” was mistakenly used when stating the principle, citing Pickering v McArthur.⁴ The error was repeated in Commissioner of Police v Al Shakarji,⁵ in which both Shambayati and Pickering were cited.

[30] For the reasons given above, the magistrate’s decision and the judge’s decision were affected by significant errors of law such that in neither case was there a determination on the merits applying the correct principles. This failure resulted in a substantial injustice to the applicant.

[31] The applicant has been put to considerable inconvenience and no doubt to appreciable indirect expense even though self-represented. The hearing at first instance was unduly protracted through a great deal of inadmissible evidence being presented by the prosecution. There was undue concentration on the evidence of Mr Nicholls concerning his reactions and the role of the trolley in the collision between his truck and the doctor’s car. This exchange occurred in Mr Nicholls evidence-in-chief:

“Now, do you drive a lot?---For a living, yeah.

Yeah. So, what do you – what do you – can you comment on the cause of the collision then? I mean, you drive a lot?---Yeah.

You encounter incidents on roads, I take it, because you drive all the time; is that right?---Uh-huh.

Well, what caused this collision?---What caused the accident?

Yeah?---[There’s] a trolley flying out – or into the middle of the road.”

[32] The prosecutor in this passage elicited plainly inadmissible non-expert opinion evidence. The evidence-in-chief of Dr Konstantinos was unduly concerned with the escape of the trolley from the van, its avoidance by the doctor and the subsequent collision with the truck. The evidence-in-chief of the police officer who investigated the accident also gave undue attention the interior of the van, the condition of the rear door and the consequences of its having opened. The substantial body of irrelevant and peripherally relevant evidence may well have distracted the magistrate from her proper task.

[33] For the above reasons I would order that:

1. Leave to appeal be granted.

2. The appeal be allowed.

3. The order made in the District Court on 7 March 2014 be set aside.

4. The applicant’s conviction be quashed.

[34] I would not make any costs order. The applicant’s recoverable loss would be minimal and his failure to confine his case to relevant matters that might advance it contributed to the prolongation of the matter and to the respondent’s costs.

[35] Finally, I record the Court’s appreciation of the very able, comprehensive and resolute manner in which counsel for the respondent presented his arguments.

[36] MORRISON JA: I agree with the orders proposed by Muir JA and with the reasons given by his Honour.

[37] NORTH J: I have read the reasons for judgment of Muir JA and I agree with the orders he proposes.

Footnotes

1. (2008) 50 MVR 451 at 454; [2008] QCA 231 at [17]. ↩

2. Pickering v McArthur [2005] QCA 294; Rodgers v Smith [2006] QCA 353 at [4]; Mbuzi v Torcetti (2008) 50 MVR 451 at 458; [2008] QCA 231 at [41]. ↩

3. [2013] QCA 57. ↩

4. [2005] QCA 294. ↩

5. [2013] QCA 319. ↩