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DELIVERED AT: Brisbane

HEARING DATE: 6 November 2002

JUDGES: McMurdo P, McPherson JA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal against conviction dismissed.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT - where appeal against conviction – where appellant contends the learned trial judge erred in refusing an application of no case to answer – where appellant contends that the verdict of the jury was unreasonable on the evidence– where appeal dismissed. / Criminal Code (Qld), s 24, s 25, s 23, s 328A / M v The Queen (1994) 181 CLR, cited

COUNSEL: A J Rafter for the appellant / M J Copley for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The appellant was convicted in the District Court at Brisbane, of one count of dangerous operation of a motor vehicle, causing grievous bodily harm. The appellant appealed against that conviction, on the grounds that the learned trial Judge erred in holding that he had a case to answer and that the verdict of the jury is unreasonable.

Because of the jury's verdict, both grounds of appeal now turn on whether the verdict is reasonable on the evidence. The background facts are as follows:

The appellant was a taxi driver. On Friday, 9 March 2001, the complainant was with a group of friends at Gilhooley's Restaurant and Bar, at the Chermside Shopping Centre. At about 2.00 a.m. the complainant and his friend, Shaun Mitchell, a school teacher, left Gilhooley's, intending to travel by taxi to the city with two female friends, Sharon Wharekawa and her niece, Nicola.

The complainant and Mr Mitchell went to the taxi rank, where Mr Mitchell sat in the front passenger seat of the taxi and the complainant sat behind him in the rear passenger seat. A third man, unknown to the complainant and Mr Mitchell, sat in the rear seat behind the driver. The complainant and Mr Mitchell agreed to give this man a lift. The two women were putting some belongings in their car nearby in the car park. Mr Mitchell asked the appellant to drive the taxi to their car.

The appellant did so and then became upset, thinking that his taxi would be overloaded with two more passengers. The complainant opened the rear left door when the taxi stopped, near the women.

The appellant became angry and said, "I'm heading over to security" and accelerated quickly. The next sequence of events is not entirely clear, but concluded with the complainant suffering a head injury, which has caused a permanent loss of taste and smell. This was admitted at trial to constitute grievous bodily harm.

Particulars of the offence provided by the respondent at trial were the driving of the motor vehicle with the rear passenger door open, without first checking to ensure that it was closed.

The appellant contends that the failure by a motorist to check that passenger doors have been closed does not constitute such a serious breach of proper conduct of the vehicle as to amount to its dangerous operation; in any event, the evidence was not clear that the door was open when the appellant commenced to drive off.

The complainant's evidence on this aspect was as follows:

The taxi pulled over near Ms Wharekawa's car and the complainant opened his door, whilst waiting for the women to get into the cab and "had gone to move". The appellant became angry, saying: "Oh, I'm not overloading my cab". The complainant said, "There's no need to talk to us like that, you know. We're got (sic) animals." The complainant "sat back down like near the door". The appellant said, "Get out of the cab. Get out of the f'in cab." The complainant said, "I'll get out of the cab. Stick your cab." That was the last thing he remembered, before waking up in hospital the next morning.

Mr Mitchell gave evidence that the taxi stopped at the point where their female friends were waiting for them. When the taxi pulled up, the complainant opened his door and said something to the effect of, "Come on. Hop in." The taxi driver became agitated suddenly and refused to allow his taxi to be overloaded. The complainant said something to the effect of, "Stick your cab." Mr Mitchell was preparing to pay the fare. The appellant said, "I'm heading over to security" and took off very quickly around to the right, in an arcing sort of pattern. Mr Mitchell did not hear the rear passenger door close. The taxi came to a stop in the car park adjacent to the taxi rank near some security officers. He then realised that the complainant was not in the taxi and became concerned. He inquired from the taxi driver as to the fare and paid it. He then returned to find the complainant unconscious and bleeding from the head in the car park. He later accompanied him to the Royal Brisbane Hospital in an ambulance.

Miss Wharekawa recalled the taxi stopping near her car. The complainant was a passenger in the rear left-hand side of the taxi and spoke to her through the open window of the closed car door. She turned to walk to her car and heard the acceleration of a car and so turned around and observed the moving taxi with the left-hand passenger door open. She did not see the taxi initially move off. She then saw a body rolling towards her, like it was rolling underneath the taxi. The taxi accelerated forwards and around a corner to the right. It was as the taxi curved to the right that she saw the body rolling down the hill towards her. She called for assistance from security guards and ran over to the body, then realising that it was the complainant. He was unconscious and bleeding and she remained with him until ambulance officers arrived. Her niece, Nicola, has since returned to New Zealand.

Police officer Petrie spoke to the complainant at 3.40 a.m. that morning.

The appellant said that after the discussion about overloading the taxi, the complainant became aggressive about the fare. The appellant decided to drive to the taxi rank, where he saw four security officers. He started to drive off and after about 10 metres, heard a thud. He could not remember whether the complainant had his legs in or out of the vehicle. His conversation with police included:

"When you moved off, did you think that you could have caused danger?‑‑ I wasn't thinking of that. I was only thinking of my safety, because he was getting very aggro.

Did you see him fall?‑‑ No, I heard it.

...

Did you think you have done the wrong thing and caused the injuries?‑‑ I was more concerned with my own safety at the time.

Did he shut the door before you took off?‑‑ I can't remember."

The appellant was interviewed by police later on the 9th of May 2001 in an audio taped record of interview and generally maintained the account given earlier, but, significantly, added that the red light which indicates that a car door was open was not illuminated on his dash; he would have noticed it, if it had been. There was also evidence that the taxi driver was keen to leave the scene after the incident.

At the close of the prosecution case, the appellant's counsel submitted that there was no case to answer. The Judge refused that application, determining that the evidence was capable of supporting a finding that the applicant drove off with the door open and that the jury could conclude that this was objectively dangerous operation of a motor vehicle and demonstrating fault on the part of the appellant.

The appellant did not give or call evidence.

The term, "operates a vehicle dangerously", in s 328A, Criminal Code (Qld) means "operate ... a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances including (a) the nature, condition and use of the place; and (b) the nature and condition of the vehicle; and (c) the number of persons, vehicles, or other objects that are, or might reasonably be expected to be, in the place".

The term, "the public", in s 328A includes passengers in the vehicle, whether in a public or private place.

The jury were not obliged to accept the appellant's self serving claim to police on 9 May 2001, some months after the offence, that the dash board warning light, which indicated if a door was not closed, was not illuminated. They were entitled to accept the complainant's and Mr Mitchell's evidence, that the complainant opened the car door after being told to leave the cab by the appellant and Mrs Wharekawa's evidence, that when she turned around, she saw the taxi door open as the taxi accelerated off and that she saw the complainant roll from the taxi, as the taxi moved to the right. The appellant, on the evidence, knew that more passengers were to be picked up at the spot where the taxi stopped and there was evidence that the complainant indicated he was getting out of the car shortly before the taxi accelerated off. The jury were entitled to infer, beyond reasonable doubt, from these facts, that the appellant drove off quickly, without first checking that the passenger door was closed and that the complainant was safely clear of the taxi, or safe inside it.

It should also be noted that the learned primary Judge instructed the jury in terms of s 24, Criminal Code (Qld) (Mistake of Fact) as to the possibility that the appellant may have honestly and reasonably believed the door was closed when he drove off. Judicial directions were also given, perhaps generously as to Extraordinary Emergency (s 25, Criminal a Code (Qld)) and also as to Accident (s 23, Criminal Code (Qld)). The appellant does not contend that these directions were in any way inadequate.

To drive in the manner established at least on one view of the evidence, was able to be construed as objectively dangerous operation of a vehicle and demonstrated fault on the part of the appellant in driving off quickly, without ensuring the rear door was shut and that the complainant was either well clear of the taxi outside or safely inside it.

The verdict was not unreasonable, M v. The Queen (1994) 181 CLR 487 and 493. I would dismiss the appeal against conviction.

McPHERSON JA: I agree. Given that on the evidence, it was fairly open to the jury to conclude that the appellant drove off without ensuring that the passenger door was closed, or that the complainant had safely alighted or was still firmly within the vehicle, it is not possible for this Court to disturb the verdict or conviction.

MULLINS J: I also agree.

THE PRESIDENT: That is the order of the Court.