Yassir v Bone [2010] QDC 11

District Court of Queensland|2010-01-29

Director of Public Prosecution (Qld) for the respondent

[1] At about 7 am on 16 August 2008 there was contact between a motor vehicle being driven by Damien John Hinkley and a bicycle being ridden by the appellant in Harrogate Street in the vicinity of where it intersects with Ipswich Road at Woolloongabba, Brisbane.

[3] A conviction was recorded and he was fined $100 and ordered to pay $74.35 costs of court, in default of payment within 28 days, two days imprisonment.

[4] This appeal has been brought pursuant to s 222 of the Justices Act 1886 (Qld) ("the JA") against both the conviction and sentence. The grounds of appeal are that the conviction is unsafe and unsatisfactory, and contrary to law; and that the sentence is manifestly excessive.

"The central task of an appellate court in an appeal by way of rehearing is not to analyse the correctness or otherwise of the decision below, although an analysis may sometimes be helpful. It is to decide the case for itself. Often it will do so by considering only the evidence admitted at first instance. That is usually the position in appeals under s 222 of the Justices Act 1886. ... That requires an appellate court to draw its own inferences from the facts established by the evidence while respecting the advantage of the court or tribunal at first instance in seeing and evaluating witnesses. This is particularly relevant when issues of credibility arise."

**[6] However, in this case the appellant has sought leave under s 223(2) of the JA for fresh, additional or substituted evidence (new evidence) to be adduced. This is the preliminary issue to be determined on this appeal.

[7] Section 223(2) provides:**

"However, the District Court may give leave to adduce fresh, additional or substituted evidence ("new evidence") if the court is satisfied there are special grounds for giving leave."

**It follows that special grounds are needed before the evidence should be received. To establish special grounds, three conditions must be fulfilled. First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; third; the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.[2]

[8] It is convenient to consider this issue in the context of the evidence, referred to in s 223(1) of the JA as "original evidence" before the magistrate, particularly in the context of whether if the "new evidence" were given it would probably have an important influence on the result of the case.

[9] Mr Hinkley and three police officers (Constables Saville, Joy and Timar) gave evidence in the prosecution case.

[10] The appellant who, as on this appeal, appeared on his own behalf gave evidence in his defence.

[11] Mr Hinkley said that at about 7 am on 16 August 2008 he drove his father's car from the family residence in Harrogate Street towards the intersection with Ipswich Road.

[12] He said that he was travelling down hill. This evidence emerged under cross-examination during which he said it was a steep hill and he could see all the way down. The appellant disputed this, putting to him that here was no hill there. This is best demonstrated by the following portion of cross-examination:[4]**

"DEFENDANT: ... there are also discrepancies in your statement here. You said, for example, you come down the hill on Harrogate Road. There's no hill there. I always drove my customers every day ... Harrogate Road when I pick up Friday night from the city.

BENCH: Okay, look, ... just stop your question where you said there is no hill in Harrogate Road, okay? We don't care about your customers, just put your version to this witness, all right? Your question to him is, "Is there a hill in Harrogate Road?" or "Do you agree there's a hill?" or "There's no hill," okay. What do you say to that?

WITNESS: Is there a hill in Harrogate Street - no. Oh, sorry, yes, there is. I live in Harrogate Street and there is a ... considerable hill. I live at the top end, Ipswich Road is at the bottom end. I can see all the way down, it is a steep hill." (my emphasis)

**The reference to "customers" is to the appellant's then occupation as a taxi driver. The exchange is also an example of the need for the magistrate to intervene to reformulate the appellant's questions to ensure that witnesses answered the crux of them, rather than responding to statements that were made by him. In relation to this issue of whether or not there was a hill in Harrogate Street, the appellant subsequently gave no evidence to contradict Mr Hinkley's evidence.

[13] He said that the road was clear the entire way with no cars on either side. His intention in approaching the intersection was to turn left into Ipswich Road. His evidence was that he did not get out of third gear the whole way down the street. He was slowing down to stop because he knew that Ipswich Road was busy and there was no way to merge into the traffic. He had looked to his left which was clear but the road was busy when he looked to the right. According to him, he first saw the defendant in the following circumstances:**

"I was coming to a stop, glanced left, looking right looking - hoping for a break, looked back to my left and saw Mr Yassir with his right hand on my - left side of my bonnet. At this time the car was - was stopped."

**Although they had never previously met, there was no dispute about his identification of the appellant, whom he said was standing with one leg either side of the bike which was upright, like a person would before dismounting. In answer to the magistrate's questions, he said that this was the first time he had seen the appellant and he had not been aware of any contact with him.[5] His evidence was that he had not heard or felt anything. However, as he responded in cross-examination, "clearly we've collided".[6]

[14] At the time of first observing the appellant, he said that his car was stopped two to three metres from the intersection. According to him, this was something like 100 or 150 metres from his residence. The appellant referred to his estimating this distance in his statement as 200 metres. However, because the appellant followed this proposition with a statement on another issue, this suggestion was not responded to, and was not the subject of further evidence.

[15] Mr Hinkley said that he got out of the car and asked the appellant if he was all right, to which the appellant replied to the effect, "No, you nearly killed me." The appellant also said that he was going to call the police.

[16] He said that he returned to his car and called his parents who arrived about five minutes later. The police came within 20 minutes. Constable Saville interviewed and breath tested him. He and the appellant exchanged their contact details. Constable Saville gave no evidence of the result of the breath test. The issue was not raised again during evidence. Accordingly, there is no evidence that Mr Hinkley had any alcohol in his system at the time of the incident.

[17] Other than what Mr Hinkley thought might have been a scratch, there was no damage to his vehicle. He could see the appellant's handprint on his car.

[18] During cross-examination it became clear through the appellant's statements and questions that he was suggesting that Mr Hinkley was the person who caused the traffic hazard by driving recklessly and at high speed and without due care and attention, with the result that he ran over the appellant and endangered his life. Mr Hinkley denied this.

[19] This is apparent from the following aspects of the cross-examination:[7]**

"DEFENDANT: Mr Hinkley, you say you stopped at the intersection and then you saw me in front of your boot. You were not stopped, you were - I was already in the middle of Harrogate Road when you hit me?- - No.

Yes, you were and you were speeding, and you said in your statement here that - the statement you were giving to the police, that you were in the second gear and approximately three to four metres away from the intersection?- - With the clutch fully in.

Yeah - yes, with the clutch fully in. and if you were in - in the second gear and you were that distance away from - from - from the intersection, what speed were you travelling-----?- - Less than - less than five kilometres an hour.

No, I think you're - you're not - you're not telling the truth, because you were speeding and you were not in the second gear. I was already in Harrogate Road. You were driving that the speed of 80 kilometres per hour-----

WITNESS: If I was driving at 80 kilometres per hour-----

DEFENDANT: Yes?- - -----I would have gone straight through Ipswich Road and collected-----

DEFENDANT: Yep? - - And crashed with approximately 10 cars.

I - I - I-----? - - I would not have had time to stop before the intersection if I was travelling at that speed.

DEFENDANT: I am telling him that he deliberately overrun me.

BENCH: Okay, now stop there. Let him comment on that. Right, what do you want to say to that?

WITNESS: I had never met Mr Yassir in my life. I had no intention of killing him, for obvious reasons. I did not know him.

DEFENDANT: ... I am also don't believe of what you just tell me - you know, the Judge here, the Court, that you - you were driving slowly and stopped. You were driving recklessly and you endangered my life-----

WITNESS: At - at no time did I exceed 35, 40 kilometres an hour. I did not go past third gear. My car could not travel at - at any more than 50 kilometres an hour in third gear.

Like I said before, if I was travelling at even 20 kilometres an hour that close to the intersection, I would have had a serious crash with other vehicles.

DEFENDANT: ... This is not a collision because a collision is when two [indistinct] collided, I was riding a pushbike and you were driving a vehicle and you were speeding and you over-run me.

BENCH: Okay, no. Let him - what do you say to that?- - Overrun, no. We - we wouldn't have hit harder than that like - and even that, I would have had to have heard or felt inside my car.

DEFENDANT: And in - in this statement here, Mr Hinkley, you mentioned that I was - the first time you saw me, I was - when you saw me was when I - when you saw me on the - on the - bonnet of your vehicle. Clearly if you were driving, you know, in a professional manner you could have made some observation and you could have seen me well before that. Clearly you crashed me on purpose?- - I did not crash you on purpose. I was coming to a stop because I knew I had to come to a stop at the intersection. I was going at snail pace at the fastest. I was almost totally stopped. I was looking at my right and not to my left because the cars come from the right. There is no risk of a vehicle hitting me from the left-hand side. That's why I was looking to the right.

Mr Hinkley, why - why you didn't break?- - I did break. I was almost completely stopped. Having come down a hill-----

No, you were not stoped?- - -----my foot had been applied to the break-----

You were not stopped, you were not stopped, you were you were still-----?- - May I finish my answer please.

BENCH: Let him - let him answer the question please?- - Like - Like we clarified before, Harrogate Street is on a hill and I have come down the hill to get where this incident happened. I had my foot on the brake and applied pressure liberally for about three - sorry, a third or half - half way down the hill. Otherwise I would have smashed into the cars on Ipswich Road. To say I didn't apply the brake is ridiculous." (my emphasis)

**[20] Mr Hinkley also denied a proposition put to him by the appellant that when he got out of his car, he used some racial words to the effect, "Why are you doing, little nigger", "What are you doing here little nigger? You're not - you're not supposed to be on this road."[8]

[21] Of particular significance to the issue requiring resolution is the following exchange with reference to Mr Hinkley's statement:[9]**

"DEFENDANT: Yes. You say 'I looked' - I quote what you said in the statement, 'I looked as far as I could to the left. However, could only see approximately three to four metres up the footpath, but could not see anything further due to - to the fence.' So, was that your reason why you overrun me because you could not see-----?- - That's the reason I couldn't see you. As I was coming to a stop, I looked to my left. I couldn't see you coming down-----

WITNESS: I couldn't see where you came from so then you've come across and come into me from the ..." (my emphasis)

[22] This was expanded on during re-examination. Mr Hinkley said that there was a footpath along Ipswich Road to the left with a construction fence inside that area. It was only possible to see three or four metres down the footpath before the fence blocked the view. In this context, he testified:[10]

"So you're saying you did glance to the left-----?- - And it was clear at that time.

And in that three or four metres, you saw nobody, you saw nothing?- - There is nothing there.

Then you've turned your attention to the oncoming on your right?- - Yes.

And then the very first time you've seen the defendant is when you've glanced again to your left and seen him?- - That's right. I've glanced back to the left to make sure no-one's coming-----

-----with his hand or hands on the bonnet of your vehicle.

WITNESS: I've glanced back to the left to make sure no-one's coming from the left again like I did at the beginning and at this time Mr Yassir was already on my bonnet.

So the only notification was had that there'd been some contact between the defendant and your vehicle is when you physically saw-----?- - Yes.

-----him with his hands upon our vehicle and that's the only notification you had that there's been any kind of-----?- - Yes.

[23] Constable Saville's evidence was that at approximately 7.30 am on 16 August 2008 she and Constable Joy were detailed to attend the traffic incident. On attending she observed a bicycle on the road in the middle of the intersection and a dark coloured vehicle about a metre back form the intersection. She said that Mr Hinkley and the appellant were standing near their vehicles. While her partner spoke to the appellant, she spoke to Mr Hinkley.

[24] She observed that the front wheel of the bicycle was a bit buckled, but could not see any damage to Mr Hinkley's vehicle. She saw a handprint in the dirt on the left-hand corner at the front of the bonnet just above the tyre.

[25] When she joined her partner she noticed that the appellant was holding up his right leg of his track pants. He was wearing a leather jacket. She did not see any scuff marks or torn or ripped holes in this clothing. Her observation was that he had a small graze without blood to his lower leg. She described this as looking like a little scratch or scratch marks. Her evidence was that Constable Joy asked the appellant whether he required medical attention, and that the reply was words to the effect of, "No, I'm fine I do not need an ambulance."[12]

[26] Because of the absence of injuries and the minor damage, she formed the opinion that this was a non-reportable accident which only required the exchange of details and for the insurance companies to deal with it. This was explained to Mr Hinkley and the appellant. The police officers facilitated the exchange of details. She said that the appellant was initially reluctant to exchange his details.

[27] She said that after this was done the appellant "stated to us that he had a broken ankle"[13] and Constable Joy again asked him if he should seek medical attention. She thought that at this point he said he would do so.[14]

[28] Her evidence was that she and Constable Joy returned to the police vehicle and put some materials back into it. They then noted that Mr Hinkley and the appellant had left. She said that they drove around for a little while to se if they could find the appellant. This included attending the emergency department of the Princess Alexandra Hospital ("the PA Hospital"). They did not locate him but later were advised by Constable Timar that he attended at their police station. It was because he had done this that the police undertook an official incident report due to the fact that injuries had been sustained.[15] Following this, statements were obtained from Mr Hinkley and the appellant.[16]

[29] The cross-examination focused on his physical condition at the time she made her observations at the scene of the incident. By his questions he disputed that Constable Joy asked if he needed any medical attention. Rather, he suggested that Constable Joy told him that he didn't need such attention and should go home. She was unable to comment on this proposition. This is because on her evidence she was not present for the initial period when Constable Joy was speaking with the appellant.

[30] The appellant suggested that he was in fact sitting on the ground with his leg bleeding and he was told to stand up. He said that he was unable to do so. Constable Saville denied this, saying that he was standing and walking at the time. This is best demonstrated by the following passages of cross-examination:[17]**

"DEFENDANT: ... I would also like to ask Constable Saville if - if I know I was the victim and I was the one who was overrun and crashed by the speeding vehicle, was there any reason why you issued a fine ticket for - for being a victim of a - of a - of a accident - of a car accident?- - The observations of the scene didn't indicate to me that there was any malice in the actual incident. After my investigations were concluded that is when I issued the infringement notice.

But I'm the one who called the police and - and - and requested assistance from the police because I was overrun by speeding vehicle driven by Mr Hinkley. And clearly when you arrive at the scene I was lying on the floor in a pool of blood and my leg was. At the moment I'm on medication for kidney - kidney damaged caused - caused by - by - by the accident and I can - your Honour, I can-----

BENCH: That's - that's irrelevant. Yes, what's relevant is what happened on the day.

DEFENDANT: Okay. Well, I have no further questions to ask.

BENCH: Righto. Do you want to comment on that last - what - where - what was Mr Yassir doing when you arrived?- - He was standing." (my emphasis)

[31] Constable Joy gave evidence that on attending the scene of the incident he observed a dark hatch parked near the T-junction on the intersection of Harrogate Street and Ipswich Road with a bicycle approximately one and a half metres in front of it. There were two males and a female standing near the car. These persons were obviously Mr Hinkley and his parents. The appellant was standing forward of the car and near the bicycle, which had a slightly buckled front wheel. He described it as a men's mountain bike.

[32] The appellant immediately said words to the effect of, "He tired to kill me." When asked to explain this, the appellant said words to the effect, "He hit my bike. I was under the front of the car waving at him. He kept driving and dragged me." (my emphasis).

[33] In response to being asked what injuries he had, the Appellant then lifted up his right tracksuit trouser pants leg and showed Constable Joy a small abrasion, similar to if someone had dry skin and just scratched. He did not observe any blood. When he repeated this question, the appellant again indicated this abrasion.

[34] In addition to tracksuit pants, Constable Joy observed the appellant wearing a dark leather jacket. He inspected the front, rear and both sides of the appellant's clothing. He did not observe any scratches, tears or rips consistent with a person dragged across the bitumen.

[35] He said that he explained to the appellant that this was a non-reportable accident and all that was required was for him to exchange details with the driver of the other vehicle. Although the appellant was initially reluctant to do so, he did this after Constable Joy explained his obligations.

[36] Constable Joy's evidence was that it was then the appellant indicated to him and his partner that he had a broken ankle. He said that the appellant immediately turned and walked off to some nearby construction workers.

[37] He said that he and Constable Saville returned to the police vehicle. After placing some items in it, they observed that Mr Hinkley and the appellant had left. They then conducted some general patrols of the surrounding streets and attended the PA Hospital emergency section in an unsuccessful attempt to locate the appellant. They subsequently took up with Constable Timar.

[38] The appellant asked no relevant questions of Constable Joy. He attempted to cross-examine the officer about his statement recorded in Constable Saville's notebook. As the acting magistrate correctly advised the appellant, these were questions which should have been asked of Constable Saville. This was clearly not a profitable line of cross-examination for this reason. The appellant drew attention to the fact that a page was blanked out in the notebook. As the magistrate explained, in accordance with the usual experience of the courts, this happens when the next investigation starts and therefore contains information that is irrelevant to the charges before he court. The appellant had difficulty in accepting this, responding that he thought this was a cover up. He also sought to cross-examine Constable Joy about being unable to recall his conversation with Mr Hinkley at the time of the accident. However, he was reminded that in accordance with the evidence, Constable Joy did not speak to Mr Hinkley. Following this, the appellant asked no further questions. As a consequence, Constable Joy's evidence was unchallenged by cross-examination. This is undoubtedly due to the appellant's unfamiliarity with court procedure, which is evident from his conduct in the Magistrates Court and his submissions to this court.

[39] Constable Timar's evidence was that on the day of the incident she was the duty officer at the counter of the Dutton Park Police Station when the appellant attended there to report it. The time of his attendance was not given. However, it must have been before 2 pm because this was the end of her shift.

[40] According to Constable Timar, the appellant was very upset and aggressive in his speech. He believed that the person who was driving the car had tried to murder him. She tried to calm him down and advised him that if he wanted to make a report it would be better to speak to Constables Saville and Joy.

[41] She also gave evidence that he stated that he had just come from the PA Hospital where he had been told:[20]**

"he had a very severe head injury, he had internal injuries, which included bleeding of the kidney, and he also had a broken ankle."

**She said that her advice to him was that he should possibly go back to the hospital and she would get the officers to call him at a later date.

[42] Her evidence was that she then gave him her business card. This fell to the floor. She said that he bent over quite easily to pick it up. She observed him because of his report of injuries. She also did not notice any limp and he did not seem to be in pain.

[43] In cross-examination the appellant challenged her account that the card had been dropped and her observation of his physical condition. He put to her that he picked the card up from the desk and he had two crutches with him. She denied both propositions.

[44] He also suggested that she would not give him a chance to explain himself and kept threatening him with imprisonment. She denied this by saying:[21]**

"I don't use those tactics as - at all. My job as a station duty officer, when people come to the counter, is to listen and I listened. I'm very fair. You did - you came to me very aggressively and I tried to calm you down, that was all."

**[45] The appellant responded that as the other officers would not take any statement at the scene, he came to the police station to make an inquiry about this, Constable Timar had denied his rights and misinterpreted his tone as aggressive towards her. Constable Timar said that she had in fact handed him her card with an explanation that if the officers who attended did not take his report, he could see her.

[46] He also put to her that she said she was going to call him at 3 pm that day, but she did not do so. She denied saying this because her shift ended at 2 pm.

[47] The appellant gave evidence in his defence. His evidence was that he was riding his bicycle from home towards Woolloongabba stadium. In the course of this journey he was on Harrogate Street when he looked over his shoulder and saw Mr Hinkley's car about 300 or 400 metres "behind" him. He said that Mr Hinkley was speeding and caught up with him, as a consequence of which:[23]**

"all of a sudden he knocked me to the ground unconscious and my whole body went underneath the wheel and I was unable to move any part of my body. I shouted and screamed, 'Stop, stop, stop', but he wouldn't stop ... maybe he intended to take my life, that's how I felt at the time ... unless Mr Hinkley he was - he - he was blind, he could have seen me coming from a distance and unless he had some other reason or maybe he was using his mobile phone or something, he could have stopped there was enough distance to stop ..."

**He said that Mr Hinkley was driving dangerously and recklessly. Also he said that he suspected that Mr Hinkley was under some kind of narcotics. The magistrate correctly upheld an objection to this statement that it was not based on any evidence. During cross-examination, the appellant said that Mr Hinkley did not stop when his body went underneath the car but kept driving for about five or seven metres.[24]

[48] The appellant maintained that he had been victimised twice; first by Mr Hinkley and secondly by the police whom he claimed mistreated him.

[49] The prosecutor cross-examined him about the route that he rode from his home to the point of impact. The transcript and the acting magistrate's decision reveals that he drew a map during his evidence which he used to demonstrate this to the court. However, as the decision confirms, it was not tendered as an exhibit.[25] He initially gave evidence that:[26]**

"So you were riding your bicycle down Harrogate Street?- - Yes.

Towards Ipswich Road?- - I was turning to Ipswich Road, yes." (my emphasis)

However, inconsistently with this, the exchange immediately following this was:[27]

"See, I put to you that that's not correct. I put to you that you were riding your bicycle along a footpath?- - Mmm.

Along Ipswich Road and that you crossed or attempted to cross Harrogate Street, you weren't driving down Harrogate Street towards Ipswich Road at all?- - No, I was initially on the footpath but I ended up on Harrogate Road. When I come from - you know my house is Buranda, and I was on my way to the city."

In keeping with this second explanation, with the aid of the map, he described the path of his travel from leaving his house in Cornwall Street as turning into Tottenham Street, then left into Worsley Street, and then right into O'Keefe Street, from where he rode on a footpath which finished at Harrogate Street. He described the events from this point as follows:[28]

"... And then I ride my way to Harrogate Road and I was going to turn there at the intersection to Ipswich and head towards the Woolloongabba.

Towards the city. And at that point I was here - my bicycle was here, and Mr Hinkley and his car was behind me. And he was behind me about a distance of 300 metres minimum. A distance of 300 metres and I look over my shoulder like this, you know, for safety check and I realise there was a car behind me so I, you know, located myself to the left toward the - close - close to the kerb." (my emphasis)

**Immediately after this he agreed with the proposition that he was riding his bicycle on the footpath until it ceased at Harrogate Street at the intersection with Ipswich Road and it was at this stage that he had ridden out into Harrogate Street.[29] As the acting magistrate observed in his decision, the path the appellant drew on the map was "not down Harrogate Road".[30]

The cross-examination on this issue concluded as follows:[31]**

"... I just put to you merely that you were driving your bicycle on a footpath, that you had exited that footpath onto Harrogate Street without looking ... and you've driven into the path of an oncoming vehicle causing a hazard. What do you say to that?- - No. Your Honour, I did look - I make safety observations. I looked behind, I look my right shoulder, I look my left shoulder, I look ahead, I look if there was any people around, any animals, [indistinct]. I've checked - I make complete observation, what was around me and that's when I join Harrogate Road. And unless I was blind, which I believe I'm not blind, I have seen everything clearly."

**[50] He was also cross-examined as to the nature of his injuries. He accepted that when Constable Joy asked him about this, he lifted his pants leg and showed the abrasion on his leg. He described it as a big scratch under his knee from which the skin had come off. However, he claimed that he also had multiple bruising and internal injuries.

[51] With reference to the multiple bruising, he variously said it was "all over my body",[32] and "all over my head".[33] He initially gave evidence that he said to Constable Joy, "Look these are some of my injuries."[34] However, he then accepted that he had shown the officer only one injury.[35] He explained this by saying that, "the police officer is not a doctor."[36] This was further explained during the following exchange with the prosecutor:[37]**

"No, the police officer is not a doctor but he asked you had you been injured, and the only thing you could show him was an injury to your leg; is that - is that the case?- - Yeah, but if he asked more than that, that would have been an invasion of my medical privacy. I have to go to hospital - and - and - and - and, you know, have to consult and get a file from a medical expert not from the police officer."

**[52] In relation to the internal injuries, he made particular reference to his "left kidney".[38] He said that he had a medical record at court. At this point the acting magistrate correctly advised him that it was necessary for him to bring whoever treated him to court to give evidence about this.[39]

[53] The exchanges on this issue between the appellant, the prosecutor and the acting magistrate are relevant to the preliminary issue of whether I should give the appellant leave to adduce new evidence on this appeal.

[54] The prosecutor suggested to the appellant that although he had told Constable Timar that he had bleeding of the kidney, severe head injuries, internal injuries and a broken ankle, he was wandering around of his own volition. The appellant responded that he had a medical record to prove this and that he could go to his GP and get a medical certificate.[40] The transcript suggests that he then produced a hospital name tag that had a file number, as proof that he had been admitted to hospital on 16 August 2008, and said that the police could easily quote the number to obtain the medical records from the PA Hospital.[41] At this point, the acting magistrate correctly told him that while this was evidence that he may have been in hospital, if he wanted to prove his injuries it was up to him to bring someone to court to do so, and it was not for the police to prove his injuries. The appellant responded:**

**This is the first occasion in which the appellant had sought an adjournment to produce admissible evidence of his injuries.[42] However, the transcript records no response by either the acting magistrate or the prosecutor to this request. The prosecutor simply continued with her questions. The appellant simply confirmed that he walked to the police station with the aid of crutches and that he was using them to lift his body from the ground. This request was not further remarked upon.

[55] There was also cross-examination about the extent of damage to his bicycle, during which he contradicted the police evidence by testifying that the bicycle was completely destroyed. He said that it was now useless. According to him, in addition to the front wheel, the chain was cut off, the seat came off and the lights on the steering wheel were completely smashed.

[56] The extent of the new evidence which the applicant seeks leave to adduce was not entirely clear from the oral submissions, during which he refereed to an x-ray which he brought to court and appeared to have been made after the hearing, a report from Dr Andrews, his General Practitioner at the time of the incident and a report by another medical practitioner from the same practice,[43] also completed after the hearing. In particular, it was unclear whether in addition he was seeking to adduce evidence from the PA Hospital related to his examination, treatment, x-rays and CT scans at the time of the incident. In fairness to the appellant, as a self represented party, I will consider each of the items of evidence.

[57] It is convenient to commence with the potential evidence from Dr Andrews. According to the report of Dr Pensil of the Indooroopilly Day and Night Medical Centre, Dr Andrews treated the appellant in relation to this incident.

[58] In the appellant's addendum outline of submissions relating to this issue,[44] he claims that the x-rays and CT scans concerning his injuries, with Dr Andrew's 15-page written report, were "presented" to the acting magistrate. The closest that the appellant got to presenting the report was to tell the acting magistrate that he had a medical record at court. He did not identify the type of record that he had. Dr Andrews's name was not mentioned. As I have observed, the magistrate correctly told him on each occasion medical evidence was mentioned by him, it was necessary to call a medical practitioner who could give evidence about the nature of his injuries and their causation, and not simply rely upon a medical record, whether it be a statement or otherwise.

[59] In relation to this, although the appellant recognises in his submissions that he was advised of this, he referred in his submission to the fact that Dr Andrews had attached a note saying that he could not attend due to other commitments which described as "professional commitments".

[60] In his oral submissions, he stated that he requested Dr Andrews to attend court. However, the doctor was not prepared to attend due to his workload and advised the appellant that he thought the report would be sufficient because he had always written reports and never attended court. Therefore, because of his lack of experience in Queensland law, the appellant said he thought that it would be possible to just provide a written document to the magistrate.[45] He said that he did not know about a subpoena.[46] Although the appellant was able to articulate his case at first instance and on appeal, his first language is obviously not English.

[61] Notwithstanding this, the acting magistrate could not have known the reasons for Dr Andrews's unavailability because he was not expressly told and the transcript demonstrates that the report and any attachments including the explanatory note were never presented to the acting magistrate. Even if this had happened, the acting magistrate was correct in advising the appellant that it would be necessary for a medical practitioner to give evidence and not simply tender the documents. Therefore, contrary to the appellant's submission, the decision of the acting magistrate not to allow the appellant to rely on the report did not involve brushing it aside, was not an insult to Dr Andrews and the medical profession as a whole, and did not demonstrate "double standard behaviour".

[62] Because the report and therefore Dr Andrews's evidence was available at the time of the trial, the first of the conditions needed before new evidence should be received has not been satisfied. It cannot be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. However, as noted by the High Court,[47] this is not a universal or inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even if the evidence might have been discovered before trial. I regard this principle as also applicable to the issue of whether leave should be given to adduce new evidence on an appeal, including evidence which had actually been obtained at the time of the trial. This is particularly so in a case such as this, where the appellant was a self-represented party who lacked experience in Queensland law, including knowledge about the availability of a subpoena which could have been used to address Dr Andrews's reluctance to give evidence.

[63] It is also important to consider whether the strength of the new evidence warrants the granting of leave to adduce fresh evidence on appeal, in circumstances where the appellant belatedly requested to be given the time to bring someone to court to prove his injuries and this was not responded to by the court. As the appellant says in his addendum outline of submissions:[48]**

"I requested for an extra time to be granted so that I could bring somebody along to court to prove my injuries, but my request was ignored by [the acting magistrate]. ... He did not respond to my point asking for an adjournment or extension. So this would then appear that there has been a miscarriage of justice."

**[64] Although it may be arguable that the adjournment was sought in the context of the PA Hospital medical records rather than Dr Andrews's report, in fairness to the appellant I proceed on the basis that the adjournment application was sufficient to cover the medical evidence in general.

[65] There is no reason to consider that the third condition before new evidence should be received cannot be established, namely that it is apparently credible.

[66] In relation to the issue of the strength of the new evidence, which is equivalent to the second of these conditions, namely that it would probably have an important influence on the result of the case, the appellant advised me during oral argument that:[49]**

"... [Dr Andrews] would have described what was already written in the report which was the treatment I received from the Princess Alexandra Hospital and the minor operation I underwent."

[67] The report itself is not before me because, as the appellant also told me, he has misplaced the report and at the time the appeal was heard, Dr Andrews was not available to give evidence; the doctor had retired from practice.[50] The appellant confirmed this in an email to Mr Irvine, Deputy Registrar Appeals, Supreme and District Courts on 26 December 2009. Mr Irvine had requested on my behalf that he file a copy of the report. The appellant's response was as follows:

"Unfortunately, I am unable to provide a copy of Dr Chris Andrews report, because I have accidentally misplaced the report, and as a result cannot find it. Additionally, Dr Chris has since retired from the medical profession, therefore there is no way I can get hold of either the report or Dr Chris himself."

**[68] Although this response may make academic the issue of whether leave should be given to adduce the evidence of Dr Andrews as new evidence, because the resolution of this question may be relevant to the determination of whether leave should be granted to adduce the other evidence relied upon, I proceed to address the issue.

[69] In the addendum outline of submissions, the appellant asserts, concerning Dr Andrews's report, and the x-rays and CT scans which I assume to be those from the PA Hospital, that had this medical evidence been considered, it would have been an important influence on the outcome of the hearing as it would have shown that his injuries are real and serious.

[70] I consider that the issue of the appellant's guilt is to be determined on the basis of circumstantial evidence. This is not a case where the driver of the motor vehicle involved in the contact with the appellant's bicycle was aware of the contact. His evidence was that he did not see the appellant until after this contact. Therefore, the question of whether the appellant rode his bicycle at the relevant time in such a manner as to cause a traffic hazard on Harrogate Street by moving into the path of the other vehicle depends on drawing inferences from the circumstances.

[71] Consequently, for the appellant to be convicted, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, the verdict must be not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.

[72] In this case, the prosecution must exclude beyond reasonable doubt as a reasonable hypothesis consistent with innocence that Mr Hinkley drove his vehicle along Harrogate Street towards Ipswich Road at an excessive speed so that it struck the appellant on his bicycle and knocked him to the ground with his whole body going underneath the wheel; and, as he is alleged to have said to Constable Joy, was dragged as Mr Hinkley kept driving. If the prosecution cannot do this, it will be unable to establish beyond reasonable doubt that the appellant as opposed to Mr Hinkley caused a traffic hazard at the time and place alleged.

[73] If, as the appellant claims, he suffered a very severe head injury and had internal injuries including a bleeding kidney, these could arguably be the real and serious injuries caused by a collision due to Mr Hinkley proceeding in the manner alleged by the appellant rather than at a snail's pace. In my view, evidence of such injuries would be of sufficient strength as to probably have an important influence on the result of the case.

[74] However, the only evidence which exists of the thrust of Dr Andrews's report is the more recent report from Dr Pensil which certifies that the appellant "sustained an injury to his right ankle". It also says that the appellant "has the C-T scan of his right ankle in his possession" and that he received physiotherapy.

[75] This report does not go so far as to certify that the ankle injury involved a break. However, even assuming that this is the case, it is reasonable to conclude that Dr Andrews's report would not have referred to more extensive injuries, as the appellant's medical records would continue to be available within the practice and to form the basis for Dr Pensil's report.

[76] I do not consider that a broken ankle would probably have an important, although not decisive, influence on the result of the case. In my view, it is an injury consistent with being caused in a contact between a bicycle and a motor vehicle in the manner alleged by the prosecution, with the motor vehicle proceeding slowly as it prepared to stop at an intersection and the appellant's bicycle moving into its path from a footpath giving access to the intersection. It is not such as to preclude the prosecution from excluding beyond a reasonable doubt a reasonable hypothesis to the contrary consistent with innocence, of the nature that I have referred to.

[77] Therefore, in addition to Dr Andrews not being available to give evidence in the terms of his report, I find that the second condition necessary to establish special grounds for leave to be given to adduce this as new evidence has not been fulfilled. Accordingly, this evidence should not be received as new evidence on this appeal.

[78] Although Dr Pensil's report is dated 24 August 2009, it is based on the appellant's medical records, which would continue to be available within the practice. These would have been the same medical records on which Dr Andrews would have based his report. Therefore it is merely a commentary on those records which would have been available at the time of the trial. Such a commentary could have been given in evidence at the trial by Dr Pensil or another doctor from the practice, in the absence of Dr Andrews. Therefore, as was the case with Dr Andrews's evidence, it cannot be shown that the evidence in Dr Pensil's report could not have been obtained with reasonable diligence for use at the trial. Consequently, the first of the conditions needed before new evidence should be received has again not been satisfied.

[79] The issue of whether leave should be given to adduce the evidence again depends on the strength of the new evidence. However, this evidence has no greater strength than Dr Andrews's evidence. In fact, it is of less strength because Dr Pensil concludes his report by stating:**

"I am unable to comment on his injuries as I was not involved in his treatment."

**In these circumstances, I also do not consider that the evidence which Dr Pensil could give would probably have an important, although not decisive, influence on the result of this case. Accordingly, this evidence should not be received as new evidence on this appeal.

[80] In his addendum outline of submissions, the appellant refers to x-rays and CT scans done at the PA Hospital which could be checked if necessary. As with the report from Dr Andrews, he asserts that "initial x-rays taken after the accident on 16th August 2008 was presented at the initial hearing." However, as was the case with Dr Andrews's report, the closest he got to presenting the report was to say that he had a medical record at court. The fact that no PA Hospital records were presented to the court is demonstrated by that part of the transcript which suggests that during his evidence he produced the hospital nametag and said that the police could easily quote the related file number to obtain the medical records from the PA Hospital. As I have observed, the acting magistrate again correctly told the appellant that if he wanted to prove his injuries it was up to him to bring someone to court to do so. This would have required him to call evidence from a medical professional from the PA Hospital as to the nature of his injuries and their causation. The best evidence would have come from the treating professionals. However, if this was not available, a medical practitioner could be called as a witness to give this evidence on the basis of the hospital's medical records. Therefore, as in the case of the acting magistrate's decision not to allow the appellant to rely on Dr Andrews's report, the magistrate's approach to the PA Hospital evidence was not brushing it aside, insulting the medical profession as a whole, and did not demonstrate a double standard of behaviour.

[81] As in the case of Dr Andrews's evidence, the PA Hospital evidence was available at the time of the trial. It cannot be shown that this evidence could not have been obtained with reasonable diligence for use at the trial. This is particularly so in the case of this evidence, as the appellant demonstrated an understanding of a procedure to facilitate access to it. In the course of his submissions, he said:[51]**

"They always keep the file of the patients in the hospital and if you need something on file then you have to go through your own doctor and then the doctor has to request."

**He said that he had not tried to do this in the six months before the trial because he was very sick while he recovered from his injury.[52]

[82] However, in circumstances where the appellant made his belated request for an adjournment in the context of the PA Hospital medical records, as is the case with Dr Andrews's evidence, I consider the issue of leave to adduce this evidence on the basis of whether the second condition for establishing special grounds to do so has been fulfilled.

[83] I therefore consider the strength of this evidence. The potential evidence for the PA Hospital has not been placed before me, whether in the form of a doctor's statement, medical records containing file notes, x-rays or CT scans.

[84] However, the appellant has also sought leave to adduce an x-ray which he had obtained from the Hospital through the clinic. He said that he had gone to the clinic and asked that this document be made available.[53] Therefore he appears to have been able to obtain the x-ray pursuant to the procedure described in para [81]. He said during oral argument that he got it from the GP.[54] He said that it was taken since the trial.[55] He thought that the date was possibly on it.[56] Although the x-ray was not tendered as an exhibit for this appeal and I have not perused it, the respondent's counsel, Ms Litchen, did so. She states in the addendum outline of submission on behalf of the respondent that:[57]**

"The x-ray appears to be of the appellant's lower leg and is dated 10/3/2009 and has the appellant's name and date of birth shown on it also. The x-ray shows what appears to be a metallic object or clip attached to the bones of the lower leg." (my emphasis)

The appellant accepts this in his addendum outline of submissions.[58] Ms Litchen's description of the x-ray is also consistent with the appellant's description of it in his oral submissions. For example, he said:[59]

"... I had a bandage on my leg and this was taken as a part of ongoing treatment to check if the leg was healed or not. Because the doctors were considering removing the blade from my ankle."

[85] Importantly, the appellant confirmed during oral argument that the other x-rays that were taken would show exactly the same thing as this x-ray. This confirmation was made in the following context:[60]

"HIS HONOUR: ... And you had other x-rays taken that would show exactly the thing as the x-ray you've got in front of you now-----

HIS HONOUR: -----that existed at the time of the Magistrates Court hearing?

APPELLANT: yes, indeed it did exist but it wasn't in my hand."

**Consistently, the appellant said in his addendum outline of submissions that this x-ray was taken "as part of my ongoing treatment to rehabilitate the injuries"[61] and "It also shows the extent of the injuries which I sustained as a result of teenager Damian Hinkley running over me on the 16 of August 2009."[62]

[86] Further, as set out in para [66], the appellant also advised me in oral argument that if Dr Andrews had been called, he would have described the treatment he received from the Princess Alexandra Hospital and the minor operation he underwent. As I have concluded at para [75], it is reasonable to conclude on the basis of Dr Pensil's report that Dr Andrews would not have referred to more extensive injuries than a broken ankle.

[87] For completeness, I note that Dr Pensil refers to the appellant having the CT scan of his right ankle in his possession. This is likely to be a reference to the x-ray that the appellant brought to court.

[88] Therefore, the only medical evidence which the appellant has brought to the appeal is an x-ray of his lower leg, which appears to show a metallic object or clip attached to the bones, and which the appellant described as a "blade". As the appellant has said that this x-ray was taken as part of the ongoing treatment to rehabilitate the injuries, it shows the extent of the injuries which he sustained as a result of the incident in which he was involved with Mr Hinkley and the other x-rays taken would show exactly the same thing as this x-ray, it is reasonable to conclude that any evidence that the appellant could call from the PA Hospital as to the extent and nature of his injuries as observed at or about the time of this incident would go no further than this injury to his leg. It is also reasonable to conclude that this evidence would not refer to more extensive injuries than a broken ankle, having regard to the contents of Dr Pensil's report, and the appellant's evidence that Dr Andrews, whose treatment of the appellant is the subject of that report, would have described the treatment he received from that hospital.

[89] If the appellant had suffered more extensive injuries of the nature he described to Constable Timar, it is to be expected that he would produce on appeal more than an x-ray of his lower leg. As he says, this x-ray shows the extent of the injuries he sustained as a result of the incident. I conclude that he did not suffer more extensive injuries. It is also to be expected that if he suffered more extensive injuries, the evidence from the medical practice which treated him would refer to more than an injury to his right ankle. An injury to his right ankle is consistent with what Constables Saville and Joy say that he complained of at the scene of the accident.

[90] On the basis of my conclusion that the evidence that the appellant could call from the PA Hospital would be limited to an injury of his leg, in particular a broken ankle, I do not consider this evidence to be of greater strength than that of Dr Andrews or Dr Pensil. In these circumstances, I also do not consider that it would probably have an important, although not decisive, influence on the result of this case. Accordingly, it should not be received as new evidence of this appeal.

[91] As this x-ray was taken after the trial, it could not have been obtained with reasonable diligence for use at the trial. Again, the issue is to consider the strength of this evidence.

[92] Ms Litchen submits that the x-ray could be in relation to an injury that occurred at any time, prior or post the offence; and the metallic object showing on the x-ray could be either old or new.[63] Therefore, it is submitted that all it shows is that the appellant has had a metallic object attached to the bones of his lower leg at some time or other, and is irrelevant on this basis.[64]

[93] The appellant has not said that he intends to call a medical witness through whom the x-ray could be tendered and to interpret it. It is not for the court to interpret the x-ray itself. In the absence of such evidence, as Ms Litchen submits, it would not be possible to find that the injury occurred on 16 August 2009. As such, the x-ray would be of no relevance to the issues in this appeal, and would not be of sufficient strength to be received as new evidence.

[94] However, even assuming these difficulties would be overcome, the evidence of the x-ray would again be limited to an injury to the appellant's leg. Even assuming that it is evidence of a broken ankle, this is of no greater strength than the other evidence which the appellant has sought leave to adduce on this appeal.

[95] In these circumstances, I also do not consider that it would probably have an important, although not decisive, influence on the result of this case. Accordingly, it should not be received as new evidence on this appeal.

[96] I find that the second condition which must be fulfilled to establish the special grounds necessary for leave to be given to adduce the new evidence identified by the appellant on this appeal, has not be fulfilled in each case.

[97] Consequently, the application to adduce new evidence on this appeal is refused and I proceed to determine the appeal by way of re-hearing on the original evidence.

[98] The prosecution case was that the appellant caused a traffic hazard by riding his bicycle from the Ipswich Road footpath on to Harrogate Street where it intersected with Ipswich Road, into the path of Mr Hinkley's vehicle as it travelled down Harrogate Street towards the intersection. The case is that the appellant exited the footpath from the left of the intersection and made contact with Mr Hinkley's vehicle.

[99] It was not suggested before the acting magistrate that if the appellant rode his bicycle in this way, it did not constitute a traffic hazard. The issue was whether the prosecution had established beyond reasonable doubt that he did ride his bicycle in this way.

[100] I consider if the appellant did ride his bicycle in this way, that it would cause a traffic hazard. Although "traffic hazard" is not defined for the purposes of the Regulation, it has a dictionary definition of "1. a danger or risk 2. a source of this."[65] The Regulation defines "traffic" as "a vehicle moving on the public highway".[66] A "vehicle" includes both a motor vehicle and a bicycle.[67] Therefore, if the appellant rode his bicycle as alleged by the prosecution, he created a danger or risk to vehicles, such as Mr Hinkley's vehicle which was travelling down Harrogate Street, by moving into the line along which that vehicle was moving.[68]

[101] I therefore limit my consideration of this appeal to the issue of whether the prosecution has established beyond reasonable doubt that the appellant did ride his bicycle in the way particularised in para [98].

[102] There is no doubt that the appellant's bicycle and Mr Hinkley's car came into contact in the vicinity of the intersection or T-junction, as it was described by Constable Joy on 16 August 2009. As I have already observed, this is not a case in which Mr Hinkley was aware of the contact until after it had occurred. His evidence was that he did not see the appellant until after the contact. However, there is no doubt that the contact did occur. The appellant's evidence is to this effect. And when the police arrived at the scene, they observed his bicycle on the road near the intersection and it had a slightly buckled front wheel. On their account, the appellant had a small graze or abrasion to his right lower leg.

[103] There is a conflict in the accounts of Mr Hinkley and the appellant as to how this contact occurred. Mr Hinkley's evidence was that he was travelling down hill in Harrogate Street towards Ipswich Road with the intention of turning left. According to him, the road was clear the whole way and he did not go past third gear. He said he did not exceed 35 to 40 kilometres an hour. He was slowing down as he approached within three to four metres of the intersection to less than five kilometres an hour. As he said in cross-examination, he was going at a snail's pace and was almost totally stopped. He had looked to his left as he did so, but had not seen the appellant. There was a construction fence which allowed him to see three to four metres down the footpath along Ipswich Road to his left. There was nothing there when he looked. He then looked back to the right because this is the direction the cars were coming from. It was when he looked back to the left that he first saw the appellant. The contact must have occurred by this time. On the other hand, the appellant's evidence was that while he was on Harrogate Street he saw Mr Hinkley's car speeding about 300 or 400 metres behind him. He had previously put to Mr Hinkley in cross-examination that he was driving at 80 kilometres an hour. He said that as a result he was knocked off his bicycle onto the ground, with his whole body going underneath the wheel. Constable Joy's evidence was that the appellant said that he was dragged under the car as Mr Hinkley kept driving. The appellant said that when his whole body ended up underneath the car, Mr Hinkley kept driving for about five or seven metres.

[104] In these circumstances, as I have observed, for a verdict of guilty to be entered the prosecution must exclude beyond reasonable doubt as a reasonable hypothesis consistent with innocence that Mr Hinkley drove his vehicle in the manner alleged by the appellant.

[105] The credibility of witnesses is a material consideration which requires to be resolved in this case. Having regard to the way in which the appellant conducted his case, this is so in respect of each witness, and not simply the appellant and Mr Hinkley. In resolving the issue of credibility, I will afford respect to the advantage the acting magistrate had in seeing and hearing the witnesses. I note that he accepted the prosecution witnesses and rejected the appellant as witnesses of credit.

[106] The basis of the appellant's contention that his conviction was unsafe and satisfactory is comprehensively set out in his initial submission, which was in the form of a letter to the District Court.[69]

[107] This submission commences by again outlining his version of events. Of relevance to this appeal are the following statements which expand on his evidence:

(a) "... Hinkley ... struck me from behind and ran over and dragged me for over 300 metres along Ipswich Road." (my emphasis)

(b) "At the time there were multiple bruises visible on all over my body and my right ankle was bleeding heavily."[70]

(e) "I spent 16 hours in the intensive care unit of the Princess Alexandra Hospital."

The reference in (b) is to the time he was first approached by Constable Joy.

He also stated consistent with the manner in which he conducted his case before the Magistrates Court that, "the accident I believe was caused by ... Hinkley who crashed into me and nearly killed me."

I note that throughout the document there are a number of propositions which were not put to the witnesses in cross-examination. This is again undoubtedly due to the appellant's lack of experience with the Queensland legal system.

[108] He submitted that his conviction was unsafe because the evidence used to convict him was greatly exaggerated and partially fabricated. He enlarged on this in his addendum outline of submissions in which he asserts that the acting magistrate's decision "was entirely based on fabricated police statement without material evidence to back it up." He maintained this in oral argument before me by asserting:[71]**

"... the police fabricated their statements because they exaggerated what happened at the time. The police were not there, they were not present, like I said earlier, and also they fabricated their statement by going along with the statement given to them by Damian Hinkley."

**He also asserted that Constable Joy "physically threatened me and told me I did not deserve ... fair treatment."[72]

[109] He also submitted that his conviction was unsafe because he "was denied in court to present my own evidence (Medical)." I have addressed this issue in determining the preliminary question about whether to grant leave for him to adduce new evidence on this appeal. As I have said, the acting magistrate was correct in rejecting the medical evidence on the basis that he was seeking to tender medical records without calling medical witnesses to give evidence of his treatment or to provide a commentary on those records. The fact that the acting magistrate did not respond to his belated request to be given some time to bring someone to the court to prove his injuries is one reason that I considered it important to consider whether the strength of the evidence that he could have presented at that time warranted granting leave to adduce fresh evidence on this appeal. For the reasons I have given, I have answered this question in the negative. In these circumstances, I do not consider that the appellant's conviction was unsafe on this basis.

[110] He submits that the conviction was unsatisfactory because:

(a) He was not given enough time to argue his case in court and was constantly interrupted by the acting magistrate whenever he tried to question Mr Hinkley;

(b) The acting magistrate did not allow him to defend himself in court properly and told him to sit down and shut up;

(c) The magistrate allowed the prosecution to override all his important counterargument points and in most cases discounted them as unproven allegations even though he presented enough evidence in court to back up his argument;

(d) The acting magistrate disallowed all the evidence he had gathered to support his case and he had given plenty of time for the prosecution to make false allegations against him;

(e) Whenever he tried to prove a point in cross-examination with Mr Hinkley, the acting magistrate would directly intervene unfairly and rephrase what Mr Hinkley said so that the meaning would be different.

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