Barralet v The Commissioner of Police [2016] QDC 352

DISTRICT COURT OF QUEENSLAND CITATION: Barralet v The Commissioner of Police [2016] QDC 352 PARTIES: NEIL THOMAS BARRALET (Appellant) and THE COMMISSIONER OF POLICE (Respondent) FILE NO/S: D101 of 2016 DIVISION: Appellate PROCEEDING: Appeal under s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Maroochydore DELIVERED ON: 22 December 2016 DELIVERED AT: District Court at Brisbane HEARING DATE: 21 October 2016 JUDGE: Devereaux SC DCJ ORDER: 1. Leave to adduce further evidence is refused. 2. Appeal dismissed. 3. The magistrate’s order is confirmed CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the appellant was convicted, after trial, of one charge of dangerous operation of a vehicle by driving slowly towards a traffic controller to the point of contact – where the appellant submitted that the learned magistrate wrongly prevented cross-examination of the complainant on his violent criminal history of expired offences – where the appellant further submitted that the evidence before the court did not prove the charge. Cases: Fox v Percy (2003) 214 CLR 118 Gallagher v The Queen (1986) 160 CLR 392 King v The Queen (2012) 245 CLR 588 McBride v The Queen (1966) 115 CLR 44 Rowe v Kemper [2008] QCA 175 -- 1 of 11 -- 2 Legislation: Justices Act 1886 (Qld) COUNSEL: A M Nelson for the appellant M Gawrych for the respondent SOLICITORS: Slade Waterhouse Lawyers for the appellant ODPP on behalf of the Commissioner of Police for the respondent [1] The appellant was convicted of one charge of dangerous operation of a vehicle in the Magistrates Court at Maroochydore on 20 July 2016. He appeals against the conviction on the following grounds: 1. The magistrate erred at law in refusing to permit the appellant to cross- examine the complainant about convictions for offences of violence. 2. The magistrate erred at law and in fact in finding beyond reasonable doubt that the appellant had driven dangerously [2] The appeal is brought under Part 9 Division 1 of the Justices Act 1886. Section 222 provides that a defendant aggrieved by an order made by a justice in a summary way on a complaint for an offence may appeal within 1 month after the date of the order to a District Court judge. Section 223 provides that the appeal is by way of rehearing on the evidence given in the proceeding before the justices. 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. [3] On the rehearing, with or without new evidence, I must conduct ‘a real review’ of the trial and the magistrate’s reasons and make my own determination of relevant facts in issue from the evidence while ‘giving due deference and attaching a good deal of weight to the magistrate’s view.’1 Ground 1 [4] Before the trial commenced, the prosecutor put the particulars of the charge on the record. They were that on 13 July 2015, at approximately 2.45pm on Old Maroochydore Road Maroochydore, the appellant “deliberately drove his vehicle into” the complainant “and such other matters as may, on evidence, in the opinion of the court constitute dangerous operation.” The allegation, the prosecutor confirmed, was that the appellant, in two short forward movements of his car, came into contact 1 Fox v Percy (2003) 214 CLR 118, Rowe v Kemper [2008] QCA 175 -- 2 of 11 -- 3 with a traffic controller. The traffic controller “has come across the bonnet and ultimately rolled off.” The material act was contacting the traffic controller with the vehicle. [5] Defence counsel sought leave to cross-examine the complainant with respect to expired convictions.2 In essence, counsel submitted that two different versions of events would emerge from the evidence. ‘One is, there was a striking with the car and the banging of the bonnet out of fear. My client’s version is that he did not hit the traffic controller, and the traffic controller banged the bonnet out of aggression and violence.’3 [6] So it was submitted to be relevant to the learned magistrate’s ultimate determination of facts that the complainant had a history of aggression and violence. The complainant’s criminal history was tendered. The most recent entry was for assault occasioning bodily harm, committed in April 2009 and dealt with in the Maroochydore Magistrates Court on 17 August 2009 by way of probation order for 18 months. Before that, the complainant was convicted of one count of obstructing a police officer in June 2008 and fined $250. Importantly, the complainant was dealt with in the Townsville Magistrates Court in October 2003 for charges of unlawful stalking, indecent act, threatening words, obscene language and behaving in an indecent manner. He was sentenced to four months imprisonment. The complainant had earlier been sentenced in the Tully Magistrates Court in July 2002 for a charge of wilful damage to police property and possessing a knife in a public place. He was fined for those offences. [7] The learned magistrate heard submissions before and after the complainant gave evidence in chief and was cross-examined. His Honour remarked: “Well I think he has answered just about everything that could be gained out of that. I don’t think his past history is going to have any relevance to his answers that he has given here today.”4 2 It was not in dispute that the rehabilitation periods with respect to the complainant’s convictions had expired, according to the provisions of the Criminal Law (Rehabilitation of Offenders) Act 1986. Permission of the court was necessary before the witness could be asked or required to answer questions about the past offences, under s. 15A of the Evidence Act 1977. 3 1-10.45. 4 1-35.40-45. -- 3 of 11 -- 4 [8] His Honour was no doubt referring to some of the answers just given in cross- examination. It was put to the witness the vehicle did not make contact with him. He insisted it did. He said it hit him. He was asked this question: ‘Q: You stepped back and began to bang on the bonnet?” A: No, I didn’t. Q: The Jeep… A: I did bang on the bonnet but I did not step back.’ [9] Later he was asked whether what made him angry was ‘not the car hitting you, but the car coming close to you?’ The witness answered, ‘well yeah, it was – mate, if someone threatens me, I have a bad tendency to get angry. And the car was threatening me.’ The witness agreed that in the past he had had ‘anger issues’ but said he had been to a psychiatrist and ‘we’re all on top of it.’5 The witness agreed he had, in the past, seen a psychologist to manage his aggression. He agreed that being a traffic controller could be a frustrating job. It was put to him that the accused did not physically abuse him, nor verbally abuse him and the witness said, ‘he came into my safety zone.’ [10] The appellant submits the complainant’s history would have shown that he was likely to react to a perceived threat with physical violence; the cross-examination was likely to weaken the magistrate’s confidence in his credibility and that was important because the complainant was the only person in a position to say that the car actually struck him. [11] The submission fails because the complainant admitted a tendency to get angry and admitted physically hitting the bonnet of the car. The cross-examination was not likely to affect the assessment of his honesty and therefore the matter of the past convictions did not bear significantly on the question whether the vehicle actually struck the complainant. As the case progressed, a witness, Mr Caldwell, gave evidence quite consistent with the complainant’s evidence that the car struck him. [12] In my respectful opinion the learned magistrate’s conclusion was entirely appropriate. There was no miscarriage of justice in refusing cross examination-on the specific entries in the witness’s criminal history. 5 1-34. -- 4 of 11 -- 5 Ground 2 - The evidence [13] The complainant, Mr Galloway, had been a traffic controller about one year when, on the afternoon of Monday, 13 July 2015, he was at the corner of Stark Lane and Old Maroochydore Road at Maroochydore. He was holding a stop/slow baton and was wearing ‘high-vis shirt with a vest’.6 He had stopped a line of cars. The defendant drove up the left hand side of the stopped line of cars. To do so his car was across a fog line, marking the boundary of the lane. Mr Galloway moved across the line of traffic he had stopped, showing the ‘stop’ side of his baton. The defendant’s car, a Jeep, stopped ‘in front of the first vehicle and over to the left on the fog line on the side of the road’.7 [14] The defendant asked the witness whether he could travel straight through because there was no-one coming. Mr Galloway told him he could not because there would be traffic coming out of Stark Lane. Mr Galloway walked back towards the traffic and waited for the signal from other controllers. When it came, he turned the baton to ‘slow’ and moved across the line of traffic to be in front of the defendant’s vehicle, waving the other traffic through and signalling to the defendant to stop and wait. [15] Asked how far in front of the defendant’s car he stood, Mr Galloway said, ‘about a foot, two feet.’8 He said the defendant revved his engine, moved forward and hit him. That is, he ‘nudged me with his vehicle’.9 This caused Mr Galloway to go forward onto the bonnet. Asked how much of his body went onto the bonnet, he said his torso. He fell onto the bonnet, started banging on it to get the driver to stop and eventually slid off to the side. The vehicle drove off. [16] Under cross-examination, when it was suggested the witness had not seen any sign of aggression from the defendant, he said, ‘Well, he was shaking his head in his car when the traffic was going. We get that all the time, so it was – it was water off a duck’s back.’10 [17] Mr Galloway agreed he had not recorded the revving of the engine in his police statement. 6 1-16.45 7 1-18.5 8 1-20.10 9 1-21.25 10 1-29.25 -- 5 of 11 -- 6 [18] The essential dispute – that the Jeep did not make contact with Mr Galloway, but that it came close to him and he started banging the bonnet – was put to him and he rejected it. [19] The next day, the witness went to a doctor. He agreed there were no visible injuries. [20] David Martin Caldwell was a 46 year old man on his way from work to Nambour to collect his son when he was stopped on Old Maroochydore Road by the traffic controller at the intersection of Stark Lane, Forest Glen. His was the first car in line. There was no lane to his left but there was room for the car which came up beside him and stopped, once the controller told the driver to, about a car length ahead of Mr Caldwell. He was looking at about a 45 degree angle as he observed things. Eventually, the controller turned his sign around, ‘indicated to the car beside me to stop, then pointed at me to go through’.11 The controller was standing out of Mr Caldwell’s way, in front of the right hand side of the Jeep. Before Mr Caldwell proceeded, the Jeep slowly moved forward. The controller was then banging on the bonnet of the Jeep. Asked whether he could speak with certainty about whether the Jeep had contacted the controller by that stage Mr Caldwell said, ‘Absolutely.’12 He said it happened at the same time – ‘as the car is progressing forward … he’s contacting and he’s banging on the bonnet signalling clearly … stop this vehicle. Like, you hitting me.’13 He was definite that, although the car was not going fast, perhaps bicycle speed, there was contact. The Jeep continued forward, the controller went up on the bonnet of the car and came off to the side of the vehicle. The Jeep accelerated away. Asked again which occurred first, the contact between the vehicle and the controller or the banging on the hood, the witness answered, ‘Probably simultaneously.’14 [21] Under cross-examination, Mr Caldwell accepted the term ‘inching forward’ to describe the Jeep’s movement. The banging on the bonnet was harder as the Jeep continued forward. As to whether the contact or the banging came first, the witness during cross-examination said, ‘the car is moving forward, he’s banging on the bonnet --- the car continuing moved forward. He’s only standing there. … At some point, 11 1-40.45 12 1-43.20 13 1-43.25-30 14 1-45.15 -- 6 of 11 -- 7 he is going to hit.’15 Ultimately, when it was plainly put to the witness that the Jeep did not come into contact with traffic controller before the banging on the bonnet started, he replied, ‘Well, as you put it, obviously I can’t see that because I am behind that.’16 The witness was firm that the controller actually went up onto the bonnet of the Jeep. [22] Jessica Maree Papa, a 27 year old allied health assistant was travelling home from work but came to a stop on Old Maroochydore Road because of the road works. She was the second vehicle stopped. She noticed the charcoal coloured Jeep move up to the left of the stopped cars. She said it stopped in front of her and the car in front of her. How much in front of that car she could not recall. She could not remember fine details. She recalled the controller holding up a ‘stop’ sign; she saw words exchanged between the Jeep driver and the controller; after that, the vehicle started to edge forward when the controller was in front of it.17 As the car edged towards him, the traffic controller with the stop sign started banging his hand on the bonnet of the Jeep. Asked what happened then, she said the Jeep ‘took off through the intersection and drove off.’18 Her account did not include the controller going up onto the Jeep. She said the controller moved to the side, towards the footpath. Under cross-examination, the witness said the jeep was moving slowly – ‘edging, inching, moving.’19 When asked whether the controller was using his hands to signal a driver to stop or waving drivers through she could not recall it. [23] Dr Peter Alroe gave evidence by telephone. He examined the complainant on 14 July 2015. Mr Galloway complained of pain radiating down his right buttock and his lower back. He had a history of back injury. The pain down the right leg was new. [24] The appellant did not give evidence but the Prosecution tendered an interview between him and police. This was played early in the trial, before the complainant gave evidence, to give context to the application to cross-examine on the spent convictions. 15 1-50.40-47 16 1-52.25 17 1-57.5 18 1-57.25 19 1-60.45 -- 7 of 11 -- 8 [25] The interview was conducted on 2 September 2015 (the incident occurred on 13 July). The appellant’s voice on the recording is almost inaudible. A transcript was used at trial and I have relied on the transcript for the following. The appellant told police he stopped at the roadworks and waited patiently, watched some cars go the other way. He spoke to the controller, asking whether he could go through. He was told he could not. The controller turned his sign and walked across in front of his car. ‘Thought he was going to keep [inaudible]. … He didn’t. He stopped right in front of me. …. So I eased forward, he stepped back, he [inaudible] again. He started, um punching me light….He hits pretty good. Eventually he came around to the side of the car … And at that point I thought, well, I’m not going to take any more of this, so I got out of there.’ [26] When asked why he eased forward ‘when someone’s walking in front of your car?’ he replied, ‘Well, he had the sign up.’ And ‘I thought he was going to keep walking.’ [27] The appellant told police he did not strike the controller. [28] Asked why the controller would bang on the bonnet, the appellant replied that he was an aggressive person. [29] It is reasonably clear the appellant thought the waiting cars intended to turn into Stark Lane. He thought he could go straight through by moving up beside them. He thought the controller was wrong to let the other cars go ahead of him – ‘I have a feeling now that he didn’t want me to go. He wanted all the other cars to go, and then he was going to let me go.’ I think that was the intention, but I don’t believe that’s his right…’ [30] The interviewing officer read from the statements of witnesses. The appellant particularly disagreed with the statement that the controller landed on the bonnet. He suggested the witnesses were collaborating. New evidence? [31] During cross-examination, counsel for the appellant showed several witnesses a sheet with two photographs, obviously of the appellant’s Jeep. No witness was able to confirm the photograph was of the appellant’s Jeep and so the photograph was not admitted into evidence, although it was marked for identification. The appellant has more photographs to an affidavit. He seeks to lead further evidence on the appeal. -- 8 of 11 -- 9 [32] The appellant submits that the photographs, which show the height of the front of the Jeep, credibly show it is most unlikely an average man could be thrown onto the bonnet as Mr Galloway described. If he went onto the bonnet, it was more likely that he leant onto it or climbed up onto it. [33] I am not satisfied there are special grounds for giving leave to adduce the ‘new’ evidence. That the evidence was available at trial and very experienced trial counsel did not tender it is not fatal to the application to adduce the evidence on appeal but there is not the strength in the proposed evidence which would justify interference with the verdict. The photographs are credible, in the sense that one may accept they accurately show the front of the appellant’s Jeep with (presumably) him standing near it. But they are not so persuasive as to think they might have affected the verdict if tendered at trial.20 More likely, as trial counsel obviously thought, the photographs were not persuasive enough to prove through the appellant’s case. The Prosecution had played his account, in the police interview. The photo was tendered for identification in any case. It is likely counsel decided it to be more valuable to keep the right of last address than gain whatever proof the photographs might have achieved. The magistrate’s decision [34] The learned magistrate had the benefit of seeing and hearing all of the witnesses, including the appellant, who was in court and whose interview with police was played. [35] The learned magistrate found the complainant, Mr Caldwell and Ms Papa all to be reliable, honest witnesses. As I review the record, that was an appropriate conclusion. With respect to the crucial facts, in my respectful opinion, his honour correctly found that the complainant indicated to the line of traffic to move on, that he was standing in front of the appellant’s vehicle, indicated to the appellant to stop, that the appellant moved forward at an uncertain but not excessive speed and caused the complainant to fall onto the bonnet, resulting in him banging on the bonnet, then rolling off. [36] Upon my own review of the record and giving appropriate weight to the magistrate’s findings, there is no reasonable doubt the appellant caused his vehicle to come into 20 Gallagher v The Queen (1986) 160 CLR 392. -- 9 of 11 -- 10 contact with the complainant. That is the essential act of the alleged dangerousness. It may be accepted by the direct evidence of the complainant and inferred from the evidence of Mr Caldwell. That Ms Papa did not also give evidence of seeing the complainant up on the bonnet of the Jeep may be explicable for various reasons, including the different angle from which she viewed the events and her reduced memory. In the light of the prosecution evidence, the appellant’s statements to police, which were not sworn, do not create a reasonable doubt. [37] The appellant argues the evidence did not amount to proof of dangerous driving. He refers to the reasons of French CJ, Crennan and Kiefel JJ in King v The Queen (2012) 245 CLR 588 at [38]: ‘The ordinary meaning of dangerous is ‘[f]raught with or causing danger; involving risk; perilous; hazardous; unsafe. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own passengers.’ [38] The High Court, in that case, was concerned with the trial judge’s directions to the jury on the more serious charge (under Victorian legislation) of culpable driving causing death. Still, the remarks are, with respect, of assistance. Their Honours had earlier referred to McBride v The Queen (1966) 115 CLR 44 at 49-50, where Barwick CJ spoke of ‘a quality in the speed or manner of driving which either intrinsically or in all the circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being’ who may be upon the roadway. [39] The charge, of dangerous operation of a vehicle, under s. 328A of the Criminal Code, requires proof that the person operated vehicle dangerously in any place. That is defined to include operating the 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) … ; and (c) the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and (d) … [40] The appellant drove his vehicle at a traffic controller to the point of contact. Although not travelling quickly the vehicle was moving, perhaps at bicycle speed, at a person on the road. Whether before or after the controller hit the bonnet, the appellant drove into the complainant. The appellant’s driving was, as the learned magistrate found, -- 10 of 11 -- 11 deliberate and not accidental. The essence of the charge, as the provisions of s. 328A make clear and the cases confirm, is risk of danger to others. The appellant’s driving was, ‘in a real sense, potentially dangerous to a human being’. In the circumstances, it was dangerous and the verdict was properly reached. [41] The learned magistrate excluded any defence, under s. 25 of the Criminal Code. In my respectful opinion that was correct. Even if the banging on the bonnet occurred before the appellant’s car came into contact with the complainant, there was no basis – whether from statements the appellant made to police or by inference from all the circumstances - for acquittal because of a reasonable doubt about whether the appellant had acted in response to an extraordinary emergency. [42] I confirm the order of the magistrate. -- 11 of 11 --