Brown v Commissioner of Police [2015] QDC 227

DISTRICT COURT OF QUEENSLAND CITATION: Brown v Commissioner of Police [2015] QDC 227 PARTIES: ASHLEY DAVID BROWN Appellant/Defendant and COMMISSIONER OF POLICE Respondent FILE NO/S: No 3 of 2015 DIVISION: Crime PROCEEDING: Appeal ORIGINATING COURT: District Court at Bundaberg DELIVERED ON: 22 September 2015 DELIVERED AT: Brisbane HEARING DATE: 7 May 2015 JUDGE: Rackemann DCJ ORDER: The appeal is allowed, the conviction set aside and a verdict of not guilty entered CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – where the appellant was convicted of one count of driving a motor vehicle without due care and attention in the lead up to a collision – where Magistrate erred – whether conviction otherwise supported by the evidence COUNSEL: T Matthews QC, with him A O’Brien for the appellant K L Overell for the respondent SOLICITORS: Baker O’Brien Toll for the appellant ODPP on behalf of the Queensland Police Service for the respondent -- 1 of 15 -- 2 [1] This appeal is against the appellant/defendant’s conviction, in the Magistrates Court, of one count of driving a motor vehicle without due care and attention. The charge relates to the appellant/defendant’s conduct in driving his motorcycle in the lead-up to a collision which occurred on 15 June 2013 at the intersection of F E Walker Street (Walker Street) and Reddan Street, Bundaberg. [2] The appellant/defendant had been proceeding in a north-easterly direction along Walker Street between its intersection with Sugden Street and its intersection with Reddan Street. He had been travelling in the left-hand lane of two lanes of traffic. In the right-hand lane there was a Toyota Hilux vehicle, driven by Mr Kerridge, in which his wife, Ms Turner, was a passenger. In that section of road the left-hand lane merges into the right hand lane to become a single north-easterly bound lane. The evidence at trial was that the distance from the end of the merging lane to the left lane in Reddan Street is 100 m, which puts it at about mid-block.1 [3] On the day and at the time in question the appellant/defendant overtook the Hilux on the left hand side, to emerge in front of it prior to the intersection of Walker Street with Reddan Street. That overtaking manoeuvre was effected some distance past the end of the merge lane. After completing the overtaking manoeuvre the appellant/defendant’s motorcycle came into collision with the side (and towards the rear) of a four wheel drive vehicle driven by Mr Holtzberger, who had proceeded along Walker Street in the opposite direction before shifting down into second gear and, without stopping, turned right into Reddan Street across the face of oncoming traffic. He had almost completed making the turn when the collision occurred. [4] The case against the appellant/defendant was particularised as follows: “You overtook another vehicle… on the left of that vehicle at high speed, and then collided with an oncoming vehicle which was turning… you drove without due care and attention due to excessive speed and inappropriate overtaking.” [5] The learned Magistrate found that the prosecution had proven beyond reasonable doubt that the appellant/defendant, in riding his motorcycle, was not exercising the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances and convicted the appellant/defendant. In the course of doing so, -- 2 of 15 -- 3 he also found that Mr Holtzberger’s turning manoeuvre was “effected safely” and that the collision was brought about by the manner in which the appellant/defendant drove his motorcycle and his attempt to bring it to a halt before the collision. [6] The grounds of appeal are that: (a) the Magistrate erred in convicting the appellant/defendant on the basis of inadmissible evidence, namely that of Leesa Philips; (b) erred in equating responsibility for the collision with guilt; (c) made errors of fact in reaching his verdict; and (d) reached a verdict which is unsafe and unsatisfactory. It is common ground that the learned Magistrate erred at least in relation to the facts. Counsel for the respondent did not seek to defend his Honour’s reasoning.2 [7] The question for the learned Magistrate was whether the appellant/defendant rode his motorcycle without due care and attention. As the learned Magistrate acknowledged, by reference to authority,3 the fact that a collision occurred did not mean that the offence had been committed. The focus was properly on the defendant’s driving, rather than the consequences of it. [8] The learned Magistrate was criticised, on appeal, for descending to findings about the causation of the collision and the safety of Mr Holtzberger’s driving. In fairness to the learned Magistrate it should be noted that not only was the collision referred to in the particulars of the charge, but his Honour’s findings were responsive to the submissions of the learned senior counsel who appeared at first instance (as well as on this appeal) that it was Mr Holtzberger’s driving which was the probable cause of the collision.4 [9] As has already been noted, and as was acknowledged on behalf of the respondent on the appeal,5 the case was particularised against the appellant/defendant on the basis of a combination of excessive speed and inappropriate overtaking prior to the collision. That was the basis upon which the appellant/defendant was convicted. 1 Powis T1-44 l46, the merging lane was itself 107m – T1-43 l10. 2 T1-11 ll32-39. 3 In paras 5 – 6 of the reasons. 4 See T1-51. 5 T1-38. -- 3 of 15 -- 4 [10] The learned Magistrate had a number of versions of events to consider. Unsurprisingly, the most benign version of events, so far as the appellant/defendant is concerned, was his own (that had been given to the relevant police officer). That version included, relevantly, the following: “I took off from the lights, I was in the left lane and there were cars in the right. I came up to where the merging thing is, there was a safe distance so I merged in front of the green four wheel drive. I then moved over to the right hand centre of the lane. I was in fourth gear doing about 60 kilometres per hour. I noticed the cars going around the Terrican in the inbound lane but did not see his turn signal on. He then pulled out in front of me. I then braked but couldn’t pull up quick enough. He was in front of me and I hit him…” [11] That version of events, viewed in isolation, would not justify a conviction. [12] The Magistrate also heard evidence that, at the time of the collision, the appellant/defendant had said words to the effect that “he had thought that Holtzberger’s vehicle would have stopped”. That is consistent with Holtzberger’s vehicle not having already turned by the time the appellant/defendant got into a position to observe it. [13] On the appeal, there was no challenge to the finding that the appellant/defendant’s overtaking manoeuvre was, in fact, completed beyond the end of the merge lane.6 That establishes a breach, but it does not necessarily establish the charge of driving without due care and attention. [14] The learned Magistrate observed that the appellant/defendant’s version was contradicted by other evidence. The prosecution called a number of witnesses who could not assist greatly, or at all, in establishing the manner of the appellant/defendant’s driving in the lead up to the collision. In that regard: (i) Tahlia Casey did not see anything until the collision occurred; (ii) Gavin Wills did not see or hear the appellant/defendant’s motorcycle prior to the collision; (iii) Robert Holtzberger, did not see the motorcycle prior to the collision. That is consistent with the hypothesis that the motorcycle emerged out in front of Mr Kerridge’s vehicle -- 4 of 15 -- 5 late and after Mr Holtzberger was already executing his turning manoeuvre. That is also however, consistent with the defence hypothesis of Mr Holtzberger’s not having kept a proper look out. [15] The most damning evidence was given by Ms Turner, the wife of Mr Kerridge, who was the passenger in his vehicle at the time. She was the first to see the appellant/defendant beside the Kerridge vehicle and, as the passenger, was the closest to the motorcycle. Her evidence was that the Kerridge vehicle was driving along Walker Street, past the merge point when she heard a noise on her left-hand side, got a terrible fright and swore. The appellant/defendant’s motorcycle which “came from nowhere” made a “dreadful noise as it shot through past us on the left hand side”.7 It was travelling “just like a – a bullet out of a gun”.8 It was travelling faster than the Kerridge vehicle9 and seemed to be getting faster as it passed.10 You “could sort of hear him accelerating… and then he sort of shot in front of us and we had to brake heavily otherwise… we were lucky we didn’t clip him”.11 Her husband braked heavily enough for her to be propelled forward in the car, even though she had a safety belt on.12 Mr Holtzberger’s vehicle was already turning when the appellant/defendant’s motorcycle veered in front of the Kerridge vehicle.13 The back of the motorcycle then wobbled before the collision occurred. Mr Holtzberger’s turning manoeuvre had almost finished by the time of the collision. [16] The learned Magistrate said that “the evidence of Ms Turner is supported by evidence of Ms Philips that the motorcycle passed the Toyota Hilux at high speed”. As was conceded on behalf of the respondent, that reveals an error, on his Honour’s part, in relation to the evidence. Ms Phillips did not, in fact, observe the appellant/defendant’s overtaking manoeuvre nor, indeed, any of his driving along Walker Street between its intersection with Sugden Street and its intersection with Reddan Street. Her observations of the appellant/defendant were limited to his different driving behaviour at an earlier point in time, in a different section of the 6 Appeal T1-43 ll37-45. 7 T1-21 l3. 8 T1-21 l20. 9 T1-21 l23. 10 T1-21 l27. 11 T1-21 ll29-30. 12 T1-21 l36. -- 5 of 15 -- 6 road. As was conceded for the respondent on the appeal,14 that her evidence was irrelevant to how the appellant/defendant was driving at the relevant time and ought not have been relied upon. [17] Ms Turner’s description of the speed of the motorcycle, as it pulled up alongside and then emerged in front of the Kerridge vehicle, was, as the learned Magistrate noted, different from that of her husband. Mr Kerridge’s evidence was that, after his wife swore, he observed the motorcycle to be “staying beside me on the left hand side”15 travelling more or less at the same speed as his vehicle,16 which was travelling at or about the 60 km/h limit.17 The appellant/defendant then went “a little bit faster so he can pass me”.18 That is very different from the “bullet out of a gun” description of Ms Turner. [18] The evidence of Ms Turner, in this respect, is not sufficiently reliable. It is unsupported by other evidence, contradicted by the evidence of her husband and is improbable. Both she and her husband gave evidence of Mr Kerridge’s braking to avoid a collision with the appellant/defendant as he passed. That suggests that the appellant/defendant was overtaking at a speed which was sufficiently similar to that of the Kerridge vehicle to engender a fear of collision between the two. On the appeal, counsel for the respondent agreed that Ms Turner’s description of the appellant/defendant’s speed, in this respect, was an exaggeration.19 The overtaking manoeuvre should not be found to have been effected at high speed. [19] The learned magistrate placed some reliance on what he described as the consistency of the evidence of Ms Turner and Mr Kerridge about the increasing speed of the motorcycle after coming in front of the Kerridge vehicle. Both Ms Turner and Mr Kerridge gave evidence to the effect that the motorcycle accelerated after it passed their vehicle,20 but there is some difficulty with that evidence and the learned magistrate’s consideration of it. 13 T1-21 ll 39,40. 14 T1-11 l20. 15 T1-11 l21. 16 T1-11 l26. 17 T1-10. 18 T1-11 l39. 19 Appeal T1-41 l37. 20 Turner T1-21 l27, Kerridge T1-11 l41 to T1-12 l20. -- 6 of 15 -- 7 [20] The learned magistrate correctly recorded Mr Kerridge as saying that the defendant “got into it”, but went on to say “He knocked it down a cog or two”. Something similar to the latter description featured in the police prosecutor’s address,21 but an examination of the transcript reveals that no such evidence was given by Mr Kerridge. Further, the learned magistrate referred to Mr Kerridge’s evidence that the appellant/defendant “travelled well over the speed limit”, when senior counsel for the appellant/defendant had, at trial, successfully objected to Mr Kerridge’s estimates of speed.22 [21] Further, whilst the evidence of Ms Turner and Mr Kerridge supports a finding that the appellant/defendants vehicle accelerated, at least to some extent and for some time, it is difficult to reach any conclusion as to that extent or time. It must be remembered that Mr Kerridge braked as the motorcycle emerged in front of his vehicle. The perception of Ms Turner and Mr Kerridge of the motorcycle accelerating in front of them would likely have been influenced by the deceleration of their own vehicle. I am not prepared to find that the appellant/defendant accelerated to any particularly high speed after he overtook the Kerridge vehicle. [22] To accelerate to a speed which is a little more than a vehicle which itself is travelling at or about the speed limit, in order to overtake on the left hand side past the end of the merge and then to continue to accelerate to some extent for some time involves a breach of the law, but does not necessarily justify a conviction on a charge of driving without due care and attention. A temporary and relatively modest exceedance of the speed limit in order to effect an overtaking manoeuvre does not necessarily amount to driving without due care and attention and, as was pointed out for the appellant/defendant, there was, in the present circumstances, a wide verge to the left of the lane in which the Kerridge vehicle was travelling and conditions were good. 21 T1-47 l29. 22 T1-12 ll7-14. -- 7 of 15 -- 8 It has been observed that both Ms Turner and Mr Kerridge perceived that the unexpected overtaking manoeuvre created a risk of collision between their vehicle and the motorcycle, causing Mr Kerridge to brake. The case against the appellant/defendant was not, however, particularised or conducted (and the appellant/defendant was not convicted) on the basis that it was the creation of that risk which rendered the overtaking manoeuvre inappropriate or the appellant/defendant’s driving as falling short of due care and attention. The case against the appellant/defendant related to his driving in the lead up to the collision with Mr Holtzberger. [23] The evidence of Ms Turner and Mr Kerridge was that there was a safe distance, at the speed they were travelling, between their vehicle and the intersection at which Mr Holtzberger turned. Ms Turner’s evidence was to the effect that that would not have been so had they been travelling at the appellant/defendant’s speed, but her descriptions of speed are not sufficiently reliable, and the evidence as a whole does not justify a finding that the defendant was travelling much faster than the Kerridge vehicle. [24] On the appeal it was contended, on behalf of the respondent, that despite the errors of the learned Magistrate, the appeal should be dismissed because the evidence otherwise proved the offence. Central to that submission is a combination of the speed of the motorcycle, the proximity of the overtaking manoeuvre to the Reddan Street intersection and the likely effect of the Kerridge vehicle in obstructing the appellant/defendant’s view of the intersection until after the overtaking manoeuvre was completed. [25] It was submitted (for the respondent) that to drive at a speed which is something more than a car that is already travelling at or about the speed limit is excessive -- 8 of 15 -- 9 where the appellant/defendant was performing an overtaking manoeuvre on the approach to an intersection in respect of which he had an inadequate opportunity to observe a turning vehicle at the intersection and to take evasive action. Counsel for the respondent contended that: “… the bike rider didn’t have an opportunity to see the car turning because he wouldn’t have accelerated past the other car (Kerridge vehicle) in such dangerous situation. And he didn’t see it (Holtzberger vehicle) because he was doing an inherently unsafe manoeuvre.” [26] It may be accepted that to overtake the Kerridge vehicle, being the intervening vehicle between the motorcycle and the Reddan Street intersection, in circumstances where, prior to the overtaking manoeuvre, the Kerridge vehicle obscured the appellant/defendant’s view of what (if anything) was happening at the intersection and in circumstances where the point of overtaking was so close to the intersection as to not afford a vehicle travelling at the speed of the appellant/defendant a reasonable opportunity to observe and safely react to what (if anything) was occurring at the intersection (in this case a turning manoeuvre by Mr Holtzburger) would involve driving without due care and attention. The question remains however, as to whether those findings should be made, so as to support a conviction. [27] It was pointed out, on behalf of the appellant/defendant, that the Reddan Street intersection is a ‘T’ intersection at which all vehicles driving across the eastbound lanes of Walker Street (whilst entering or leaving Reddan Street) were required to give way to traffic heading in the direction of the appellant/defendant. That would not however, address the obvious risk, in the scenario painted by the respondent, -- 9 of 15 -- 10 involved in placing oneself in a position of not being able to observe and react to any manoeuvre which was being undertaken. [28] The respondent’s hypothesis relies, in part, on the Kerridge vehicle obscuring the appellant/defendant’s view of the upcoming intersection until after he had completed the overtaking manoeuvre. There was no evidence called at trial in relation to sight lines, but not even the appellant/defendant’s version suggests that he had the intersection under observation until he had undertaken the Kerridge vehicle. [29] It is important, in considering the respondent’s hypothesis, to consider the evidence as to where the overtaking manoeuvre took place. The further that was from the Reddan Street intersection the more difficult it is to find that the appellant/defendant, by his overtaking manoeuvre and speed, put himself in a situation where he had an inadequate opportunity to observe and to react to whatever was already occurring at the upcoming intersection. [30] It has already been noted that there was no challenge to the finding that the overtaking manoeuvre occurred beyond the end of the merge, which was some 100m from the intersection. It is relevant however to consider the evidence of where within that 100m distance the overtaking manoeuvre occurred. If, for example, it occurred around mid block at a speed only a little more than the Kerridge vehicle, then it would be difficult to conclude that, by reason of the manoeuvre, the appellant/defendant placed himself in a situation where he was unable to observe and react to whatever might have been happening at the upcoming intersection. If, on the other hand, the manoeuvre occurred when the motorbike was virtually upon the intersection, then it would be much easier to make the adverse findings for which the respondent contended on appeal. The learned Magistrate -- 10 of 15 -- 11 made no finding about the point, within the 100 m distance, at which the overtaking manoeuvre occurred. [31] There are some aspects of the evidence which provide some support for the respondent’s hypothesis. Insofar as where the appellant/defendant emerged in front of the Kerridge vehicle is concerned, the evidence of Ms Turner was that the Holtzberger vehicle had already started to turn by the time the motorcycle overtook the Kerridge vehicle. That combined with the fact that the motorbike then collided with the Holtzberger vehicle before it could complete its turning manoeuvre, would suggest that the overtaking manoeuvre occurred at least reasonably proximate to the intersection and, perhaps, offers at least a possible explanation as why Mr Holtzberger did not see the motorcycle prior to the collision (as he had already turned). On the appellant/defendant’s hypothesis, on the other hand, the fact of the collision before the completion of the turning manoeuvre is explained not by the proximity of the overtaking manoeuvre, but rather by the late commencement of Mr Holtzberger’s turning movement after the appellant/defendant’s overtaking manoeuvre had been effected. [32] When asked where the overtaking manoeuvre occurred, however, Ms Turner identified the point as being at the beginning of the last house before the intersection between Walker Street and Sugden Street.23 That is a little over a block back from the point of the collision at the intersection of Walker Street and Reddan Street. That was obviously an error, given the evidence otherwise, but it was not an error which was corrected. [33] Earlier in her evidence Ms Turner has said:24 23 T 1-24 to 1-25 and Exhibit 1. 24 T 1-20 l 32-35. -- 11 of 15 -- 12 “…we were just going along and we saw a car coming towards us with his blinker on to turn right and, like I said, the traffic was into the one lane by then, and he had plenty of time to turn in front of us. We were probably about three of four car lengths from where I saw him turning up the top for the light and I heard this noise beside me on the left hand side and I got a terrible fright and I swore.” [34] To the extent that her evidence was that the Kerridge vehicle was only some three or four car lengths from Holtzberger’s turning vehicle when she first heard the noise of the appellant/defendant’s motorcycle on the left of the vehicle, prior to him effecting the overtaking manoeuvre, that evidence is improbable. The distance of three or four car lengths is in the order of only 15m to 20m, which is about one second of travel time at 60km/h. That is difficult to reconcile either with her evidence that there was safe distance between the Holtzberger and Kerridge vehicles or with the time it would have taken for the appellant/defendant to undertake and complete his overtaking manoeuvre, emerge in front of the Kerridge vehicle, accelerate away from the front of the Kerridge vehicle (as Ms Turner says he did) and then make some attempt to avoid the collision, resulting in the rear wheel wobble Ms Turner observed before the collision occurred. [35] Mr Kerridge’s evidence was that he was “well and truly out of those double lanes” when he first saw the motorcycle on the left hand side of his vehicle prior to the overtaking manoeuvre. When asked how far beyond the double lanes that was he responded:25 25 T 1-10 l 37-43. -- 12 of 15 -- 13 “Mate, I wouldn’t have a clue… I don’t know. I sort of – you know, I just concentrate on what’s in front of me… I know it wasn’t in double lanes.” [36] When asked about Mr Holtzberger’s vehicle, he said that he had seen it “a fair way up” at a distance that had not caused him any concern.26 When asked to estimate what the “fair way up” was, he said: “Probably about – I don’t know – five cars.”27 The distance of five cars equates to about 25m which, at 60km/h, would be less than two seconds of travel time which raises similar questions (although to a slightly smaller degree), in relation to reliability, as applies to Ms Turner’s estimate of only three to four car lengths. The estimate was given only after he was pressed and was expressed in less than confident terms, having been proceeded by the words “I don’t know”. Further, it is not consistent with the evidence of Mr Holtzberger. [37] It has already been observed that Mr Holtzberger did not see the defendant’s vehicle at all. He did give evidence however, about the distance between himself and the nearest vehicle when he commenced his turning manoeuvre. His recollection is of seeing four cars about four houses back from the intersection.28 There are ten house blocks fronting Walker Street between its intersections with Sugden Street and with Redden Street.29 This evidence puts the nearest cars not far beyond the mid-block- point when Mr Holtzberger says he commenced his turn. That is obviously very 26 T 1-13 l 18 and 25. 27 T 1-13 l 22. 28 T 1-29 ll15-37. 29 See exhibit 1. -- 13 of 15 -- 14 different evidence. It suggests that there was a much greater separation between Mr Holtzberger and the oncoming vehicles to cars, presumably led by the Kerridge vehicle, than the estimates given by either Ms Turner or Mr Kerridge, or that Mr Holtzberger had failed to see the Kerridge vehicle (if in fact it was closer) or that his estimate is mistaken. [38] If the Kerridge vehicle was four house blocks back when the turn commenced, then the fact that the collision occurred before the turning manoeuvre could be completed raises questions as to whether the appellant/defendant had yet to overtake or whether, as he claims, he had already overtaken and was travelling in the right-hand lane in front of the Kerridge vehicle (but was unseen by Mr Holtzberger). [39] The whole of the evidence does not permit a confident finding as to where, within the 100m distance from the end of the merged lanes, the overtaking manoeuvre occurred, relative to the intersection with Reddan Street and Mr Holtzberger’s turning manoeuvre at that intersection. The respondent’s hypothesis, that the appellant/defendant drove without due care and attention by overtaking the Kerridge vehicle in a way (ie on the left) and at a point and at a speed which effectively deprived him of a reasonable opportunity to observe and to react to what was occurring at the intersection is at least possible, but the extent of difficulty with the evidence of speed and of the location of the overtaking manoeuvre, leaves me short of being prepared to make the findings which the respondent urged on appeal, at least in a case to which the criminal standard of proof applies. There remains, on the evidence, at least a reasonable doubt as to whether the appellant/defendant was driving his vehicle in a way which lacked due care and attention in the respects put against him in argument on appeal. -- 14 of 15 -- 15 [40] It is unnecessary for me to concern myself with causation of the collision otherwise or with merits or otherwise of Mr Holtzberger’s driving in the circumstances. [41] The appeal is allowed, the conviction set aside and a verdict of not guilty entered. -- 15 of 15 --