Ashton v The Queen [2012] QDC 270

1 [2012] QDC 270 DISTRICT COURT APPELLATE JURISDICTION JUDGE EVERSON No 6 of 2012 GEOFFREY JOHN ASHTON Appellant and THE QUEEN Respondent INNISFAIL ..DATE 29/08/2012 JUDGMENT -- 1 of 5 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 ("JA"). The appellant appeals his conviction in the Innisfail Magistrates Court on 3 April 2012, of failing to give way at an intersection pursuant to section 69(2) of the Transport Operations (Road Use Management-Road Rules) Regulation 2009 ("the offence"). The learned Magistrate found that the offence was proved to have been committed by the appellant at the intersection of Edith Street and Rankin Street, Innisfail,("the intersection") on 1 September 2011. In the course of this appeal, the appellant has raised a number of irrelevant matters, including allegations of longstanding persecution at the hands of the Innisfail police. In this regard, he sought to adduce further evidence, but was refused leave to do so pursuant to section 223 of the JA. The appellant also purported to give notice of a "constitutional matter" within the meaning of section 78B of the Judiciary Act 1903. In this regard, the comments of Toohey J in Finlayson: Ex parte Finlayson (1997) 72 ALJR 73, at 74, are most apposite:- "In terms of section 78B, a cause does not 'involve' a matter arising under the Constitution or involving its interpretation merely because someone asserts that it -- 2 of 5 -- 3 JUDGMENT 1 10 20 30 40 50 60 does." Any contentions of the appellant that can be discerned in this regard are plainly unarguable, and I can confidently determine this appeal despite this bogus notice: see Kosteska v. Phillips [2011] QCA 266. Relevantly, the appeal seeks that I make evidentiary findings in favour of the appellant, contrary to those of the learned Magistrate below. The appeal proceeded pursuant to section 223 of the JA on the evidence given in the Magistrates Court. In determining the appeal, I am cognisant of what was said by the Court of Appeal in Mbuzi v. Torcetti [2008] QCA 231 at [17] per Fraser JA:- "On such an appeal the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the Judge is required to review the evidence, to weigh conflicting evidence, and to draw his or her own conclusions ..." The learned Magistrate accepted the evidence of the other driver involved in the collision in the vicinity of the intersection with the appellant's vehicle, Mr Webber. Essentially, the evidence of Mr Webber was that he was driving down Rankin Street, approaching the intersection when he noticed the white van, being driven by the appellant, enter it -- 3 of 5 -- 4 JUDGMENT 1 10 20 30 40 50 60 from Edith Street to his left without slowing down. Although he took evasive action, he was unable to avoid his vehicle coming into contact with the van. Constable O'Leary, who subsequently attended the scene, gave evidence of the give way sign being present and facing where Edith Street intersected with Rankin Street. She noted the presence of a slight mark on the left side of the bullbar of the vehicle driven by Mr Webber and a dark scratch mark on the rear right side of the van. The appellant gave a markedly different version of events. He alleged that he had already passed through the intersection and entered Rankin Street. He gave evidence that he paused for some pedestrians at a pedestrian crossing before being alerted to the presence of the vehicle being driven by Mr Webber by the sound of its horn. He claims he pulled over before Mr Webber drew alongside him and deliberately turned his vehicle into the back of the appellant's van. The learned Magistrate was quite entitled to prefer the evidence of Mr Webber which she found to be coherent and unconcocted. The evidence of Mr Webber was consistent with the observations of the damage to the vehicles in question, made by Constable O'Leary. My reviewing of the evidence discloses no error on the part of the learned Magistrate. I therefore dismiss the appeal. -- 4 of 5 -- 5 JUDGMENT 1 10 20 30 40 50 60 ----- -- 5 of 5 --