Bryer v Currant [2010] QDC 45

DISTRICT COURT OF QUEENSLAND CITATION: Bryer v Currant [2010] QDC 45 PARTIES: SHANE BRYER Appellant v TRAVIS CURRANT Respondent FILE NO/S: Indictment 62/2009 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Beaudesert. DELIVERED ON: 4 February 2010 DELIVERED AT: Beenleigh HEARING DATE: 4 February 2010 JUDGE: Judge Dearden DCJ ORDER: Appeal dismissed. Order that the appellant pay the respondent’s legal costs of and incidental to the appeal in the amount of $1800. CATCHWORDS: APPEAL - VEHICLES AND TRAFFIC – Offences – Driving without due care and attention –where Magistrate was not satisfied the evidence was sufficient to substantiate the charge – where charge is not proven beyond a reasonable doubt. COUNSEL: Mr. Churchill for the appellant. Dr. Jensen for the respondent -- 1 of 6 -- 2 [1] HIS HONOUR: This is the decision in the matter of Bryer v. Currant. The respondent, Travis Currant, was found not guilty of the charge of driving without due care and attention after a trial before the learned Magistrate at Beaudesert on 27 April 2009. The appellant police officer, Shane Bryer, appeals on the following grounds:- "1. That the decision of her Honour [the learned Magistrate] to dismiss the charge was against the weight of the evidence and contrary to law; 2. That [the learned Magistrate] erred in failing to properly apply the criminal standard of proof in the circumstances of the case; and 3. That [the learned Magistrate] failed to take proper notice of, or excluded, the expert and forensic evidence presented, or sought to be presented, by the prosecution in the case." [2] The learned Magistrate held relevantly (Decision p.4 L49 - p.5 L9) "…having regard to the evidence that's been placed before me, I'm not in a position to find that the defendant was travelling in an easterly direction, so if I can't find that, I then can't move on to the second point that I made, which is that he was on the wrong side of the road. And I think, having regard to the fact that -- 2 of 6 -- 3 there are no independent eye witnesses, other than the two people involved in this accident, and both of those people sustained substantial injuries, I don't think I can find that anything is proven beyond a reasonable doubt." [3] Neither the respondent nor the other driver, Robert Mann, could remember the collision or its circumstances. There were no eye witnesses to the collision, nor to the immediate events leading up to the collision. A witness, Steven Brewer, gave evidence of observations immediately after the collision. A police officer, Sergeant James Hickey, gave evidence of observations, investigations and photographs taken after the collision. [4] Dr Jensen, for the respondent, submits, and I accept, the prosecution case required proof beyond reasonable doubt of the following:- 1. That the respondent was travelling east and Robert Mann was travelling west; 2. That the collision occurred on the southern (westbound) side of the road; and 3. That the collision occurred there because of the failure of the respondent to exercise due care and attention. -- 3 of 6 -- 4 [5] I accept that there was no satisfactory evidence as to where the respondent was travelling to, where his home was at the relevant time and, therefore, in what direction he was travelling at the relevant time. There is a similar lack of satisfactory evidence in respect of the direction Robert Mann was travelling at the relevant time. [6] Mr Churchill, who appears to argue the appeal, seeks to rely on the photographic evidence which was placed before the learned Magistrate. That evidence, which does show extensive damage to the right-hand side of both vehicles and also shows what appears to be the resting place of both vehicles still suffers, in my view, the same difficulty, which is, that without knowing either the weight or the speed of the vehicles, it's impossible to know, from their final rotated positions, in which direction they initially travelled, although it can be inferred that one or other vehicle must have been at least partially on the wrong side of the road (whichever side that was for the relevant vehicle) and that the collision occurred at some reasonably substantial speed (in terms of the combined speed of both vehicles). [7] It follows, therefore, in my view, that the learned Magistrate did not fall into error in finding that the assertion that the respondent was travelling east had not been proved beyond reasonable doubt. It is clear that there was a rational hypothesis, consistent with -- 4 of 6 -- 5 innocence, which could not be excluded beyond reasonable doubt. [8] The prosecution before the learned Magistrate was, in my view, bound to fail on this basis alone, and this appeal similarly fails. [9] I therefore order that the appeal is dismissed. In respect of the original trial, the costs were appropriately awarded subject to a legislative cap, and I'm not persuaded that there was any error in the Magistrate's discretion to award those costs. … [10] HIS HONOUR: I order that the appellant pay the respondent's legal costs of and incidental to this appeal in the amount of $1800. ... In respect of section 158, as part of my decision, I confirm the costs order made by the learned Magistrate. ... I direct the Clerk of the Court and/or Registrar of the Beaudesert Magistrates Court to issue the certificate referred to in section 158(3) of the Justices Act in -- 5 of 6 -- 6 respect of the original trial of the respondent in these proceedings. -- 6 of 6 --