Bolton v Newell [2009] QDC 133

DISTRICT COURT OF QUEENSLAND CITATION: Bolton v Newell [2009] QDC 133 PARTIES: ROBERT BOLTON (appellant) v LAURA MARGARET NEWELL (respondent) FILE NO/S: BD 2949/08 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Richlands Magistrates Court DELIVERED ON: 26 May 2009 DELIVERED AT: Brisbane HEARING DATE: 5 May 2009 JUDGE: Ryrie DCJ ORDER: Appeal allowed, conviction quashed, verdict of acquittal entered CATCHWORDS: APPEAL – TRAFFIC OFFENCE – whether appellant failed to give way on a multi-lane road, when moving from one marked lane to another marked lane, to any vehicle also travelling in the same direction APPEAL – CONVICTION – NEW EVIDENCE – where appellant sought to tender new evidence on appeal – whether the evidence ought be received by the court Justices Act 1886 (Qld), ss 222 & 223(2) Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 148 Pavlovic v The Commissioner of Police [2006] QCA 134, applied Mbuzi v Torcetti [2008] QCA 231, cited COUNSEL: The appellant appeared on his own behalf M Litchen for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Public Prosecutions for the respondent -- 1 of 9 -- 2 Background [1] On the 24 th September 2008, the appellant was convicted after a summary trial of one offence, failing to give way, when moving from one marked lane to another marked lane on a multi-lane road, to any vehicle also travelling in the same direction (s.148 Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld)). A penalty was imposed. This appeal is brought from that conviction pursuant to section 222 of the Justices Act 1886 (Qld). [2] The Notice of Appeal filed on the 22nd October 2008 sets out the grounds of appeal relied upon against conviction. Preliminary Point [3] A preliminary point was raised on the appeal by the Mr Bolton (who appeared for himself). Mr Bolton sought to tender new evidence with the court’s leave. In short, that evidence included, amongst other things, the documentation which was marked by me during the hearing of this appeal as an exhibit (‘ex 1’). Other evidence was also sought to be tendered which Mr Bolton described as ‘a crash investigator’s report’. [4] Objection was taken by Ms Litchen, appearing for the respondent, to any new evidence being received by this Court. Ms Litchen argued that the new evidence in question could have, with reasonable diligence, been produced to the court at 1st instance. Ms Litchen also argued that Mr Bolton was represented by Counsel at that hearing and that ex 1 in particular, merely reflected the relevant police officers’ notebook which was referred to by her (‘Officer Newell’) during the hearing at 1st instance in any event. [5] This court may give leave to adduce new evidence if it is satisfied that there are special grounds for giving such leave: s.223(2) Justices Act 1886. A helpful summary of the relevant considerations which are to be considered when determining whether special grounds exist are set out in Pavlovic v The Commissioner of Police [2006] QCA 134. While I accept that an application to tender further evidence on an appeal should never be lightly granted, I am satisfied that the ‘tests’ referred to in Pavlovic have been satisfied in this case in respect of the documentation which I had marked as ex 1. That documentation, while not complete in its’ entirety, reflected certain extracts taken from two relevant police officers’ notebooks. Both of those officers had attended at the scene of the incident. Those extracts included, amongst other things, a police officer’s note that Mr Bolton’s truck had only suffered minor red scratches to its front driver’s side bumper bar, a fact which was not clearly placed into evidence before the Magistrate for his consideration in the prosecution case. While Mr Bolton certainly raised that fact during his evidence, contrary evidence was given by Officer Newell before the Magistrate to the effect that she understood, from what she had been told, that the only damage suffered to the truck was to its’ front passenger side bumper bar. She also confirmed her understanding by drawing a blue circle on exhibit 2 (marked at 1st instance) even though she admitted in evidence that she had not actually seen that damage herself. She also gave evidence that she understood, again from what she had been told, that the initial point of contact between the truck and the complainant’s (‘Mr Galvez’) red car, was to an area of the far rear of the right hand driver’s side of the red car in the area near its tailgate. -- 2 of 9 -- 3 [6] After careful consideration of the new evidence, I consider that ex.1 should be received on the hearing of this appeal. The reasons for the Magistrate’s decision reveals that he had made findings in respect of where the initial point of contact between Mr Bolton’s truck and Mr Galvez’s red car had occurred, which was ultimately of significance in respect of the offence charged. He found that Mr Bolton had failed to give way to the red car, when moving from the right hand lane into the left hand lane on the relevant on ramp to the Ipswich Motorway. The Magistrate found that the initial point of damage between those two vehicles was consistent with Mr Bolton’s truck initially making contact with the red car driven by Mr Galvez on the red car’s right hand guard (rear) forcing the red car to then spin and collide with the back left hand guard (rear) of the grey car driven by Ms Rowles, with the back left hand guard (rear) of his vehicle. In view of the evidence which was placed before the Magistrate in respect of the damage suffered to the respective vehicles involved in the incident, I consider ex 1 should be received upon this appeal. [7] There was also other new evidence sought to be tendered by Mr Bolton. That evidence did not reach the necessary threshold test required for admission on the appeal. That documentation (prepared by an insurance company) could easily have been raised before the Magistrate for his consideration but was not done so. The reason it was not may well be readily explicable. It may not have been raised for tactical reasons or other considerations, a fact which does not require any determination now on this appeal. It follows that this appeal is to be determined by way of rehearing of the original evidence and any new evidence which has now been allowed by leave (ex 1). Standard to be met on this Appeal [8] Upon hearing this appeal, it is necessary for this court to give due regard not only to the reasons for the decision of the Magistrate, bearing in mind the clear advantage that he had in seeing and hearing the witnesses who gave evidence before him, but also requires this court to review the evidence, to weigh the conflicting evidence and to draw its’ own conclusions based on the original evidence and on any new evidence allowed by leave: Mbuzi v Torcetti [2008] QCA 231. A brief summary of the evidence given before the Magistrate [9] Evidence was given in the prosecution case by Mr Galvez (the driver of the red car), his wife Ms Wakelin (his passenger), Ms Rowles (the driver of the grey car) and Officer Newell (one of the police officers who attended the scene of the incident). Mr Bolton gave evidence in his own defence. [10] In short, Mr Galvez said that he and Ms Wakelin were travelling home at about 9pm along the Centenary Highway towards the Ipswich Motorway in their red car. He approached the ‘roundabout’ depicted in exhibit 4. That roundabout had traffic lights on it where the two lanes approach, which then split into three lanes, so that two left lanes proceed to an on ramp to the Ipswich Motorway on the left of that roundabout and the furthest right hand lane proceeds straight ahead to the suburb of Springfield. Upon approaching that roundabout, Mr Galvez says he had initially stopped behind another car in the left hand lane at the traffic lights. He saw that Mr Bolton’s truck had also stopped in the right hand lane beside him at that point. Upon the lights changing, the car in front of Mr Galvez then proceeded to the immediate -- 3 of 9 -- 4 left to head to Brisbane down the ramp provided for that purpose. Mr Galvez then continued in the left hand lane into the roundabout with a view to taking the on ramp to the Ipswich Motorway. Prior to reaching that on ramp, he recalls Mr Bolton’s truck swerving from his right hand lane into the lane he was travelling, causing him to have to change into the far left hand lane leading to the on ramp in question. Mr Galvez says then entered into the on ramp lane in its’ left hand lane. He says he saw a grey car travelling ahead of him in the right hand lane (‘Ms Rowles’). He also observed truck lights in his driver’s side rear vision window very close behind him in the lane to the right of him, about a metre from Ms Rowles vehicle. His car was situated in the left hand lane at that point. He estimated that the front of his car was somewhere around the middle of the side of Ms Rowles’ grey car. He says he heard the truck’s exhaust brakes. The next thing he remembered was three or four thumps and thinking he had ‘got the truck’. He also described that the initial impact with his car was a very forceful thump on the rear of his car. He again repeated in his evidence that he felt that initial impact was to the right rear of his car. He says that his car was then sent into a 180 degrees spin which caused the rear left hand bumper of his car to clip the rear left hand bumper of Ms Rowles’ grey car, which was also then sent into a spin as a consequence. Mr Galvez gave evidence that the truck then hit his car a second time from ‘his drivers side as the way along’ before Mr Galvez’s car ended up facing the direction back towards the entry he had taken onto the on ramp. [11] During his evidence, Mr Galvez referred to a series of photographs taken of the damage to his red car the next day (exhibit 1) and described how he believed that damage had resulted. [12] Mr Galvez’s partner, Ms Wakelin also gave evidence. She described a similar, though not identical account of the incident to that of Mr Galvez. She did not for example, recall hearing any truck exhaust braking, nor did she describe any initial swerving by the truck, after the traffic lights had changed, as described by Mr Galvez after their car had entered into the roundabout. She did however recall being initially hit by the truck, spinning out 180 degrees, which in turn caused the red car in which she was travelling to hit Ms Rowles’ grey car. She also recalls being hit again by the truck. [13] Ms Rowles also gave evidence. She had travelled along the Centenary Highway with a view to taking the relevant on ramp to the Ipswich Motorway. She says she was in the right hand lane as she travelled down that on ramp. She said that because she noticed some truck lights that were really bright in her rear view mirror, she had taken a quick glimpse in her mirror to look, but then had continued driving. She didn’t recall how close the lights were to her but recalls they appeared ‘high up’. The next minute she recalls her car spinning. She gave evidence that her vehicle suffered damage to its left hand rear side. She also stated that her car had also suffered damage to its’ front when she had clipped the red car while she was still ‘turning’. Under cross examination, Ms Rowles initially conceded that the truck (lights) that she had seen in her rear vision mirror could well have been travelling in the left hand lane as she was travelling down the on ramp. She subsequently stated however that she believed the truck must have been travelling in the same lane as her because she had been travelling in the right hand lane and therefore the truck must have been too. She also stated that the first time she actually saw the red car was not until after she had started to spin. Indeed, she stated that she thought it had been the truck that had initially hit her. She also gave evidence that she believed that -- 4 of 9 -- 5 the part of her car that struck the red car was her left hand rear side as that had forced her car to spin (indicating ‘clockwise’ to the court) but conceded that she didn’t know which part of the red car had hit either the front of her car or her car’s rear left side. (The photograph tendered to the court of the damage to her car did not show the actual damage suffered to the front of her car, only that to its’ left rear passenger side). [14] Officer Newell also gave evidence. She had attended at the scene of the incident with her other work partner on duty. That officer however did not give evidence to the court as she was on vacation. Office Newell tendered a diagram of the incident (exhibit 4) which she had drawn. Upon questioning by the Magistrate, she advised him that she had drawn that diagram on the information received at the scene from all of the concerned parties involved in the accident. She referred to her official police notebook regarding the contemporaneous notes taken at the scene from Mr Bolton. She admitted that she had not spoken to Mr Galvez at all regarding his version of events. Under cross examination she stated that while she didn’t actually see the damage to the truck herself, she remembers being told (by her work partner who had actually inspected it) that it was to the left front passenger side of the truck’s bumper bar. She then drew a blue circle on exhibit 2 to indicate what she believed to be was the relevant area of damage to the truck. [15] Mr Bolton gave evidence in his defence. He said that he was working that evening carting dirt from Dinmore to the airport and was returning empty along the Centenary highway. As he was approaching the traffic lights at the relevant roundabout, they had turned green so he proceeded through into the roundabout using the right hand lane which he was travelling. He then moved his truck into the left hand lane on that roundabout as there were no cars in that lane and it was his usual practice to do so because of his prior knowledge of the nature of the right hand lane on the road surface in question. He then proceeded into the on ramp to the Ipswich Motorway in that left hand lane. He says was not speeding. Under cross examination, he denied that he had ‘cut off’ Mr Galvez in the manner described after the lights had changed. He stated that the cars he saw in the left hand lane (including the vehicle in front of Mr Galvez that went immediately left to Brisbane) were motionless at those lights when he had approached and gone through them. He denied that he had ever travelled in the middle lane on the roundabout prior to the on ramp or in the right hand lane when on that on ramp and stated that he was always in the left hand lane. He also gave evidence that the first he knew that they had been a collision involving a red car was after he had heard a slight sound. He said that after hearing that noise he had then looked in the rear vision mirror and seen two cars in the barrier walls. He accepted that there must have been some contact with his vehicle which he was not aware of while he was still moving. He also disagreed with the proposition put to him that the red paint left on the front area of his truck was on the left hand side of the bumper bar and not to the right hand side as he had stated earlier in his evidence. A review of the Magistrate’s Reasons for Decision [16] The Magistrate properly stated the onus of proof and the standard of proof to be applied. While attempting to define what was meant by the term ‘beyond a reasonable doubt’, some of the language he used was somewhat confusing, however he did later state that he was required to find that the prosecution had established all the elements of the offence beyond reasonable doubt. As such, it does seem that the -- 5 of 9 -- 6 Magistrate understood the appropriate standard of proof to be applied even notwithstanding some of the earlier language he had used. [17] The Magistrate also recognised that his assessment of the credit of the respective witnesses who gave evidence was necessary in assisting him in his determination of the matter. He properly recognised that Mr Bolton was not required to give evidence in his defence. Even after affording the proper respect to the decision of the Magistrate and the findings which he made and bearing in mind any advantage that he had in seeing and hearing the witnesses give their evidence, I am respectfully unable to arrive at the same conclusion. [18] The reasons for his decision clearly reveal that the Magistrate preferred the evidence of the prosecution witnesses and their respective accounts of the incident to that of Mr Bolton. In rejecting Mr Bolton’s version of incident, he considered Mr Bolton’s evidence was on some point(s) more to what was his normal course of activities on that roadway for which he travels up to six times daily during his employment. He also found, somewhat obscurely, “his versions of events to reflect more a recollection of events rather an independent recollection of what occurred on the night in question”. Having read Mr Bolton’s evidence as a whole, and even without the benefit of seeing or hearing him give that evidence, it is difficult to accept the assessment which was made. Mr Bolton gave virtually the same account of the incident at hearing before the Magistrate to that which he had given to Officer Newell at the scene. That contemporaneous account was read into the record by Officer Newell at 1st instance, however it appears that little, if any weight was placed upon the consistency between those two accounts by the Magistrate particularly given the time which had passed between when each of those accounts were made. Even if one were to accept that at times Mr Bolton did refer in his evidence to practices he generally adopted when driving on that roadway, the exact same observation could also be made of the complainant Mr Galvez. He also gave evidence of what his usual practice was when travelling on that road. For example, Mr Galvez gave evidence that he always travels in the outer lane when he travels through the roundabout in question. (T1-3). Indeed, both Mr Galvez and Mr Bolton each gave their own opinions regarding what they believed the other driver must have been doing to cause the accident. [19] It is also clear that the Magistrate also reviewed the photographic evidence available in respect to the damage suffered to the respective vehicles to assist him in arriving at his ultimate conclusion. He noted that there was little damage to the other vehicles compared with the extensive damage caused to the red car. That observation, while true, ignores however the oral evidence given by Ms Rowles herself at hearing, which was that her grey car had also suffered quite a bit of damage to its front as a consequence of her car having clipped the red car when she was turning (T1-25), a fact not shown in the tendered photograph of her vehicle. [20] He also found that Ms Rowles’ evidence was similar to that of Mr Galvez and Ms Wakelin in respect to where the three vehicles were positioned at the relevant time. A careful reading of Ms Rowles’ evidence however does not necessarily support the conclusion made. Ms Rowles gave evidence that when she first saw the (truck) lights behind her, she had only taken a quick glimpse in her rear mirror and continued driving. She conceded under cross examination that the truck could well have been in the left hand lane at that point, because she didn’t know where it was: (T1-26 L48). She also conceded that when the accident happened, the truck could -- 6 of 9 -- 7 have been in the left lane because she didn’t see (T1-26 L55). The subsequent evidence which Ms Rowles then gave, that because she was travelling in the left hand lane he (the truck) was definitely behind her in the right (T1-27 L9), must be viewed in the context of the earlier evidence which she had just given and the nature of the on ramp itself which turns in a downward anti-clockwise direction over a short distance onto the Ipswich Motorway which is situated underneath the relevant roundabout. Ms Rowles also thought that she had initially been hit by the truck and only saw the red car for the first time at the point when her car was already spinning notwithstanding that according to Mr Galvez, the front of his car was positioned in the left hand lane towards the middle of the passenger hand side of her car as they were both travelling down the on ramp. She also stated in her evidence in chief that she ‘thought’ that the damage to her left hand rear passenger side (depicted in a photograph shown to her) was from the red car having hitting her from behind on the rear left even though she had just given evidence that she had thought that she had been initially hit by the truck and hadn’t even seen the red car until after she had begun to spin. She also stated in evidence that after she had been initially hit, her car had spun in a ‘clockwise’ direction, (rather than an ‘anti-clockwise direction’). That evidence is curious particularly if she had been initially hit on the left hand rear passenger side of her car as she believed. Ms Rowles also wasn’t sure (understandably) which part of the red car had actually impacted with either the front or left rear passenger side of her vehicle. It must be said that the observations which I have just made are not a criticism of Ms Rowles but rather, merely show that the evidence which she gave needed to be viewed by the Magistrate in the context of the whole of the evidence which she had just given. [21] The Magistrate also found that the evidence given by Mr Galvez, Ms Wakelin and Ms Rowles was consistent in respect of the initial contact between Mr Galvez’s car and Ms Rowles, being to the back left-hand passenger side of both vehicles. In addition to the evidence of Ms Rowles to which I have just referred, a careful reading of Ms Wakelin’s evidence also reveals that she was not in fact certain in her evidence with respect to where she believed the initial impact had occurred between the red car in which she was travelling and Ms Rowles’ car. The transcript reveals that she was only ‘thought’ that the initial collision between the two cars had been to the left hand rear passenger side of each vehicle (T1-20 L10 and L15). [22] There was also evidence given by Ms Wakelin and Mr Galvez that was not consistent in respect to the incident itself, a fact which in my mind, was not given sufficient consideration by the Magistrate. For example, Mr Galvez gave evidence that when the truck had struck his vehicle the second time, it had caused damage to his car from the front of its’ drivers side all the way along (depicted in the photo referred to by him in evidence). Ms Wakelin, on the other hand, gave evidence (when referring the photograph number 2 of exhibit 1) that when the truck had hit their vehicle the second time, it had caused the damage depicted in that photograph (T1-20 L25-35). That photograph however, shows damage to the left hand rear passenger side of the red car, the exact opposite to the right hand driver’s side as indicated by Mr Galvez. [23] Nor can it be said that Ms Wakelin was entirely confident in her evidence in respect to where the initial contact had occurred between the red car and the truck. For example, she corrected herself several times in her evidence on that issue. The transcript reveals that the truck had hit their red car on “the passenger – Burt’s side – driver’s side”; (T1-19 L8) and again “at the back of the passenger – driver’s side, -- 7 of 9 -- 8 sorry” (T1-19 L51). Mr Galvez also referred several times during his evidence to that initial point of impact as being to ‘right rear of the car’ (T1-5 L5), ‘ three or four thumps’ (T1-4 L52), ‘very forceful thump on the rear of the car’ (T1-6 L20) and again “to the right left-hand side of the vehicle, the rear of the vehicle” (T1-9 L15). Even when he was looking at the photograph number 3 of exhibit 1, Mr Galvez described the damage as ‘to the rear tailgate on the right hand side of the driver’s side’, rather than to just to an area on the rear right hand of the driver’s side of the car. [24] Also of some real significance, is the failure by both Ms Wakelin and Mr Galvez, during their evidence, to refer to the damage which had been suffered to the front of Ms Rowles’car. The photographs tendered had been taken by Mr Galvez himself yet no mention is made of that damage by either Mr Galvez or Ms Wakelin of it notwithstanding that Ms Rowles’ own evidence was that her car had suffered quite a bit of damage to the front of it as a result of her vehicle having clipped Mr Galvez’s car while turning after she went into a spin. [25] The evidence that was given by Officer Newell regarding her understanding as to where the initial point of impact between the truck and Mr Galvez’s car had occurred as a result of where damage had resulted to both of those vehicles was also incorrectly placed before the Magistrate for his consideration. For example, the evidence of damage to the truck which she believed her partner had seen to the left hand front passenger side of the truck bumper bar was clearly not right as ex.1 demonstrates. Officer Newell also tendered a drawing of the ‘crash description’ which has Mr Bolton’s truck travelling in the right hand lane, a fact which he had always denied. That drawing however may well be readily explicable as simply an expression of the police officer’s own view which had been formed, that Mr Bolton was ‘in the wrong’ and that subsequently led to him being charged with the offence. It must also be viewed in the context of the concession which Officer Newell made, namely that she was not experienced in traffic investigation work and had only limited experience as a police officer generally at the relevant time. [26] Ms Litchen, appearing for the respondent on the appeal, valiantly argued that the findings made on credit by the Magistrate were open on the evidence before him. She also argued that the damage described in ex.1 may well be explained by the account given by Mr Galvez and Ms Wakelin to the effect that the truck had struck their car again after it had commenced spinning as a result of the initial impact between the two vehicles having occurred. That submission however overlooks the damage which was done to the whole of the right hand driver’s side of Mr Galvez’s car, the limited damage to the truck and significantly, the conflicting evidence given by Ms Wakelin and Mr Galvez in respect of where each believed the truck had hit their car on the second occasion. It also overlooks the evidence given by Ms Rowles that her car had also clipped the red car after she had commenced ‘spinning’, a fact neither of which Ms Wakelin and Mr Galvez gave evidence about before the Magistrate. [27] Having reviewed the whole of the evidence now available for consideration on this appeal, I cannot be satisfied beyond reasonable doubt that Mr Bolton was in fact guilty of the offence charged. The evidence available has left me with sufficient doubt. -- 8 of 9 -- 9 [28] Accordingly, the appeal is allowed, the conviction is set aside, and in lieu thereof a verdict of acquittal is entered in respect of the charge. -- 9 of 9 --