Blackburn v Woodham [2006] QDC 32

DISTRICT COURT OF QUEENSLAND CITATION: Blackburn v Woodham [2006] QDC 032 PARTIES: MARCEL STEPHEN BLACKBURN (Appellant) v CONSTABLE M J WOODHAM (Respondent) FILE NO/S: D83/05 DIVISION: Civil PROCEEDING: Section 222 Appeal ORIGINATING COURT: District Court at Beenleigh DELIVERED ON: 24 February 2006 DELIVERED AT: Brisbane HEARING DATE: 16 February 2006 JUDGE: Tutt DCJ ORDER: 1. The appeal be dismissed; and 2. The appellant pay the respondent’s costs of and incidental to the appeal to be agreed or assessed on the standard basis in accordance with the applicable District Court scale. CATCHWORDS: Appeal – road race – whether the appellant was part of the road race or the roadblock – identification of the appellant’s motor vehicle – relevant principles to be applied. Justices Act 1886 (Qld) ss 222, 223 and 225. Murphy v Porter, ex parte Murphy (1985) 1 Qd R 59. Walker v Durham & Anor [2003] QCA 531. Neylon v Kuzmanovic [2006] QDC 015. COUNSEL: Mr M Horvath for the appellant. Ms R Christensen for the respondent. SOLICITORS: Jones and co for the appellant. Director of Public Prosecutions for the respondent. -- 1 of 11 -- 2 Introduction [1] This is an appeal pursuant to s 222 of the Justices Act 1886 against the decision of the learned Magistrate at Beenleigh on 14 July 2005 whereby the appellant was convicted of the offence namely that he “…did take part in a trial of the speed of a vehicle namely a motor car on a road namely the Pacific Motorway Beenleigh the prior permission in writing of the Commissioner to the holding of that trial not having been obtained in breach of s 85 Transport Operations (Road Use Management)Act 1995”. [2] By way of penalty the learned Magistrate fined the appellant $700.00 in default seven (7) days imprisonment; ordered the appellant to pay the sum of $94.00 by way of costs of court and allowed the appellant six (6) months in which to pay the fine and costs. [3] The appellant appeals the learned Magistrate’s decision on the grounds that she could not have been satisfied beyond a reasonable doubt that the appellant was guilty of the offence with which he was charged because of a number of inconsistencies in the evidence of the complainant police witness, Matthew John Woodham, the respondent to this appeal (“the respondent”), in a number of respects namely: (a) The evidence he gave at the hearing did not “match” the police radio recordings from the night; -- 2 of 11 -- 3 (b) His evidence that the motor vehicle driven by the appellant at the relevant time “…had round tail-lights” whereas it was established at the hearing that the said vehicle “had square tail-lights”; (c) At the time he handed the appellant a notice to Appear in court to answer the charge he explained to the appellant that the appellant was being charged with being a party to a road race in that he was part of a road block but not part of the race itself; (d) That he wrote on the Queensland Police Service form QP9 that the appellant was informed that he was being charged with being a party to the offence for being part of the road block but not actually participating in the road race. The Law [4] This court's power in respect of an appeal under s 222 of the Justices Act is that the appeal is by way of rehearing on the evidence given in the proceedings before the Justices (see s 223 of the Act) and that the court has a wide discretion in the order it makes (see s 225). [5] The general principles upon which an appellate court must operate are well established: “An appellate court will not readily overturn a trial judge’s primary findings of fact where those findings are based on his or her assessment of the credibility of witnesses. As Kirby J said recently in Whisprun Pty Limited v Dixon [2003] HCA 48 – “67. However, normally, to secure reversal of a primary judge’s credibility-based conclusions, it is necessary for the challenger to demonstrate that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony: showing that the primary judge’s decision was -- 3 of 11 -- 4 erroneous, notwithstanding that it appears to be (or is stated to be) based on credibility findings. Such was the case in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (‘SRA’). There a witness, disbelieved by the primary judge, was supported by contemporaneous documentary evidence and unchallenged testimony of other witnesses that had not been considered and that evidence combined to demonstrate the fragility of the judge’s conclusion. Such was also the case in Fox v Percy where the decision of the primary judge, although based on a credibility assessment, could not be reconciled with other testimony that the primary judge accepted. In particular, it did not accord with a contemporary record that contradicted the judge’s conclusion.” In Warren v Coombes (1979) 142 CLR 531 at 551 the majority of the High Court said of an appellate court’s role in drawing of inferences from proved or uncontested facts - “‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’”1 [6] In respect of appeals from Justices the principle to be followed by an appellate tribunal would seem to be encapsulated in the statement by Andrews SPJ (as he then was) in Murphy v Porter, ex parte Murphy (1985) 1 Qd R 59 at 67 where he said after a comprehensive review of a number of authorities2 : “I am of the view that where findings are so expressed as to demonstrate mistake in the understanding of evidence or where findings as expressed have demonstrated a misunderstanding of the law applicable then this court may interfere with the decision.” 1 See paragraph [6] of Walker v Durham & Anor [2003] QCA 531. 2 Including Smith v Smith, ex parte Smith [1950] Qd R 113 at 120; R v Robertson (1980) 2 A Crim R 369; and R v Free [1983] 2 Qd R 183. See also the comments by Thomas J at page 81 of the judgment. -- 4 of 11 -- 5 The Evidence [7] At the hearing of the charge against the appellant, defence counsel sought particulars of the charge and the police prosecutor gave them in the following terms: “SNR CONST MESSENGER: Well, it is only a summary trial, your Honour, but we’ll be alleging that on the 24th February this year, shortly before midnight, two police officers were stationary on the Pacific Motorway southbound at Beenleigh aware of the approach of a rolling blockade. Their evidence will be that shortly before the vehicles arrived at their position three vehicles accelerated off racing in their opinion. The vehicle speeds were approximately 160 kilometres per hour. Police attempted to intercept all three vehicles. Two of the vehicles slowed. Their registration detail re obtained but the third vehicle continued on. Police then intercepted that vehicle and those – the defendant here before the Court today was the driver of one of the two vehicles that slowed.” 3 [8] These particulars were acknowledged by defence counsel in the following terms: “MR HORVATH: If the police is relying on the particulars that my client was the driver of a car, one of three cars that are racing at that point in time on that highway, then if that’s what I understand the particulars to be then I’m satisfied with that.”4 [9] It was therefore made quite clear to the appellant from the outset of the hearing the nature and particulars of the charge which he then faced. [10] The prosecution called two witnesses namely the respondent police officer, Matthew John Woodham, and a second police officer, Graham Phillip Kruck, who accompanied the respondent on the evening of the alleged offence. [11] During the course of the respondent’s evidence the appellant admitted that he was the driver of one of the motor vehicles alleged to have participated in the road race on the evening in question and this admission was made in the course of a discussion concerning the contents of a tape recording of the appellant’s record of -- 5 of 11 -- 6 interview with the investigating police officers which ultimately became Exhibit “1” at the hearing. The appellant’s admission was crystallised by defence counsel’s comment respecting the tape recording of the record of interview when he said: “In my submission, it is not relevant except for the admission that he’s driving, and we even admit it’s the particular RX7, even though that’s not on the tape. We’re not here to play games about that”.5 [12] It should also be noted that at all times the appellant’s case was conducted on the basis that he was not one of the vehicles involved in the road race but merely part of a following blockade. [13] The respondent gave evidence that he and his partner (Police Officer Kruck) recorded the speed of three vehicles which passed them at their vantage point on the highway at Beenleigh “…at 160 kilometres per hour. All three vehicles were side by side at that stage”.6 [14] He identified the three vehicles in question including “a grey RX-7” and that they continued to maintain the speed of 160 kilometres per hour for “…at least 500 metres or a kilometre”7 [15] The respondent gave clear evidence that it was his opinion that he observed the appellant participating in the road race from the following extract of the evidence: “SNR CONST MESSENGER: Thank you, your Honour. Constable, based on your observations, what was the defendant’s role in the incident?-- Pardon? Based on your observations-----?—Yeah. 3 See transcript at page 2 line 50-60 and page 3 lines 1-8. 4 See transcript page 3 lines 18-22. 5 See transcript at page 11 lines 40-44. 6 See transcript at page 4 lines 9-10. 7 Transcript page 8 line 5. -- 6 of 11 -- 7 -----what was the defendant’s role in the incident?—He was one of the racing vehicles. Were you aware of the opinion that he was part of the blockade only?—No. From the statement that he gave us at the station, he said he was part of the blockade.”8 [16] The respondent was also cross-examined about his evidence that he had seen “…a ‘For Sale’ sign in the back of the car that you say is the grey RX-7” and it was subsequently confirmed that the RX-7 motor vehicle had written on its rear window “WANT ME” and a mobile telephone number rather than an independent “For Sale” sign. [17] The respondent was also cross-examined in respect of the shape of the tail-lights of the RX-7 motor vehicle in that he had given evidence that they were “round lights” whereas in fact they are rectangular band lights. [18] Constable Kruck’s evidence corroborated the evidence of the respondent in a number of respects including: • That he “…observed three vehicles pass our position”; • That he “…obtained a speed reading of 160 kilometres per hour”; • That he “…formed the opinion that these vehicles were racing as all three vehicles were revving their engines loudly and accelerating rapidly”; • That “…they continued to accelerate after I took the speed reading and they were travelling side by side”; • That he observed that one of the three vehicles “…was a grey later model Mazda RX-7 turbo sedan with a ‘For Sale’ sign in the rear window of that vehicle”. -- 7 of 11 -- 8 [19] On the crucial issue of the identification of the Mazda RX-7 being one of the vehicles involved in the road race the following passage appears in his cross- examination: “Can I suggest to you that in fact you were not sure that my client was one of the – or the car that he was driving was one of the three cars because he’s admitted that he’s driving a grey RX-7, okay, we’ll start with that. Can I suggest to you that you in fact were not sure that he was one of those – or that car was one of the three cars drag racing?—No, that’s totally incorrect. At no stage you had any doubts about that at all?—No doubts. And at no stage were you going to run the case on the basis that my client’s what we might call agree, but we might call them admissions loosely, that he’s part of – or involved in a roadblock or he’s one of the cars in a roadblock?—No, we weren’t. At no stage were you interested in that?—No.”9 [20] He was then cross-examined in respect of the notations on the Queensland Police Service form QP9 and provided an explanation in the following terms: “Well, do you say that that document is incorrect?—We prepared the QP9s for this gentleman and one of the others on the basis that – of their admissions of taking part in the rolling roadblock. Basically, what I suggested – I suggested to the constable is that if they admitted to that then if they wanted to plead to that that was fine. It would make no difference to whether they got a hoon warning or had a first hoon offence on the system or not. So if that’s what they wanted to say then and if that’s what they wanted to continue to say and plead guilty to that was fine. We knew they were involved in the race, that was what they admitted to.” 10 And further he was asked: “Well, why are we bothering then with a case that you saw him racing rather than going on his admissions, can you tell me about that? Do you understand that basis of the case today? The case has been run on the basis that the two of you, the two officers in the car, saw my client road racing. Not the races, that my client made admissions to being part of a roadblock?—That’s what we’re running the case on. It’s the same offence. However, when we interviewed your client he admitted to being part of the rolling 8 Transcript page 12 lines 12-24. 9 Transcript page 56 lines 12-29. 10 Transcript page 56 lines 42-54. -- 8 of 11 -- 9 roadblock. If he wanted to admit to that in Court then it was no concern of mine as he still ended up with a hooning offence and hopefully it would stop him from doing it again. Yes, he was racing, but if that’s all he wanted to admit it and it saved having to run a Court trial for no reason then I was happy with that.”11 [21] At the appeal hearing appellant’s counsel submitted that the tape-recording of the communications tape wherein the respondent communicated the registration number of the RX-7 motor vehicle to police communications did not record such an event despite the respondent being adamant that he had done so. In any event, the respondent said that he had noted the registration details on a piece of paper which was not retained. The respondent provided an explanation for this omission on the basis that “…communications are poor in this area as it is”.12 [22] This evidence was corroborated by Constable Kruck when he said under cross- examination: “That area, that whole area down to Ormeau on the motorway, the radio reception is abysmal----- Uh-hmm?-- -----it wouldn’t be too harsh a word to use----- Sure?-- -----most of the time, you need to use a mobile phone----- Uh-hmm?-- -----to get in contact with communication because the radio traffic – that the radio reception there is so horrible----- But-----?-- -----and if somebody is speaking at the same time on a Thursday night at that time then because they’re signal is so much stronger, they – they’re just straight over the top.” 13 [23] This court has not had the benefit of hearing the tape but it seems quite clear that the tape does not contain the respondent’s communication of the registration details to police communications on that evening of which he gave evidence. 11 Transcript page 57 lines 12-28. 12 Transcript page 29 line 5. 13 Transcript page 52 lines 28-44. -- 9 of 11 -- 10 [24] In summary the appellant’s submission is that the learned Magistrate could not have been satisfied on the evidence beyond a reasonable doubt that the charge against the appellant had been established in the light of the various inconsistencies revealed in the evidence adduced by the prosecution particularly under cross-examination. [25] The learned Magistrate heard the evidence of the two investigating police officers and accepted their evidence on the basis that “…they are credible witnesses and that their evidence has been truthful”. [26] As in all trials whether they be before a jury or a single judicial officer inconsistencies will inevitably arise in the course of evidence and it is a matter for the tribunal to determine whether they are minor inconsistencies or major ones which go to the core of the charge and what must be established before the tribunal can be satisfied to the required standard of proof. The fact that there are inconsistencies per se in a witness’s evidence does not necessarily vitiate the evidence as a whole particularly where there is other corroborating evidence crucial to issues of identification as in this matter. [27] In all the circumstances I am of the opinion that the Magistrate was entitled to come to the conclusion she did and on a review of the evidence I find that the inconsistencies in the evidence of the respondent are minor and do not detract from his substantive evidence in respect of his identification of the appellant’s vehicle actually participating in the road race at the relevant time and place. [28] The respondent’s evidence is corroborated on material issues by Constable Kruck referred to in paragraph [18] above and I am satisfied that it was open to the Magistrate to make the finding she did and with which I agree. -- 10 of 11 -- 11 [29] It follows therefore that the appeal should be dismissed. [30] My orders are therefore as follows: (a) The appeal be dismissed; and (b) The appellant pay the respondent’s costs of and incidental to the appeal to be agreed or assessed on the standard basis in accordance with the applicable District Court scale. -- 11 of 11 --