Breitkreutz v McConnell [1995] QCA 539

[1995] QCA 539 COURT OF APPEAL DAVIES JA PINCUS JA MOYNIHAN J CA No 315 of 1995 PAUL JOHN BREITKREUTZ v. STUART JAMES McCONNELL Appellant BRISBANE ..DATE 13/10/95 JUDGMENT -- 1 of 5 -- 131095 T15/SJ M/T COA95/312 2 JUDGMENT DAVIES JA: The appellant was charged in the Magistrates Court at Emerald with two offences of dangerous driving, both on 13 March 1995. The first, of which he was convicted, was of driving his Kawasaki motorcycle on William Street, Springsure, dangerously. The second, of which he was acquitted, was of driving that motorcycle on Cliff Street, Springsure, dangerously. He appeals against that conviction. The circumstances giving rise to the commission of the offence of which the appellant was convicted are as follows. At about 8.43 p.m. on the night in question a police constable in a police vehicle, about 18 kilometres east of Springsure, observed a single headlight of a motorcycle approaching him. He estimated the approaching speed to be in excess of 180 kilometres an hour. The speed limit for the relevant area was 100 kilometres an hour. The police constable activated the flashing light on his vehicle but the motorcycle did not stop, in fact, it accelerated. The police officer gave chase, his vehicle reaching speeds in excess of 180 kilometres an hour. Notwithstanding the speed of the police vehicle and that there were a number of straight stretches in the road of up to two kilometres the police officer did not catch sight of the motorcycle at any time over the distance of 18 kilometres to Springsure. The motorcycle was, however, seen by other witnesses going through Springsure prior to the arrival of the police car. Based on his observation of the motorcycle as it approached and -- 2 of 5 -- 131095 T15/SJ M/T COA95/312 3 JUDGMENT passed him and on his inability to come within sight of it again over the 18 kilometre stretch to which I have referred, the police constable estimated in his evidence that the motorcycle travelled at approximately 180 kilometres an hour. No doubt the police constable's estimate of speed may have been a rough one. On the other hand he was an experienced radar operator. The Magistrate was entitled to conclude, in my view, that the appellant's speed over the distance from where the police constable first observed him to the point where the other witnesses observed him was in the vicinity of 180 kilometres an hour. In Springsure itself the appellant was observed in Williams Street by two witnesses; the driver of a road train which he overtook and a man sitting on a verandah of his house. The driver of the road train said that the cycle seemed to come out of nowhere and that it was one of the quickest things that he had ever seen. He estimated the speed at 160 kilometres an hour but conceded it may have been less than that, although presumably well in excess of 100 kilometres an hour. The resident sitting on his verandah described the motorcycle passing as a black flash and the speed as quite fast. When interviewed by the police the appellant admitted that he accelerated when signalled to stop. And he agreed that his speed was excessive. When it was put to him that, travelling at speeds of 180 kilometres an hour, the police vehicle was unable to make any ground on his motorcycle he did not dispute the assertion that he must have been travelling at speeds in excess -- 3 of 5 -- 131095 T15/SJ M/T COA95/312 4 JUDGMENT of 180 kilometres an hour. During the course of the police interview it emerged that the rear brake on the motorcycle was defective and that at least partly for that reason he was unable to slow down sufficiently to turn off to Emerald once he'd got to Springsure. He told the police that he had replaced the rear wheel on the motorcycle but had not bled the rear brake, in consequence of which he had had an air bubble and he was unable to use it to stop or slow down. It was submitted for the appellant before this Court that the learned Magistrate was wrong in concluding that the appellant knew of this defect in his brakes before riding as he did on the night in question, and, indeed before he reached the outskirts of Springsure. Plainly the appellant, in my view, must have become aware of the brake defect at a reasonably early stage in his journey when he first attempted to apply the brakes on his motorcycle as he would, in my view, on a number of occasions during the course of that journey. To continue at high speeds, such as I have described, when his brakes were obviously defective made his driving all the more dangerous. The Magistrate was entitled to conclude, in my view, as he did, that the appellant drove at grossly excessive speeds. That his speed particularly in the area in and close to Springsure at those speeds was dangerous and that doing so when his brakes were plainly defective made his conduct all the more dangerous. I would therefore dismiss the appeal. -- 4 of 5 -- 131095 T15/SJ M/T COA95/312 5 JUDGMENT PINCUS JA: I agree and I would only add that the appeal appears to me to border on frivolity. MOYNIHAN J: I agree. PINCUS JA: The appeal is dismissed. ----- -- 5 of 5 --