Dawson v Commissioner of Police
[2015] QDC 295
•27 November 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Dawson v Commissioner of Police [2015] QDC 295
PARTIES:
DAVID DAWSON
(appellant)
v
COMMISSIONER OF POLICE
(respondent)
FILE NO/S:
MAG 76119/14; Appeal 5004/2014
DIVISION:
PROCEEDING:
Criminal Appeal
ORIGINATING COURT:
Magistrates Court Brisbane
DELIVERED ON:
27 November 2015
DELIVERED AT:
Brisbane
HEARING DATE:
13 November 2015
JUDGE:
McGill DCJ
ORDER:
1. Appeal dismissed.
CATCHWORDS:
VEHICLES AND TRAFFIC – Driving offences – exceeding the speed limit – whether defence of extraordinary emergency raised – whether defence excluded – appeal dismissed.
Criminal Code s 25.
Transport Operations (Road Use Management – Road Rules) Regulations 2009 s 20.
Amos v Wiltshire [2014] QCA 218 – cited.
Berbic v Steger [2005] QDC 294 – considered.
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 – applied.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – applied.
Johnson v Johnson (2000) 201 CLR 488 – applied.Johnson v The State of Western Australia (2009) 40 WAR 116 – cited.
Mbuzi v Torcetti [2008] QCA 231 – cited.
Moores v Pearce [2013] QDC 32 – considered.
Pavlovic v Commissioner of Police [2006] QCA 134 – cited.
R v Cairns [1999] 2 Crim App Rep 137 – considered.
R v GV [2006] QCA 394 – applied.
R v Loughnan [1981] VR 443 – considered.
R v Warner [1980] Qd R 207 – cited.
R v Webb [1986] 2 Qd R 446 – cited.
Rowe v Kemper [2009] 1 Qd R 247 – cited.
Shambayati v Commissioner of Police [2013] QCA 57 – cited.COUNSEL:
The appellant appeared in person.
N E Friedewald (solicitor) for the respondent.
SOLICITORS:
The appellant was not represented.
Director of Public Prosecutions for the respondent.
On 24 November 2014 the appellant was convicted in the Magistrate Court Brisbane of one charge of driving a vehicle over the speed limit contrary to the Transport Operations (Road Use Management – Road Rules) Regulations 2009 s 20. A conviction was recorded and he was fined $250 and ordered to pay costs totalling $139.70, the entire amount referred to SPER for collection. On 18 December 2014 the appellant filed a notice of appeal to this Court against his conviction pursuant to the Justice Act 1886 s 222. At the trial and on the appeal the appellant was not legally represented.
The prosecution case was that the defendant was at the relevant time the driver of a motor vehicle which was photographed by a vehicle based speed camera travelling at a speed of 68 km/h on a length of road where the speed limit was 50 km/h. At the trial the appellant admitted that he was the driver of the vehicle shown in the photograph, and did not dispute the accuracy of the measurement of the speed of that vehicle, though he did not admit that he was driving it at that speed. His defence essentially was that, at the point at which his vehicle’s speed was detected, he had just driven down a steep sloping section of the road through a relatively tight S-bend, and, notwithstanding that he was driving relatively slowly when he entered that section of road, his vehicle had accelerated to the speed detected by the effect of gravity as it came down the hill. He said that he was not able safely to apply his brakes during the decent of the slope, because of the risk that he would have lost control of his vehicle had he done so, which could have led to a head on collision.
At the trial the appellant gave evidence in support of this, but the magistrate did not accept that the defence of extraordinary emergency had been raised by the evidence, as there was no extraordinary emergency. As well she was satisfied beyond reasonable doubt that an ordinary person could reasonably be expected to act otherwise than as the defendant did, so that he was criminally responsible for the speed of his vehicle as it was detected. On that basis she convicted the appellant.
The appellant submitted that the magistrate erred in failing to uphold his defence of extraordinary emergency. The appellant also argued that the magistrate was biased against him, having cut him off in his cross-examination of the prosecution witness, in his evidence in chief and in his address, and had clearly indicated by her comments and manner during the trial that she had reached a conclusion adverse to him already.
Irrelevant Issues
The appellant also submitted at the trial that the speed advisory signage before the slope that he had just descended when his vehicle’s speed was detected was inadequate, as there ought to have been a “steep descent” warning sign, as appeared on other stretches of that road, that because of the slope, curvature and surface coating of the road it was dangerous, and that it was inappropriate for the Police to have been operating a speed camera detecting the speed of vehicles which had just descended this steep slope. To some extent the appellant’s attempts to lay a factual foundation for these submissions during the trial, and to explore these issues in cross-examination, were obstructed by the magistrate, about which he also complained.
The difficulty for the appellant, however, is that none of these matters provides any authorisation, justification or excuse for driving a vehicle in excess of the speed limit on a particular stretch of road. The regulation making it an offence to exceed the speed limit applies to all roads, whether or not appropriate warning signs are in place, and whether or not the geometry and configuration of the road is such as to present challenges to motorists seeking to obey the speed limit. The appropriateness of siting speed cameras at the foot of hills is a matter which may be debated in political and moral terms, but there is no difference in law in relation to the operation of s 20 when driving on a road which has, or is at the bottom of, a slope.
There was no appeal against sentence, and in those circumstances it is unnecessary to consider whether these matters ought to have been taken into account by the magistrate in imposing a penalty, and whether she did so. It also follows that evidence relating to these issues, cross-examination or evidence in chief, directed to them, was irrelevant in the technical sense, in that it was not directed to an issue which in law was relevant to whether the appellant was guilty of the offence. There was therefore no error on the part of the magistrate in preventing the appellant from tendering documents, asking questions, or giving evidence in relation to these issues. Apparent bias is not shown by a magistrate correctly refusing evidence and argument about irrelevant matters.
The appellant’s evidence
The appellant who was 70 at the date of trial gave evidence that he was taught to drive at age 21 by the Lancashire Police when he was a member of that force; he passed his test, and subsequently successfully completed a further course which qualified him to drive more powerful Police vehicles: p 34. He also said he had studied advanced driving and surveillance with the Police, and drove a range of Police vehicles over 25 years. He had, while in the Police, experience in investigating road traffic accidents. After leaving the Police, he became an expert witness on motor vehicle accident causation, advising the Association of British Insurers and giving evidence in courts in the UK: pp 36, 37. On this basis he claimed a degree of practical expertise as a vehicle driver, and as a road accident investigator.
The appellant said that the vehicle he was driving was a Kia Sportage which was unstable, because it had a relatively high centre of gravity, and he referred to a warning notice which was printed on the visor of the car, and handling instructions in the manual that came with it: p 35.[1] These documents do not seem to have been made Exhibits by the magistrate, though they were referred to by her in her reasons at p 3. The appellant also produced a series of photographs that he had taken of the hill from the top of the hill down to about the point where the vehicle housing the speed camera was visible; there were also photographs looking back up the hill, and approaching the top of it. The photographs depict effectively all of the sloping S-bend of the road prior to the point where his vehicle’s speed was detected. Again these were not marked as an exhibit, although the magistrate referred to them during the hearing, and there was some use of them to cross-examine the prosecution witness.
[1]The former started “warning: higher rollover risk, avoid abrupt manoeuvres and excessive speed”. The latter drew attention to the fact that the vehicle had a higher centre of gravity than other types of vehicles and that they were not designed for cornering at the same speed as conventional two wheel drive vehicles, so the driver should avoid sharp turns or abrupt manoeuvres: “failure to operate the vehicle correctly may result in loss of control, an accident or vehicle rollover”.
The appellant said that his vehicle was difficult to handle even on a straight road: p 36. The photographs show that as he approached the first bend and the point where the road began to fall away there was an advisory speed sign for “20 kph” to the left of the road. The appellant gave evidence that his vehicle would have been doing 20 km/h as it passed the advisory speed sign: (p 42), but considered that the speed of 20 km/h for the road was too fast.[2] He expressed the view that 10 kph would have been appropriate for his vehicle (p 38), and that there should have been a sign warning of a steep descent at that point.[3] He said that as his vehicle descended the slope he was not in a position to brake because if he tried to apply his brakes there was a risk of his wheels beginning to lock up, which would have put the vehicle at risk of rolling over or of coming into collision with other vehicles coming up the hill: pp 37, 39 and 42. He said that apart from the relatively high centre of gravity on his vehicle, there was built up of rubber and diesel particles on the road as a result of an extended period of dry weather, which had then become greasy following rain earlier that morning: p 38. The Police officer giving evidence for the prosecution said that at about the time in question the road appeared dry, and the appellant did not dispute that, but said that it was still damp because of the rain that had fallen earlier: p 41.
[2]He did not however recognise this at the time, not having driven on this road in this direction previously.
[3]He told me that there were other steep descent signs on that road, but this particular slope did not have one.
The appellant said that when coming down the slope he considered that it would be unsafe for him to apply the brakes, because of the risk that if he did so he would lose control of his vehicle, and that because of that, and because of the steepness of the slope, his vehicle accelerated to the point where it was detected at a speed of 68 km/h. That the magistrate understood this argument is shown by the question she formulated to him at p 37 line 37.
The appellant was cross-examined, but despite some of the content of his evidence there was little challenge in cross-examination to the accuracy of most of the propositions that he had stated. He said at one point that he would allow three seconds to look at his speedometer: p 40. This, and the proposition that it was unsafe to drive a Kia Sportage around the corner shown at the top of the hill at more than 10 km/h, invited cross-examination, but there was none. There was some cross-examination seeking confirmation of aspects of the prosecution case which had not been challenged by the appellant’s evidence, but one thing which was challenged was the proposition that he could not brake while descending the slope. It was put to him that a gradual control brake coming down the slope would have slowed his vehicle, a proposition he rejected, though he agreed that he had applied his brakes at the top of the slope, evidently without causing problems: p 42.
Result of Trial
The prosecutor in submissions advanced the argument that the appellant with his experience as a driver should have been able to apply his brakes safely so as to adhere to the speed limit: p 44. The magistrate held at p 3 that there was not any emergency situation arising at all, because of a lack of evidence as to the defects or design deficiency of this Kia Sportage. She went on to hold that the defence was well and truly met by the evidence in the booklet showing the warning sign at the top of a hill, and that if the vehicle had been driven in an appropriate manner the defendant would have been able to keep within the speed limit: p 4.
Bias by the magistrate
This ground must be considered first.[4] The appellant advanced an argument to the effect that he was prevented from arguing his defence properly because his cross-examination of the prosecution witness, his evidence in chief and his address were cut off. In this respect, in written submissions the appellant argued that during his cross-examination of the prosecution witness at one point the magistrate had held his booklet of photographs up pointing to photograph E and raised her voice aggressively to drive home the point that there was shown in the photograph a 50 kph speed sign indicating that that was the speed limit. There is nothing in the transcript which is identifiable as that incident. The defendant produced the book at p 21, and at p 22 where the appellant was directing attention to photograph A, at the top of the hill, the magistrate said that she was interested in the scene where the speeding occurred not what was shown in this photograph. The appellant’s argument of course made relevant the whole configuration of the slope including the speed warning sign at the top as shown in photograph A, but that passage does not match the appellant’s complaint.
[4]Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [117]; Amos v Wiltshire [2014] QCA 218 at [75]. I did not put the appellant to an election in this matter, not being aware of this decision at the time.
Then on p 23 the magistrate pointed out that the only photographs that showed a 50 kph sign were photograph D and photograph E, something which she repeated, but again that does not match the appellant’s complaint, and when I read that passage to the appellant[5] the appellant did not think that that was the passage he was referring to. There was a reference to photograph D on p 27 as being the one where the 50 kph sign is which was the same sign as in Exhibit 13 and 14, but again that does not seem to match the defendant’s complaint.
[5]The appellant did not have a copy of the trial transcript for his own use.
It was the case that the magistrate did prevent the appellant from pursuing a number of issues sought to be pursued by him, but I have reviewed the transcript of the occasions when this occurred and in all cases the questioning of the witness was inappropriate: either they were matters on which the witness was not qualified to comment, or they were matters on which he would be simply unable to comment because they related to the conditions of or in the appellant’s vehicle, or they related to matters which, as I mentioned earlier, were irrelevant to the question of whether there was a breach of s 20 of the Regulation. The magistrate was entitled to disallow questioning which was inappropriate, and that does not show bias or prejudgment.
The appellant said in his outline that following the comment about photograph E and other interruptions he began to lose all train of thought and abandoned his cross-examination of the witness. In fact, apart from two occasions when the magistrate stopped the appellant from cutting off an answer by the witness, and one occasion when the magistrate clarified an answer which was initially unclear, there were no interruptions over almost two pages of transcript leading up to the conclusion of the cross-examination, at which point the appellant said:
“I think that’s it officer, I don’t think you can help me in any other way I shall give my own evidence.” (p 32 line 36)
The appellant in his written outline said that when he entered the witness box the look on the magistrate’s face conveyed the clear message that he would be struggling to have any impartial hearing because she had already made up her mind: para 37. That is not a submission I can properly assess in the circumstances, not having seen the magistrate myself. The appellant also argued in his outline that he was presented with a barrage of interruptions from the magistrate which prevented him from giving his testimony of events leading up to the offence and fully describing the circumstances surrounding the defence of necessity. The transcript again does not support this assertion. There were a series of questions which simply introduced the formalities and the evidence, and some questions about his qualifications and experience as a driver and as a Police investigator. At p 35 the magistrate did direct attention to what had happened on this day, which was in the circumstances understandable, and then corrected a statement by the appellant who had referred to “the day of this accident”.
On p 36 there was some questioning about the defendant’s qualifications to give expert evidence, and on p 37 she again referred to the fact that she was interested in the spot where he was detected, presumably his speed being detected. That was certainly relevant to the prosecution case but it was not particularly relevant to the case the appellant was seeking to run, of extraordinary emergency. Nevertheless, the magistrate did demonstrate on p 37 at line 37 an understanding of the argument, by summarising it in a question she put to the appellant, which he agreed was a correct understanding of his evidence. There was some questioning at p 38 about the extent of his qualifications which does read rather like cross-examination, but there were then a series of questions which were basically just inviting him to give the evidence he wanted to give. There is certainly nothing in the transcript to suggest anything in the way of persistent questioning in the nature of cross-examination, or other interruptions from the magistrate, which might have prevented the appellant giving what evidence he wanted to give.
The appellant also argued that he declined to make a final speech as he felt that that would have been completely pointless under the circumstances: para 40. In fact, the magistrate called on the Police prosecutor to address first, which occurred, and then the transcript shows the appellant making submissions from p 44 line 26 to p 45 line 38. The proposition that he made no closing address was just not true. It is true that on several occasions during his address the magistrate objected to his saying things which amounted to giving evidence rather than making submissions, and there are some comments on p 45 of the transcript which do indicate some element of impatience with the appellant.
There is conceptually a clear distinction between giving evidence and making submissions, and it is important for a defendant, particularly one who is not legally represented, to appreciate that factual information stated in the course of submissions cannot be treated as evidence, unless perhaps it qualifies as an admission against interest, and that the Court can only act on evidence properly given as such. It is my experience that this is a distinction litigants in person frequently either do not grasp or choose to ignore. It is appropriate for such people to be warned that the Court cannot act on any factual statements made for the first time in the course of submissions, and it may well be appropriate to stop a litigant in person who is persistently ignoring that and attempting to give further evidence from the bar table, though often as a practical matter it is simpler to let the litigant in person say whatever they like, and just remind them at the end that the Court cannot act on evidence given from the bar table. There is a risk that otherwise the litigant in person will feel that there has not been a fair hearing, and may be deterred from advancing proper submissions because of an inability properly to separate out impermissible evidence from permissible submissions.
It is clear from the transcript that the basis advanced by the appellant in his written outline for the proposition that he did not obtain a fair hearing was factually inaccurate. There is therefore no proper basis for this ground of appeal. There are some passages in the transcript which, depending I suppose on the way in which things were said, may have suggested some degree of impatience from the magistrate, and that in turn may have left the appellant feeling that he had not had a fair hearing. Overall however, I am not persuaded that this ground of appeal is made out.
There was no evidence of actual bias, and the question therefore is whether a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to the resolution of the trial.[6] This is to be decided taking into account ordinary judicial practice, including the need to identify the issues, understand clearly the evidence, exclude irrelevant matters, and ensure that the proceeding is conducted efficiently.[7] Inevitably, where a litigant in person is involved, there will be a need for greater engagement in the hearing by the judicial officer. I do not consider that the things said by the magistrate as appearing in the transcript, taken individually or together, were capable of giving rise to a reasonable apprehension of bias when viewed in the context of the trial as a whole.
[6]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
[7]Johnson v Johnson (2000) 201 CLR 488; Concrete Pty Ltd (supra) at [4], [112] – [114].
Extraordinary emergency
The appellant expounded his argument by reference to what he referred to as the defence of necessity. That is a common law defence which was discussed by the Full Court of Victoria in R v Loughnan [1981] VR 443. In that case the applicant had been charged with escaping from lawful custody on the basis of a prison escape, and he raised the defence that his escape was necessary because he was faced with a specific threat of death in the immediate future had he remained in prison. The court held that the defence of necessity applied in Victoria, and in the context of the charge in question the elements of the defence were (p 460):
“1. The harm to be justified must have been committed under pressure either of physical forces or exerted by some human agency so that an urgent situation of imminent peril had been created;
2. The accused must have acted with the intention of avoiding greater harm or so as to have made possible the preservation of at least an equal value;
3. There was open to the accused no alternative other than that adopted by him to avoid the greater harm or to conserve the value.”
The court also noted on the same page that in judging the intention with which the accused acted the facts must be taken as they appear to him, although there must, of course, be evidence sufficient to allow a finding of the existence of facts capable of justifying the interpretation placed upon them by the accused.
The appellant also referred me to the decision of the Court of Appeal in R v Cairns [1999] 2 Crim App Rep 137. In that case it was said that English law does, in extreme circumstances, recognise a defence of necessity where pressure arises upon the accused’s will from wrongful threats or violence of others or from objective dangers threatening the accused and others, and the defence would be available only if from the objective standpoint the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury: p 141.
In Queensland, however, the common law defences do not apply; the appellant would have to show there was a defence available under the Criminal Code.[8] The equivalent defence under the code is the defence of extraordinary emergency provided by s 25:
“Subject to the express provisions of this code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise.”
[8]Johnson v The State of Western Australia (2009) 40 WAR 116 at [97].
The introductory words exclude this defence when a defence is available under s 31, but that section does not apply because it is concerned with a response to the acts of some other person. When assessing the operation of the section, it is necessary to bear in mind that its operation may be effected by the operation of s 24, which relevantly provides:
“A person who does or omits to do an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.”
That section can be applied in relation to the facts relied on as giving rise to the sudden or extraordinary emergency. The defence of extraordinary emergency has been applied in cases involving a charge of dangerous operation of a motor vehicle: R v Warner [1980] Qd R 207; R v Webb [1986] 2 Qd R 446. In Berbic v Steger [2005] QDC 294 I held that the defence of extraordinary emergency was available to a charge of driving a motor vehicle on a road without a license and while subject to disqualification. In that case the emergency arose because the defendant was driving someone who was feeling very ill to a hospital with a view to seeking treatment for that person. In that case the defence had been rejected by the magistrate on the basis that an ordinary person could reasonably be expected to have acted otherwise, by dealing with the situation by calling an ambulance, or a taxi, or making some other arrangement to get the ill person to hospital. In that matter I considered a number of earlier cases dealing with the defence in the context of driving a motor vehicle at paragraphs [19]-[30]. I need not repeat what I said there.
There have been other cases since then. The Court of Appeal in R v GV [2006] QCA 394 confirmed some of the fundamental propositions about the operation of s 25 referred to in earlier decisions. In that case the defendant had pleaded guilty to a charge of dangerous driving causing grievous bodily harm, but the court held that on the facts as outlined by the prosecution there was apparently a defence available under s 25, and in those circumstances the plea of guilty should have been set aside. In that case the defendant alleged and the Crown accepted that he was being pursued by a car full of violent individuals who were threatening him, and who indeed attacked him, and other persons, after the collision which produced the charge, apparently as a consequence of a road rage incident earlier.
In Moores v Pearce [2013] QDC 32 it was again held that s 25 afforded a defence to a charge of unlicensed driving, and that the rejection of the defence by the magistrate was in error, in circumstances not unlike those in Berbic (supra). The defence had been rejected on the basis that in the circumstances an ordinary person possessing ordinary powers of self-control could have been reasonably expected to act otherwise. On an appeal by way of re-hearing Dorney DCJ held that it was not beyond reasonable doubt that the ordinary person possessing ordinary powers of self-control in the sudden emergency then confronted could reasonably be expected to act as if there was no other realistic alternative choice to driving notwithstanding that person’s being disqualified from driving: [26]. On that basis the appeal was allowed.
Was there an error shown?
This is an appeal by way of rehearing so it is necessary for me to consider the evidence and make up my own mind on questions in issue in the proceeding, having due regard to the advantage possessed by the magistrate in seeing and hearing the witnesses at the trial.[9] It is also necessary for the appellant to show that there was some error on the part of the magistrate in deciding the matter.[10] One difficulty I have with the approach adopted by the magistrate is that the supposed instability of the Kia Sportage did not cause the speed of the vehicle at the relevant time, though it may have contributed to the appellant’s reluctance to apply its breaks.
[9]Rowe v Kemper [2009] 1 Qd R 247 at 253-4; Mbuzi v Torcetti [2008] QCA 231 at [17].
[10]Shambayati v Commissioner of Police [2013] QCA 57 at [23] and authorities there cited.
The relevant instability is associated with a higher than usual centre of gravity, which means that the ability of the vehicle to go around a corner is not as great as a vehicle with a lower centre of gravity. The effect that this, as indicated in the warning signs adverted to by the appellant, is that the vehicle needs to be driven more slowly around a corner in order to negotiate it safely than would be the case for a vehicle with a lower centre of gravity.[11] There is however nothing about this feature of the vehicle which would diminish the effectiveness of its brakes, though it may mean that it was particularly important for the driver of the vehicle to keep the speed of the vehicle well in hand if going around a corner on a slope. The complication which the higher centre of gravity produces is that, if the vehicle comes to lose traction in a way which causes it to begin to turn sideways to its path, there is a greater risk of the vehicle with a higher centre of gravity rolling over than would be the case at a given speed for a vehicle with a lower centre of gravity. That phenomenon is likely to be met with if the vehicle is going around a curve at the point where it loses traction.
[11]This is taken further with sports cars, which characteristically have a very low centre of gravity, to assist in relatively fast cornering.
The crucial issue for the defendant’s argument was the proposition that it was unsafe to apply his brakes during the descent because he could not do so without risking loss of traction, and the dire consequences associated with that. The argument advanced by the appellant was really that in the circumstances he could not apply the brakes of the vehicle at all while descending the slope. That was the one factual proposition advanced by the appellant which was challenged in cross-examination, the magistrate was entitled to reject that evidence as contrary to common sense and ordinary experience of life, and in my opinion the magistrate plainly ought to have rejected that proposition. On a rehearing, I do so without hesitation.
A situation might, at least in theory, arise where a driver suddenly found the vehicle on a road surface which was so slippery that effectively any attempt to do anything other than simply allow the vehicle to continue to roll forward would result in a loss of control: that could occur for example if the vehicle drove onto a patch of black ice[12] or a patch of road severely contaminated with oil. Although the appellant suggested that there was tire debris contaminating this stretch of road, it is obvious from the photographs that there was no such build-up of that debris as to be conspicuous, and the road shown looks very like any other portion of outer suburban Queensland road.
[12]A coating of ice on the surface of the road which is so thin as to be effectively invisible. I expect it is not commonly met with at Kenmore, and its presence there could be extraordinary.
There was therefore nothing about this road which was in any way sudden or extraordinary. In hilly areas in Queensland roads with corners and slopes are frequent occurrences, and it is also commonplace for motorists to find themselves on roads with which they are not familiar, which may involve confronting slopes and corners. The mere fact that a road proves to be steeper, or a corner sharper, than a motorist who was not familiar with it expected does not mean that there is a sudden or extraordinary emergency. The magistrate was right, in my view, to find that the situation that confronted the appellant on this occasion was not an extraordinary emergency, and it was not converted into one because of his personal lack of familiarity with the topography of this stretch of road, or his exaggerated concern about the risk of a brake application while descending the hill. If there was, in the latter respect, any mistake of fact on his part, it plainly was not reasonable. It was for this reason that the magistrate was correct in finding that there was in this situation no sudden or extraordinary emergency for the purpose of s 25 of the Code. The conclusion that this defence had not been raised was correct, though with respect I do not think that the reasoning for that conclusion was expressed by the magistrate with sufficient clarity.
I also consider that the magistrate was entitled to find, and ought to have found, that if the defence had been raised, an ordinary person possessing ordinary powers of self-control could have been reasonably expected to act other than as the appellant did, that is, by not making any brake application at all while descending the slope. The appellant said, indeed, that he applied his brakes at the top of the slope, presumably to reduce to 20 km/h. Once he got to that point, in my opinion, any ordinary person who was acting reasonably would have continued a light brake application. The proposition that at a speed of 20 km/h a light brake application could have led to a loss of traction on this road, despite the slope, was in my opinion obviously wrong, and the magistrate was right to reject that evidence. If the appellant honestly believed that, in my opinion there was clearly no reasonable basis for that belief. I accept that, in order to be satisfied that the defence has been excluded, it is necessary to be satisfied beyond reasonable doubt that no ordinary person acting reasonably would have acted as the appellant did.[13] On the evidence I am so satisfied.
[13]Applying the test I derived in Burbic (supra).
Fresh evidence
The appellant in his written outline spoke about the road surface on the slope being coated with large deposits of rubber residue and fuel oil rendering it smooth, so that after a shower the surface would become greasy preventing contact and resistance between the tire and the road surface: para 16. This went further than the evidence at the trial, but it is by no means obvious to me from the transcript that the appellant was prevented from giving that evidence at the trial, so it cannot qualify as fresh evidence. It also seems to me clear from the appellant’s own photographs that if there was any such material it must have been quite a thin layer, because it is not evident at all in the photographs.
The appellant gave evidence of an experiment he undertook in the same vehicle, braking it to 10 kph before commencing the descent and then allowing the vehicle to continue down the hill without the application of either brakes or accelerator, with the result that the vehicle was travelling at about 50 kph when it reached the point where the speed detection device had been operating. Apart from the fact that there is no obvious reason why that evidence could not have been led at the trial by the appellant, I cannot see how it assists him; it merely serves to provide confirmation that it would have required only a very gentle brake application to have ensured that the vehicle remained under the speed limit during the descent of the hill, even allowing for it having started that descent at 20 kph.
The appellant referred to having prepared print outs of advisory road signs, but this is directed to the adequacy of the warning signage which, as I have already said, was irrelevant to the question of whether an offence was committed. There was also a reference to road organisations warning of the danger of slippery roads caused by rainfall and rubber and fuel oil deposits on road surfaces following a long period of dry weather. If this was relied on for the truth in its contents, rather than as material tending to show a reasonable basis for a belief on the part of the defendant, it was plainly inadmissible, and the defendant did not seek to lead evidence that this was something that he was aware of prior to the day of the alleged offence. There was other evidence to support his submissions about the effect of driving on slippery surfaces and braking a heavy vehicle on a curved descent which falls into the same category. There were also extracts from local radio traffic reports about the road, and evidence of reports of complaints by local residents about night time hoons, but this was also directed to an issue which, as I said earlier, was not relevant. I am not persuaded that there was anything sought to be put forward on the hearing of the appeal which would satisfy the test of fresh evidence and be properly admissible as additional evidence upon the hearing of the appeal.[14]
[14]Justices Act s 223(2), and see Pavlovic v Commissioner of Police [2006] QCA 134 at [29]-[39].
In any event, I have heard comprehensively what the appellant wanted to say, and what additional factual material he wanted to put forward, and do not consider than any additional material not put forward at trial ought to have had any effect on the outcome.
Conclusion
In those circumstances neither ground of appeal was made out. The appellant has not shown that there was any bias on the part of the magistrate, or unfairness in the way in which the trial was conducted. The defence of extraordinary emergency was not raised by the circumstances prevailing at the time, and the appellant has not shown that the magistrate’s ultimate finding, that the appellant was guilty of the offence, was in error. In those circumstances the appeal against conviction is dismissed.
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