Foessel v Webster

[1993] QCA 53

[1993] QCA 053

COURT OF APPEAL

CA No 359 of 1992
NORBERT KURT FOESSEL
and

JULIE CLAIRE WEBSTER

BRISBANE
..DATE 22/02/93

THE PRESIDENT: This is an appeal against a conviction on 1 December 1992 in the Magistrates Court at Southport in respect of an offence of dangerous driving. The appellant was disqualified from holding or obtaining a driver’s licence for a period of six months and fined $600 to be paid within three months and, in default of payment, sentenced to imprisonment for 24 days.

The vehicle which the appellant was driving was seen to be speeding by two police officers at about 9pm on 28 August 1992. The police officers pursued it in a police vehicle which, on their evidence, reached speeds of 190 kilometres per hour. According to the police evidence, when their vehicle was travelling at a speed of 190 kilometres per hour the appellant’s vehicle was increasing the distance between it and the police vehicle, indicating that the appellant’s vehicle was travelling in excess of 190 kilometres per hour.

The pursuit extended for at least four and a half kilometres. The appellant admitted travelling at speeds up to 140 kilometres per hour, at times in a zone in which the speed limit was 80 kilometres per hour. The magistrate concluded that the appellant’s vehicle had travelled at speeds in excess of 180 kilometres per hour. He also may have accepted that the appellant’s driving caused another vehicle, a blue Falcon, to swerve although that is unclear.

The Magistrate also took into account that the vehicle which the
appellant was driving was familiar to her, particularly at high
speed, she having only driven it on one or two previous

occasions. The reasons for decisions of the Magistrate concluded

as follows:

“I take into consideration that although it is the highway and it is a good road there were other traffic on the road, and potential traffic which could’ve been put in a dangerous situation based on the speed that it was being driven by he defendant on the night in question.

Under the circumstances I have no doubt in my mind that the speed of the defendant on the night in question, taking into consideration the other matter that I have previously referred to, was a matter of driving which was dangerous under the circumstances and I therefore find that the prosecution have proved each and every element of the charge to the standard of beyond reasonable doubt and I find the defendant guilty.”

There was a dispute concerning the relative rates of acceleration of the appellant’s vehicle and the police vehicle but having regard to the Magistrate’s acceptance that the police vehicle when travelling 190 kilometres per hour was outdistanced by the appellant’s vehicle, that scarcely matters.

It was submitted by the appellant that speed is not of itself necessarily dangerous and that on the police evidence the appellant’s vehicle “ never came near other vehicle.” Neither point is of compelling significance in determining whether or not, objectively viewed, the appellant’s driving was dangerous in all the circumstances.

It was also submitted that the appellant gave evidence inconsistent with the police officers but that is obviously of itself of no particular consequence.

However, it was submitted that the Magistrate erred in preferring the evidence of the police officers and their evidence was criticised because it was “ dependent on subjective observation, estimations and judgments made by the police in the absence of radar, measurement and data.”

It was said that the police evidence “ was unreliable and capable of doubt in that the judgments and observations expressed were incorrect in a number of regards”. Examples were them given of alleged examples of “ factual inaccuracy, incorrectness in a number of regards” concerning such matters as the colour of the appellant’s vehicle, the point at which it was first sighted by the police officers and where their vehicle was at the time, the visibility which they had at that point, whether or not there was street lighting, et cetera.

Further, it was said that the police evidence was also “Unreliable and capable of doubt in that a number of judgments and observations expressed by the police as to position, speed and distance were inconsistent in a number of regards”. Alleged examples of the “unreliability through inconsistency” of the police evidence included evidence concerning the position of the police vehicle when it was stationary prior to commencing the pursuit of the appellant’s vehicle, the closest distance the police vehicle came to the appellant’s vehicle, the closest distance that appellant’s vehicle came to the blue Falcon, the extent, if any, to which the appellant’s vehicle changed lanes, the distance over which the pursuit extended, et cetera.

It was submitted that the decision of the Magistrate is in all the circumstances unsafe and should not be allowed to stand and asserted that he did not “properly consider argument as to the Mathematica impossibility of the existence of the facts as alleged by the police having regard to speeds, time, distances and overtaking rates” and the mechanical condition of the appellant’s vehicle. Further, the Magistrate was said to have misdirected himself and failed properly to consider a hypothesis consistent with innocence.

The complaints made are without substance. The inconsistencies and inaccuracies pointed to are exactly what is to be expected in a case of this kind in which assessments have to be make and opinions formed in the course of events leading up to and during a high speed chase. It would be incredible if there were not differences in the evidence and, of course, exact measurement of speed, distances, et cetera, is impossible in such circumstances.

Nothing that was pointed to throws the slightest doubt on the

credibility or reliability of the prosecution evidence.

On the other hand, on her own story the appellant was travelling at night at an extremely high speed, far beyond permissible limits. She was pursued by the police vehicle for a considerable distance in the presence of other traffic on the road. Although it is inappropriate to generalise, any collusion other than one of dangerous driving seems unlikely in the circumstances. An application to adduce fresh evidence to show acceleration rates for the types in question was refused. No attempt was made to obtain the evidence before trial and its supposed relevance to dispute the police officers’ version of events was at best peripheral.

No other matters arise and, accordingly, the appeal should be dismissed.

DAVIES JA: I agree.

BYRNE J: I agree.

THE PRESIDENT: The order of the Court is appeal dismissed.