Graham v Decman

[1996] QCA 475

IN THE COURT OF APPEAL	[1996] QCA 475
SUPREME COURT OF QUEENSLAND

C.A. No. 406 of 1996

Brisbane

[Graham v. Decman]

DONALD MATTHEW DAVID GRAHAM

v.

MICHAEL FERENCZ DECMAN

(Applicant) Appellant

Magistrates Court. There is also an application for leave to appeal against sentence.
The ground of appeal is that the conviction "was unsafe and unsatisfactory in all of the
circumstances". The main point argued was that the evidence of the prosecution witnesses upon
whom the magistrate relied (Mr Johnston, Mrs Johnston, Mr Mitchell and Mr Valentine) is
inconsistent with the evidence of an expert witness (Mr Geoffrey MacDonald).
It is common ground that on the morning of 25 July 1995 Mr and Mrs Johnston were
travelling towards Rockhampton on the Yeppoon road in a white Rodeo which is a four-wheel
drive vehicle. The appellant was driving a white Holden Statesman some distance behind the
Johnstons' vehicle. The relevant area of road was a divided highway with two lanes available to
traffic proceeding towards Rockhampton. Both vehicles overtook a semi-trailer, and moved into
the right-hand lane to do so. The appellant elected to also overtake the Rodeo before the Rodeo
had moved back again into the left lane. He was frustrated from doing so when the Rodeo
moved back into the left lane at much the same time.
Something of a duel, or at least of an attack using a vehicle as a weapon seems to have
ensued. Different versions were given by the Johnstons on the one hand and the appellant on the
other as to who was the attacker.
The appellant claimed in his evidence that other cars were driving between the two
relevant vehicles, that those cars passed the Rodeo on the left of the Rodeo after passing the
semi-trailer prior to the appellant attempting to do so. That however had not been put to the
Johnstons in cross-examination. The appellant further claimed that before attempting to pass on
the left he had turned his lights on; that he had turned his left-hand indicator on for a distance of
about fifty metres before moving across into the left-hand lane; and that when he was "almost
parallel" to the side of the Rodeo, that vehicle "bore down upon me and forced me off the road".
Many of those details were not suggested to Mr Johnston in cross-examination.
What is common ground however is that there was an incident during which the Rodeo,
having passed the semi-trailer, moved from the right-hand lane into the left-hand lane thereby
frustrating the appellant's desire to pass the Rodeo on its left. It is common ground that the
appellant then sounded his horn, and proceeded to overtake the Rodeo on its right. The appellant
claims that he drew alongside the four-wheel drive, shook his fist at the driver, beeped his horn,
shook his head at the driver, and that the other driver then drove into the side of his vehicle.
It is common ground that the two vehicles came into contact whilst the appellant was
overtaking the Rodeo and that they remained in contact over some distance, the Johnstons
claiming that the appellant was trying to force the Rodeo off the road to the left, whilst the
appellant claimed that Mr Johnston was trying to force the appellant off the road to the right.
Unfortunately for the appellant, two independent witnesses, one a truck-driver in front of
the incident and the other a truck-driver behind the incident generally confirm the Johnstons'
version that the attacker was the appellant. They confirm that he drove his vehicle into the
Johnstons' vehicle and that he crossed into the Johnstons' lane in order to do so. These additional
witnesses, Mr Mitchell and Mr Valentine, saw the white Statesman swerve into the Rodeo
several times.
It is again common ground that whilst the two vehicles were in contact, considerable
smoke came from a tyre, and inspection of the vehicles after the incident makes it plain that there
was contact between the driving side front tyre of the Rodeo and the passenger side of the
Statesman towards its rear. There are tyre marks along the rear half of the Statesman's
panelwork and there is white paint on the Rodeo's tyre. There is however no other relevant panel
damage to the sides of either vehicle.
Upon feeling contact from the other vehicle, Mr Johnston stated that he had to "correct"
his vehicle so that it would not go over the edge, and that the other car "continued to press, so
that as I corrected the force, my front tyre started to rub on the side of the car and there was quite
a bit of smoke. The car then swung away and swung in again." Mr Johnston thought that
contact was made in all about five times. Mr Mitchell, whose vision was through his rear vision
mirror, gave evidence that the rear third of the Statesman "rammed" four or five times into the
Rodeo. He observed the vehicles "propping" but was not in a position to describe any collision
between the vehicles. Mr Valentine, from some distance to the rear, described the appellant as
coming into collision with the Rodeo on two or three occasions.
On the prosecution case, after this encounter the appellant completed his overtaking of
the Rodeo, moved into the left-hand lane in front of it, and braked sharply. There was then a
collision between the Rodeo's bull-bar and part of the rear of the Statesman, and possibly more
than one collision. Hearing Date: 20 November 1996 some time later, suggested that there were at least two separate rear end impacts, and of course that opinion, if accepted, would be capable of casting doubt upon the single rear-end collision described by Mr and Mrs Johnston. Mr MacDonald also expressed the opinion that the damage to the appellant's vehicle was the result of "controlled contact" rather than smashes. It is not necessary to discuss the attenuated reasoning upon which this theory was developed, as the stipendiary magistrate was prepared to give the appellant the benefit of a doubt as to what really happened in the second incident, describing it as "some semblance of a doubt in my mind as to the nature and circumstances in which (the appellant's) vehicle suffered the rear-end damage". JUDGMENT OF THE COURT

Fitzgerald P
Thomas J

White J

Judgment delivered 29 November 1996

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CONVICTION - dangerous driving - whether conviction by magistrate unsafe and unsatisfactory.
SENTENCE - whether manifestly excessive.
Counsel:	Mr D.J. Murray for the Appellant/Applicant
Mr M. Byrne QC for the Respondent
Solicitors:	A.Grant & Simpson for the Appellant/Applicant
Queensland Director of Public Prosecutions for the Respondent

Judgment delivered 29 November 1996

This is an appeal against a conviction of dangerous driving recorded in the Rockhampton

The stipendiary magistrate accordingly based his conviction upon his satisfaction beyond

Counsel for the appellant submitted that here too the expert evidence should have led to
the magistrate entertaining a reasonable doubt. This was based upon Mr MacDonald's evidence
that the front tyres of the Rodeo are one eighth of an inch within the panelwork, and that if the
wheels were exactly straight ahead there would have to be panel damage to the Rodeo before
there could be contact with the tyre.
We have difficulty in coming to grips with this submission. In the first place it is
common ground that there was contact between the tyre and the panelwork of the Statesman. It
is also inescapable, as the stipendiary magistrate pointed out, that as the incident occurred as the
vehicles were proceeding around a sweeping right-hand bend, the vehicles' front wheels would
by necessity be pointed outwards to some extent. Thirdly, Mr Johnston's evidence was that he
had to correct the change of direction inflicted upon him by the other vehicle's initial contact, and
that he did so by turning to the right in order to stay on the road. He also agreed in cross-
examination that the contact between the vehicles remained essentially between the passenger
rear of the other vehicle and the front driver-side of his vehicle.
In the end, the expert evidence is not inconsistent with multiple collisions between the
Rodeo's front tyre and the rear side panelwork of the Statesman or with the contacts between the
vehicles having been caused by deliberate aggression and invasion of the left-hand lane by the
appellant. There is a powerful case to show that contacts were the result of dangerous driving by
the appellant. The stipendiary magistrate was fully entitled to reject the evidence of the appellant
and to act on the evidence he did in convicting the appellant with respect to the incident that has
been described. There is nothing unsafe or unsatisfactory in the decision. It seems patently to be
correct.
The magistrate imposed three months' imprisonment but totally suspended it for an
operational period of two years. He also imposed a fine of $1000 and disqualified the appellant
from holding or obtaining a driver's licence for nine months.
The appellant had no prior criminal convictions, but had committed ten speeding
offences over an eight-year period. He is a building contractor and it was said on his behalf that
he drives 70,000 kilometres each year. Even so, such a record is indicative of a person with
driving problems, and the incident in question suggests an inappropriate attitude.
The sentence was of course only in respect of the incidents which have been described as
related to the side-on contact of the vehicles. The stipendiary magistrate observed that there
seems to be a phenomenon, certainly in the United States and now in Australia, called "road-
rage" where people take offence at the perceived defective driving of others, and take out their
anger and frustrations on those other drivers. The magistrate's identification of this particular
dangerous driving as an example of that phenomenon was apt. The circumstances go beyond the
usual case of dangerous driving to the extent of making it an offence of deliberate violence using
a dangerous weapon. The magistrate described it as a form of thuggery.

reasonable doubt as to what had happened in the side to side-contact incident. and to others who might be like-minded. It is of course a serious matter to impose a prison sentence, even when it is totally suspended, and the Penalties & Sentences Act requires this to be done only as a last resort. However our view is that this response was appropriate in the circumstances. We would therefore refuse the application for leave to appeal against sentence.