Kennedy v Reimers

[2010] QDC 411

DISTRICT COURT OF QUEENSLAND

CITATION:

Kennedy v Reimers [2010] QDC 411

PARTIES:

ROY IVAN KENNEDY
(Appellant)

V

IAN JOHN REIMERS
(Respondent)

FILE NO/S:

56 of 2010

DIVISION:

Civil jurisdiction

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Toowoomba

DELIVERED ON:

29 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2010

JUDGE:

Bradley DCJ

ORDER:

The appeal is dismissed. The order of the Magistrate made on 17 May 2010 is confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF THE APPEAL – OTHER MATTERS – where the appellant appealed against the decision of the Magistrate of a conviction for failing to stop for a yellow traffic arrow – whether a subjective test applies to s57(2)(a)(i) Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) in relation to whether or not “the driver can stop safely before reaching the stop line” – whether the presiding Magistrate should have drawn an adverse inference to the prosecution because of the admission of the respondent that he deliberately turned off the tape recording between him and the appellant before the conversation was finished – where evidence from the respondent was a video recording of the appellant driving as well as a recorded conversation between the appellant and the respondent – where the video evidence provides cogent evidence that the appellant could have stopped before reaching the stop line – whether the appellant had an  honest and reasonable but mistaken belief that he could have stopped under s24 Criminal Code.

Justices Act 1886 (Qld)

Transport Operations (Road Use Management) Act 1995 (Qld)

Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld).

COUNSEL:

S McGhie (Solicitor) for the Appellant
S Kenny (Legal Officer) for the Respondent

SOLICITORS:

Richardson McGhie Solicitors for the Appellant
Office of the Director of Public Prosecutions for the Respondent

[1]      On 17 May 2010, after a hearing in the Toowoomba Magistrates Court, the appellant was convicted of failing to stop for a yellow traffic arrow.  He was fined $400, ordered to pay $71.20 costs of court and a conviction was recorded.

[2]      The appellant appeals the conviction on the following grounds:

1.          The presiding Magistrate should have found that a subjective test applies to s57(2)(a)(i) of the Queensland Road Rules in relation to whether or not “the driver can stop safely before reaching the stop line.”

2.          The presiding Magistrate should have drawn an inference adverse to the prosecution as a result of the admission by the witness Reimers that he deliberated turned off his tape recorder prior to the end of his conversation with the defendant.

3.          The presiding Magistrate had no basis, or in the alternative, no reasonable basis, for rejecting the defendant’s evidence. 

4.          The presiding Magistrate should have found there was no evidence, or in the alternative no reliable evidence, upon which he could be satisfied that the defendant could have stopped safely before reaching the stop line. 

5.          The presiding Magistrate was not entitled to find that the defendant was guilty of recent invention, in the course of his evidence.

6.          In making the finding referred to in (5) above, the presiding Magistrate effectively deprived the defendant an opportunity to be heard.

7.          The presiding Magistrate applied the incorrect onus and/or standard of proof.

Facts

[3]      The offence was alleged to have been committed on 20 August 2009 at the intersection of Bridge and Tor Streets, Toowoomba.  Police were conducting routine traffic patrols at the intersection.  One officer (Wheeler) was operating a camera approximately 80 to 100 metres from the intersection and he would radio the other officer (Reimers) if he considered that a driver had committed an offence.  Reimers would then intercept the offending vehicle.

[4]      The appellant was driving a silver Toyota Landcruiser and towing a blue trailer down Bridge Street towards the traffic lights at the intersection.  It was common ground that as he proceeded to turn right through the intersection and across the stop line, an amber arrow was facing him. 

[5]      Wheeler radioed Reimers and Reimers intercepted the appellant’s vehicle.

[6]      Reimers recorded on tape the initial conversation he had with the appellant.  The appellant told Reimers that when he travelled through the intersection the traffic light was green and that he was not aware that there was an arrow controlling the right hand turn.  The appellant told the court that he was not travelling “that fast” or “that slow”. 

[7]      In evidence the appellant said that as he approached the intersection there was a red car “coming up behind [him]” and he had to go through the intersection because the red car “was coming a bit quicker”.

[8]      It was the appellant’s evidence that in addition to the conversation which was taped by Reimers he told Reimers that he was concerned about pulling up quickly when another vehicle, which was moving more quickly than he was, was behind him.  It was the appellant’s evidence that Reimers responded that if a vehicle came up behind him and hit him then it would be the other vehicle’s fault for driving too closely.  The appellant admitted that he did not mention anything about a red car to Reimers.

Statutory provision

[9]      Section 57(2) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 provides relevantly as follows:

“A driver who is approaching, or at, traffic arrows showing a yellow traffic arrow, and turning in the direction indicated by the arrow –

(a)        must stop –

(i)         if there is a stop line at or near the traffic arrow and the driver can stop safely before reaching the stop line – as near as practicable to, and before reaching, the stop line”.

1. The issues to be determined at trial were whether the appellant could have stopped safely before reaching the stop line or whether he had an honest and reasonable but mistaken belief that he was unable to do so. 

Magistrate’s decision

1. The Magistrate had before him the videoed evidence taken by Wheeler of the appellant’s vehicle approaching and travelling through the intersection.  The Magistrate noted that it was evident from the video that as the appellant’s vehicle “got very much to the line, the amber light changed from amber to red”.

1. The Magistrate noted that the video showed the appellant “driving up at quite a slow pace, making no braking manoeuvre whatsoever, and driving through, as I would accept, very much at the time the light goes from amber to red”.  The Magistrate also noted that the vehicle following the appellants pulled up at the red arrow and did so “at a slow speed and pulled up quite sedately”.

1. The Magistrate rejected the proposition that the appellant was driving in circumstances where he felt the vehicle behind him was at some risk of crashing into the rear of his vehicle. 

1. With regard to the issue of the appellant being of the belief that it was unsafe for him to stop because of the vehicle behind him, the Magistrate found “that has been raised today simply as a matter which is a recent invention, rather than something that was operating on his mind at the time”.

Appellant’s argument

1. The appellant argues that because of the use of the term “the driver” in s 57(2)(a)(i) the test to be applied by the court is a subjective one – that is, whether the driver in question – in this case the appellant, could stop safely before reaching the stop line. 

1. The appellant argues that the Magistrate’s finding that the appellant’s assertions regarding the vehicle following his were a matter of “recent invention” was, in the absence of such an allegation being put to him in cross-examination, and the appellant being given the opportunity to rebut such an allegation, simply not open to the Magistrate.

1. Finally, the appellant argues that there was no evidence upon which the Magistrate was entitled to find that the appellant could have stopped safely before the stop line in the circumstances. In particular the appellant argues that the lack of expert evidence from the prosecution with respect to motor vehicle and road safety generally, and the appellant’s vehicle and driving capacity in particular, means that it is not possible to make any finding regarding the ability of the appellant to safely stop in the circumstances.

Respondent’s arguments

1. The respondent argues that the Magistrate was entitled to reject the appellant’s evidence regarding the untaped conversation he said he had with Reimers and find that the appellant’s evidence regarding the vehicle following him was a matter of recent invention and there was no error of law in this regard.

1. Although the Magistrate did state that it would be a “more prudent practice” for Reimers to tape the whole of the conversations he has with the drivers he intercepts, nevertheless the Magistrate was correct in not drawing any adverse inference against Reimers on this account. 

1. The respondent argues that a logical reading of the terms of the offence provision leads to the conclusion that the test to be applied as to whether a driver can stop safely is an objective test.  The respondent refers to the objects of the Transport Operations (Road Use Management) Act 1995 pursuant to which the Road Rules are made in supporting this argument. 

1. Finally, the respondent argues that the prosecution effectively on the evidence, negatived the defence of honest and reasonable but mistaken belief given that the Magistrate rejected the appellant as a credible witness and that the evidence of the video was that the appellant could have stopped safely.

Appeal

1. This is an appeal pursuant to s 222 of the Justices Act 1886 and pursuant to s 223 of that Act, is to be by way of a rehearing on the evidence given in the proceedings before the Magistrate. This appeal must be treated as a rehearing on the record as opposed to a hearing de novo. In that regard I have both viewed the video taken by Wheeler and listened to the tape recording of the conversation between the appellant and Reimers.

1. Difficulties do arise when an appeal under s 222 challenges findings of credit made by the Magistrate at first instance. Attempting to determine such an issue on appeal by reference to the trial transcript alone can be problematic. In this case however, the Magistrate and this court are greatly assisted in such findings by the police video of the incident and the recording of the conversation between Reimers and the appellant.

Ground 1

1. The objectives of the Transport Operations (Road Use Management) Act 1995 are as follows:

3 Objectives

1. The overall objectives of this Act are, consistent with the objectives of the Transport Planning and Coordination Act1994, to—

(a)        provide for the effective and efficient management of road use in the State; and

(b)        provide a scheme for managing the use of the State’s roads that will—

(i)         promote the effective and efficient movement of people, goods and services; and

(ii)       contribute to the strategic management of road infrastructure in ways consistent with the Transport Infrastructure Act 1994; and

(iii)      improve road safety and the environmental impact of road use in ways that contribute to overall transport effectiveness and efficiency; and

(iv)       support a reasonable level of community access and mobility in support of government social justice objectives; and

(c)        provide for the effective and efficient management of vehicle use in a public place.

1. This Act establishes a scheme to allow—

   (a)identification of vehicles, drivers and road users; and

   (b)establishment of performance standards for vehicles, drivers and road users; and

   (c)establishment of rules for on-road behaviour; and

   (d)monitoring of compliance with this Act, including by using alternative compliance schemes; and

   (e)management of non-performing vehicles, drivers and road users; and

   (f)control of access to the road network, or parts of the road network, for vehicles, drivers and road users; and

   (g)management of traffic to enhance safety and transport efficiency.

1. There is nothing in either the objectives of the establishing legislation or in the wording of the offence provision itself, which would support a conclusion that the test to be applied under s 57(2)(a)(i) is a subjective one. It does not logically follow that the reference to “the driver” in the section creates a subjective test. The Magistrate was correct in applying an objective test.

Ground 2

1. Even if the appellant was given the benefit of the doubt regarding the unrecorded portion of his conversation with Reimers, the appellant’s evidence was simply that he spoke hypothetically about a vehicle following his rather than referring specifically to the red car which followed him. The red car is evident in the police video of the incident and an adverse finding against the prosecution regarding the recording of the conversation would be of little assistance to the defence case.

Grounds 3, 5 and 6

1. It is convenient to deal with these three grounds of appeal together as they relate to the credibility of the appellant’s evidence. The Magistrate’s use of the phrase “recent invention” was probably not a wise one. However, on the evidence before him, the Magistrate was entitled to come to the conclusion that the appellant should not be believed when he said that he continued through the intersection because the vehicle behind him was travelling closely making it unsafe for him to stop before reaching the stop line. The appellant was not deprived of the opportunity to be heard on this issue and indeed, did not seek to adduce fresh evidence in this appeal to counter any such prejudice.

1. In opposition to the appellant’s evidence there is the evidence of the video produced by Wheeler. This video shows the appellant’s vehicle approaching the intersection at a moderate speed, the arrow turning to amber well in advance of the appellant’s vehicle reaching the intersection and the red vehicle following the appellant’s vehicle at a safe distance and moderately slow speed. There is nothing to indicate any impediment to the appellant’s vehicle stopping safely before reaching the stop line after the arrow had turned amber.

1. The appellant is critical of the video as it was taken by Wheeler some 80 to 100 metres back from the intersection and from the side of the road furthest from the lane in which the appellant was travelling. The appellant argues that from such a position it is not possible to observe a vehicle actually crossing the stop line. A view of the video confirms that this is so. However, the video is taken from a position elevated from the intersection and it is clear generally where the stop line is situated. It is possible to observe vehicles both in the turning lane and in the two lanes to the left of the turning lane stationary at the intersection at different points of the video.

1. In addition to the video, the prosecution has the benefit of the recorded conversation between Reimers and the appellant. In that conversation, when intercepted and asked why he had gone through the intersection on an amber arrow, the appellant replies: “I come through on a green light”. The appellant tells Reimers that he is not aware that there was an arrow.

1. It was not necessary in this case for the prosecution to adduce expert evidence in order to prove the case against the appellant.

Grounds 4 and 7

1. As outlined above, the police video is cogent evidence upon which to base a finding that the appellant could have stopped safely before reaching the stop line and upon which to find that any defence that the appellant honestly and reasonably but mistakenly believed that he could not, had been negatived beyond reasonable doubt. Some allowance must be made to the appellant as his vehicle was towing a trailer in which the appellant said there was “a fair bit of weight” which, combined with his “two and a half tonne vehicle” made it “pretty hard to pull up”. However, even in those circumstances, the evidence is that he had more than adequate time to stop without causing any danger to his vehicle or that following his.

1. The appeal is dismissed and the order of the Magistrate made on 17 May 2010 is confirmed.