Koelbel v Commissioner of Police
[2015] QDC 290
•29 OCTOBER 2015
[2015] QDC 290
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE REID
No 6 of 2015
PETER KOELBEL Applicant
and
COMMISSIONER OF POLICE Respondent
MARYBOROUGH
11.13 AM, THURSDAY, 29 OCTOBER 2015
JUDGMENT
HIS HONOUR: The appellant appeals a decision of the learned Magistrate convicting him of the offence of failing to give way when moving from one marked lane to another marked lane pursuant to section 148(1) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld). He was fined $350.
The charge arose out of a motor vehicle accident which occurred in Ferry Street, Maryborough, on the 18th of June 2014.
The notice of appeal states – with alterations for grammatical purposes – that the grounds of appeal are that:
There was no factual evidence presented in court – allegations only. Magistrate should have acquitted me or thrown (the charge) out of court (for) lack of evidence.
In the appellant’s written submissions and in oral argument before me, he made it clear that his reference to their being “no factual evidence presented in court” was a submission that there was no direct evidence other than that of the appellant himself and the driver and passenger of the other vehicle involved in the accident. He submitted that those two witnesses had lied when giving evidence and that the learned Magistrate was in error in accepting their evidence of the circumstances of the accident.
The appellant in his oral submissions particularly relied on a passage in the statement of the passenger of the vehicle. She says in that statement that they were “travelling on Ferry Street heading towards Tinana”. That, the appellant submitted, enabled him to categorically prove her dishonesty. She said in that statement, that as they approached Alice Street the driver, who was her husband, moved into the left hand turning lane. She said their car was hit on the right hand side by the defendant’s vehicle as it moved into the left hand turn lane as the vehicles approached Alice Street.
The appellant, as I’ve said, submitted that he was able to demonstrate that she was “a liar” because it was unnecessary to turn left to travel to Tinana and that the usual and easiest way to do so was to travel straight ahead on Ferry Street through the Alice Street intersection and onwards to Tinana. Maps tendered by agreement support this assertion, but that of course does not militate against the accuracy of her statement.
A number of explanations may be advanced consistent with the accuracy of her statement. For example, whilst they may have had as their ultimate destination an address in Tinana her husband may have deviated from this direct route either deliberately, for example, to call in somewhere on the way or mistakenly not knowing the way. He may not have told his wife of his intentions. Even more probably her statement that they were “travelling on Ferry Street heading towards Tinana” may have been no more than an indication of their direction of travel and not an expression of their ultimate destination. It might, for example, be seen as saying no more than they were travelling in a south westerly direction on Ferry Street, the direction of Tinana.
In any case, the appellant did not cross-examine the witness about this aspect of her statement when she gave evidence. He submitted to me that he did not do so as he did not get her statement until the morning of the hearing in the Magistrates Court. Accepting that that is so, I am however entirely unpersuaded that her statement that they were “travelling on Ferry Street heading towards Tinana” is in any way a matter which so undermines her testimony or, indeed, undermines it at all that it could be said the Magistrate was wrong to accept her evidence.
In his reasons, the learned Magistrate:
correctly identified the provisions of section 148(1) of the Transport Operations (Road Use Management) Road Rules Regulation and the statutory definition of “give way” contained in the schedule thereto;
identified the prosecution obligation to prove each element of the offence beyond reasonable doubt;
accepted, to that standard, that Ferry Street has marked lanes as one looks in the direction of Alice Street;
found that as one approached Alice Street on Ferry Street, there was first an entrance to and exit from a Bunnings store on the left hand side, in the direction of travel of the parties. Entrance to that store was via a left turn only lane, that is, traffic in that lane must enter the store parking area and is not permitted to travel straight ahead. Photographs of the area clearly depict a painted traffic island separating the entrance and exit lanes into the Bunnings store parking area. It is thus prohibited for traffic to travel straight ahead from the entrance lane to Bunnings, a course which would require a vehicle to drive over this marked painted traffic island;
found that after the exit from Bunnings there is a left turn only lane into Alice Street, a marked lane for vehicles travelling straight through the intersection of Ferry Street and Alice Street and a marked right turn only lane for vehicles intending to turn right into Alice Street.
None of that was disputed on the appeal or, it seems, during the trial.
The applicant submitted to me and to the Magistrate, and also said in his evidence that the car driven by Mr Hamerslag had travelled in the far left lane prior to the Bunnings turnoff, had ignored the requirement to turn into the Bunnings car park and instead had travelled straight ahead, travelling over the painted traffic island and thus entered the lane for left turn only vehicles travelling into Alice Street. He said that he estimated the vehicle was being driven at 80 to 90 kilometres per hour. When he, the appellant, attempted to drive his Pajero into that lane immediately after he had passed the Bunnings entry, he said he was struck by the vehicle driven by Mr Hamerslag, a Commodore.
The learned Magistrate rejected the appellant’s version of events. He said he was “left in no doubt whatsoever” that:
the Commodore was lawfully in the left turn only lane;
the appellant was moving from one marked lane into another marked lane, namely, as all eye witnesses said, from the centre or straight ahead lane into the lane for vehicles turning left into Alice Street;
in doing so the appellant failed to give way to the Commodore.
In such circumstances he found the appellant guilty of the charged offence.
What was the evidence which supported his Honour’s findings?
Both Mr and Mrs Hamerslag gave evidence consistent with the learned Magistrate’s findings.
Mr Hamerslag emphatically denied being in the lane requiring him to turn into Bunnings and driving over the traffic island (see T1-12 L44/46) and said that in fact there was a car at the intersection which in any case blocked him from doing so (T1-13 L38/40). He said that after he passed Bunnings he moved left into the lane for vehicles turning left into Alice Street and “just noticed the front wheel coming out of a car – the front end sharply turned out and he has clipped me and come right up the side of me (sic) car” (T1-3 L43/47). He later said the impact was from the front of the driver’s door to a point “about six inches in the rear quarter of the back end of the car” (T1-5 L30/31).
I interpose that if the point of impact was with the front left hand corner of the appellant’s vehicle (there is evidence of that fact) this would strongly suggest that at the time of the impact the front of the Commodore was ahead of the front of the Pajero. I’ll return to this point shortly.
Mrs Hamerslag gave very similar evidence (for example, T1-39 L34/36).
By contrast, the appellant’s evidence was that as he came to the Bunnings entrance and moved past it, he indicated his intention to move into the left turn only lane. He says he looked in his mirrors and saw a car, obviously the Commodore, in the lane requiring a left turn into Bunnings. He said it drove over the painted traffic island just as he was himself “merging” into the left hand lane and struck his vehicle. He said the vehicle was being driven “at least 80 to 90 kilometres an hour” (see TI-49 L36/45). He said at the time he was “in the middle of the exit lane”, clearly a reference to the left turn only lane after the Bunnings exit (T1-50 L23 and also T1-54 L12/13). He said that Mr Hamerslag was performing an illegal overtaking manoeuvre.
The appellant accepted that the impact to his vehicle was at the front of his car and not to the side (T1-54 L42 – T1-55 L10).
This evidence of the parties about the point of impact was consistent with observations of the police about the impact to the two vehicles. It’s clear that police did not themselves witness the accident and only attended later as a result of a phone call.
The learned Magistrate found that the appellant’s testimony was “exaggerated and unreliable” compared to other evidence (Judgment Transcript Page 3 L12). He especially relied on the evidence of the damage of the two vehicles in coming to the conclusions he did. Undoubtedly he was there referring to the fact that if the appellant’s vehicle had already been in or half in the left turn only lane, as the appellant described in his evidence, when struck by the Commodore coming from behind him, that the damage to the Commodore would very probably have been to its right hand front corner and not have commenced at the driver’s door and the damage to the Pajero would very probably have been to the left hand side of that vehicle and not to the front as the appellant himself conceded was the case.
Nature of Appeal
An appeal under section 222 of the Justices Act, as this is, is a rehearing on the evidence, being the evidence before the Magistrate. It is said that before interfering with the decision of a Magistrate:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate Court may exercise its own discretion in substitution for his if it has the material for doing so.” (see House v The King (1936) 55 CLR 499 at 505)
Consideration
In my view there is nothing to indicate to me that there was any demonstrable error on the part of the learned Magistrate. He appears to have carefully considered all of the evidence and been persuaded of the truth of the evidence of Mr and Mrs Hamerslag. His doing so was influenced by the appellant’s exaggeration and unreliability, no doubt a reference to his demeanour as well as, for example, his estimates of the speed of the Hamerslag’s vehicle and by the accepted evidence of the point of damage to both vehicles.
Before me the appellant was adamant in his denial of wrongdoing and in his assertion that Mr and Mrs Hamerslag were both liars, but both protestations are of little assistance. One must instead examine the evidence. He failed to adequately address the important matter of the damage to the vehicles or to demonstrate why the Hamerslag’s evidence was internally inconsistent or inconsistent with other evidence or in any way flawed.
The learned Magistrate also had the obvious advantage of seeing and hearing the evidence as it unfolded. He was in a good position to evaluate issues of credit of the parties.
No demonstrable error has been shown in the learned Magistrate’s reasoning. None of the issues referred to in the passage I have quoted from House v The King (supra) have been established. There is no basis at all for interfering with the decision. The appeal is dismissed. I make no order as to costs.
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