Lamerton v Ahmetagic

[1992] QCA 289

COURT OF APPEAL  [1992] QCA 289

MACROSSAN CJ

McPHERSON JA
AMBROSE J

CA No 150 of 1992

SIMON ROBERT LAMERTON

v.

MIRSAD AHMETAGIC

Appellant

BRISBANE

DATE 18/08/92

JUDGMENT

THE CHIEF JUSTICE:  I shall ask Mr Justice McPherson to deliver his reasons first.

McPHERSON JA:  This is an appeal by Mirsad Ahmetagic against his conviction in the Magistrates Court at Brisbane of the offence of dangerous driving.  The penalty imposed upon him by the magistrate was a fine of $400.  In addition the Act itself imposes an automatic driver's licence disqualification of six months.  The appellant does not complain about the size of the fine, but only about the fact of his being found guilty and convicted of the offence.

The conviction was recorded on 22 April 1992, so that the automatic disqualification will remain in force for another two months or so if the conviction is allowed to stand.  The complaint made by the appellant on appeal is that the magistrate reached the wrong conclusion in finding that the appellant drove dangerously.

The charge arose out of a collision between a white Ford Cortina car driven by the appellant and a Nissan Bluebird driven by a Miss Margot McLeod.  The collision took place at the intersection of Nellie Street and Melton Road, Northgate on 25 November 1991 at about 5 p.m.  The appellant's vehicle came out of Nellie Street on to Melton Road and collided with the left‑hand side of the Bluebird vehicle.  In saying that, I should explain that it appears from the evidence to have been the case that it was the Bluebird that in fact struck the Cortina, rather than the other way round, although in the disposition of the case that circumstance is irrelevant.

It is necessary to say something about the state or condition of the intersection and the two roads involved in it.  There is a stop sign at or shortly before the point of entry from Nellie Street on to Melton Road.  Senior Constable Lamerton described the stop sign in these terms: "This stop sign is mounted on a telegraph pole just prior to the intersection, and 6.9 metres further beyond the stop sign there is a white painted stop line across Nellie Street at the beginning of that intersection with Melton Road."  He went on to say that both the stop sign and the stop line were in good condition.

The prosecution case was that the appellant drove dangerously in a number of respects which may be considered either alternatively or cumulatively; that is to say, that he failed to stop at the line or the sign, that he kept an insufficient look‑out for other vehicles in the street which he was entering, and that he proceeded into the intersection at an excessive speed.

The appellant denied these allegations and claimed it was Miss McLeod who was responsible for the accident.  It should be said at once that in a case involving a prosecution for an offence of this kind the responsibility, or apportionment of blame, for the happening of the accident is by no means a critical or even important consideration in determining whether the case has been proved.  It might be, for example, that both of these drivers were driving dangerously, but that would not affect in law a decision whether or not the appellant, who was the one prosecuted, had been driving in the prohibited manner.

As it happens, the magistrate accepted the witnesses for the prosecution and found the case established against the appellant beyond reasonable doubt.  In doing so he identified various matters in the evidence that he regarded as showing that the appellant's version of what happened was incorrect.  In the first place, there was evidence from an independent witness, Mr Turnbull, who saw the appellant's vehicle after it had entered the intersection.  He described its condition as "nose down", and went on to say that it was trying to brake as if the driver had not seen the sign, and then suddenly realised there was a stop sign and tried to brake.  He estimated the appellant's speed as being some 40 km/h.

Miss McLeod gave evidence to somewhat similar effect.  She said she saw the appellant's vehicle only briefly before the collision, and what she noticed about it at the time was that it was "braking excessively".  She said she was able to reach that conclusion because she saw smoke coming from the front wheels of the car.  There was a lot of smoke, she said.

The inference invited by that evidence is that the appellant's vehicle was putting on brakes very hard, and thus slowing down from a considerable speed at or shortly before the time the collision occurred.  The inference that the vehicle had travelled over the line or into the intersection at some speed was to a large extent confirmed by the observations and measurements made by Senior Constable Lamerton at the scene.

He observed tyre marks on the road and described them in these terms: "I saw several tyre marks on the intersection.  One was in Nellie Street and commenced .45 metres east of a white painted stop line and on the eastern side of the intersection.”  He went on to say that the tyre mark then ran in a westerly direction over the white painted stop line into the centre of the intersection, and that it was 2.25 metres long.  It then, he said, made a turn to the south.  Several metres north of this tyre mark he saw another tyre mark which was parallel to it, and it commenced west of that white painted stop line so that it actually commenced within the intersection.  It ran westerly and then also turned to the south.  He observed that both tyre marks were at some stage on the intersection, and went on to say that he believed those tyre marks belonged to the Ford Cortina.

In the proceedings before us the appellant has conceded that it was not unlikely that those were the tyre marks of the Ford Cortina.  The magistrate found that was so.  He was entitled to do so, and having so found he drew certain conclusions from the presence of those tyre marks.  One, which I must say, speaking for myself, seems to be justified, is that the appellant must have been travelling at some speed before he reached the white stop line, if one finds evidence of a tyre mark before it, then crossing the line, and going into the intersection.  It follows, therefore, that either the appellant did not stop before the white stop line, or that he stopped a long way back and then moved at some considerable speed into the intersection.

For my part, I would agree with the magistrate that it is more likely that he would not have been able to get up a sufficient speed to create the impression of braking, in the fashion described by the witnesses, at a distance not very far from the stop line into the intersection.  It is more likely, therefore, on all the evidence that he did not stop at the white stop line.

In addition to that there was evidence from the investigating police officer that from the white stop line a motorist entering Melton Road from Nellie Street had vision for some 97 metres.  It would therefore suggest that the appellant was not taking a great deal of care to look around for other vehicles when he crossed the line.  His explanation of the matter is that Miss McLeod was travelling at so great a speed that it was impossible to see her, even if he did look around, without colliding with her if he moved into the intersection after taking proper care.  The evidence, however, is that she was travelling at only about 60 km/h or less and there is no reason to suspect that her testimony in that regard was grossly incorrect.

When all these matters are considered it seems very likely that the magistrate came to the correct conclusion.  In any event, it is not the function of this Court on appeal to re‑try the case as if we were hearing it for the first time.  The matters argued before us in an effort to lead us to a different conclusion were of a kind that would have been, and no doubt were, presented to the magistrate at the trial of this prosecution.  The magistrate reached a decision on the question.  He found the appellant guilty of the offence, and unless some clear error in his reasoning can be demonstrated so before us there is no basis on which this Court is in law entitled to interfere with the conclusion to which the magistrate came.

In short, it should be plain to the appellant that it is not part of our function or duty to re‑try the case as though it were coming before us for the first time.  We accept the evidence in the record, and we accept the conclusions of the magistrate as to what the witnesses said and saw, and his impressions of them, without forming our own conclusions about those matters, unless some very plain error in the reasoning can be demonstrated.  For my part, I can see no such error at all in the reasoning of the magistrate.  I would therefore dismiss the appeal.

The application for leave to appeal against sentence is not pursued, and it too should be refused.

THE CHIEF JUSTICE:  I agree.

AMBROSE J:  Yes.  I agree.

THE CHIEF JUSTICE:  The order of the Court will then be that the appeal is dismissed and the application for leave to appeal against sentence is refused.