R v Dobrenov

Case [2023] QDC 258

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Dobrenov [2023] QDC 258

PARTIES:

R

(respondent)

v
DOBRENOV, Daniel

(applicant)
ATTORNEY-GENERAL (QLD)

(intervenor)

FILE NO/S:

Indictment No 495 of 2023

PROCEEDING:

Application for ruling pursuant to s 590AA Criminal Code

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2023

JUDGE:

Rafter SC DCJ

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – PROCEDURE – CONFESSIONS AND ADMISSIONS – where the applicant is charged with one count of dangerous operation of a vehicle causing grievous bodily harm, while excessively speeding – where police questioned the applicant at the scene of the crash – where the applicant made statements against interest – where the applicant submits that the evidence should be excluded

SEIZURE AND INCIDENTAL POWERS – HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the police seized a device containing crash footage and an airbag control module containing data from the vehicle – where the applicant submits that the seizures infringed his right to privacy and were unlawful because they were not authorised by the Police Powers and Responsibilities Act 2000 – whether the seizures were lawful exercises of statutory police powers – whether the applicant’s right to privacy was infringed

OPINION EVIDENCE – EXPERT OPINION – where a police officer produced a report analysing crash data retrieved from the airbag control module – where the applicant submits that the report is inadmissible opinion evidence – whether the report is admissible expert evidence

Criminal Code Act 1899 (Qld) s 328A(4)(b)(ii)
Human Rights Act 2019 (Qld) s 8, s 25(a), s 48, s 50, s 58(1)(a), s 59
Police Powers and Responsibilities Act (Qld) s 54, s 56, s 64, s 124, s 618, s 619

The Australian Institute for Progress Ltd v The Electoral Commission of Queensland (2020) 4 QR 31
Lang v The Queen [2023] HCA 29
Osland v The Queen (1998) 197 CLR 316
R v Fedan, 2016 BCCA 26 (British Columbia Court of Appeal)
R v Major, 2022 SKCA 80 (Court of Appeal for Saskatchewan)
R v Versac [2013] QSC 46; (2013) 227 A Crim R 569
The Queen v Lewis [2012] QDC 42

COUNSEL:

M Wilson for the respondent
M J Jackson for the applicant

K Blore for the intervenor

SOLICITORS:

Office of the Director of Public Prosecutions for the respondent
N R Barbi Solicitor Pty Ltd for the applicant

Crown Solicitor for the intervenor

Introduction

  1. The applicant is charged that on the 14th day of February 2022 he dangerously operated a vehicle in Derby Street at Coorparoo and caused grievous bodily harm, with a circumstance of aggravation that at the time of committing the offence he was excessively speeding.[1]

    [1]Criminal Code, s 328A(4)(b)(ii).

  2. The applicant was driving a Tesla sedan along Derby Street at Coorparoo when he collided with the complainant’s Volkswagen Polo hatchback.  As a…

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Details
AGLC
R v Dobrenov [2023] QDC 258
Case
[2023] QDC 258
Decision Date

CaseChat Overview and Summary

The case of R v Dobrenov involved the applicant, charged with dangerous operation of a vehicle causing grievous bodily harm while excessively speeding. The applicant contested the admissibility of certain evidence, including his statements made at the crash scene, the seizure of a USB device containing crash footage and an airbag control module from the vehicle, and an expert opinion report prepared by a police officer. The court was required to determine the admissibility of these pieces of evidence, considering factors such as the fairness of admitting the evidence, the legality of the police seizures, and the admissibility of the expert opinion.

The court examined the legality of the police seizures, considering whether they infringed the applicant's right to privacy under the Human Rights Act 2019. It found that the seizures were lawful exercises of statutory police powers. The court also assessed the admissibility of the roadside admissions, concluding that they were properly obtained and admissible. Further, the court evaluated the expert opinion report and determined that it satisfied the criteria for admissibility of expert evidence. Consequently, the court dismissed the application to exclude the contested evidence.

The court's decision was that the roadside admissions, the evidence relating to the seizure of the USB stick and the airbag control module, and the expert evidence of the police officer were all admissible. The application to exclude the contested evidence was dismissed, and no orders were made excluding the evidence from the trial.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

As the application raises questions under the Human Rights Act 2019 (HRA), the Attorney-General intervened.[3][3]HRA, s 50.Factual background On 14 February 2022 at approximately 2pm the applicant, driving a Tesla sedan, turned right into Derby Street at Coorparoo and came to a stop. The complainant, who was driving a Volkswagen Polo hatchback, was parked on the side of the road outside 69 Derby Street. The complainant’s vehicle was facing in the same direction as the applicant’s vehicle. The complainant saw the applicant in her rear vision mirror to be about 90 metres behind her. The complainant saw that the applicant’s vehicle was either going slowly or had come to a complete stop. The complainant intended to make a U-turn and put her indicator on for approximately four seconds. The complainant commenced the U-turn. At the same time the applicant accelerated under full throttle[4] towards the complainant’s vehicle. Within 3.4 seconds the applicant had reached a top speed of 98 kilometres per hour. The applicant’s vehicle collided head on with the passenger side door of the complainant’s vehicle causing severe damage.[4]The Crash Data Retrieval Report indicated that the accelerator pedal was at 100 percent. The complainant’s injuries included comminuted displaced fractures of the right tibia and fibula and multiple displaced, compound fractures in her left hand. The police analysed data from the airbag control modules of both vehicles. The data from the complainant’s vehicle showed that it came to a complete stop 4.6 seconds prior to the collision. The data from the Tesla showed that it was under 100 percent acceleration between 4.6 and 1.2 seconds prior to the collision. The evidence Senior Constable Lisa Harris and Senior Constable Steven Porthill attended the scene. Upon arrival, both officers commenced recording on their body worn cameras. The applicant approached SC Porthill and identified himself as the driver of the Tesla. SC Porthill asked the applicant what happened. The applicant said he was looking at his GPS, doing about 60 to 70 kilometres per hour, when the other vehicle pulled out of nowhere. Constable Harris approached the applicant and asked what happened. He said that he was driving and looking at his GPS, and then hit the car. The applicant said he was travelling at about 60 to 70 kilometres per hour. Shortly afterwards Constable Harris had another conversation with the applicant. She told him that she was going to “do a thorough Q and A”. Constable Harris asked the applicant a series of questions in relation to the collision. During this questioning the applicant said he could have avoided the collision if he had been driving slower and looking at the road. He also said he was distracted by looking at his GPS. The Tesla and the Volkswagen Polo were seized and taken to a secure holding yard at Rocklea on the day of the crash. On 4 March 2022, Sergeant David Stocker attended the holding yard and removed the airbag control modules from the Tesla and the Volkswagen. The ACM records pre-crash data including vehicle speed, engine speed, and accelerator pedal percentage.[5][5]Airbag Control Module Report at para 2.7.

Evidence

Evidence Before The Court

The police analysed data from the airbag control modules of both vehicles. The data from the complainant’s vehicle showed that it came to a complete stop 4.6 seconds prior to the collision. The data from the Tesla showed that it was under 100 percent acceleration between 4.6 and 1.2 seconds prior to the collision. The evidence Senior Constable Lisa Harris and Senior Constable Steven Porthill attended the scene. Upon arrival, both officers commenced recording on their body worn cameras. The applicant approached SC Porthill and identified himself as the driver of the Tesla. SC Porthill asked the applicant what happened. The applicant said he was looking at his GPS, doing about 60 to 70 kilometres per hour, when the other vehicle pulled out of nowhere. Constable Harris approached the applicant and asked what happened. He said that he was driving and looking at his GPS, and then hit the car. The applicant said he was travelling at about 60 to 70 kilometres per hour. Shortly afterwards Constable Harris had another conversation with the applicant. She told him that she was going to “do a thorough Q and A”. Constable Harris asked the applicant a series of questions in relation to the collision. During this questioning the applicant said he could have avoided the collision if he had been driving slower and looking at the road. He also said he was distracted by looking at his GPS. The Tesla and the Volkswagen Polo were seized and taken to a secure holding yard at Rocklea on the day of the crash. On 4 March 2022, Sergeant David Stocker attended the holding yard and removed the airbag control modules from the Tesla and the Volkswagen. The ACM records pre-crash data including vehicle speed, engine speed, and accelerator pedal percentage.[5][5]Airbag Control Module Report at para 2.7. On 9 March 2022, at the request of SC Holmes, SC Joseph Cook attended the secure holding yard to retrieve a USB device from the Tesla. SC Cook subsequently transferred the data from the USB to the Brisbane Forensic Crash Unit fileserver and lodged the USB device in the security property drop-safe at Morningside Police Station. He subsequently provided it to SC Holmes. The USB device contained footage from cameras located on the front, rear and left and right sides of the Tesla. On 26 June 2022, SC Holmes prepared an Airbag Control Module Report. The primary function of the ACM is to control the deployment of restraint devices.[6] The recording of pre-crash data is a secondary function of the ACM.[7] The Report was prepared for the purpose of providing an analysis of the crash data retrieved from the ACM in the Tesla.[8] In her report, SC Holmes states:“2.6This particular airbag control module can record up to 3 crash events which includes acceleration (rv) data both longitudinally through the vehicle (x) and laterally across the vehicle (y). This data is measured, calculated and stored internally within the airbag control module.2.7The module also records up to 5 seconds of pre-crash data which is transmitted to the airbag control module by various vehicle control modules and sensors via the vehicle’s communication network. This data includes vehicle drive mode, vehicle speed, engine speed, accelerator pedal percentage and brake switch, stability control and ABS activity status.…4.3The pre-crash data indicates that the vehicle was travelling at 1km/hr between 5 seconds to 4.6 seconds prior to the crash. Between 4.4 seconds and 1.2 seconds prior to the crash, the vehicle was under 100% acceleration and accelerated from a speed of 7km/hr to 94km/hr. Between 0.8 seconds and 0.6 seconds prior to the crash, the vehicle achieved a maximum speed of 98km/hr.”[6]Airbag Control Module Report at para 2.1.[7]Airbag Control Module Report at para 2.3.[8]Airbag Control Module Report at para 1.3.

Decision

Reasons for decision

The opinion evidence of SC Holmes satisfies the criteria for admissibility of expert evidence.Conclusion I have concluded that:(a)the roadside admissions are admissible. (b)the evidence relating to the seizure of the USB stick and ACM is admissible. (c)the expert evidence of SC Holmes is admissible. Accordingly, the application is dismissed.

Ratio Decidendi

Legal Principle Established

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