R v Haywood

[1994] QCA 470

[1994] QCA 470

COURT OF APPEAL
FITZGERALD P
DAVIES JA

CULLINANE J

CA No 295 of 1994
THE QUEEN
v.

GREGG EDWARD HAYWOOD Appellant

BRISBANE
..DATE 27/09/94
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THE PRESIDENT: This is an appeal against convictions in the
Magistrates Court at Bundaberg on 24 June 1994 on two counts
of dangerous driving. In respect of the first count the
appellant was fined $900 and disqualified from holding or
obtaining a driver's licence for a period of 12 months. In
respect of the second count he was fined $400. Both offences
occurred on 7 January 1994.

The appeal is based on the ground that the decision of the learned Magistrate was unsafe and unsatisfactory and, in particular, that the quality of the identification evidence and what was said to be inconsistencies in the evidence of the police officers meant that there was insufficient evidence to support the guilty verdict, or insufficient reliable evidence.

On the night in question, two police officers had set up a
road side breath test at an intersection a short distance
outside the township of Gin Gin at about 10 p.m. A white
Holden sedan travelling toward them failed to stop as directed
and accelerated. The flashing blue light on the police
vehicle was activated and one of the police officers donned a
reflective jacket to wave the car down. The vehicle did not
stop but swerved towards the middle of the road and narrowly
missed hitting the police officer. The police then pursued
the car for five to seven minutes at speeds up to 110
kilometres per hour until they lost sight of it. They
recorded the registration number of the car in which the
driver was seen to be the only occupant.
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At one time upon approaching an intersection the vehicle
slowed almost to a stop. The police vehicle pulled up about
three metres behind the vehicle which had been the subject of
the chase and one of the police officers commenced to get out
of the police vehicle. As he did so the other vehicle slowly
made a u-turn to the left. There was some discrepancy between
the police officers as to whether the vehicle was on the
correct or incorrect side of the road but since it made its
u-turn towards the left it seems likely that it was on the
incorrect side of the road.

The police car was using high beam on its headlights and as the other vehicle turned the police officers could see that the driver had short hair, a full beard and was wearing a singlet. Both knew the appellant and identified him as the driver.

When the vehicle which the police officers had been chasing
completed its u-turn, it drove back past the police car and
with the assistance of lighting from a nearby house the
officer who was the driver confirmed, according to his
evidence, the identity of the appellant. At this point the
driver was four to six metres away and it was the driver of
the police vehicle's testimony that the appellant was observed
for three to five seconds. The other officer failed to
support that evidence because he did not then see the person
driving the vehicle which had been the subject of the chase.
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The police resumed the chase and the other vehicle was seen to
cross onto the incorrect side of the road at a dangerous speed
at another intersection, narrowly miss a guidepost, fail to
keep a proper lookout and overtake on a blind crest. Police
were unable to intercept the vehicle after searching for half
an hour.

The police chase began at about 10.05 p.m. in an area 15 kilometres down the road from the Tirroan Hotel where the appellant had been drinking that night. He left the hotel alone at approximately 9.30 or 10 p.m. After the chase police attended the appellant's home but he was not there.

One or both of the officers testified that he knew to whom the car belonged although it was kept at someone else's property.

The appellant was a friend of the owner of the vehicle and,

in fact, slept the night at the property where the car was
kept.
The police were criticised at the hearing of this appeal and
presumably in the Magistrates Court and the veracity of their
testimony was questioned on the basis that, if they had known
that the driver was the appellant, they would have proceeded

to charge him on the night of the chase.

The following day police went to the property on an unrelated
matter and found the car parked in long grass behind a shed
and out of view of the road. The appellant was present at the
property. The appellant gave evidence and called a number of
friends whose evidence had the combined effect, if accepted,
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of excluding the appellant as the driver of the Holden at the
relevant time. The Magistrate made an adverse finding of
credit against those witnesses.

It was submitted for the appellant that the Magistrate, acting reasonably, must have entertained a reasonable doubt as to the appellant's guilt having regard to the nature of the identification evidence and the police evidence which was the basis of the finding of guilt.

Counsel for the appellant outlined a number of factors which, in his submission, should have led the Magistrate to entertain a reasonable doubt. The first of these was the brevity of and conditions under which the identifications were made. Other factors concerned supposed or asserted inconsistencies in the evidence of the police officers regarding the second identification and regarding the known whereabouts of the appellant and their explanations for the delay in pursuing inquiries that night.

While his counsel has said everything possible on behalf of the appellant, he has failed to persuade me that there is any ground for concern or interference in relation to the Magistrate's verdict. I would dismiss the appeal.

DAVIES JA: I agree.

CULLINANE J: I agree.
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THE PRESIDENT: The appeal is dismissed.

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