Yassir v Bone

[2010] QDC 11

DISTRICT COURT OF QUEENSLAND

CITATION:

Yassir v Bone [2010] QDC 11

PARTIES:

RAGE ALI YASSIR

(Appellant)

V

MERVYN KENNETH BONE

(Respondent)

FILE NO/S:

540/09

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

29 January 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2009; final written submissions received on 26 September 2009

JUDGE:

Irwin DCJ

ORDER:

1.     The Application for leave to adduce new evidence refused.

2.     Appeal against conviction dismissed.

3.     (a)      Appeal against sentence allowed;

(b)      Sentence imposed at first instance varied and instead a conviction is not recorded.

CATCHWORDS:

CRIMINAL LAW – Appeal Against Conviction – general principles – admission of fresh evidence – whether the evidence would probably have an important influence on the result of the case

CRIMINAL LAW – Appeal Against Conviction – appeal against decision of a magistrate – where appellant convicted after trial of causing a traffic hazard – where appeal proceeded on the evidence given in the Magistrates Court – where upon a review of the evidence, affording due respect to the decision of the magistrate and the magistrate’s advantage in seeing and hearing the witnesses, appellate court arrived at the same conclusion

CRIMINAL LAW – Appeal Against Sentence – where appellant convicted after trial on one count of causing a traffic hazard – where sentence was a $100 fine – where conviction recorded – whether sentence manifestly excessive

Evidence Act 1977 (Qld), s 21

Justice Act 1886 (Qld), s 222, s 223(2), s 225(1)

Penalties and Sentences Act 1992 (Qld), s 12(2)

Transport Operations (Road Use Management – Road Rules) Regulations 1999 (Qld), s 4, s 15, s 253, Schedule 6

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied

Gallagher v R (1986) 160 CLR 392, applied

Graham v Queensland Nursing Council [2009] QCA 280, applied

House v The King (1936) 55 CLR 499, applied

Langdale v Danby [1982] 3 All ER 129; [1982] 1 WLR 1123, applied

Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited

R v Briese (1997) 92 A Crim R 75, applied

Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, cited

Warry v PB Pty Ltd [1999] QCA 154, applied

COUNSEL:

The appellant appeared on his own behalf

M.J. Litchen for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecution (Qld) for the respondent

Background

1. At about 7 am on 16 August 2008 there was contact between a motor vehicle being driven by Damien John Hinkley and a bicycle being ridden by the appellant in Harrogate Street in the vicinity of where it intersects with Ipswich Road at Woolloongabba, Brisbane.

1. On 24 February 2009, the appellant was convicted after a summary trial of one count arising out of this incident, that contrary to s 253 of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld) (“the Regulation”), being the rider of a bicycle, he caused a traffic…