Cullen v Queensland Police Service [2021] QDC 340

DISTRICT COURT OF QUEENSLAND CITATION: Cullen v Queensland Police Service [2021] QDC 340 PARTIES: STEPHEN CULLEN (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: D355/20 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Southport DELIVERED ON: 17 November 2021 (ex tempore) DELIVERED AT: Southport HEARING DATE: 17 November 2021 JUDGE: Jackson QC DCJ ORDER: CATCHWORDS: LEGISLATION: CASES: 1. The appeal is dismissed. 2. The orders made by the Magistrates Court at Southport on 7 September 2020 are confirmed. APPEAL – APPEAL BY WAY OF RE-HEARING – Where the appellant appeals against his conviction for failing to stop at a traffic light – Where the respondent submits that the facts of the offence were made out – Whether the appeal should be allowed. Justices Act 1886 (Qld) Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) CDJ v VAJ (1998) 197 CLR 172 Lee v Lee (2019) 266 CLR 129 Stevenson v Yasso [2006] 2 Qd R 150 COUNSEL: The appellant was self-represented. S Aldas for the respondent. SOLICITORS: The appellant was self-represented. Office of the Director of Public Prosecutions for the respondent. -- 1 of 8 -- 2 [1] The appellant was convicted on a charge of failing to stop at a red light after a trial on 7 September 2020. The appellant was fined $400 which was the same amount as provided for in the original ticket. Grounds of appeal [2] By notice of appeal dated 18 November 2020, the appellant appeals against his conviction. His written outline dated 17 November 2020 sets out the following grounds of appeal: 1. Traffic lights are to give drivers a fair amount of time to get through an intersection safely; 2. When he changed lanes to turn right, there were three vehicles in the right lane; 3. There should have been more than enough time for him to get around the corner into Smith Street safely on the green light; 4. He had fixed in his mind that the lights should not go amber or red, but stay green; 5. Seemingly on the basis of the previous four matters, there had to be something wrong with the lights at the time of this event; 6. Contrary to the evidence given by Stephen Irvine, the truck did not take off a bit late as suggested and even if it did, there should have been enough time for him to get through the intersection on the green light; 7. The road was out of shape with 50mm corrugations in it, but the photo looks as though there were none. In other words, the allegation is that the photo was photoshopped 8. The lane was profiled, and new sensors put in after this event; 9. It is not safe to be jamming your brakes on at an intersection as that can cause accidents as well; -- 2 of 8 -- 3 10. The lights were not working properly which was why Mr Cullen got a red light. The green light was not on for the normal amount of time to travel around the corner. It is unfair. [3] The nature of Mr Cullen’s opposition to the infringement notice and his conduct of the trial closely mirror the grounds of appeal. For the reasons that follow, the learned Magistrate did not fall into error in finding against Mr Cullen. Accordingly, the appeal ought to be dismissed. Nature of the appeal [4] This appeal is pursuant to s 222 of the Justices Act 1886. Appeals under s 222 are by way of re-hearing on the evidence at trial. The court is required to conduct a real review of the trial and of the learned Magistrate’s reasons. That process should give due deference to and attach a good deal of weight to the learned Magistrate’s view.1 The appellant must be able to demonstrate that some legal, factual or discretionary error led to the order the subject of the appeal.2 The charge [5] The appellant was charged that: “On the 2nd day of July 2019, at Southport… (he) being the driver of a vehicle… on a road… when approaching traffic arrows showing a red traffic arrow and with a stop line at the traffic arrows… failed to stop as near as practicable to but before reaching the said stop line…” [6] The charge arises under Regulation 56 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 which relevantly provides as follows: “56 Stopping on a red traffic light or arrow (1) A driver approaching or at traffic lights showing a red traffic light— (a) must stop— (i) if there is a stop line at or near the traffic lights—as near as practicable to, but before reaching, the stop line; and 1 Lee v Lee (2019) 266 CLR 129 at [55] per Bell, Gaegler, Nettle and Edelman JJ and Stevenson v Yasso [2006] 2 Qd R 150 at [36]. 2 CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ. -- 3 of 8 -- 4 (b) must not proceed until— (i) the traffic lights change to green or flashing yellow or show no traffic light; … Maximum penalty—20 penalty units.” The evidence [7] The prosecution tendered two photographs accompanied by the relevant certificates which demonstrated that the appellant failed to stop at the red traffic arrow. Those photographs demonstrated that at the time the appellant’s car reached the stop line, the traffic light had been red for 0.6 of a second and the second photograph showed the appellant’s car 1 second later having travelled past the stop line while the arrow was red. [8] The prosecution also called Stephen Kenneth Irvine who gave evidence that he was certain that the red-light camera on the date of the offence was operating correctly as it had passed its midnight self-test. He also gave evidence that he had reviewed the camera in its entirety and found that it was operating correctly throughout the whole day. [9] In the context of the appellant’s primary complaint, being that he did not have enough time to proceed safely through the intersection, and that an amber light should stay on for 4 seconds rather than 3, Mr Irvine, importantly, gave evidence that the amber light at this set of traffic signals immediately prior to Mr Cullen travelling through the red arrow, had been active for 4.01 seconds.3 Similarly, the appellant cross-examined Mr Irvine and showed him a letter received from the Queensland Police Service which stated that drivers have a minimum of 3 seconds of an amber light to stop before the light changes to red.4 Mr Irvine gave evidence that that letter was referring to traffic signals generally, rather than this particular one. He explained that the amount of seconds given on an amber light depends upon the speed limit on the road. 4 seconds is appropriate for a speed limit of 60kph. In any case, this light had been amber for 4.01 seconds as Mr Cullen approached it. 3 Transcript of proceedings, p 25, ll 30-35. 4 The letter was marked Exhibit 13. -- 4 of 8 -- 5 [10] The appellant put to Mr Irvine that the traffic lights in question normally allow 5 to 7 vehicles to pass through on a green arrow when working correctly and that on this occasion they only let 3 vehicles through before the light turned red.5 Mr Irvine responded that he saw that there was a truck in front of the appellant’s vehicle which took a while to take off. No evidence was given as to the period of time for which the lights were green. However, as I have already observed, the light had been amber for 4.01 seconds and red for 0.6 of a second prior to the appellant crossing the stop line. [11] The appellant’s evidence at trial was that there was a scam going on at the traffic lights. He explained that, at least in his view, he had been scammed once before in 2013 or 2014 at the same lights when the sensors were not working, and he had avoided using them for five or six years as a result.6 He gave evidence that he does not normally turn right at the intersection anymore due to the previously mentioned incident, however on this particular day he saw the light change to green as he was approaching and ‘believed the light would stay green for him as 5 vehicles can normally travel through the green light turning at this intersection”. The appellant also gave evidence that the vehicle in front of him in the turning lane started to brake while the light was still green and when the appellant looked up from the rear lights of the vehicle in front of him he saw that the traffic light had turned to amber.7 To the extent it has any relevance, those two matters would logically have reduced the time available for other vehicles to move through the intersection. [12] The appellant gave evidence that the sensors in the road were broken and the light changed to amber more quickly than it should have.8 His evidence was that at the time he travelled through the intersection there was a 50mm corrugation in the road which was resurfaced several weeks after the incident and that new and correctly working sensors were installed.9 The appellant tendered an email in response to his enquiry of the Department of Transport and Main Roads regarding the traffic signals which became Exhibit 15. That email provides in part as follows: 5 Transcript of proceedings, pp 27-28. 6 Transcript of proceedings, p 32, ll 1-7. 7 Transcript of proceedings, p 36, ll 1-35. 8 Transcript of proceedings, p 36, ll 1-35. 9 Transcript Day 1, pp 37-38. -- 5 of 8 -- 6 “The speed camera located at the intersection of Smith Street and Kumbari Avenue did have some maintenance work rectifying the induction loop, with a fault raised in May 2019 for our contractors to attend the site and investigate a faulty Red-Light Camera Loop. Due to unforeseen delays with a detailed design and rectifying the identified fault, TMR can confirm the Smith Street and Kumbari Avenue CDOP Detector Loops were rectified on 14 July 2020.” [13] The effect of the communication from TMR is unclear in circumstances where the maker of that statement was not available to give evidence. [14] What was clear though was that, as the appellant accepted, the light was red before he entered the intersection. His evidence was that he was focussing on the vehicle in front of him as it was braking, and he did not want to crash into the back of it. His assumption was that 5 vehicles could get through the intersection without the light turning red.10 It would be better to keep an appropriate watch on the traffic signals rather than making assumptions as to how long they ought to stay a particular colour for or how many cars ought to be able to travel through on a green light which is, of course, highly variable depending on their speed and the reaction times of their drivers. [15] It was submitted for the prosecution that little weight would be placed upon the communication from TMR in circumstances where there was no sworn evidence to the effect that the sensors or traffic lights were in fact defective at the time of the offence. To that observation, it might, in any case, be added that there was no controversy that the amber cycle of the lights was operating for the appropriate time and that all of that 4 seconds plus 0.6 of a second had elapsed before the appellant chose to enter the intersection crossing the stop line. It is apparent that the appellant’s position is that whilst he crossed the stop line while the light was red, there were mitigating circumstances.11 His position was that: “The sensors were not working properly as should be 4 seconds, not 3 for an amber. The car in front of me was braking… then when I look up light went from amber to red.”12 10 Transcript Day 1, p 40. 11 Transcript Day 1, p 2, ll 17-19. 12 Transcript p 34, ll 20-27 and Transcript p 36, ll 11-13. -- 6 of 8 -- 7 [16] Although the appellant accepted in evidence, or appeared to, that the lights were amber for 4.1 seconds, it seems that the appellant was not looking at the lights. As he said: “I assumed that 5 cars should get – I should be able to get through the intersection without getting a red light.”13 The appellant’s submissions [17] The primary submission for the appellant at trial and on appeal appears to be that he was entitled to assume a certain number of vehicles could travel through the intersection and, in essence, that the lights were required to stay green for a period of time that gave drivers a fair chance to get through the intersection. The difficulty with that submission is that it does not take into account the actions of other drivers. For example, here there was evidence that the truck at the lead of the line of cars going through the intersection took off slowly and that the car in front of Mr Cullen braked whilst negotiating the corner. [18] Also, it seems to be submitted that there was something wrong with the sensors such that the light did not stay green for long enough. There simply wasn’t any evidence at all as to how long the light stayed green. Any evidence that there was dealing with what could have been a fault with the induction work, if it in fact related to the traffic lights, rather than the red-light camera, does not deal with the issue that there was evidence that the red-light camera was working correctly and uncontradicted evidence that the light had been amber for 4.1 seconds and then red for 0.6 of a second prior to Mr Cullen crossing the stop line. The respondent’s submissions [19] The respondent submits in essence that any issue that there could be as to how long the traffic light was green for is irrelevant because it is uncontroversial that the appellant passed the white stop line after the traffic light had changed to red. Further, as the respondent submits, while the issue as to the truck taking off late is strictly irrelevant to the issues surrounding the commission of the offence, it may provide some explanation consistent with there in fact being no issue with the traffic 13 Transcript p 41, ll 1-15. -- 7 of 8 -- 8 lights at all. In other words, the combination of the truck taking off late and the car in front of the appellant braking, may have consumed most of the time that the light was green. An application for re-opening [20] The appellant applied pursuant to s 147A to re-open the proceedings in the Magistrates Court on the basis that the photographic evidence supplied by the police had been photoshopped. The learned Magistrate was right in my view to refuse the application to reopen. [21] I have considered the evidence and submissions from both parties at trial and on appeal. In my view, the learned Magistrate was perfectly entitled to accept that Mr Cullen failed to stop at the stop line on a red arrow. Even if there were an issue as to the time the light was green, and I do not accept that there was, Mr Cullen crossed the stop line about 4.7 seconds after the light changed to amber. [22] The learned Magistrate was entitled to accept that there was in the circumstances, ample opportunity for Mr Cullen to stop. [23] In those circumstances, the learned Magistrate was entitled to reach a conclusion that the elements of the offence had been established beyond reasonable doubt and accordingly find Mr Cullen guilty of the offence. I am unable to discern any error in the learned Magistrate’s approach. [24] In the circumstances, the appeal is dismissed, and the decision of the learned Magistrate confirmed. -- 8 of 8 --