Boulas v The Commissioner of Police [2020] QDC 162

DISTRICT COURT OF QUEENSLAND CITATION: Boulas v The Commissioner of Police [2020] QDC 162 PARTIES: JOHN BOULAS (appellant) v THE COMMISSIONER OF POLICE (respondent) FILE NO/S: D3/2020 DIVISION: Appeals PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 ORIGINATING COURT: Magistrates Court, Beenleigh DELIVERED ON: 17 July 2020 DELIVERED AT: Beenleigh HEARING DATE: 17 June 2020 JUDGE: Chowdhury DCJ ORDER: Appeal dismissed. CATCHWORDS: APPEAL – SPEEDING OFFENCE – WHETHER EVIDENCE SUFFICIENT TO SUPPORT CONVICTION SOLICITORS: The Appellant in person A Vanenn for respondent Introduction [1] On 20 January 2020, the appellant was convicted of one offence of exceeding the speed limit in a speed zone by more than 40 kilometres per hour. He was fined $1,218. [2] By way of an appeal notice filed on 17 February 2020, the appellant appeals against his conviction on the grounds that: “not enough evidence and very harsh penalty”. Relevant evidence before the Magistrate [3] Robert Francis Rea, a sergeant of police, was performing traffic duties on a marked police motorcycle on 5 April 2019. Sergeant Rea had been a traffic police officer for -- 1 of 9 -- 2 about 32 years, 30 years of which he had been on a police motorcycle. At about 8.10 pm on 5 April 2019 he was travelling westbound on the Logan Motorway at Loganlea, approaching the on ramp from Station Road. The speed limit at that section of the Logan Motorway was 100 kilometres per hour, as indicated by official traffic signs. [4] Sergeant Rea’s attention was drawn to two cars on the on ramp merging onto the highway, and he observed a motorcycle coming up from the off ramp at a fast rate of speed and overtake those two cars as they merged onto the Logan Motorway. The motorcycle was approximately 300 metres in front of him, he saw the motorcycle overtake the two cars on the on ramp and then travel in excess of the speed limit and disappear around a curve. Sergeant Rea then accelerated to catch up with the motorcycle, and when he caught sight of the appellant’s motorcycle again the distance had increased, and Sergeant Rea had to accelerate up to about 130 kilometres per hour. He then increased his speed to about 150 kilometres per hour. He was not gaining on the appellant’s motorcycle. He continued to accelerate and when he got close to the appellant’s motorcycle he activated his lights and siren in an attempt to intercept the appellant. It was at that stage he noticed that only the siren was sounding, the lights weren’t working. The appellant’s motorcycle slowed down and he caught up to it. [5] Sergeant Rea stated that the factory speedometer on the police motorcycle was “out by 8-10 per cent”, and consequently a Ballinger speedometer was fitted to the motorcycle, to provide an accurate estimate of his motorcycle speed. A certificate indicating the calibration of the Ballinger speedometer was tendered and became Exhibit 1. [6] Sergeant Rea had digital footage of part of his pursuit of the appellant’s motorcycle, and the footage became Exhibit 2. From that footage Sergeant Rea calculated that the appellant from a point of reference, which was a large toll sign, travelled 33 lane markers in 8.6 seconds. He then gave the following evidence: “The police motorcycle is distinguished with a lime green light line, and the defendant’s is distinguished by a blue line. So from that sign which you can see in the pictures, where my motorcycle at the finishing point there and you go back 37 markers, the measurement was 429.34 metres, which, over the-which covered 260 frames, which is 8.6 seconds which is the 429.34 divided by the 8.6 seconds is 49.92 metres -- 2 of 9 -- 3 per second. It gives you 49.92 metres per second, which, multiplied by the 3.6 to give you the kilometres per hour, showed my motorcycle doing 179.72, so you might as well say 180, being the average speed over that distance and which was totally consistent with, as you see, the start of the motorcycle being 171, police motorcycle 171, and 189, the average being 180. That same distance with the – for the defendant’s bike, being seven dotted lines in front of mine and, at the end, being three dotted lines still in front – that distance was 399.04 metres, which then, divided by that – he’s covered that same distance that I’ve covered. So I’ve covered 37 dots in the 8.6 seconds. He’s covered 33, which makes him 46.4 metres per second multiplied by 3.6 gives you a speed of 167.04, which averaged over that distance – so you round it down to one – say, a 167.”1 [7] In reaching his calculations, Sergeant Rea had used what’s called a “Nearmap” which is used by the Queensland Police Service, and other government departments for surveying. The Nearmap became Exhibit 3. [8] In cross-examination, Sergeant Rea said that there was only one particular toll sign that he used as the reference point to make his calculations of the appellant’s speed. Sergeant Rea conceded that the distance between each individual line marker ,ay jabe varied,2 with the standard distance being 11.57 or 11.75 metres. Sergeant Rea said that the distance between the lines didn’t matter, it was the distance measured from the starting point to the finishing point for the calculation of the speed that mattered.3 [9] In re-examination, Sergeant Rea said that he erred on the side of caution in respect of the appellant’s speed. He said that he had invited the appellant into the police station to see the digital footage, to clarify how the speed was calculated. [10] The appellant gave evidence, admitting that he was “certainly guilty of giving the bike a squirt on the on ramp, and I think at some point on the video, I said, you know it’s the only time I get to get it off – out of my system.”4 He said that he was “very anxious that night because I’d been drinking, and I think it’s evident on the video that I was very grateful because I was panicking about my blood alcohol level, so was anxious the whole time while I was with the Sergeant the night he pulled me over. I certainly don’t believe I was doing anywhere need the speeds that – like, I just can’t fathom how it’s possible to even be doing those sorts of speeds. From what I could 1 R1-22, l 25. 2 The phrase “line marker” was used to indicate the centre dotted white lines of the roadway. 3 R1-40, l 28. 4 R1-51, l 15. -- 3 of 9 -- 4 see, he caught up to me pretty quickly, it was just – it doesn’t explain how I could have been doing that sort of speed. I mean, I go past people at 10 Ks, because usually I go past people doing 15, 20 Ks under the speed limit, so I go past them doing 15, 20 Ks more than them, and I can see the different and how quickly he catches up to them. So if he’s doing – I just – I don’t understand, but all I can say is I’m guilty of giving the bike a squirt on the on ramp to 100.”5 [11] In cross-examination, the appellant agreed that the speed limit at the relevant point on the Logan Motorway was 100 kilometres per hour. He agreed that the digital footage showed him overtaking cars. He conceded that there was no emergent reason for exceeding the speed limit. In respect of Sergeant Rea’s calculations of his speed, he said: “I don’t – I’m not a – you know, that’s a little bit past my expertise with maths, so I don’t know how that’s all calculated. I’m going to take his word for it. I disagree, though, with how many lines I was ahead of him and the total distance and – like, I don’t think there has been – that is refutable. I think there’s flaws there. There has to be flaws there.”6 Reasons of the Magistrate [12] The learned Magistrate said this in the course of her reasons: “Now, the recording does form the Exhibit. Only parts of that recording were played through agreement between Mr Boulas and the Sergeant. He said – Sergeant Rea said that he issued the infringement notice electronically and that at some point he downloaded the recording to the website ortheevidence.com where it’s kept. He said he went back the next day along the same motorway portion and he saw that there was 100 kilometre per hour sign visible. Sergeant Rea then gave evidence and described parts of the video that we could see. It’s evident that the Ballinger speedometer that’s first on the screen when the video starts is marked at 171 kilometres per hour. The first five seconds of the footage are the relevant ones to the issue in dispute here whether Mr Boulas was speeding above the speed limit. I noted on the video that the higher speed that Sergeant Rea’s motorcycle reached has 191 kilometres per hour. Mr Boulas, in his conversation with the Sergeant roadside, indicated that there was no way he was doing 150 when that figure of speeding was put to him by Sergeant Rea. He said it was impossible that he was doing that speed and he indicated that he was running late. I’ll come back to that particular video in a moment. 5 R1-52, l 10. 6 R1-54, l 35. -- 4 of 9 -- 5 He also noted there was some marking – or pointing out by Sergeant Rea of a particular white light which was said to be the motorcycle tail light belonging to Mr Boulas. And I just note for the in my observations that Mr Boulas challenged that necessarily was his motorcycle tail light – that it could have been a deflector or some other light on the motorway. Sergeant Rea’s evidence, therefore, was made up of his visual observations, the matters that are caught on the body worn camera footage and, then, a third part to his evidence was this calculation that he did that was based on distance measuring. And I won’t go into the cross-examination in detail or his evidence in detail about that but, ultimately, the calculation applied by the Sergeant is set out in the record. Based on those calculations, he puts his own average speed in the particular portion of the video recording as 179 kilometres per hour and the comparable speed – average speed by the defendant within that portion of the video recording as 167 kilometres per hour. I note that Mr Boulas takes issue with a number of bases for the calculations including, for example, how the distance was measured, whether it was line markings crossed by his motorcycle or land marks on the side of the motorway. But in essence, Sergeant Rea’s evidence with respect to the calculation is put forward as proving the speed, or the average speed by Mr Boulas. I do note that that is in addition to his own observations and obviously whatever can be taken from the video – body worn camera footage.”7 [13] The learned Magistrate observed that the appellant simply disagreed with the calculation, and that it was impossible for him to travel at the speed alleged. She took into account all of the evidence, including the evidence of the appellant. She found Sergeant Rea’s evidence to be reliable and credible. She considered that he gave a clear account, was straightforward in his presentation. Sergeant Rea’s observations were consistent with the part of the recording that was played to the court, and the calculation that he provided was corroborative of his own observations. She found the appellant’s account not particularly detailed, other than a general denial that he couldn’t have reached the speed alleged. The appellant acknowledged that he didn’t check the speedometer of his motorcycle at the relevant time. [14] Ultimately, the learned Magistrate accepted the evidence of Sergeant Rea as reliable, supported by the digital footage, and that the calculations made by the Sergeant were accepted. On the actual speed, she was prepared to find that the appellant’s speed 7 R3-4 of decision. -- 5 of 9 -- 6 was at least 150 kilometres per hour, and declined to make a definitive determination on whether it was higher. [15] The finding that the appellant’s speed was at least 150 kilometres per hour had a practical consequence that he would have eight demerit points taken from his licence. The appellant was convicted and fined $1,218, which was referred to the State Penalties Enforcement Registry. Appellant’s submissions [16] The appellant’s brief outline reads as follows: “There is insufficient evidence. An officer’s recollection that was well rehearsed is not evidence. Video didn’t kick in till he was doing 171 km/h. Everything before that was not recorded. Very difficult to count the lines. X bench has H verdict from 120-150. He even memorised my number plate yet got my [indistinct] wrong in statement.” [17] In his oral submissions, the appellant said that he wasn’t contesting that he exceeded the speed limit, he was contesting that he was exceeding the speed limit by about 150 kilometres per hour. His principal contention was that Sergeant Rea’s calculations were based on a flawed foundation. In respect of the digital footage, it was not established that at the point of time relied on by Sergeant Rea the appellant was seven line markers ahead of the police motorcycle. Submissions of the respondent [18] The respondent in his outline submitted the following: “7.4 Sergeant Rea explained the counting of lane markers to the appellant in cross-examination. He said the appellant was seven lane markers in front of him at the starting point and three lane markers in front of him at the end point, which was a difference of four lane markers. Sergeant Rea subtracted four lane markers from 37 lane markers which resulted in the defendant travelling 33 lane markers. He further explained that he calculated the markers in the appellant’s favour where the appellant appeared to be between two markers. 7.5 On the basis of Sergeant Rea’s observations, the speeds captured on his body worn camera, and the time over distance calculation, the learned Magistrate was entitled to accept the evidence of Sergeant Rea and conclude his -- 6 of 9 -- 7 evidence was ‘reliable and credible’, consistent with the camera recording, and corroborated by the time over distanced calculation. 7.6 The appellant did not know see [sic] the police motorcycle behind him, he did not know what speed he was travelling at because he did not look at his speedometer but he did not believe he was travelling as fast as Sergeant Rea alleged. Her Honour found the appellant’s evidence ‘not particularly detailed’. 7.7 It was open for the learned Magistrate to find that the prosecution had proved the elements of the offence beyond reasonable doubt.” [19] In respect of the Magistrate’s finding that the appellant’s speed was at least 150 kilometres per hour, it was submitted as follows: “1.4 Given Sergeant Rea’s observations that he increased his speed to 150 kilometres per hour and was not gaining on the appellant, combined with the camera footage of Sergeant Rae’s speedometer registering speeds of between 171 kilometres per hour and 189 kilometres per hour, and the time over distance calculations which put the appellant’s average speed at 167 kilometres per hour, the learned Magistrate was entitled to make a finding of fact that the appellant’s speed was at least 150 kilometres per hour. As such, the learned Magistrate was bound to impose the infringement value of $1,218. 1.5 It was also open to her Honour to impose a disqualification period but she did not.” [20] Ultimately it was submitted by the respondent that the appeal should be dismissed. Relevant law [21] This appeal is brought to this court pursuant to s 222 Justices Act 1886 (“Justices Act”). Pursuant to s 223 of the Justices Act, the appeal is by way of re-hearing on the original evidence. The central task of an appellate Court in an appeal by way of re- hearing is not to analyse the correctness or otherwise of the decision below, although such an analysis may sometimes be helpful, it is to decide the case for itself. That will often be done by considering only the evidence admitted at first instance, subject to any question of leave to admit fresh evidence. The appellate Court must draw its own inferences from the facts established by the evidence while respecting the advantage of the court at first instance in seeing and evaluating the witnesses: Graham v Queensland Nursing Council [2009] QCA 280, per Fryberg J at [69]. -- 7 of 9 -- 8 [22] Where findings of fact depend on an assessment of conflicting evidence, it is the duty of the appellate Court to conduct a “real review” of the evidence; it is obliged to accord respect to the decision of the trial Magistrate and to bear in mind any advantage the trial court had in seeing and hearing witnesses give evidence. The appellate Court is to weigh conflicting evidence and draw its own inferences and conclusions: Fox v Percy (2003) 214 CLR 118 at 124-129. [23] On an appeal by way of re-hearing an Appellate Court can substitute its own decision based on the facts and law as they stand at the date of the decision on appeal: Teelow v Commissioner of Police [2009] QCA 84. [24] The averaging exercise done by Sergeant Rea in the court below was admissible pursuant to s 121A Transport Operations (Road Use Management) Act 1995 (“TORUM”). Relevantly, it states as follows: “(1) In a proceeding for a prescribed offence in which the speed at which a motor vehicle travelled is relevant, the prosecution may, under this section, rely on the average speed of the vehicle between 2 points on a road as evidence of the actual speed of the vehicle for the purpose of proving the offence. (2) The following provisions apply in relation to the proceeding – (a) the average speed of the vehicle calculated under this section is admissible and is evidence of the actual speed at which the vehicle travelled between the 2 points on the road; (b) the vehicle is, for the purpose of calculating the vehicle’s average speed, taken to have travelled between the 2 points on the road by means of the shortest practicable distance between the points regardless of the actual route taken between the points.” [25] The section provides a formula to allow the average speed to be calculated. Consideration [26] I have had full regard to the evidence presented in the court below. I have also watched the digital footage taken by Sergeant Rea, and I have had regard to the other exhibits. Sergeant Rea gave his evidence in a forthright manner, as evidenced by the transcript, and there is nothing raised by the appellant to create any doubt about either his credibility or reliability. The calculation of the average speed was admirably explained by Sergeant Rea, and it is supported by the independent evidence of the -- 8 of 9 -- 9 digital footage. It is not surprising that the learned Magistrate accepted that evidence, as I do. [27] I appreciate the difficulties that a self-represented litigant has in defending a charge of this nature, especially when the evidence is highly technical. It was clear at times that the appellant struggled to comprehend the calculation exercise, which is understandable. On the evidence it was clearly open to the learned Magistrate to reach the conclusion that the appellant travelled on the relevant roadway at, at least 150 kilometres per hour, and I reached the same conclusion after a complete review of the evidence. Therefore in my view, the appellant was rightly convicted, and the appeal is dismissed. [28] Appropriately the respondent does not seek any order for costs, and there will be no further order other than the dismissal of the appeal. -- 9 of 9 --