Crossman v Queensland Police Service [2019] QDC 132

DISTRICT COURT OF QUEENSLAND CITATION: Crossman v Queensland Police Service [2019] QDC 132 PARTIES: IAN NORMAN CROSSMAN (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO: 61/19 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Mossman DELIVERED ON: 29 July 2019 (ex tempore) DELIVERED AT: Cairns HEARING DATE: 29 July 2019 JUDGE: Fantin DCJ ORDER: 1. Appeal dismissed. 2. The appellant pay the respondent’s costs of the appeal fixed in the sum of $1800 to be paid to the Registrar of the District Court at Cairns within 90 days of today, to be paid over by the Registrar to the respondent. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST CONVICTION – where the appellant was convicted of exceeding the speed limit pursuant to the Transport Operations (Road Use Management) Act 1995 (Qld) – where the appellant was fined $243 and ordered to pay costs of $128.90 and a conviction recorded – where the Magistrate disallowed the appellant’s challenge to an evidentiary certificate under the Transport Operation (Road Use Management) Act 1995 (Qld) Legislation Justices Act 1886 (Qld) s 222, s 223, s 226, s 232A Justices Regulation 2014 (Qld) Schedule 2 Transport Operations (Road Use Management) Act 1995 (Qld) s 124 Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s 20 Cases McDonald v Queensland Police Service [2018] 2 Qd R 612 White v Commissioner of Police [2014] QCA 121 -- 1 of 11 -- 2 SOLICITORS: The appellant appeared on his own behalf The Office of the Director of Public Prosecutions for the respondent (T Hancock) HER HONOUR: The appellant is a mature man employed as a professional driver. At about 6.40 am on 23 December 2016, he was detected driving along Port Douglas Road, Port Douglas, at a speed of 73 kilometres per hour in a 60 kilometre per hour zone, contrary to section 20 of the Transport Operations (Road Use Management – Road Rules) 5 Regulation 2009 (Qld). The appellant was issued with an infringement notice. He elected to go to trial. He pleaded not guilty. After a summary trial in the Magistrates Court at Mossman before Magistrate Browne on 29 March 2019, the appellant was convicted of the charge. He was fined $243 and 10 ordered to pay costs of $128.90. A conviction was recorded. No period of disqualification from driving was imposed. The appellant appeals against his conviction but not his sentence. 15 For the reasons that follow, I would dismiss the appeal. The appeal is pursuant to section 222 of the Justices Act 1886 (Qld) and is by way of rehearing on the record, there being no application to adduce new evidence pursuant to section 223. 20 On such an appeal, it is necessary for this Court to conduct a real review of the evidence before it and make up its own mind about the case, particularly paying due regard to the advantage that the Magistrate had in seeing and hearing the witnesses give evidence and in being conscious of the atmosphere of the trial generally: see McDonald v Queensland 25 Police Service [2018] 2 Qd R 612 at 47 and the cases referred to in it. In doing so, the Court ought give due deference and attach a good deal of weight to the Magistrate’s view: see White v Commissioner of Police [2014] QCA 121 at paragraphs 5 to 8. The onus is on the appellant to show that there was some error in the decision. 30 A verdict may be disturbed if the appellant shows that the Magistrate, acting reasonably, ought to have had sufficient doubt to entitle the appellant to an acquittal. This necessitates my independent examination of the evidence, including the evidence of the credit of witnesses, subject to what I have said above, and to make my own assessment of both the 35 sufficiency and quality of the evidence. The appellant appeared on his own behalf before the Magistrate and on appeal. He is an experienced litigant. He has appeared on his own behalf in several summary trials in the Magistrates Court, in several appeals to this Court, and in the Court of Appeal, seeking 40 to challenge speeding fines. He is very familiar with Court procedure. His notice of appeal raised a single ground of appeal. It was: That a challenge to the certificate does not require “notice” to be given unlike “the 45 device”. S124(5)abc TORUM. -- 2 of 11 -- 3 This was expanded upon in his written outline of argument and in oral submissions. The appellant’s primary argument is that he was not given an opportunity to challenge an evidentiary certificate under the Transport Operation (Road Use Management) Act 1995 (Qld) (the TORUM Act). 5 The appellant submits that the Magistrate erred in disallowing his challenge to the certificate for a radar speed detection device test, issued pursuant to section 124(1)(pa) of the TORUM Act. Chapter 5, “Road use”, Part 8, “Proceedings and evidence”, section 124(1) of the 10 TORUM Act is headed, “Facilitation of proof”. It states, relevantly, under subsection (pa): a certificate purporting to be signed by the commissioner and stating a particular stated … radar speed detection device– 15 (i) was tested at a stated time in accordance with– (A) the appropriate Australian Standard for testing the device, as in force on the day of testing; or (B) if there is no appropriate Australian Standard for testing the device in force on the day of testing–the manufacturer’s specifications; and 20 (ii) was found to produce accurate results at the time of testing; is evidence that the device was producing accurate results when so tested and for 1 year after the day of testing; 25 The certificate tendered by the prosecutor as exhibit 2 was in accordance with that section. It was a certificate under section 124(1)(pa) by Senior Sergeant Preben Farbaek of the Cairns Road Policing Unit, an authorised delegate of the Commissioner of Police. In the certificate, he stated that a particular stated radar speed detection device (mobile radar) serial number 34456, was tested at a particular laboratory on 7 July 2016 in 30 accordance with there being no appropriate Australian Standard for testing the device in force on the day of testing the manufacturer’s specifications, and was found to produce accurate results at the time of testing. The certificate was dated 6 July 2017. This offence allegedly occurred on 23 December 2016. 35 The presumption arising from that section is that the device was producing accurate results on the date of the alleged offence, being within one year after the day of testing. Notice must be given if a defendant intends to challenge the accuracy of a speed detection device, or the time at, or way in, which the relevant device was used. Subsections 124(4) 40 and (5) of the TORUM Act provide relevantly, as follows: (4) A defendant who intends to challenge– (a) the accuracy of a speed detection device … for which a certificate is given under subsection (1); or 45 (b) the time at, or way in, which the relevant device was used; -- 3 of 11 -- 4 at the hearing and determination of a charge against the defendant under this Act must give written notice of the challenge to the prosecution. Subsection (5) of section 124 requires that the notice be in the approved form, be signed by the defendant, and: 5 (b) state the grounds on which the defendant intends to rely to challenge a matter mentioned in subsection (4)(a) or (b); and (c) be given at least 14 days before the day fixed for the hearing. 10 The effect of those sections is that the certificate ultimately tendered as exhibit 2 was prima facie proof of its contents. Subject to notice being given by the appellant of an intention to challenge the certificate, it could be challenged and disproved. Here, the appellant did, in fact, provide notice of his intention to challenge “the time at, 15 or way in which, the radar or laser speed detection device was used.” The basis of the challenge, as identified by him in the notice of intention to challenge, was the “way in which the radar was used.” 20 The Crown accepts that the appellant’s notice of intention to challenge was given within the time required by section 124(5). There was no challenge to the validity of the appellant’s notice of intention to challenge. In the appellant’s outline of argument, in developing his argument he suggested that the 25 section had the effect of reversing the onus and that the proceedings were carried out under a reverse onus. That is not so. The certificates tendered, as I have said, are merely prima facie evidence of their contents. Subject to notice being given of an intention to challenge them, they can be challenged and disproved. 30 The appellant’s outline of argument also complains about a procedural matter. The appellant points to the fact that the evidentiary certificates were not tendered by the prosecution during its opening at the start of the summary trial. He also suggests the documents were not admitted as exhibits. This argument was developed in oral submissions. The appellant said he could not remember the certificates being tendered. 35 His recollection is incorrect. The transcript shows that all of the evidentiary certificates, as well as the relevant instruments of delegation, were tendered by the prosecutor at first instance, during the course of the evidence of the police witnesses: see transcript 1-15, where exhibit 1 was tendered; transcript 1-25, where exhibit 2 was tendered; transcript 40 1-26, where exhibits 3, 4 and 5 were tendered; and transcript 1-39, where exhibit 6 was tendered by the defendant. In his outline of argument, the appellant also submitted that he intended at trial to challenge the legitimacy of the certificate in exhibit 2 but was not permitted an 45 opportunity to do so. At the start of the trial, the Magistrate outlined and explained a number of matters to the appellant. They included the appellant’s role in the matter, how the trial would proceed, cross-examination, the rule in Browne v Dunn, the limits of re-examination, the nature of 50 -- 4 of 11 -- 5 a no case application, the appellant’s right to call evidence and the effect that would have on the order of closing addresses, character evidence, the purpose of closing addresses, general court etiquette, and the nature and process of objections: see transcript 1-3, line 27, to transcript 1-7, line 25. There is nothing in the transcript to suggest that the appellant did not understand any of the matters raised by the Magistrate. 5 The process adopted at the trial was this. The prosecution first called Senior Constable Haberland. His evidence is summarised at paragraph 10.1 of the respondent’s outline of argument. 10 He gave evidence that he was qualified to use the relevant mobile radar device and had the appropriate delegation. The delegations were admitted as exhibits 4 and 5. His evidence was that on the morning in question, he was tasked, along with Constable Marinas, to conduct traffic enforcement in the Port Douglas area. That morning he conducted a number of checks, which confirmed that the mobile radar device was 15 operating correctly. He said that the road in question was an ideal environment for the operation of the radar, because it was a wide road with one lane in either direction and there were few man-made sources of interference. He said he had been patrolling the road for about 40 minutes before seeing a sedan and a van approaching. He saw that the distance between the van and the sedan was closing, leading him to think that the van was 20 travelling faster than the sedan. He activated the radar and obtained the speed of the sedan, which was the vehicle in front. It was travelling under the speed limit. He deactivated the radar, waited for the sedan to pass, reactivated the radar and captured the van travelling at 73 kilometres an hour. 25 He effected a U-turn within seconds of identifying the speeding van, activated his lights and sirens. The appellant pulled the van over in a safe location. Haberland spoke to the appellant about the speed he was detected at and issued him with an infringement notice. The appellant was intercepted in a 60 kilometre per hour zone. There were no difficulties with signage in the area. Upon returning to the station Haberland conducted the same 30 series of tests as at the beginning of the shift. The device passed them all. In addition to exhibit 2, the evidentiary certificate for radar detection speed detection device-test, the prosecution submitted the usual evidentiary certificates with respect to a factory-fitted digital speedometer (exhibit 1), a radar speed detection-used (exhibit 3), 35 and two instruments of delegation (exhibits 4 and 5). No challenge was made to those exhibits. The appellant cross-examined Haberland. I will say more about that later. 40 The prosecution then called Constable Marinas, who gave evidence consistent with Haberland. The appellant also cross-examined Marinas. There was no real challenge to that evidence given. At the conclusion of Marinas’s evidence, the prosecution closed its case. 45 The appellant then gave evidence. He said that he thought the police had captured another vehicle speeding. That evidence was consistent with his argument on appeal, which was that the capture was not of his vehicle. He said that the capture must have been of the vehicle in front, and it could not have been him. He said he was surprised when he pulled 50 -- 5 of 11 -- 6 over to let the police car past, that they had pulled over as well. The appellant did not assert that he was not speeding, nor did he offer an exculpatory evidence. When cross-examined, the appellant confirmed that he knew the speed limit was 60 kilometres per hour and that he had no emergency on that day. He disputed that it was 5 possible that he was travelling 73 kilometres an hour. He conceded that he did not know when the police vehicle detected his speed. The trial ended at 12.30 pm. The Magistrate delivered his decision at 1.30 pm. His reasons comprise nine pages. They include the appellant’s submissions on sentence. 10 The Magistrate referred to the evidence in detail. He made findings of fact. At page 4, with respect to exhibit 2, he found: that the laser-based speed detection device was tested correctly and that that testing 15 occurred on the 7th of July 2016. At pages 5 - 6 of his decision, the Magistrate said: I make the following finding of fact. In respect of the evidence of the two officers, 20 I accept their evidence. They stood up to cross-examination. Their evidence was largely consistent about the events on this day. The certificate that the defendant prepared and gave to the prosecution that he would challenge the use of the device, I find that there was no evidence elicited…that challenged the use of the device in the circumstances. Therefore, the Court can act on the speed readings that were 25 provided by the device and witnessed by the two police officers who gave evidence about the speed indicated on the device at that time. I therefore find that at about 6.40 am, Port Douglas Road, the defendant was the driver of the vehicle that was travelling at 73 kilometres per hour and that the lawful speed at the time was 60 kilometres per hour. The evidence establishes… that the maximum speed was 60 30 kilometres. And therefore I find that the charge is proven beyond reasonable doubt, and I find the defendant guilty of the charge. I turn, now, to consider the ground that the appellant was not given the opportunity to challenge the certificate in exhibit 2. When one considers the transcript of the hearing, it 35 is clear that this ground is not established. That is because there was a lengthy exchange between the Magistrate and the appellant about the notice of intention to challenge, and the appellant was given every opportunity to challenge the evidentiary certificate in the way foreshadowed in his notice of intention to challenge. 40 In the exchange, which occurs at transcript 1-15 to 1-26, the Magistrate sought to clarify precisely what the basis of the appellant’s challenge was. I will not refer to all of that discussion. Nonetheless, I have taken it into account. The effect of that exchange was that, when the prosecutor first sought to tender the 45 evidentiary certificate, the appellant made it clear that he intended to challenge that certificate. The Magistrate was provided with, or shown by the prosecutor, the notice of intention to challenge, provided by the appellant. It stated that he intended to challenge: the time at, or way in which, the radar or laser speed detection device was used. 50 -- 6 of 11 -- 7 It stated that the ground for challenge was the: way in which the radar was used. 5 In response to questions from the Magistrate, the appellant made it clear that he did not intend to challenge the device itself. He said that no expert evidence was required. He confirmed that he was challenging how the device had been used. He said he would do so on the basis of what the officers had produced themselves in their affidavits. The appellant said he did not have any problems with the machine itself, so no experts were 10 required. The appellant did say he sought to challenge the legitimacy of the certificate and its reference to there being no appropriate Australian Standards, on the basis that there are appropriate Australian Standards. 15 He had not filed any notice of intention to challenge the device itself. The Magistrate permitted the appellant to cross-examine the police witnesses about the way in which the device was used and the use of the device generally. The appellant 20 accepted that ruling: see transcript 1-24. The appellant then cross-examined Haberland at length about the way in which the device was used. That occurred at transcript 1-28 to 1-39. The thrust of the appellant’s cross- examination was that because there had been another car in front of the appellant’s car, 25 the capture on the device was not of the appellant’s car, but rather, the car in front. He argued that it could not have been his car travelling at the captured speed. Haberland rejected those suggestions. At transcript 1-29, Haberland gave the following evidence: 30 At the time of the detection, of your vehicle, there was no vehicle in front of you. The initial detection picked up a sedan in front of you… the device was deactivated and then when your vehicle was detected there was a clear view between me, and my vehicle, and your vehicle. So at that time, at the time of the detection there was 35 … After the other car’s gone past? Correct. 40 So you waited until the other car went past? Yes. 45 Before you activated your…antenna? Yes. At transcript 1-34, Haberland gave this evidence: 50 -- 7 of 11 -- 8 When I activated the antenna for the oncoming vehicle it was almost in front of me. It was very close, probably, 50 metres away. It was a very brief activation. I activated…because I was waiting for your car to come into line of sight, okay. So there’s the two vehicles approaching. You can see your car getting closer and closer. I activated the antenna…the radar device. It picked up a speed which 5 clearly, in my opinion, did not relate to the speed of…your oncoming vehicle. It was the one in front…if you’re aware of how the radar works…it’s kind of like if you have…two different sized items, if you put them next to each other they’re very much the same if I put the smaller item closer to you and this one further away this one appears bigger so, as the first car’s approaching this one is taking up the radar 10 beam and…I’m getting a reading from this car. So I waited for this one to go past me, switched off the radar and then in that point yours is the only vehicle coming along, activated the beam again and detected the only vehicle in my field of vision at the time which was your vehicle. 15 At transcript 1-37, the appellant asked this question: if it’s facing – if it’s 12 degrees, as you say, and you push the button to activate your antenna as soon as the car passed what distance, would you say, that it was – was starting to pick up the vehicle if it was correctly mounted? 20 Answer: it can pick up any vehicle that you can see. If it’s in your field of vision it will pick up the vehicle. 25 At transcript 1-38, the appellant asked: would you be able to activate and get a reading from depressing the antenna button in under 1.2 seconds? 30 Answer: Yes. 35 Haberland was re-examined. In his re-examination this exchange occurred: in my opinion, the…Port Douglas Road is as perfect conditions as you can get for mobile radar. It’s one lane in each direction. No interference from man-made objects along the side of the road. So…if you see a vehicle, obviously, you need to 40 see the vehicle before you can ascertain that it’s one that you want to detect. Once you see the vehicle…you activate the antenna. So the antenna then shoots a beam of radar energy forward at a set frequency and that travels at the speed of light. It gets reflected back off of surfaces in front of it and the antenna – due to the doppler effect…the wavelength shifts and the tone changes…the frequency of…the wave 45 changes. The device uses its in-built calculations to determine the difference in frequency and therefore displays a speed… -- 8 of 11 -- 9 So just confirming, when you did the detection on the sedan in front of the defendant’s vehicle? Yes. 5 When you deactivate the antenna what happens to the screen on your radar? The screen clears. The screen clears. All that remains is the mode selective which is the two arrows in opposite directions depicting opposite moving mode. 10 … And clarifying the radar can’t pick up two cars at once? Look…it reflects the largest target in your field of vision hence…you know the 15 diagram with the bible. So at that particular time there was only one vehicle oncoming, which was a fairly large van – Hyundai van – and that was the signal being reflected because there was nothing else to reflect at that time. There were…everything correlated, there were no errors, the patrol speed correlated with the displayed patrol speed on the speedo…there was nothing to suggest anything 20 other than a textbook detection. And just to clarify, you observed the vehicle first? Yes. 25 And it approaching the vehicle in front and that is why you targeted that vehicle? Yes. I couldn’t get a reading first of all because…the sedan was blocking it. Once that sedan had passed and was gone from my field of vision I activated the antenna 30 and the reading is almost instantaneous when it comes up. In conclusion, it is clear from the transcript that the appellant gave notice that he intended to challenge the evidentiary certificate, that became exhibit 2, on the basis of the way in which the device was used. It is also clear that the appellant did, in fact, have every 35 opportunity to challenge that certificate. He did so by cross-examining the witness. He gave evidence himself. He tendered one document. He did not, however, call any expert or other evidence which would put in doubt the factual evidence given by the police officers. 40 The evidence of Haberland, combined with the various certificates, established a number of matters. First, that the relevant device was accurate at the time of the offence. Second, that Haberland used the device to capture the offence. Third, that the appellant was driving in a 60 kilometre zone. And, fourth, that the appellant was travelling at 73 45 kilometres an hour. The Magistrate was entitled to find that the appellant committed the offence. Nothing raised by the appellant in cross-examination, or in his own evidence, was capable of raising any reasonable doubt as to his guilt. 50 -- 9 of 11 -- 10 For completeness, I record that the appellant’s submissions in relation to the relevant Australian Standards were appropriately disregarded by the Magistrate in his decision on the basis that his notice of intention to challenge did not extend beyond the use of the device. 5 More importantly, the appellant did not lead any evidence to make good his submission that there were appropriate Australian Standards for testing the device in force on the day of testing. In conclusion, I am satisfied that the Magistrate acted reasonably and that there was a 10 logical and rational connection between the facts found and his conclusions. There was evidence from the police officers about the testing and use of the mobile radar device. There was no effective challenge to those matters stated in the certificates. None of the matters raised in cross-examination amounted to an effective challenge to the certificates or raised any reasonable doubt about those matters. 15 It follows that the appellant has failed to establish a legal, factual, or discretionary error by the Magistrate. On my own assessment of the sufficiency and quality of the evidence, I would have 20 reached the same conclusion as the Magistrate. The appeal against conviction is dismissed. Pursuant to section 226 of the Justices Act 1886 (Qld), the Court may on appeal make 25 such order as to costs as the Court may think just. Here, the respondent seeks an order that the appellant pay its scale costs of the appeal, calculated in accordance with section 232A(1) of the Justices Act 1886 (Qld) and Schedule 2, part 1(4), and part 2(1) of the Justices Regulation 2014 (Qld). It seeks costs 30 in the sum of $1800. That amount is properly claimable. Under section 226, I have a broad discretion with respect to the costs of the appeal. The discretion to award costs must be exercised judicially. That is, the Court cannot act arbitrarily, or upon the ground of some misconduct wholly unconnected with the appeal, 35 or of some prejudice. A cost is to be allowed only to the extent to which incurring the cost was necessary or proper to achieve justice, or to defend the rights of the party, or the cost was not incurred by overcaution, negligence, mistake, or merely at the wish of the party: see Schedule 2, 40 section 3 of the Justices Regulation 2014 (Qld). The appellant opposed an order for costs on the basis that he advanced an arguable point and his appeal had merit, notwithstanding that it may have been unsuccessful. He said that a person should be able to challenge an evidentiary certificate and that his appeals 45 have caused a change in policing practices. The submission that a person should be able to challenge a certificate may be accepted. There was no evidence to support the submission about a change in policing practices. -- 10 of 11 -- 11 There is a statutory mechanism to give notice of a challenge to evidentiary certificates. But it is incumbent upon a party seeking to challenge an evidentiary certificate to do so by cross examination or adducing admissible evidence. Here, no evidence was adduced by the appellant to challenge the certificate, other than evidence given on his own behalf. It did not have that effect. As I have already said, his cross-examination of the police 5 witnesses was not sufficient to raise any reasonable doubt about the certificate. Costs are not awarded to punish an unsuccessful party. They are to compensate a successful party against its costs reasonably incurred in resisting an appeal. Here, there was no conduct by the respondent disentitling it to costs. 10 The appellant was unsuccessful on appeal. The ground raised by him had no merit. The appeal did not raise any relevant issue of public interest. The fact that the appellant elected to represent himself does not shield him from exposure 15 to a costs order. I am satisfied that the respondent’s costs of instructing on, preparing for, and attending the hearing of the appeal were necessary and proper. There is no reason why the respondent should not have its costs of the appeal. 20 I am satisfied that it is appropriate to exercise my discretion to order that the appellant pay the respondent’s costs of the appeal fixed in the sum sought of $1800. Pursuant to section 232(1) of the Justices Act, I must direct that such costs be paid to the 25 Registrar, to be paid over to the respondent, and state the time within which the costs are to be paid. There is no suggestion that the appellant is impecunious. He is employed. No submission has been made that he will have difficulty complying with a costs order. In the 30 circumstances, I am of the view that the costs ought to be paid to the Registrar within 90 days. The orders are these. The appeal is dismissed. The appellant is to pay the respondent’s costs of the appeal, fixed at $1800, to be paid to the Registrar of the District Court at 35 Cairns within 90 days from today, to be paid over by the Registrar to the respondent. -- 11 of 11 --