Bircsak v Hamilton [2015] QCA 282

SUPREME COURT OF QUEENSLAND CITATION: Bircsak v Hamilton [2015] QCA 282 PARTIES: BIRCSAK, John (applicant) v HAMILTON, Peter (respondent) FILE NO/S: CA No 95 of 2015 DC No 1 of 2015 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Gladstone – Unreported, 23 April 2015 DELIVERED ON: 18 December 2015 DELIVERED AT: Brisbane HEARING DATE: 4 December 2015 JUDGES: Fraser and Philippides JJA and Bond J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: The application for leave to appeal is refused. CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – OTHER MATTERS – where the applicant was charged with one count of driving a motor vehicle over the middle alcohol limit but not over the high alcohol limit – where the applicant was acquitted by the Magistrate, but that acquittal was overturned in the District Court – where the applicant appealed this decision on the basis that the charge was “fraudulent” and “based on blatant lies” – where the applicant argued that unascertained CCTV footage would support the applicant’s case – where the applicant argued that the District Court judge erred in refusing leave to lead new evidence in relation to the evidence of an unknown officer – whether leave should be granted to correct a substantial injustice District Court of Queensland Act 1967 (Qld), s 118 Traffic Regulation 1962 (Qld), s 179 Transport Operations (Road Use Management) Act 1995 (Qld), s 79, s 80 Smith v Ash [2011] 2 Qd R 175; [2010] QCA 112, cited -- 1 of 8 -- 2 COUNSEL: The applicant appeared on his own behalf S J Farnden for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent [1] FRASER JA: I agree with the reasons for judgment of Bond J and the order proposed by his Honour. [2] PHILIPPIDES JA: I have had the advantage of reading the draft reasons of Bond J. I agree with those reasons and with the order proposed. [3] BOND J: The applicant before this court was charged with one count of driving a motor vehicle over the middle alcohol limit but not over the high alcohol limit under s 79(1F)(a) of the Transport Operations (Road Use Management) Act 1995 (“the Act”). That charge was heard in the Magistrates Court on 26 November 2014. The applicant represented himself. [4] The evidence for the prosecution may be summarized in the following manner. [5] First, evidence was adduced orally from Police Acting Senior Sergeant Maloney that – (a) on 20 May 2014 when she was standing at the counter area of the Calliope police station, she saw a red car pull up near the police station; (b) shortly thereafter she observed the applicant about a metre away from the car and then observed him stumbling towards the Calliope police station; (c) when he arrived at the station and she had a conversation with him she observed a number of indicia that he was intoxicated by alcohol; (d) the applicant told her that the red car outside was his, that he had driven it to the police station, and that he had drunk a bottle of vodka; (e) she then detained him for the purpose of conducting a breath test, which she requested Police Constable Hamilton to perform; (f) Constable Hamilton performed a test using an alcometer and that test indicated that the applicant had an amount of alcohol in his system over the limit. [6] Second, evidence was adduced orally from Constable Hamilton that – (a) he observed Senior Sergeant Maloney talking to the applicant at the front counter of the Calliope police station at about 2.30 pm on 20 May 2014; (b) at the request of Senior Sergeant Maloney he conducted the initial breath test at the Calliope police station using the alcometer and then he drove the applicant to the Gladstone police station in order to obtain a further breath analysis; (c) at the Gladstone police station he conducted a notebook interview with the applicant in relation to the applicant’s consumption of liquor and where he had been driving that day; (d) at about 3.39 pm he required the applicant to provide a further specimen of breath for analysis to Senior Sergeant Jim Vogler of the Gladstone police, who then analysed the applicant’s breath using the breath analysis instrument at the Gladstone police station; -- 2 of 8 -- 3 (e) Senior Sergeant Vogler produced a breath analysis certificate to Constable Hamilton (and handed a copy to the applicant) which showed the applicant had a 0.143 breath alcohol reading; (f) Constable Hamilton then accompanied the applicant back to an interview room, issued the applicant with a notice of disqualification of his driving license and drove the applicant to his address at the Calliope Caravan Park. [7] Third, evidence was adduced by the unopposed tender during Constable Hamilton’s evidence of an extract from the notebook of Constable Hamilton which recorded the notebook interview with the applicant, including, amongst other things, that – (a) the applicant had admitted to Constable Hamilton that he had driven his vehicle to the Calliope police station on 20 May 2014; and (b) the applicant had admitted to Constable Hamilton that he had drunk a whole bottle of vodka between about 8.00 pm on 19 May 2014 and sometime after midnight on that evening. [8] Finally, evidence was adduced by the unopposed tender of the breath analysis certificate dated 20 May 2014 which Senior Sergeant Vogler had produced to Constable Hamilton, which purported to be signed by Senior Sergeant Vogler and which recorded that: (a) Senior Sergeant Vogler was authorised under the provisions of the Act to operate a breath analysing instrument; (b) on 20 May, 2014 at 3.43 pm Senior Sergeant Vogler analysed a specimen of breath of the applicant by means of the operation by Senior Sergeant Vogler of a breath analysing instrument within the meaning of the Act; (c) the instrument so operated by Senior Sergeant Vogler was a breath analysing instrument in proper working order and properly operated; (d) the concentration of alcohol in the applicant’s breath at the time was 0.143 grams of alcohol in 210 litres of breath; and (e) a copy of the certificate signed by Senior Sergeant Vogler as required by the Act was delivered by him to the applicant. [9] In his defence, the applicant gave evidence that he only had a couple of beers on the night of 19 May 2014. Under cross examination he admitted that he had told police he had drunk a bottle of vodka, but said that that statement was not true. He admitted that he had driven to the Calliope police station on 20 May 2014 at about 2.30 pm. He denied exhibiting any indicia of intoxication when he attended at the Calliope police station, although he admitted being properly given a further test at the Gladstone police station1 and admitted being given the breath analysis certificate which showed a 0.143 breath alcohol reading. [10] The Magistrate – (a) accepted the evidence of the police witnesses in respect of the indicia of intoxication which they said they observed and the carrying out of the initial breath test at Calliope police station and the subsequent breath test at Gladstone police station; and 1 Earlier, in his cross-examination of Constable Hamilton (AR 46 line 41), he had made that clear when he prefaced a question of the constable with this statement “I’m not going to argue with you the Gladstone analysis, because that is correct. What happened, happened.” -- 3 of 8 -- 4 (b) noted the applicant had not in his evidence contested in any way the functioning of the breath analysis instrument at the Gladstone police station and had not given notice of intention so to do. [11] However, the Magistrate dismissed the charge because she formed the view that the only evidence of the concentration of alcohol in the applicant’s breath was the breath analysis certificate and she determined that the certificate did not comply with s 80 of the Act. She reached this conclusion because the prosecution had not put in evidence a certificate purporting to be signed by the Commissioner of Police naming Senior Sergeant Vogler as a person authorised to operate a breath analysing instrument. In the absence of such a certificate – and despite the wording of the certificate signed by Senior Sergeant Vogler – the Magistrate concluded that she could not rely on the breath analysis certificate and, accordingly, found the breath alcohol content of the applicant had not been proved. [12] The respondent appealed to the District Court under the provisions of s 222 of the Justices Act 1886. As provided by s 223 of the Justices Act the appeal was conducted by way of rehearing on the evidence given and admitted at the original trial, although the learned District Court judge acknowledged that he retained a discretion to admit further evidence. Again the applicant represented himself. [13] The grounds for the appeal were: (a) the Magistrate erred in relation to rejecting the breath analysis certificate in the absence of a notice of challenge by the respondent under the Act; and (b) the Magistrate erred in finding that the breath analysis certificate was not admissible due to the Prosecution not providing a certificate signed by the Commissioner stating that the authorised officer was an authorised officer under the Act, as a consequence, the learned Magistrate erred at law in dismissing the charge. [14] The learned District Court judge upheld the second ground of appeal and did not find it necessary to consider the first ground. [15] His Honour’s reasoning proceeded in this way: (a) Section 80(18A) of the Act provided: “If by any provision of this section a certificate of or purporting to be signed by a health care professional, an authorised police officer or an analyst is made evidence of any matter, a certificate purporting to be signed by a health care professional, an authorised police officer or an analyst, as the case may be, as to that matter must, on its production in any proceeding, be accepted as evidence– (a) that the signature on the certificate is that of the person by whom the certificate purports to be made; and (b) of all matters contained therein including the status, authority or qualification of the person by whom the certificate purports to be made, and until the contrary is proved is conclusive such evidence.” (b) Section 179 of Traffic Regulation 1962 provided: -- 4 of 8 -- 5 “(1) In any proceedings under the Act it shall not be necessary for any police officer to produce in evidence any certificate of authority issued by the commissioner that the police officer is authorised to operate a breath analysing instrument or saliva analysing instrument and evidence by a police officer that he or she is so authorised shall be sufficient evidence of that fact until the contrary is proved. (2) If a person intends to dispute at a hearing that a particular police officer is authorised to operate a breath analysing instrument or saliva analysing instrument, the person must give the commissioner written notice of the intention at least 14 days before the day fixed for the hearing.” (c) The introductory words of s 80(18A) had been met because s 80(15G) of the Act made a certificate purporting to be signed by an authorised police officer evidence of the alcohol concentration in the respondent’s breath.2 Therefore the certificate must be accepted as evidence of all matters contained within it, including the authority of the police officer, and was conclusive evidence unless and until the contrary was proved. (d) The tender of the certificate was sufficient, by the operation of s 80(18A), to constitute evidence that Senior Sergeant Vogler was an authorised police officer. The Magistrate’s conclusion – that the absence from evidence of a certificate from the Commissioner proving the officer’s authorisation was fatal to the Prosecution case – was wrong and contrary to the legislation. [16] Having found error by the Magistrate, the learned District Court judge proceeded to consider whether the charge had been proved. [17] Before the learned District Court judge, the applicant made a confused submission founded upon the proposition that prior to Constable Hamilton conducting the breath test at the Calliope police station, Constable Hamilton had asked some other police officer to pretend to do the breath test, but that other officer, being honest, had refused to conduct a breath test on the applicant. It was after that, he submitted, that Constable Hamilton gave him the initial breath test. The District Court judge (generously to the applicant I think) interpreted this as amounting to a submission that the unknown officer’s refusal demonstrated, contrary to the evidence of the two police officers, that there was no basis reasonably to suspect that the applicant was affected by alcohol. As to this, the learned District Court judge: (a) noted that the applicant had neither advanced that claim before the Magistrate nor cross-examined either police officer to that effect; (b) concluded that to allow the applicant to advance the proposition he would need to allow the applicant to adduce fresh evidence; and (c) refused to allow such fresh evidence because it inevitably must have been evidence which was in fact known to the applicant at the time of the trial, could easily have been led, would be so inconsistent with other evidence including the breath analysis certificate as to be worthless, and there could be no potential miscarriage of justice if the evidence was not allowed. 2 Section 80(15G) of the Act provided that evidence by a copy of such a certificate purporting to be signed by an authorised police officer of the concentration of alcohol indicated to be present in the breath of a person by a breath analysing instrument operated by such authorised police officer was, subject to the possibility that a defendant might prove the contrary by evidence, conclusive evidence of the concentration of alcohol present in the breath of the person. -- 5 of 8 -- 6 [18] There was a further confused submission before the learned District Court judge that CCTV footage would somehow support the applicant’s case. The learned District Court judge correctly pointed out to the applicant that there was no evidence that there was any CCTV footage and that the applicant was merely proceeding on an assumption that such footage existed. [19] Before the learned District Court judge, the applicant had also submitted that the breath analysis certificate was “fraudulent” because he had never blown into a proper working instrument. As to this, the learned District Court judge correctly noted the submission overlooked the legislative requirements as to how any challenge could be mounted, was, in any event, inconsistent with the concession which the applicant had made before the Magistrate, and concluded that the applicant was not putting anything forward capable of constituting fresh evidence. Rather, at its highest, the applicant was indulging in unreasonable speculation. [20] The learned District Court judge found the charge proved beyond reasonable doubt based on – (a) the applicant’s admission that he had driven his vehicle on 20 May 2014 at about 2.30 pm; (b) the breath analysis certificate which by virtue of s 80 of the Act was deemed to conclusively prove that the concentration of alcohol in his breath at the time he drove was 0.143 grams of alcohol in 210 litres of breath; and (c) the fact that – just as the Magistrate did – he otherwise accepted the prosecution evidence. [21] The result was – (a) the order of the Magistrates Court dismissing the charge was set aside; (b) the applicant was found guilty of the charge; and (c) the matter was remitted to the Magistrates Court for sentence. [22] The applicant now seeks leave to appeal from the decision of the District Court pursuant to s 118(3) of the District Court Act of Queensland Act 1967. Again the applicant has represented himself. [23] The principles relevant to the power to grant leave to appeal pursuant to that section were set out by Fraser JA in Smith v Ash [2011] 2 Qd R 175 at [50] as follows: “In ACI Operations Pty Ltd v Bawden McPherson JA said that the criteria in the previous form of s 118 of the District Court of Queensland Act 1967 of an important point of law or question of general or public importance “remains a sufficient, but not a necessary, prerequisite to a grant of leave to appeal” under the present enactment. In other cases it has been said that leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected. It is to be emphasised though that, whilst the Court exercises the discretion on a principled basis and those tests provide very useful guidance, s 118(3) confers a general discretion on this Court to grant or refuse leave to appeal which is exercisable according to the nature of the case.” -- 6 of 8 -- 7 [24] The argument for leave in this case is difficult to discern. The application for leave filed by the applicant refers to – (a) “fraudulent DUI charge”; (b) “as seen on CCTV Calliope and Gladstone”; and (c) “fraudulent charge based on blatant lies by [Acting Senior Sergeant] Maloney”. [25] Prior to the hearing of the application, the applicant had provided some written submissions in the form of letters to court officers. Those letters lacked coherence, were narrative in style, did not trouble to refer to evidence, and otherwise were littered with irrelevancies. Amongst other things the applicant: (a) referred to the need to have evidence from the police officer (identified as “Andrew xxx”) “who had refused to fraudulently manufacture a DUI charge against me”; (b) referred to the need to have “the CCTV footages, that you have all seen and should be suitable shocked by”; (c) stated that it was “paramount, that this is thoroughly investigated, preferably by ASIO. I require the actual print out of analyser, and a copy of the CCTV footage from both the Calliope and Gladstone, and sergeant Andrew xxx’s testimony of the event, he was involved in”. [26] In his oral argument to this Court, the applicant – (a) referred again to the proposition3 which the learned District Court judge had not permitted him to advance, namely that at the Calliope police station Constable Hamilton had asked another officer to manufacture a fraudulent breath test but that other officer had refused; (b) referred again to the other proposition which the learned District Court judge had not permitted him to advance, namely that the breath analysing instrument at Gladstone was merely a pretense and not a real operating instrument; and (c) referred again to “CCTV footage” that he had asked people for and to which he been denied access. [27] When pressed to identify the errors which he submitted had been made by the learned District Court judge, the applicant suggested, first, that his Honour had erred by suggesting that there may not be any CCTV footage because there must have been such footage as there are CCTV cameras everywhere and, second, that his Honour had erred to ignoring the new evidence in the form of the officer who had refused to participate in manufacturing a fraudulent breath test at the Calliope police station. [28] In my view, the applicant has neither suggested nor demonstrated any reasonable argument that there was an error in the reasoning of the learned District Court judge which would justify the grant of leave to appeal to this Court. For the following reasons, there is no reason to think that an appeal is necessary to correct a substantial injustice to the applicant. [29] First, there is no evidence supporting any allegation of fraud or the proposition that Acting Senior Sergeant Maloney lied. Rather the learned District Court judge (as did 3 Which he developed by naming the officer as “Andrew Murdoch”. -- 7 of 8 -- 8 the Magistrate below) simply accepted the relevant evidence which Senior Sergeant Maloney and Constable Hamilton gave before the Magistrate. This course was open to his Honour. No error in taking that course has been identified. [30] Second, the learned District Court judge made no error in relation to the alleged CCTV footage. There was no evidence before him of the existence of such footage. Despite the applicant’s speculations from the bar table, that is still the case. [31] Third, the learned District Court judge made no error in relation to the applicant’s suggestion that an officer had refused to participate in manufacturing a fraudulent breath test at the Calliope police station. The approach his Honour took is explained at [17] above, and no arguable error in taking that course has been identified. [32] Fourth, the learned District Court judge made no error in relation to the applicant’s suggestion that the breath analysing instrument at Gladstone was merely a pretense and not a real operating instrument. The approach his Honour took is explained at [19] above, and no arguable error in taking that course has been identified. [33] The application for leave to appeal should be refused. -- 8 of 8 --