Crossman v The Commissioner of Police [2015] QDC 265

DISTRICT COURT OF QUEENSLAND CITATION: Crossman v The Commissioner of Police [2015] QDC 265 PARTIES: In Appeal No 85/15: IAN NORMAN CROSSMAN (appellant) v THE COMMISSIONER OF POLICE (respondent) In Appeal No 93/15: IAN NORMAN CROSSMAN (appellant) v THE COMMISSIONER OF POLICE (respondent) FILE NO/S: APPEAL NO 85/15 and APPEAL NO 93/15 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 29 October 2015 DELIVERED AT: Cairns HEARING DATE: 21 September 2015 JUDGE: Morzone QC DCJ ORDER: In Appeal No 85/15: 1. The appellant be granted leave to appeal. 2. Appeal dismissed. In Appeal No 93/15: 3. The appellant be granted leave to appeal. 4. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – disobeying speed limit – accuracy, image or markings made by the LTI 20-20 TruCAM - photographic -- 1 of 12 -- detection device error of law – Australian Standards – certified evidence - witness credit – whether conviction unreasonable and unsupported. Legislation Justices Act 1886 (Qld), ss 222, 223 & 224 Transport Operations (Road User Management) Act 1995 (reprint current at 1 January 2013) Transport Operations (Road User Management) Act 1995 (reprint current at 1 July 2014) Transport Operations (Road User Management) Act 1995 (reprint current at 5 February 2015) Traffic Regulation 1962 (Qld) Cases Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Warren v Coombes (1979) 142 CLR 531 Whitehorn v R (1983) 152 CLR 657 Chidiac v R (1991) 171 CLR 432 Knight v R (1992) 175 CLR 495 Morris v R (1987) 163 CLR 454 COUNSEL: E Coker for the Respondent SOLICITORS: Appellant self represented The Office of Director of Public Prosecutions for the respondent [1] The appellant, who is a professional driver, unsuccessfully contested two speeding offences in the Magistrates Court, and he now appeals his convictions of 20 March 2015 (No 85/15) and 30 April 2015 (No 93/15). [2] The appellant incurred some delay in commencing the appeal by attempting to review the decision in the Magistrates Court. Those attempts were procedurally flawed and failed. [3] The appeals were heard together to facilitate consistency of submissions and consideration of some issues common to both appeals. The parties agreed that the extension of time applications should be determined as part of the respective appeals. Background [4] Each appeal involved the same model speed detection device, a Laser Technology TruCam speed camera system (model LTI 20-20). Appeal 93/15 -- 2 of 12 -- [5] In Appeal 93/15 the prosecution alleged that on 1 May 2013 the appellant was detected by a police officer operating a Laser Technology TruCam speed camera system (model LTI 20-20 serial number TC002026) travelling at 73 km/hr on the Captain Cook Highway, and thereby exceeded the speed limit of 60 km/hr. [6] The appellant contested the charge and gave the requisite notice of intention to challenge the operation or condition of the detection device. [7] The summary trial proceeded in the Magistrates Court on 28 April 2015. The trial magistrate made his decision on 30 April 2015. The appellant was convicted, fined $300 and ordered to pay costs in the amount of $87.30. Appeal 85/15 [8] In Appeal 85/15 the prosecution alleged that on 10 July 2014 the appellant was again detected by a police officer operating a Laser Technology TruCam speed camera system (model LTI 20-20 serial number TC001912) travelling at 70 km/hr on Sheridan Street in Cairns North, and thereby exceeded the speed limit of 60 km/hr. [9] The appellant again gave the requisite notice of intention to challenge the operation or condition of the detection device and the summary trial proceeded and concluded with the decision on 20 March 2015. The appellant was convicted, fined $190 and ordered to pay costs in the amount of $86.90. Mode of Hearing [10] Pursuant to section 223 of the Justices Act 1886, the appeal proceeded by way of rehearing on the original evidence given in the proceedings before the trial magistrate. [11] In addition to written outlines of argument in each appeal, the parties made oral submissions at the appeal hearing. Subsequent to the hearing, the appellant made consistent supplementary written submissions drawing my attention to documents referred to in oral submissions. [12] The appellant also attached some further material to his outlines of argument, including in Appeal 93/15 an annotated Infringement Notice, a Google Map, and three statutory declarations to the effect that it is impossible to reach 73 kph from a standing start in a distance of 182 meters labouring the engine’s capacity measured in revolutions per minute. [13] “Special grounds” are required before fresh, additional or substituted evidence (new evidence) may be admitted on appeal: s 223(2) Justices Act 1886. The discretion will generally be invoked where the new evidence: 1. Could not have been obtained with reasonable diligence for use at the hearing; 2. Would probably have an important influence on the result of the case, even though not be decisive; and 3. Must be apparently credible though not incontrovertible. [14] The appellant has not adequately explained why this evidence was not obtained with reasonable diligence for the hearing before the trial magistrate. Whilst it may be credible evidence of lay experience of others driving the vehicle, it has features which render it of an expert nature. I doubt that the additional evidence would have had any influence on the result, in the absence -- 3 of 12 -- of supporting expert evidence. Therefore, whilst I will allow the evidence, I will accord it appropriate weight. Applications for extension of time [15] Pursuant to s 222(1) of the Act, the applicant had one month after the date of the order in which to appeal. This may be extended pursuant to s 224(1)(a). [16] In R v Tait [1999] 2 Qd R 667, the Court of Appeal explained the considerations relevant to granting an extension of time at [29] as follows: “... the court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. It may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all cases the court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay it being much easier to excuse a short than a long delay.” [17] The appellant has explained the delay in the application. The appellant apparently misguided himself by applying for a “reopening” of the proceeding in the Magistrates Court. He was directed to the proper course of appeal at the first directions hearing and acted quickly as soon as he realised the true position. [18] There was no prejudice identified by the respondent and my provisional assessment was that there was some merit in the appeal and I have dealt with the appeal grounds below. [19] In my view the applicant has shown sufficient reason for the delay and has demonstrated that it would be in the interests of justice to grant the extension of time sought having regard to the issues raised in the appeals. I allow the application for leave to extend time. Grounds of Appeal [20] Fundamentally, the appellant must demonstrate some legal, factual or discretionary error. Appeal 93/15 [21] In Appeal No 93/15, the appellant appeals against the conviction on the ground that “The prosecution produced wildly conflicting evidence in the area of testing and operation of the LTI 20x20 TruCam laser based speed detection device.” [22] The appellant’s comprehensive outline of argument raised various anomalies and complaints, including: 1. The “compromised” evidence of the operating officer due to the retrospective detection site reference of 821001, which was an area along the eastern coast of Queensland which comprised some 37 sites as at 17 September 2014. 2. The absence of relevant officers to testify about imaging processing; -- 4 of 12 -- 3. Irreconcilable differences between the testimony of one witness with “extraordinary recall” and prosecution correspondence about the testing of the laser beam and the reticle in the images; 4. The “non-sense” of using different standards for testing and operation of a photographic device that was intrinsically a laser device attached to a camera. [23] It is not clear how the appellant relies upon one or a combination of these errors or defects to support his contention in the ground of appeal or otherwise give rise to a miscarriage of justice. Clearly enough the heart of the appellant’s argument was that the “reticles” depicted in the photographic images were different, inconsistent, unexplained and evidence of a “faulty” device producing “wildly” inaccurate readings Appeal 85/15 [24] In Appeal No 85/15, the appellant appeals against the conviction on the ground that “The evidence showed that the device was tested and deployed under one, nationally recognised, independent scheme and operated under another completely spate one. On that was mistakenly conceived in the mind of a solitary Policeman!” [25] The appellant’s outline of argument further elaborated with various anomalies and complaints, including: 1. The conflict in evidence given by the operating police officers in the separate trial hearings (subject of the two appeals) about the use of panning/sweeping; 2. The inaccuracy of the device due to the use of panning/sweeping contrary to the Australian Standard 4691/1; and 3. The “non-sense” of using different standards for testing and operation of a photographic device that was intrinsically a laser device attached to a camera. Photographic Detection Device [26] The proper context of the arguments in both appeals must be confined to the legal characterisation of the device. [27] The Manufacturer describes the device as “Laser Technology, Inc. TruCAM All-in-one Digital Video Camera/Laser Speed and Ranging Device.” The appellant argues that the device should be properly characterised as a laser based speed detection device, which is merely attached to a camera. The appellant takes issue with the “Political Identity” versus his “Scientific Identity” of the device. [28] Section 113A(1) of the Transport Operations (Road User Management) Act 1995 (“TORUM”), current at the time of the offences, defines a ‘photographic detection device’ as a device or system, that captures an image, of a type approved under a regulation as a photographic detection device. Regulation 208 read with Schedule 10 of the Traffic Regulation 1962 (Qld) prescribes the “LTI speed camera system model LTI 20-20 TruCAM” as an approved photographic detection device. [29] The appellant’s characterisation of the LTI 20-20 TruCAM as a laser device merely attached to a camera and his criticism that the legislative approach is “nonsense”, is rendered nugatory as a matter of law by operation of the regulation. As a matter of law the device must be treated -- 5 of 12 -- as a photographic detection device for the purposes of these appeals. This cannot be overcome by an inconsistent view of the appellant or any other witness. Challenge to Device Accuracy [30] Prior to the trial, the appellant gave the requisite notice that he intended to dispute the accuracy, image or markings made by the LTI 20-20 TruCAM photographic detection device pursuant to s 120(8) of the TORUM. The trial magistrate allowed the notice to be read with a list of questions delivered by the appellant. The appellant relied upon the need to test the laser beam in accordance with an Australian Standard. [31] It was uncontroversial that there was an Australian Standard for this device namely, AS4619- 1, and that it was in force at the time of the offence. The standard was intended to provide manufacturers with a set of minimum requirements for the design, construction, performance and marking of laser-based speed detection devices (including devices linked to an image capture system) used for law enforcement.1 [32] Section 112 of TORUM, discriminated between radio and laser based detection devices and other detection devices in relation to compliance with the Australian Standard. However, the section has been amended, and between the two offence dates. Australian Standard [33] The form of s 112 of TORUM as at 1 May 2013 (in relation to Appeal No 93/15) was: [34] The provision mandatorily required compliance with an Australian Standard when using a radar or laser-based speed detection device, but was silent about, and therefore, did not apply to, photographic detection devices including the LTI 20-20 TruCAM device. [35] The provision was subsequently amendment and by 10 July 2015 (relevant to Appeal No 85/15) sub-sec (2) was inserted which provided: “This section does not apply to a device that is a photographic detection device.” [36] It is not clear to me what mischief this amendment would meet, nor does it matter here. Whilst, the amendment makes it clear that an operating officer would not bound to comply with the relevant Australian Standard, in my view, the amendment makes little difference to the disposition of the appeals. [37] Compliance or non-compliance with the Australian Standard is not to the point. Instead, the focus should be upon the competent use of the LTI 20-20 TruCAM device, and whether some 1 Australian Standard AS 4691.1 – 2003, ss 1.1 & 1.2 112 Use of speed detection devices When using a radar speed detection device or laser-based speed detection device, a police officer must comply with— (a) the appropriate Australian Standard for using the device, as in force from time to time; or (b) if there is no appropriate Australian Standard for using the device in force at the time of the use—the manufacturer’s specifications for the device. -- 6 of 12 -- sub-standard operation caused a malfunction, supporting the appellant’s challenge to the accuracy, image or markings made by the device. This requires probative evidence, which casts doubt on the prosecution case. The provision denies the appellant of the comfort of merely relying upon the relevant Australian Standard. Evidentiary Provisions [38] To meet the Notices of Intention to Challenge or Dispute given by the appellant in relation to each appeal, the prosecution relied upon number of evidentiary certificates and delegations including a certificate of testing of the device, and a certificate of the image taken from the device pursuant to s 120(2), (2A) & (4) of the TORUM and the Traffic Regulation 1962. [39] Since they are procedural in nature, the current provisions apply to both appeals, as follows: [40] These provisions facilitate proof of the accuracy of speed camera images, the notation of date, speed, time, location and speed limit, and compliance with the operation and testing requirements for the speed camera subject of the proceeding. 120 Evidentiary provisions (1) This section applies to a proceeding for an offence involving a motor vehicle under this or another Act. (2) An image produced by the prosecution purporting to be certified by the commissioner stating that the image was properly taken by a photographic detection device at a specified location and time is evidence of the following matters— (a) the image was taken at the specified location and time; (b) the accuracy of the image; (c) the things depicted in the image; (d) any requirements prescribed by a regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times. (2A) A certificate purporting to be signed by the commissioner stating that a stated photographic detection device— (a) was tested at a stated time and in accordance with— (i) the specifications of the device’s manufacturer; and (ii) any further requirements about calibration testing prescribed under a regulation; and (b) was found to produce accurate results at the time of testing; is evidence of the matters stated and evidence the device was producing accurate results when so tested and for 1 year after the day of testing. …. (4) If an image produced under subsection (2) has a marking or writing on the image - (a) the marking or writing is taken to have been properly made by the photographic detection device; and (b) the image is also evidence of each thing in relation to the image that the marking or writing is prescribed to mean under a regulation. -- 7 of 12 -- Appeal 93/15 [41] The appellant did not seek to discredit the evidence of the operating officer in Appeal No 93/15. Indeed he remarked in his written outline of argument that his “evidence was solid and consistent with the protocols laid down for the task he performed. No amount of road side, pre or post deployment checks however would have exposed the discrepancies I have highlighted in the device”. [42] Instead, the appellant’s argument related to the laser equipment in the device and the need for calibration of laser speed measuring devices to AS 4691 in compliance with the scope of accreditation of the National Association of Testing Authorities. By doing so he indirectly challenged the accuracy of the photographic device (and the information in the image from the device) by focusing on the “reticules” (sic) depicted in the image embedded in the Infringement Notice compared with that in the certified image adduced in evidence. [43] The appellant identified this “reticule” as the red and white circular icon superimposed on the image in the vicinity of the car’s number plate. I think the appellant meant “reticle” not a “reticule”. A “reticle” is a network of fine lines, wires or the like, placed in the focus of the objective of a telescope; whereas, a “reticule” is a small purse or bag, originally of network but later of silk. [44] The appellant argued that the images depicted the icons with different diameter sizes. He equated the reticle size with the operating beam width of the device. He argued that the device did not accord with the Australian Standard, and this was unexplained by the witnesses. He submitted that the inconsistency between the two images meant - “There is no doubt that the device had undergone some catastrophic trauma of some sort and as a result was giving wildly inaccurate readings”. [45] Neither TORUM nor the regulation prescribe that the icon is or represents the actual band width of the laser beam. In my view, by virtue of s 120(2)(c) and (4) the depiction of the reticle icon in the image, is at best, a graphical representation of the aim or focal point of the device. It is not a depiction of the actual laser beam or its width as the appellant argues. [46] The certificate (Photographic Detection Device – test) dated 26 June 2014 constituted evidence that the device was tested at 14.50 on 18 October 2012 in accordance with the specification of the devices manufacturer and any further requirements about calibration testing prescribed under regulation, and was found to be producing accurate results at the time of testing. [47] Although the device was not further tested before the date of the offence on 1 May 2013, by virtue of s 120(2A) of TORUM the certified evidence was probative for 1 year after the date of testing, which included the date of the offence. [48] As to the appellant’s bare assertion that “the device had undergone some catastrophic trauma,” s 120(6) of TORUM provided that: “Evidence of the condition of the photographic detection device is not required unless evidence that the device was not in proper condition has been given.” [49] There was no credible evidence adduced to support the appellant’s bare assertion, and therefore, s 120(6) relieved the prosecution of counteracting the assertion -- 8 of 12 -- [50] The Magistrate was entitled to act on the certified evidence as uncontroverted evidence of the matters stated including the appellant’s speed. This was supported and remained uncontradicted by the testimony of the witnesses accepted by the court. [51] Three prosecution witnesses testified: 1. Senior Constable Belcher gave evidence about the operation of the device at the time of the appellant’s detection, including the pre-deployment and post-deployment checks he conducted. 2. Ms Evans, the supervisor of the Image Management Unit, explained the unit’s function, including the validation that the requisite testing was completed in the device. 3. Mr Irvine, a technical officer of the calibration laboratory in the radio and electronics section of the Queensland Police Service, described the initial tests performed in the device. [52] In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:2 “More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’” [53] Similarly, in Fox v Percy,3 Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,4 as to the correct approach of an appellate court where findings of fact based on credibility are challenged, this way: “[28] … the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (references omitted) [54] This is not an exhaustive formula. At paragraphs [29] and [30] of the decision, the judges went on to recognise that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”. [55] The appellant referred to various aspects of the oral evidence in support of his argument. 2 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 3 Fox v Percy (2003) 214 CLR 118 at [26]-[30] 4 Including Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 -- 9 of 12 -- [56] A verdict may be disturbed if the appellant shows that the trial magistrate acting reasonably ought have had a sufficient doubt to entitle the appellant to an acquittal.5 This necessitates my independent examination of the evidence, including credit of witnesses subject to what I said above,6 to make my own assessment of both the sufficiency and quality of the evidence.7 [57] The officer who operated the device gave evidence. The appellant asserted that his evidence was somehow “compromised” by the later departmental characterisation of the detection site reference of 821001, which included the area but expanded along the eastern coast of Queensland which comprised some 37 sites as at 17 September 2014. The officer gave clear and specific testimony of his location at the time of detection. The appellant was also critical of the officer’s “extraordinary recall” in the absence of the physical evidence, and also the absence of other witnesses to testify about imaging processing. Of course, the certificates constituted such evidence. Further, I see no merit in the appellant’s comparison of the testimony of the operating officer and prosecution correspondence about the testing of the laser beam and the reticle in the images. The latter was not a witness at the trial, and did not contradict the oral testimony in any event. [58] The appellant also gave evidence describing his conduct at the time of the alleged offence. However, he did not discredit the certified evidence including the data block of information contained in the image. [59] There is no meritorious reason to depart from the findings of the magistrate based on the testimony and documentary evidence. To the extent that the appellant asserted competing inferences, the trial magistrate properly drew on the corroborated certified evidence consistent with guilt, and in my view no other reasonable inference was open. [60] There was a logical and rational connection between the facts found and the trial magistrate’s deductions and conclusions. His verdict was reasonable, supported by the evidence and according to law. I must therefore dismiss the appeal against conviction in Appeal 93/15. Appeal 85/15 [61] The remaining determinative issues in Appeal 85/15 relate to the appellant’s challenge to the accuracy of the device or image due to panning or sweeping by the operating officer contrary to the Australian Standard 4691/1 and the manufacturer’s User’s Manual. [62] As I remarked above, compliance or non-compliance with the Australian Standard is not to the point ant the magistrate correctly excluded that evidence at trial. Instead, the focus should be upon the competent use of the device, and whether proven sub-standard operation was shown to cause some malfunction supporting the appellant’s challenge to the accuracy, image or markings made by the device. [63] Again, the appellant must show that the trial magistrate acting reasonably ought have had a sufficient doubt to entitle the appellant to an acquittal.8 I have independently examined the evidence, including credit of witnesses subject to what I’ve said above.9 5 Whitehorn v R (1983) 152 CLR 657 at 687 6 Chidiac v R (1991) 171 CLR 432 at 443-4 per Mason CJ, at 452-3 per Dawson J, at 459 per Gaudron J; Knight v R (1992) 175 CLR 495 at 503 per Mason CJ, Dawson and Toohey JJ 7 Morris v R (1987) 163 CLR 454 at 463-4, 466 per Mason CJ, at 473 per Deane, Toohey and Gaudron JJ, at 477-9 per Dawson J 8 Whitehorn v R (1983) 152 CLR 657 at 687 9 Chidiac v R (1991) 171 CLR 432 at 443-4 per Mason CJ, at 452-3 per Dawson J, at 459 per Gaudron J; Knight v R (1992) 175 CLR 495 at 503 per Mason CJ, Dawson and Toohey JJ -- 10 of 12 -- [64] In Appeal 85/15 two prosecution witnesses relied upon the evidence of the operator of the device, Senior Constable Kendjelic, and expert evidence of Rodney James, senior electronics technical officer employed at the radio and electronics section Calibration Laboratory in Brisbane. [65] The appellant submitted before me that the operating police officer gave evidence that he uses “panning” regularly as an operation tool as long as the devices internal alert system does not activate. In my view the appellant misconceives the evidence. In answer to the appellant’s questions, the officer gave evidence to the effect that he would first identify the target vehicle with the naked eye, then aim the device on the moving target’s number plate, and then pull the trigger when the device indicates its set.10 He also testified that he would check the clarity of the image, which the device will automatically capture, on an SD card. 11 When asked specifically about “panning” the officer explained the device’s capabilities within limits.12 The witnesses elaborated in re-examination that an image would be distorted or blurred with excessive movement.13 Whilst the officer conceded that the image was “a little blurry” he explained that the “vehicle is moving and … that’s normal”.14 [66] Mr James elaborated on this point during his cross-examination.15 He testified that the camera is normally set to focus at 60m, and that blurring would result from a shorter detection distance of 31m.16 In re-examination, the witness explained the device’s technical capabilities such that it would detect irregular panning and produce an error message. He also explained that a closer detection distance on a slight angle would result in a lower speed-reading. [67] The appellant gave evidence about “panning” based on his lay research. [68] At the appeal hearing, the appellant also asserts a conflict in evidence given by witnesses in the separate trial hearings (subject of the two appeals) about the use of panning or sweeping. He referred to the evidence of Senior Constable Belcher about the impermissibility of “panning” adduced in precursor trial of Appeal 93/15. That evidence was and is not admissible in the earlier hearing. Even if it was admissible, in my view the evidence does not contradict the evidence before the trial magistrate in Appeal 85/15. [69] It is apparent from the decision that the magistrate carefully considered all the admissible evidence. On my own independent examination of the evidence, I am satisfied that the trial magistrate act reasonably and there is a logical and rational connection between the facts found and the trial magistrate’s deductions and conclusions. There insufficient evidence to support the appellant’s proposition that the device or image it produced was inaccurate due to the use of panning/sweeping. To the extent that the appellant asserted competing inferences, the trial magistrate properly drew on the corroborated certified evidence consistent with guilt, and in my view no other reasonable inference was available. 10 Transcript 1-21/15  1-22/30 11 Transcript 1-21/40 & 1-22/17-20 12 Transcript 1-22/30-45; 1-24/18-45; 1-25/30-1-26/5 13 Transcript 1-26/351-26/15 14 Transcript 1-27/1-15 15 Transcript 1-30/1  1-31/35 16 Transcript 1-29/20-42 -- 11 of 12 -- [70] On my own assessment of both the sufficiency and quality of the evidence.17 it seems to me that the verdict was reasonable, supported by the evidence and according to law. Therefore, I must dismiss the appeal against conviction in Appeal 85/15. Conclusion [71] For these reasons, I will grant the appellant leave to appeal but I dismiss both appeals and confirm the decision of the trial magistrate. 17 Morris v R (1987) 163 CLR 454 at 463-4, 466 per Mason CJ, at 473 per Deane, Toohey and Gaudron JJ, at 477-9 per Dawson J -- 12 of 12 --