Crossing v Commissioner of Police [2015] QDC 94

DISTRICT COURT OF QUEENSLAND CITATION: Crossing v Commissioner of Police [2015] QDC 94 PARTIES: JONATHAN LESLIE CROSSING (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 4943/14 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Emerald DELIVERED ON: Ex tempore reasons given 1 May 2015 DELIVERED AT: Brisbane HEARING DATE: 1 May 2015 JUDGE: Smith DCJA ORDER: 1. The appeal is allowed. 2. The conviction is set aside. 3. The matter is remitted to the Emerald Magistrates Court for hearing by a different Magistrate. CATCHWORDS: TRAFFIC LAW- REGULATION OF TRAFFIC- REGULATION OF SPEED- Whether s24 of the Criminal Code applies Criminal Code 1899 (Q) s 24 Transport Operations (Road Use Management) Act 1995 (Q) s112 Transport Operations (Road Use Management- Road Rules) Regulation 2009 (Q) ss 20, 21, 342 Bond v the Commissioner of Police [2012] QDC Bunning v Cross (1978) 141 CLR 54 Knight v Raddie [2013] QMC 15 Maybir v Bone [2005] QCA 344 Munroe v Queensland Police Service [2007] QDC 154 -- 1 of 5 -- 2 Stevenson v Yasso [2006] 2 Qd R 150 COUNSEL: The appellant- self represented Mr. Cloake for the Respondent SOLICITORS: Self-represented for the Appellant Director of Public Prosecutions for the Respondent [1] The appellant was convicted on the 19th of November 2014 of the offence of disobeying the speed limit. He was ordered to pay a $1000 fine and $117.10 Court costs. [2] The charge against him was a charge contrary to regulation 20 of the Transport Operations (Road Use Management) Road Rules 2009 (Q). That charge read: “That on the 22nd day of July 2014 at Emerald in the Magistrates Courts district of Emerald in the State of Queensland one Jonathan Leslie Crossing, being the driver of a vehicle, namely a motor car, drove at a speed over the speed limit, namely, 60 kilometres per hour, applying to the driver for the length of road, namely, the Gregory Highway, Emerald, where the said driver was driving, and it is averred that the said motor car was a vehicle as defined in section 15 of the Transport Operations (Road Use Management) Road Rules Regulation Act 1999, and it is averred that the said Gregory Highway, Emerald was a road as defined in schedule 4 of the said Act.” [3] I note with respect to an appeal under section 222 of the Justices Act an appeal under this section is by way of rehearing on the evidence given before the Magistrate. The Court is required to conduct a real review of the trial and the learned Magistrate’s reasons. In doing so the Court should give due difference and attach a good deal of weight to the views of the learned Magistrate, but it remains for the appellate Court to draw its own conclusions on the evidence (see Stevenson v Yasso [2006] 2 Qd R 150 at 162 at paragraph 36). [4] Mr Crossing has appealed that decision. In his notice of appeal he alleges: “Biased treatment from Magistrate. The Magistrate ignored evidence showing the signage was incorrect.” [5] After considering the material I raised the issue as to whether section 24 of the Criminal Code applied in this matter. Mr Cloake on behalf of the respondent does not concede this but did not make any particular submissions as to its application. In light of the fact that Mr Crossing is unrepresented, I think it fair and reasonable that the grounds of appeal be amended to consider whether the Magistrate erred in failing to consider section 24 of the Criminal Code. [6] I have read the proceedings in the Magistrates Court in which Mr Crossing gave evidence. At T1–29, line 45 he said that the signs were poorly illuminated. Exhibit 9 and 10 were photographs which he took and which were tendered, which he said proved his assertion. Exhibit 11 was a video tape said also to prove this. In cross- examination he said he did not see the speed zone signs (T1-32), and he said that he was using his cruise control at 100 kilometres per hour. Although he did not say this in evidence, in his submissions he submitted the sign was not luminescent and he travelled that way every day for two years and the signs were not there. He, also, in -- 2 of 5 -- 3 cross-examination of Prosecution witnesses pointed out that a number of vehicles had gone through those signs at the same speed that he travelled. His case was that he did not see the speed sign and for good reason. His case was that he believed the speed limit at that point to be 100 kph. [7] On the other hand, Constable Williams gave evidence that the signs were clearly visible to him. Senior Sergeant Finlayson alleged the signs were very large. He did also say, though, at page 19, line 35 that some vehicles were not slowing down, but then later in his evidence at page 21 said that some people were complying with the signs. Sergeant Pym gave evidence as to the distance the signs were away from the centre of the pads involved, and Mr Weir, a transport inspector, produced some photographs as well. Mr Thomas, a transport inspector, also gave evidence. [8] I now turn to the law involved in such case. Section 20 of the Transport Operations (Road Use Management) Road Rules Regulation 2009 provides: “Obeying the speed limit. A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.” [9] Section 21 provides: “(1) The speed limit applying to a driver for a length of road to which a speed limit sign applies is the number of kilometres per hour indicated by the number on the sign. (2) A speed limit sign on a road applies to the length of road beginning at the sign and ending at the nearest of the following: (a) a speed limit sign on the road with a different number on the sign; (b) an end speed limit sign or speed derestriction sign on the road; (c) if the road ends at a T-intersection or dead end – the end of the road.” [10] Now, in this case it is clear on the evidence that there was a 60 kilometre speed sign at or near the pads at Theresa Creek on the Gregory Highway outside of Emerald. That does not seem to be in dispute. It is also not in dispute that Mr Crossing was travelling at or about 100 kilometres per hour. He says because he did not see the sign. The issue which is raised is whether the provisions of section 24 of the Criminal Code apply to this case. If they do, the Magistrate erred in failing to consider that section. [11] In the decision of Munroe v Queensland Police Service [2007] QDC 154 his Honour Judge Robertson determined that any mistake as to the speed on a roadway is a mistake of law, not a mistake of fact, and a mistake of law, of course, provides no defence. When his Honour decided that case section 342 of the Transport Operations (Road Use Management- Road Rules) Regulation 2009 (Q) did not contain the present subsection (4). [12] Section 342 now reads: -- 3 of 5 -- 4 “Traffic signs (except parking control signs) applying to a length of road. (1) A traffic sign (except a parking control sign) applying to a length of road and to drivers applies to a driver driving on the length of road if the driver is driving in the same direction as a driver on the road who faces the sign before passing it. (2) A traffic sign applying to a length of road and to pedestrians applies to a pedestrian travelling on the length of road if the pedestrian is travelling in the same direction as a pedestrian on the road who faces the sign before passing it. (3) The traffic sign applies to the driver or pedestrian, even though the driver or pedestrian does not pass the sign. (4) Subsections (1) to (3) do not affect the operation of the Criminal Code section 24.” [13] Subsection 342 (4) was added to the Road Rules after 2009 and after the decision in Munroe. His Honour Judge Martin SC in Bond v the Commissioner of Police [2012] QDC examined these provisions. His Honour considered Munroe’s case and the amendment and determined that Munroe by reason of the amendment to sections 342 and 343 had become obsolete. In those circumstances his Honour determined the learned Magistrate in that case had erred and in the circumstances remitted the matter for a new trial before a different Magistrate. [14] I note that an acting Magistrate in the decision of Knight v Raddie [2013] QMC 15 took a contrary view to Bond. However after having considered Bond and section 342 I am persuaded in light of the clear statement in the section that section 24 is available. [15] I am strengthened in that view by the statements made in Maybir v Bone [2005] QCA 344, although it might be said that the statements made by Jerrard JA were mere obiter in that case. [16] In the circumstances, in my respectful opinion, the learned Magistrate ought to have considered whether the Prosecution had excluded mistake of fact beyond reasonable doubt. Having read the decision of the Magistrate, his Honour did not consider that question. Mr Cloake did not contend otherwise. In the circumstances I am satisfied that a material error occurred in the conduct of the proceedings below. In those circumstances, I propose to allow the appeal. [17] The next issue is what consequential orders I should make. Section 225 of the Justices Act provides: “(1) On the hearing of an appeal, the Judge may confirm, set aside or vary the appealed order or make any other order in the matter the Judge considers just. (2) If the Judge sets aside an order, the Judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration. (3) For subsection (1), the Judge may exercise any power that could’ve been exercised by whoever made the order appealed against.” -- 4 of 5 -- 5 [18] Mr Crossing has informed me that he takes up a job in the Northern Territory shortly and he would have preferred for this Court to deal with the matter. I can understand that submission, but I cannot accede to it for a number of reasons. Firstly, it appears to me from the transcript there was an attempt made by him to tender other material. It can be seen, then, that there is further evidence which may or may not be admissible and, if admissible, might be very relevant to whether a mistake of fact occurred in this case. It is only in limited circumstances that such further evidence can be received by this court (see section 224 of the Justices Act). I note Mr Cloake has objected to exhibit A for identification, for example. [19] Secondly, I also note below there was reference to the Queensland Police Rules concerning the erection of speed signs and operation of the radar, which evidence was not tendered. It may be that those rules are relevant in any retrial, and it may be that a Magistrate rehearing the matter needs to consider questions of illegality and whether any discretion under the principles in Bunning v Cross (1978) 141 CLR 54 should be exercised (also see s 112 of the Transport Operations Road Use Management Act 1995 (Q).) I am not saying that this is raised, but it may be raised in the future. [20] Finally, and most importantly, where a case involves mistake of fact it seems to me the crucial issue is going to be how observable these signs were. The police and the transport inspectors gave evidence that they were observable. There was contrary evidence given by Mr Crossing. It seems to me that issues of credibility and reliability will be important in this regard. It would be very difficult if not impossible for a Judge to make such findings merely on transcripts. [21] In those circumstances, it seems to me in the interests of justice for this matter to be remitted to the Magistrates Court in Emerald for a retrial before a different Magistrate who can consider this question of section 24. [22] In the circumstances and for the reasons I have mentioned, my orders will be: 1. Appeal is allowed. 2. The conviction is set aside. 3. I remit this matter to the Magistrates Court at Emerald for a retrial before a different Magistrate. -- 5 of 5 --