Benjamin v Commissioner of Police [2014] QDC 287

DISTRICT COURT OF QUEENSLAND CITATION: Benjamin v Commissioner of Police [2014] QDC 287 PARTIES: PHILIP SIMON BENJAMIN (appellant) v COMMISSIONER OF POLICE (respondent) FILE NOS: 129/14 DIVISION: Appellate PROCEEDING: Appeal under section 222 of Justices Act 1886 ORIGINATING COURT: Maroochydore District Court DELIVERED ON: 5 December 2014 DELIVERED AT: Maroochydore HEARING DATE: 5 December 2014 JUDGE: Judge J M Robertson ORDER: Appeal allowed and orders made by Magistrate on 25 July 2014 set aside CATCHWORDS: APPEAL – PRACTICE AND PROCEDURE – WHEN APPEAL LIES – where the applicant appeared in the Magistrates Court charged by way of complaint that he breached section 57(2) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 – for failing to stop where practicable to do so at for a yellow traffic light or arrow – where Magistrate impermissibly had regard to a letter written by the appellant to the Court which was not part of evidence; where Magistrate did not amend pursuant to s 48 Justices Act 1886; where prosecution case was that appellant went through a yellow light but charge alleged he proceeded against a yellow arrow; where appellant’s case was that Police were not truthful; where Magistrate refused the appellant an adjournment to enable him to call an expert whose evidence potentially could undermine the evidence of police; where appellants’ rights were not adequately explained; where appellant’s evidence was proof of commission of another offence under the Road Rules; where Magistrate erred in proceeding without amending and where prosecutor withdrew application to amend and did not renew it; where this Court has power to amend; whether it is “in the interests of justice” to do so on appeal -- 1 of 10 -- 2 COUNSEL: No legal representation for the Appellant M. Gawrych for the Respondent Legislation: Justices Act 1886 Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) Cases Considered: Mbuzi v Torcetti [2008] QCA 231 [1] On the 25th of July 2014, in the Maroochydore Magistrates Court, the appellant, Philip Simon Benjamin, was convicted of a breach of the Road Rules and was fined $330 and Court costs of $87.20 were ordered to be paid, making a total of $417.20. That order came at the conclusion of a short trial that commenced that morning before his Honour. [2] Mr Benjamin was before the Court on a complaint made on the 6th of February 2014 that: On the 14th day of December 2013 at Coolum Beach ... (he) being the driver of a vehicle, namely a car, on a road, namely Beach Road, Coolum Beach, approaching traffic arrows showing a yellow traffic arrow with a stop line at the traffic arrows and who was turning in the direction indicated by the arrow and could stop safely before reaching the stop line failed to stop as near as practicable to, and before reaching, the said stop light... [3] This was alleged to be a breach of section 57(2) of the Transport Operations (Road Use Management - Road Rules) Regulation 2009 (the Road Rules). Section 57 of the Road Rules is in the following terms: 57 Stopping for a yellow traffic light or arrow (1) A driver who is approaching, or at, traffic lights showing a yellow traffic light – (a) must stop - (i) if there is a stop line at or near the traffic lights and the driver can stop safely before reaching the stop line - as near as practicable to, and before reaching, the stop line; or (ii) if there is no stop line at or near the traffic lights and the driver can stop safely before reaching the traffic lights - as near as practicable to, and before reaching, the nearest traffic lights; or -- 2 of 10 -- 3 (iii) if the traffic lights are at an intersection and the driver cannot stop safely under subparagraph (i) or (ii), but can stop safely before entering the intersection - before entering the intersection; and (b) must not proceed until the traffic lights - (i) change to green or flashing yellow; or (ii) show no traffic light. Maximum penalty - 20 penalty units. (2) A driver who is approaching, or at, traffic arrows showing a yellow traffic arrow, and turning in the direction indicated by the arrow - (a) must stop - (i) if there is a stop line at or near the traffic arrows and the driver can stop safely before reaching the stop line - as near as practicable to, and before reaching, the stop line; or (ii) if there is no stop line at or near the traffic arrows and the driver can stop safely before reaching the traffic arrows - as near as practicable to and, before reaching, the nearest traffic arrows; or (iii) if the traffic arrows are at an intersection and the driver cannot stop safely under subparagraph little (i) or (ii), but can stop safely before entering the intersection - before entering the intersection; and (b) must not proceed until the traffic arrows - (i) change to green or flashing yellow; or (ii) show no traffic arrow. [4] The trial commenced at 9.50 am. Mr Benjamin was self-represented and the complainant was represented by Sergeant Nitschke of the Police Prosecution Corps. At the outset Sergeant Nitschke made application to his Honour to amend the complaint pursuant to section 48 of the Justices Act 1886 to allege, in effect, a section 57(1) offence. His Honour informed Mr Benjamin that he had power to make the amendment but he correctly informed him that it was his right to object to the amendments pursuant to section 48(d). [5] From the outset the Police Prosecutor argued that the amendment was necessary because the actual police witnesses were not the police who issued the summons and: …the evidence of the police will be that it was a yellow traffic light -- 3 of 10 -- 4 [6] Quite perceptively, Mr Benjamin said at the outset, by reference to the brief of evidence that he'd received, that there were a: …string of errors which makes, in a sense, for a lay person, the whole procedure from the police side very confusing [7] His Honour said this: I can amend the charge, but if you want an adjournment, I think the differences are significant enough that you could ask for an adjournment, and I would be bound to grant it under section 49. [8] Mr Benjamin asked if he could have a discussion with the Prosecutor before making a decision as to whether he would object to or consent to the amendment. Sergeant Nitschke, before the adjournment, referred his Honour to Mbuzi, v Torcetti, [2008] QCA 231 which as a reference to some passages in the judgment of Fraser JA, to which Mr Gawrych has referred me on appeal, dealing with the similarity between a charge under 57(1) and a charge under 57(2). [9] At transcript 1-7, line 21 to 27, his Honour raised a matter to which I have referred in discussion with Mr Gawrych and Mr Benjamin this morning. He said to the Prosecutor: You're asking for an amendment, and I'm only dealing with the amendment, and the amendment effectively changes, in my view - and I'll say this now, that the amendment that is sought changes the nature of the allegations being brought against Mr Benjamin. He has raised this very issue. That is, in fact, his defence, as I understand it, that he may or may not - I'm not going to pre-empt anything - have committed a different offence, but the way this offence has been described doesn't fit with the facts. [10] Earlier at 1-6, line 14, his Honour had obliquely referred to a similar matter. He said: I understand very clearly now what you're saying, and I don't want you to make any further admissions, although I think you've made a number of admissions already... [11] The defendant said: May I say that the admission I made was to a trivial offence... [12] I infer that in both those passages his Honour was impermissibly referring to a letter on the Court file from Mr Benjamin, received by the Court on the 18th of March 2014, which effectively was a request that the matter be dismissed. In that letter he wrote: The incident in question occurred when I decided to visit an ATM on my way home from work at 11 pm, after a busy, stressful and tiring shift in the acute psychiatric ward of Nambour General Hospital, on the evening of 14th of December. I drove east to the corner of Beach Road and David Low Way, Coolum Beach, and stopped at the red traffic signal there. On noticing that the green light for traffic on David Low Way had turned amber, I edged forward towards the intersection and was able to see clearly that there were no cars -- 4 of 10 -- 5 coming from the south, and that there was a car stationary and parked outsidethe Coolum Surf Club with lights on, facing south (which I now understand was Constable Condon's vehicle). Seeing that it was 11 pm and it was safe to do so, while the north - south traffic signal was still amber, I made a left turn into David Low Way and within a hundred metres, noticed the police lights flashing behind me and stopped. [13] That clearly constitutes an admission against interest in relation to an offence under section 56 (1) of the Road Rules, which is in the following terms: 56 Stopping on a red traffic light or arrow. (1) A driver approaching or at traffic lights showing a red traffic light - (a) must stop - (i) if there is a stop line at or near the traffic lights - as near as practicable to, but before reaching, the stop line; or (ii) if there is a stop here on red signal sign at or near the traffic lights but no stop line - as near as practicable to, but before reaching, the sign; or (iii) if there is no stop line or stop here on a red signal sign at or near the traffic lights - as near as practicable to but before reaching, the nearest or only traffic lights; and (b) must not proceed until - (i) the traffic lights change to green or flashing yellow or show no traffic light; or (ii) a green or flashing yellow traffic light is showing, if the driver is turning in the direction indicated by the arrow. Maximum penalty - 20 penalty units. [14] Clearly the statement in the letter was an admission to committing an offence against section 56(1) in that although Mr Benjamin said he stopped at the stop line at or near the traffic lights, he admitted that he proceeded before the traffic lights changed to green or flashing yellow. [15] From transcript 1-7 on his Honour made a number of comments which suggest to me that he had read that letter. That letter never formed part of the police brief and was never tendered in evidence. At that stage, as the record reveals, Mr Benjamin had not disclosed to his Honour his version of events, although he had alluded to it, and clearly the conclusion, or the inference I draw, that his Honour had read the letter and was impermissibly taking into account, is confirmed by what he said at transcript 1-7, line 34. His Honour said: -- 5 of 10 -- 6 I think it does, to the extent that the complaint as it's particularised, if I'm to accept Mr Benjamin's version of events, won't be made out. So my choices would be either to find Mr Benjamin not guilty of the offence or, taking Mr Benjamin's evidence at its highest, convict him of a different offence. [16] Upon resumption Mr Benjamin informed his Honour that the Prosecutor was not prepared, as he expressed it: …to accept my oral evidence about the phasing of the lights. [17] This can be seen by what occurred later to be a reference to some evidence that Mr Benjamin gave about observing the phasing of the lights on the previous Saturday after he had received the police brief and understood what the police officers were saying. [18] He also later informed his Honour that he had spoken to an engineer at the Department of Main Roads and Transport who confirmed his evidence about the phasing of the lights. I will refer to this later. [19] His Honour then said at transcript 1-9: Talking in very practical terms now. Now, Mr Benjamin has asked for an adjournment. I'll hear from you about that in a moment. We still have the live issue of the amendment, which Mr Benjamin has indicated he officially objects to, so it leaves it to me as to whether or not it is in the interests of justice to amend it ... Let's not waste any more time, because, as I see it, your options (this is a reference to the Police Prosecutor) whilst many and varied - you could NETO (sic) this particular charge and then bring another charge in the amended terms, but then we don't have to worry about amendments and what have you. Or you can say no we want to proceed, insist on the amendment and then if the amendment is to be granted then the matter will have to be adjourned anyway. [20] At that stage the Prosecutor withdrew the application to amend. He opposed Mr Benjamin's application to adjourn the proceedings. [21] His Honour then asked Mr Benjamin to explain to him how the phasing of lights was relevant to the evidence and Mr Benjamin did that. This was by reference to both what he'd observed while sitting at the lights the previous Saturday night and also by what he had been told by the Department of Main Roads. In effect, Mr Benjamin told his Honour that the lights at that intersection were phased, so that at that time of night, the light facing drivers proceeding along the main road, the David Low highway, would remain green until a driver approaching the intersection towards the east, along Beach Road, would activate a sensor up Beach Road from the intersection, which would then cause the lights in a particular phase to turn orange and then green, allowing a person proceeding along Beach Road to turn into the David Low highway. [22] In effect, as the evidence of the police officers later revealed, if the trial was proceeding, as it did, in relation to the offence alleged in the complaint, that evidence would fundamentally undermine the credibility of the police officers. [23] Not for the first time his Honour made this observation at transcript 1-11: -- 6 of 10 -- 7 Can I just take it one step further, because as people who appear before me know, and you wouldn't know, I take a very practical approach to dealing with matters of this nature, because everyone has got better things to do with their time except me, because that's what I'm here for. [24] The trial then proceeded. Two witnesses were called. Perhaps confirming my view, which I’ve articulated in the submission, which is contrary to the view contended for by the respondent on appeal, his Honour said at 1-11, line 26 to Mr Benjamin: But do you understand that by giving the evidence under oath, consistent with what you’ve just said - and I’ve no reason to doubt you - that that effectively makes you guilty of an offence under the same section, but a different subsection? [25] He then gave Mr Benjamin a warning that he didn’t have to implicate himself in the commission of an offence. By this point, before any evidence was called, I infer quite comfortably that his Honour had in mind that he could simply proceed to convict the defendant of a failure to stop at a red light, but had misconceived the law by referring only to section 57. [26] The police were called. Essentially, their evidence was consistent, that while they travelled in an unmarked police car up Beach road after proceeding through the intersection, they observed (one in the side mirror, the other by turning to his right) Mr Benjamin’s vehicle proceed through a yellow light. They did a U turn and stopped him about 100 metres from the intersection and Constable Jupp spoke to him and alleged that he went through an orange light and Mr Benjamin said he thought the light was red. Even at that stage, on the admissions of the appellant, the police probably would have had sufficient evidence to charge him with a section 56(1) offence, but they didn’t; no doubt because this would have inconsistent with the sworn evidence of both officers, Constable Jupp and Senior Sergeant Wirth, that he went through a yellow light. [27] At the conclusion of the evidence of the police, his Honour spoke to Mr Benjamin. At that point in the proceedings, the evidence before his Honour, taken at its highest, was insufficient to prove the charge that he was then hearing; that is, a charge under section 57(2) of the Road Rules. His Honour, however, could have then amended under section 48, if he thought that was in the interests of justice and, at the very least, he should have informed the unrepresented defendant of these legal consequences. Instead, he proceeded to ask him if he wanted to give evidence, saying: It is up to you whether or not you give evidence, however, in the absence of evidence from your perspective, I’m limited in what I can and can’t decide, of course. You’ve indicated that - previously that you’re prepared to give evidence. Is that still the case? [28] Mr Benjamin agreed to give evidence. That was a totally inadequate explanation of his rights at that stage of the case, bearing in mind the prosecution had the onus of proof; that is, to prove the charge beyond a reasonable doubt. His Honour’s words could be interpreted as a form of inducement to the defendant to give evidence. I immediately say that I don’t think there was any intention to do that, but it was a careless use of words in the context of a quasi-criminal trial. -- 7 of 10 -- 8 Mr Benjamin then gave evidence. His Honour gave him a warning at the start of his evidence to the effect that he wasn’t obliged to self-incriminate himself. His Honour said this: Now I’ll keep an eye or an ear out for any questions that are asked that might tend in that direction but do you understand - you can certainly give that evidence and answer those questions should you see fit but it’s your choice. [29] His Honour then assisted by commencing the questioning. At transcript 130, line 40 his Honour said: What would you like to tell me about that event?---May I introduce myself in more detail for the court’s benefit before I proceed with that? If you feel it’s necessary, but bear in mind that I do have your earlier correspondence, which does set out some of your background?---Okay. [30] That confirms that his Honour was referring to the letter to which I have earlier referred, which was not in evidence and the use of it involved significant procedural unfairness. Mr Benjamin then gave evidence essentially in accordance with what he said in the letter; that is, implicating himself in the commission of an offence against section 56(1) of the Road Rules. His evidence was completely inconsistent and at odds with the sworn evidence of the police officers. He gave evidence of what he had observed the previous Saturday night about the light phasing, but when he came to give the evidence about what he was told by the Department of Main Roads, the prosecutor objected. [31] That objection was well-founded as the evidence was hearsay. This goes back to his Honour’s decision to proceed with the trial and not grant the adjournment, which would have enabled Mr Benjamin to have the opportunity to call this evidence and to place it before the court, which evidence, as I say, would have significantly undermined the credibility of the police officers. His Honour upheld the objection. In cross-examination, the prosecutor asked this question: What colour was the light facing you when you drove through the intersection?---Red. BENCH: Now just - I’ll just repeat the warning that I’ve given you before. That was all right though - - -?---[indistinct]. [32] It has to be said that the warning against self-incrimination came rather late. The prosecutor then addressed his Honour. He read out the charge that was before the court; that is, a charge which alleged breach of section 57(2) of the Road Rules. During the course of that submission, at no stage did the prosecutor renew the application to amend that he had made at the start of the hearing, nor did he apply to amend the charge to accord with Mr Benjamin’s evidence because his case was that his Honour would prefer the evidence of Senior Sergeant Wirth, a very experienced police officer, who corroborated the evidence of Constable Jupp, that the appellant proceeded through a yellow light. [33] In the course of his address, Sergeant Nitschke, at transcript 1-41, line 14, made a submission that also indicated that he was aware of the letter to which I’d earlier referred. If that was been the case, he could have called for it and tendered it -- 8 of 10 -- 9 during the evidence of the defendant subject to any procedural unfairness in proceeding in a way that effectively split the prosecution case. He said this: The defendant, in my submission, attended today and provided a different version. (That is a reference to the evidence of the police officers.) He has provided correspondence to the court. Whilst in some ways it lines up with the evidence given by police, it certainly doesn’t line up with their observations on the night. [34] Mr Benjamin addressed his Honour. He expressed obvious difficulties in understanding the procedures. He submitted that he had committed an offence, in effect, of a breach of section 56(1) but, in the circumstances, it was a trivial offence. His Honour then proceeded to give an ex tempore decision. [35] As he had to, he identified that the charge he was considering was a charge pursuant to section 57(2), a charge which had earlier been the subject of an amendment application, which was withdrawn. [36] At that point, before he gave his reasons, his Honour had erred by denying procedural fairness to the defendant in relation to a number of matters to which I’ve referred in my reasons already but, particularly, by refusing to grant the appellant an adjournment to enable him to call evidence from the DTMR about the phasing of the lights. His Honour had misdirected himself, at transcript 1-11, lines 26-35, that the appellant’s own evidence: Effectively (made him) guilty of an offence under the same section, but a different subsection. [37] In his reasons, his Honour did not make any adverse findings as to the credibility or reliability of any of the witnesses. As I’ve noted, the phasing evidence could, if supported by expert evidence from the Main Roads Department, have significantly undermined the credibility of the police officers as to what they swore they saw. But that evidence was not before his Honour, for the reasons that I’ve noted. His Honour then proceeded to convict the defendant. He said this: In the circumstances, however, it is not necessary for me to prefer the evidence of the officers over Mr Benjamin on the basis that Mr Benjamin has, and despite the warnings I have given, admitted to driving across the traffic line, on his version, on a red light. That is an admission of an offence and I need take the matter no further than that, because section 57(1) talks about failing to stop at a light, and subsection (2), which is subject of this charge, refers to failing to stop at a yellow light. It is open to me to find Mr Benjamin guilty of an offence on his own version of the events and I do so. [38] Those statements are replete with errors of law. Section 57(2), the charge which was before him which had not been subject to an amendment, relates to a yellow traffic arrow, not a yellow light. His Honour seems to have taken the view that because section 57(1) refers in the heading to failing to stop at a light, he could convict him of an offence based on his admissions. At no time did his Honour, on his own motion, endeavour to amend the charge, either in accordance with the prosecutor’s original application or to a charge under section 56(1) of the Road Rules. -- 9 of 10 -- 10 [39] Mr Gawrych submits to me that it is clear that his Honour intended to convict him of an offence under section 56(1) of the Road Rules, but I don’t have that confidence. Mr Gawrych concedes that his Honour erred in regarding section 57(1) as being the appropriate section but he now asks this court to amend pursuant to section 48. He submits correctly that this is a re-hearing on the evidence given before his Honour and that I have the power to “exercise any power that could have been exercised” by his Honour. He submits, therefore, that I should now amend the charge pursuant to section 48 of the Justices Act to a breach of section 56(1) of the Road Rules, after setting aside the conviction for a section 57(1) or (2) offence. [40] He argues that by reference to what was said by Fraser JA (with whom Keane (as his Honour then was) and Muir JJA agreed) in Mbuzi v Torcetti (supra) at para [26], that the section 56(1) charge could be described as not “essentially different” from a section 57(1) charge. I agree with that submission, however, at [34] in Mbuzi his Honour said this: Nothing I’ve said is intended to diminish the central importance of ensuring procedural fairness in summary proceedings, ... [41] And at [35]: “… whilst in other circumstances the procedure adopted here might well create an unnecessary risk of injustice, I consider no injustice was, in fact, occasioned by it in the particular circumstances of this case. [42] In that case, similarly to this, the appellant had proceeded to trial in relation to a breach of the Road Rules and during the learned Magistrate’s reasons, she had amended the charge pursuant to section 48 at a time when the time limit of 12 months had expired. It was in those circumstances that the appeal was dismissed. [43] In this case, not only did his Honour fall into procedural error during the trial, such that the whole process was rendered unfair to the unrepresented appellant, he further erred in law by convicting the appellant of an offence that was not before him without (as he could have, even at that late stage) amending pursuant to section 48. [44] In my view, to allow the respondent now to amend to pursuant to section 48 of the Justices Act 1886 would not be in the interests of justice. [45] A “practical approach” to which is Honour referred, must always give way to the requirement that procedural fairness is afforded to defendants, particularly to unrepresented defendants in proceedings that are quasi-criminal in nature with the prosecution having to prove the offence beyond a reasonable doubt. The trial process, in this case, was riddled with errors and it is not in the interests of justice to now permit the respondent to do what he should and could have done below and did not. In the circumstances, the appeal is allowed and the orders made by his Honour are set aside. -- 10 of 10 --