Bartley v Commissioner of Police [2014] QDC 246

DISTRICT COURT OF QUEENSLAND CITATION: Bartley v Commissioner of Police [2014] QDC 246 PARTIES: ROBERT PETER BARTLEY (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 925/14 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 31 October 2014 DELIVERED AT: Brisbane HEARING DATE: 18 July 2014 JUDGE: Reid DCJ ORDER: The appeal is dismissed. CATCHWORDS: APPEAL – vehicles and traffic – appeal against conviction – photographic detection device – whether proof of speed established – whether data pack “made” by device Transport Operations (Road Use Management) Act 1995 ss. 112, 113, 120 Kolanowski v Commissioner of Police [2014] QDC 18 applied QPS v Canavan [2013] QMC 27 considered QPS v Rouse [2013] QMC 21 considered QPS v Takoushi QMC (26 September 2013) considered COUNSEL: The appellant appeared on his own behalf J Ball for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Public Prosecutions for the respondent -- 1 of 13 -- 2 [1] This is an appeal pursuant to s 222 of the Justices Act from a decision of a learned Magistrate in Ipswich convicting the appellant of one offence of speeding. He was fined $300 and ordered to pay $84.40 costs of court. [2] The appellant was self-represented both on the trial and before me on appeal. The notice of appeal sets out the following grounds: “Magistrates (sic) failed to take into account previous precedence (sic) loged (sic) by me showed that the TruCAM set up as used by police in my matter does not comply to the relevant legislation.” [3] In order to understand the ground of appeal, it is necessary to say something of the hearing below and of the judgment of the learned Magistrate. [4] The appellant was charged on complaint that on 31 March 2013 in Burnett Street, Sadliers Crossing, he drove a car over the speed limit of 40km/h. The matter proceeded to hearing on 13 February 2014 and the decision, convicting the appellant, was given on 28 February. [5] The appellant relied at trial on a notice he had given under s 120 of the Transport Operations (Road Use Management) Act (“TORUM”). [6] Because that section is central to the appeal, I set out relevant sections: “(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 -- 2 of 13 -- 3 device were complied with for the specified device at all material times. … (4) A marking or writing made by a photographic detection device on an image is taken to have the meaning prescribed under a regulation and is evidence of what it is taken to mean. … (7) A defendant who intends, at the hearing of a charge against the defendant under this Act, to challenge— (a) the accuracy of a photographic detection device; or (b) the image from a photographic detection device; or (c) a marking or writing made by a photographic detection device on an image; or (d) a matter mentioned in section 120A(4)(a),(b) or (c); must give written notice of the challenge to the prosecution. (8) The notice must be in the approved form and must— (a) be signed by the defendant; and (b) state the grounds on which the defendant intends to rely to challenge a matter mentioned in subsection (7)(a), (b) or (c) or section 120A(4)(a),(b) or (c); and (c) be given at least 14 days before the day fixed for the hearing. (9) In this section— … on, an image, includes adjacent to or associated with the image.” [7] The appellant’s notice under s 120(7) and (8) of TORUM was given well prior to the hearing. The appellant completed only Part B thereof, which dealt with challenges to a photographic detection device under s 120(7) of TORUM. He indicated he intended to challenge or dispute: (i) the image from the photographic detection device; and (ii) a marking or writing made by a photographic detection device. He then did not dispute its accuracy. -- 3 of 13 -- 4 [8] In the form he said that the grounds of his challenge were: “Data block added later. Data block info relates to only one photo – not three. No authorisation of operator (AS 28982). No current speed camera site no. No deployment log.” [9] The Magistrate dealt with some of these matters shortly. He indicated that evidence had been given of the camera site number and the completed deployment log had been admitted into evidence. The appellant does not raise any issue about those matters. Instead his submission focuses on two aspects of the matter which have been the subject of a number of decisions from different Magistrates on which the appellant relied (see for example QPS v Rouse [2013] QMC 21, QPS v Canavan [2013] QMC 27, and QPS v Takoushi, a judgment delivered on 26 September 2013). Those cases, and similar issues, have also been considered by Butler SC DCJ in Kolanowski v Commissioner of Police [2014] QDC 18. I take the appellant’s reference in his notice of appeal to “previous precedence loged (sic) by me” to be a reference to the approach of the courts in those matters. [10] In Kolanowski (supra), his Honour identified two bases upon which it was submitted in the appeal before him that the decision below should be overturned, namely: “(a) The prosecution has not established beyond a reasonable doubt that the data block on Exhibit 1 was made by the relevant TruCam device and accordingly there is no speed of the defendant’s vehicle on the relevant date, and (b) Compliance with s 112 of the TORUM Act has not been established beyond a reasonable doubt.” -- 4 of 13 -- 5 [11] His Honour was careful to point out, as is the case before me, that ss 112 and 120(4) of TORUM were amended in February 2014, and so his decision had “no utility as precedent of how the legislation as it presently stands should be construed”. In fact, the legislation was amended by s. 47 of Act No 1 of 2014 which commenced on 19 February, a few days after the hearing of the appellant’s matter, so that this matter, like that in Kolanowski (supra), has similarly no direct utility in construing the current legislation. [12] In Kolanowski (supra) Butler SC DCJ allowed the appeal because of concerns he had about the recording of the data block on the photograph produced by the photographic detection device. I shall turn to that issue shortly. His Honour, however, found that there was no evidence the device used did not in fact comply with any applicable Australian Standards or manufacturers’ specifications. [13] Section 112 of TORUM provided, at the time relevant to this matter, as follows: “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.” [14] Provisions of Division 2 of Part 7 of TORUM then deal with photographic detection devices. There is no dispute that the device used on this occasion was a photographic detection device. The appellant, by referring in his grounds of appeal to “previous precedence” was referring to the decisions I have earlier set out in which it was held that a photographic detection device, which is defined in s. 113 of TORUM as “a device or system, that captures an image, of a type approved under a regulation as a photographic detection device”, could however also be a radar speed -- 5 of 13 -- 6 detection device or laser-based speed detection device so that s. 112 of TORUM applied. I accept that there is nothing to preclude a photographic detection device, such as was being used on the occasion the appellant’s vehicle was said to be detected speeding, from also being a laser based speed detection device. Indeed, the only witness who gave evidence in the matter before the Magistrate below said that it did contain a laser element. In my view, the reasoning of the learned Magistrate in QPS v Rouse (supra) and QPS v Canavan (supra) appropriately show why this is so. No doubt it was the force of that reasoning which caused the legislature to amend s. 112 to include subsection (2) which now provides that s. 112 does not apply to a device that is a photographic detection device. [15] The question that remains with respect to this issue is whether the reference in the appellant’s intention to challenge or dispute to “no authorisation of operator (AS 2898.2)” vitiates his conviction. [16] As in Kolanowski (supra), the appellant before me called no evidence at the hearing below. He directed no specific submissions to s. 112. The police officer who operated the device was cross-examined about the photographs taken and the data block but not about whether he complied with any relevant Australian Standards or with manufacturer’s specifications. [17] As Butler SC DCJ determined in Kolanowski (supra), there was certification in this matter that the image of the appellant’s motor vehicle was “properly taken by a photographic detection device” (see the certification to Exhibit 1). This is evidence of, inter alia, the accuracy of the image and that any requirements prescribed by regulation about the operation and testing of a photographic detection device -- 6 of 13 -- 7 complied with the specified data (see s 120(2) of TORUM and the certification to Exhibit 2). [18] Like Butler SC DCJ, I conclude that it is sufficient to prove the image was properly taken in compliance with any statutory requirements. I also agree with his Honour that in the absence of any clear notice of an intention to challenge the use of the device as being contrary to the Australian Standards or, if there are none, the manufacturer’s specifications, and in the absence of questions of the officer directed to that end, it is not appropriate for the appellant to suggest by way of submissions that the requirements of s. 112 were not complied with. [19] In the circumstances the appeal, so far as it relies on this ground, should be dismissed, as it was by Butler SC DCJ in Kolanowski (supra). [20] The remaining ground concerns the appellant’s principal argument before me: that the data block, being part of Exhibit 1, which also contained photos of the appellant’s car, and which is relied on by the respondent to establish the speed of the motor vehicle, is not “a marking or writing made by a photographic detection device” on the photo. [21] He relied in his submission on statements by Magistrates in the cases to which I have referred consistent with that proposition. Such a conclusion was also reached by Butler SC DCJ in Kolanowski (supra). His Honour in that case dismissed the submission that police had manipulated images and fabricated data. Similar submissions by the appellant in this case were entirely without foundation. They were rightly rejected at the hearing by the Magistrate and there is no support whatsoever for making such assertions in submissions before me. -- 7 of 13 -- 8 [22] The data block on which the respondent relies is part of exhibit 1. That exhibit comprises three photographs of the appellant’s car and the data block containing the following information: “Serial No: TC 001889 Operator No: 548 Last Aligned: 31/01/2013 13.50 Date: 31/01/2013 Time: 14:08 Speed Limit: 40km/h Speed: -58km/h Distance: 037.3 Site Code: 425164” [23] I have set out already the provisions of s. 120(2) and (4) of TORUM. Subsection (4) was, as I have said, amended in February 2014. It seems the amendment was clearly designed to try to overcome issues of the sort that now arise, and which arose in Kolanowski (supra). In that case his Honour ultimately found the evidence in the matter before him did not establish that the data block was “made by a photographic detection device on an image”. [24] In that case his Honour said: 1. The only witness call was an operator of the device and her experience was limited to that specific role; 2. She claimed no technical expertise as to how the device, or broader system it was part of, operated; 3. She did not know how the exhibits were printed out; 4. She testified that operators cannot amend or change the data in the device once it is recorded and that data, including the vehicle’s speed, is all digitally recorded on the device and uploaded by the operator at the end of the deployment; -- 8 of 13 -- 9 5. She explained images viewed on the TruCAM device contained more information than in the data block; 6. No evidence was given as to how the photographic document was produced, or by whom; 7. No evidence was given as to what the device actually is and whether, for example, it was “a combined hardware and software system, so that the TruCAM device in conjunction with computer software could be said to “make” the data block writing that appears in the exhibit.” [25] In such circumstances his Honour concluded that there was no evidence that the data block was “made by” the photographic detention device within the meaning of s. 120(4) of TORUM. Because of that lack of evidence, the prosecution, his Honour held, must fail and the appeal was allowed. [26] The question to be determined in this case is whether the evidence given below justified the finding in this case made by the magistrate that the data block, being part of exhibit 1, was “made by” the photographic detection device. [27] The only witness at the trial was Sergeant Anthony Brett. Whilst he was cross- examined his evidence was un-contradicted. He described the device he used as a LTI 20/20 TruCAM photo detection device. He had operated the device since its introduction in Queensland in 2010. Importantly he had undergone a course with LTI, the manufacturer of it, to be qualified as an instructor to train, assess and retrain police in its use. He said he was fully conversant “with the operation of the device”. He said that the device has a number of components, namely a laser speed detection, a digital video camera, and said “it is capable of recording data and -- 9 of 13 -- 10 producing images at the same time”. He said if a vehicle was over the tolerance set by the operator a photograph was produced and displayed on the back of the device. He said “at the same time data in relation to the incident is automatically recorded by the device.” He explained the operating and testing procedure. He said the operator does not enter data in respect of the vehicle’s speed or the time of the photograph or the distance it is from the operator but the operator does enter the tolerance and information about the operator’s number and site code. [28] In evidence Sergeant Brett said: “Each time the device takes a photograph, it records the relevant information: speed, GPS location, time, date etc. Once they’d completed those tests I then commenced my deployment. … I sat in the police vehicle and as vehicles would go past me or come towards me I check their speeds with the device. If a speed was checked, I’d hear the double beep sound indicating to me that a vehicle was over. I could see the speeding in the sight; ensure that it was consistent with my estimation. I could clearly see which vehicles are travelling faster than the speed limit without the device. I’d checked that photograph and see that that photograph is the same – is a photograph of the same vehicle that I had just observed, at the same speed that I observed. Once I do that I then – that information – there is no manual input from me. The information is just automatically recorded by the device. I then depress the trigger and continue checking the speed of other vehicles. BENCH: Just for clarity, when the device indicates that there’s a vehicle speeding above what tolerance you’ve put in… do you have to press at trigger or does it automatically shoot the image? – No. It automatically takes that image… So – observe a vehicle speeding, point the device at the vehicle’s number plate. You press the trigger. If the vehicle is over the tolerance, I hear a double beep. I see the speed displayed and look at the back and a photograph appears of that vehicle and the target reticle or the beam, where it was on that vehicle at the time. … I verify that and then, basically, by depressing the figure you put it resets the unit back into being able to detect further speeds.” [29] He was then shown exhibit 1 which was the photographs of the vehicle and the data block and said: -- 10 of 13 -- 11 “the photographs depict the location, Burnett Street. I can see the data block. It contains a serial number which is of the device that I used. The operator number, 548, or on my log 0548 is my operator number. The last alignment is talking about the alignment test- the scope alignment test that I did. It’s recorded that. The date, the 31st of the first. The time, 14:08. The speed limit, 40km/h. Speed, -58. The minus is – means that the vehicle is preceding away from the speed detection device. If it was coming towards the… photographic detection device, if it was coming towards me, it would just say 58km,/h. If it’s travelling away, it has a minus sign which it has here, minus 58. The next one, distance, 37.3 metres. That’s the distance that the vehicle was away at the time the speed was checked. So it had driven 37.3 metres past me when the photograph was … produced and this data was recorded. And at the bottom, the site code, 425164 is the site code generated by the TSRS system which refers to that location at Burnett Street, Sadliers Crossing. The photograph – the top photograph in the top corner is what I see on the rear of the device when I check. After the vehicle goes through I see the vehicle, I see that it’s speeding and I check the photograph and I can see that the – the red and white stripped circle is the one that I’ve been referring to as the – where – indicative of where the laser was pointed from the… photographic detection device. That’s the one there that… when I perform the tests, the camera alignment… test and the scope alignment test. That was all the purpose of those tests to ensure that where that target, laser or beam is… exactly where the beam laser is. So the scope is perfectly aligned with the beam. The other photographs are just a zoomed in photograph of the number plate and… a high definition photograph. So that vehicle was detected by myself during… my deployment time and that it was travelling in the excess of 40km/h speed limit. At anytime in the process do you generate a photo of the vehicle… yourself? You don’t actually get the hard copy of the photograph? - No I do not. All the data is recorded at the time and is encrypted in the photograph… I see the photograph on the back of the screen to verify what I was pointing the device at. Other then that, that goes to the traffic camera office.” [30] Importantly the following passage of evidence is contained at page 15 of the transcript: “If anybody tried to input data into the device? The only data that day – are possible to input is – would be to change the operator number or the site code or the speed limit of the tolerance. They’re not capable of changing any other data which would appear. The instrument automatically records and encrypts the speed and time and distance into the photograph. It’s not possible for any other person to interfere with that. -- 11 of 13 -- 12 And so it’s not possible for any person so modify the photo, for example the registration number? Absolutely not. I’m aware from my instructor’s course from the manufacturer that if any person even could get the photographic image that to – if they’d performed any modification to it, it actually wipes the recorded encrypted data. So it’s not actually possible for anyone to… interfere with it.” [31] This passage makes clear that the data on the speed of the vehicle and the image of it is made by the device, and cannot subsequently be altered. [32] During cross-examination Sergeant Brett said the photographic detection device was capable of taking both video and single high definition photographs. He said he had used it in that single shot high definition mode. He also said that the device records the data attaches it and produces that image. Importantly, he was not cross- examined about his evidence set out in [29] hereof. [33] The term “made by” used in s. 120(4) of TORUM is not defined. In my view it is synonymous with “cause to exist or come about” or to “bring about” or “produce by”. [34] Having regard to the evidence of Sergeant Brett in this case, which was un- contradicted, I have no doubt the information in the data block including the speed of the vehicle (which was not disputed in the appellant’s notice under s. 120(7)) was brought about by the photographic detection device. In my view the question to be determined is whether the marking or writing in the data block, which is part of exhibit 1 “is a marking or writing made by a photographic detection device on an image”. Section 129, as I have previously set out, provides that “on, an image, includes adjacent to or associated with the image.” -- 12 of 13 -- 13 [35] The evidence in Kolanowski (supra) and in the decisions of the magistrates to which I have referred, and on which the appellant relies, did not establish that the writing referred to as the data block was “made by” the photographic detection device. For example in QPS v Rouse (supra) there was no evidence before the magistrate properly explaining the photograph (see paragraph 18 of her Honour’s reasons), there was no evidence given about how the device operated (see paragraph 24 thereof) and most importantly: “… No evidence… as to how or when the information in the data block device is incorporated into or placed adjacent to the photographic image. In my view for the prosecution to succeed, there would need to be evidence that the ‘marking or writing’ was made by ‘a photographic detection device’.” (see paragraph 32 of her Honour’s reasons in Rouse). [36] A similar approach was adopted by Butler SC DCJ in Kolanowski (supra). At paragraph 50 of his reasons his Honour said: “Subsection (4) requires that a marking or writing be ‘made’ by the photographic detection device before the further evidentiary provisions in aid of proof… can be called into operation. It is those provisions which would establish proof of the speed of the vehicle recorded in the data block.” [37] Contrary to the decisions on which the appellant relies, the evidence in this case causes me, consistent with the finding of the magistrate below, to conclude that his Honour was entirely justified in concluding, as he did, that: “(t)he fact that the data block may be printed on paper at some later stage does not meant that that’s not produced by the TrueCAM system”. [38] This finding was fully justified by the evidence given in this matter. [39] I accept the date block was “made by” the device and so the appeal is dismissed. I make no order as to costs. -- 13 of 13 --