Elliott v Commissioner of Police [2014] QDC 161

DISTRICT COURT OF QUEENSLAND CITATION: Elliott v Commissioner of Police [2014] QDC 161 PARTIES: MATTHEW ELLIOTT (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 66/14 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Caloundra DELIVERED ON: 25 July 2014 ex tempore DELIVERED AT: Maroochydore HEARING DATE: 25 July 2014 JUDGE: Robertson DCJ ORDER: 1. Appeal dismissed 2. Order the appellant to pay the respondent’s costs of and incidental to the appeal, fixed at $1800 CATCHWORDS: CRIMINAL LAW - APPEAL - DRIVING OFFENCES - where the appellant appeals against conviction and sentence imposed by the learned Magistrate for a number of vehicle offences involving liquor or other drugs - whether any of the grounds of appeal against conviction and sentence alleged by the appellant are made out APPEAL AND NEW TRIAL - ERROR OF LAW - MISCARRIAGE OF JUSTICE - whether the appellant’s trial in the Magistrates Court was conducted according to law - whether the learned Magistrate erred in law by allowing the police Prosecutor to address in circumstances in which the appellant was unrepresented and did not call or adduce evidence APPEAL AND NEW TRIAL - REHEARING - whether upon a rehearing of the evidence in the appellant’s appeal the appeal Judge would have reached the same conclusion as the learned Magistrate -- 1 of 13 -- 2 Legislation Criminal Code (Qld) s 619 Drugs Misuse Act 1986 (Qld) Justices Act 1886 (Qld) s 148, s 225(1), s 225(3) Police Powers and Responsibilities Act 2000 (Qld) Transport Operations (Road Use Management) Act 1995 (Qld) s 79(1), s79(1)(a), s 80, s 80(2), s 80(8), s 80(11), s 80(15B), sch 4 Cases Carnes v Essenberg [1999] QCA 339 Commissioner of Police v Al Shakarji [2013] QCA 319 Fox v Percy (2003) 214 CLR 118 R v Stoneman [2013] QCA 209 R v Wilkie (QCA, CA number 255 of 1997, 30 September 1997) Teelow v Commissioner of Police [2009] QCA 84 COUNSEL: Mr M Elliott for the appellant (self-represented) Mr AQ Stark for the respondent SOLICITORS: Mr M Elliott for the appellant (self-represented) Office of the Director of Public Prosecutions for the respondent [1] HIS HONOUR: Matthew Elliott appeared before his Honour Magistrate Barrett in the Caloundra Magistrates Court on the 4th of April 2014 in answer to five charges. The charges were as follows: that on the 1st day of September 2013 at Glasshouse Mountains in the Magistrates Court District of Maroochydore in the State of Queensland (he) obstructed a police officer, namely Tully Anderson, in the performance of the officer’s duty; (2) that on the 1st day of September 2013 at Glasshouse Mountains in the Magistrates Court District of Maroochydore in the State of Queensland one Matthew Elliott, being a person required by a police officer, namely Sergeant Tully Anderson, under subsection 2 of section 80 of the Transport -- 2 of 13 -- 3 Operations (Road Use Management) Act 1995 to provide a specimen of breath, the said Matthew Elliott failed to provide the said specimen; (3) that on the 1st day of September 2013 at Glasshouse Mountains in the State of Queensland one Matthew Elliott unlawfully had possession of a dangerous drug, namely cannabis sativa; (4) that on the 1st day of September 2013 at Glasshouse Mountains in the Magistrates Court District of Maroochydore in the State of Queensland one Matthew Elliott, whilst he was under the influence of liquor or a drug, did drive a motor vehicle, namely a car, on a road, namely Bruce Highway, Glasshouse Mountains, and it is averred that the said car is a motor vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995, and it is averred that the said Bruce Highway is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995; and (5) that on the 1st day of September 2013 at Maroochydore in the Magistrates Court District of Maroochydore in the State of Queensland one Matthew Elliott was guilty of an offence against section 79(1) of the Transport Operations (Road Use Management) Act 1995 in that he, upon a requisition duly made by Sergeant Tully Anderson, a police officer under subsection 8 of section 80 of the said Act, failed to provide, as prescribed, a specimen of his breath for analysis. [2] The record indicates that the trial commenced at 9.50 am on the 4th of April 2014. Mr Elliott represented himself and Sergeant Campbell appeared to prosecute. His Honour, as he is required to do, read out the charges and sought a plea from Mr Elliott. The appellant engaged in an exchange with his Honour that is quite incomprehensible. Effectively, he appeared to refuse to enter a plea. For example, at 1-5 of the transcript he said to his Honour: “ Do you agree that the prosecution has not provided the evidence, the statutory -- 3 of 13 -- 4 laws apply to, a man, a son of Christ? ” [3] He then had a brief of evidence which had been supplied before the hearing date. A further statement of a police officer Louise Simpson was handed up and his Honour allowed Mr Elliott a short adjournment to give him time to read the statement. [4] Thereafter, the defendant engaged in further discussions with his Honour and ultimately appeared to plead guilty but sought to attach reservations and/or conditions to the plea of guilty which his Honour quite properly was not prepared to accept. As an example of the nonsensical statements that Mr Elliott was making to the Magistrate is an extract from 1-11 of the transcript: “ DEFENDANT: Is it your intention to entice me into slavery, your Honour? BENCH: No. No. DEFENDANT: I now surrender the person Matthew Elliott to the Court. BENCH: You surrender to the Court? Well, Matthew Elliott … DEFENDANT: I stand as a Commonwealth public official. BENCH: … I just want to know … DEFENDANT: I’ve sworn allegiance … BENCH: Whether you are pleading guilty or not guilty. DEFENDANT: … to Her Majesty the Queen Elizabeth II and to the Commonwealth. ” [5] Similarly to what occurred this morning, Mr Elliott constantly spoke over his Honour as his Honour attempted to carry out his lawful duties. His Honour indicated to Mr Elliott, correctly, that if he would not enter a valid plea he would enter pleas of not guilty on his behalf. His Honour remained very patient throughout and finally entered pleas of not guilty, which are lawful pleas entered on behalf of the Court in -- 4 of 13 -- 5 circumstances in which a defendant refuses to plead to the charges. He then explained the trial procedure to the defendant, and the trial commenced. [6] The first witness was the police officer, Louise Simpson. Her evidence was uncontroversial. It concerned the continuity of two containers which allegedly contained cannabis which had been seized by Sergeant Tully from the console area of the appellant’s car. She gave evidence and was not cross-examined by the appellant. [7] Sergeant Tully Anderson then gave evidence for the prosecution. His evidence really covering all offences is encapsulated in a passage from 1-18 of the transcript going over to 1-19, and I quote: “ Could you please explain to his Honour (sic) recollection of event?..Yes, your Honour. On the 1st of September, early hours of the 1st of September last year, Senior Constable Mades –and myself from Beerwah Station were patrolling around our division. We observed a red Toyota Corolla sedan, 653PDL, parked in the southbound lanes of southbound service station, shell service station at Glasshouse Mountains. There was no person in the vehicle at the time. Conducted a minor check with an inboard police computer, which revealed the registered owner of the vehicle was currently not licensed. As we did a further patrol around the service station, up around the Beefy’s, came back and the vehicle had gone from the service station. So we watched it exit out on to the highway, intercepted the vehicle down the road, and the vehicle pulled over. I went over to the vehicle with an alcometer, spoke to the – there way s single occupant, being the defendant as the driver. I observed that the window – driver’s window was down about 50 ml. I spoke to the driver and introduced myself. I gave the – I said, “You’ve been stopped for a RBT and a licence check”. I gave the defendant a roadside requirement to provide a specimen of breath. The defendant declined to provide a specimen of breath at the time. I outlined the consequences of failing to provide a specimen of breath on the roadside. The defendant was polite, but still refused to provide a specimen of breath. I then informed the defendant that he was now detained in relation to failing – his failure to provide a specimen of breath. The – and I then directed the defendant roll down his window. The defendant declined again. I then said to the defendant, “You’re under arrest for obstruct police”, and then I attempted to push the window down to try and gain access to the vehicle, because the vehicles’ doors were locked. The defendant quickly rolled up – wound up – the window, went up and he – the window went up and he checked his doors to make sure that they were locked. I then again outlined the circumstance, I said that we were going to have to force entry to your -- 5 of 13 -- 6 vehicle, unlock your vehicle. I said that to him on – him a number of times. The defendant still declined to do so. I then directed Senior Constable Mades to smash the passenger window of the vehicle gaining access to the vehicle. The defendant was then arrested. And placed in the back of a police vehicle. Obviously during this whole encounter, I observed the defendant when he – when I first approached the vehicle his eyes were bloodshot. His head movements towards the – towards me when I was speaking to him were slow, slow, and it just appeared deliberate. I could also smell the scent of cannabis inside the vehicle when I was first speaking with him. After he was placed in the back of the police vehicle, I went back and searched the centre console and located a clip seal bag containing a green leafy material I now know to be cannabis. I also located at (sic) plastic container which also had cannabis inside it. Back at the police vehicle, I gave the defendant a further opportunity to provide a sample of his breath. The defendant again refused to provide a sample of his breath. I just (sic) a couple of his personal items out of the vehicle, obviously because it was now insecure. We proceeded back to the Maroochydore Station where back at the breath analysis section of Beerwah – at Maroochydore Station where again I gave him a requirement and a direction to provide a sample of his breath on the – back at the breath analysis section. The defendant again declined to provide a sample of breath, and I issued a fail to provide certificate for his failure to provide a sample of breath. All my interactions with the defendant, even back at the breath analysis section where he’s failed to confirm his details, he wouldn’t answer my questions in relation to his consumption of alcohol. It was clear to me that he was affected by an intoxicating substance, unknown what that might be. Back at the vehicle I observed empty beer cans and beer stubbies and that, in the floor, front passenger floor of the vehicle. I also observed that he had a partially (sic) drug stubby on the front passenger seat, and there was an esky sitting on the front passenger seat that also contained beer. And there was a – yeah a, smell of alcohol, smell of liquor on his breath, and on his person. Yeah, after I provided the fail to provide certificate back at Maroochydore Station, the defendant was then charged with the offences before the court. ” [8] Through Sergeant Tully, a number of exhibits were tendered. The first exhibit was a bag of cannabis which is kept now in police custody. Exhibit 2 was a section 80(15B) certificate under the TORUM in relation to the failure to supply at the police station. Exhibit 3 was an analyst’s certificate prepared under the Drugs Misuse Act 1986 certifying that the plastic container and the clip seal bag found by Sergeant Anderson in the defendant’s car contained cannabis. [9] Sergeant Tully was cross-examined by Mr Elliott. The cross-examination descended -- 6 of 13 -- 7 into farce. Sergeant Anderson confirmed that there was no other person in the vehicle, and it was not suggested that there was. The appellant’s cross-examination appeared to be directed at whether Sergeant Anderson was a properly appointed police officer. There were also questions about the Police Powers and Responsibilities Act applying to “a living man”. Once again, a lot of the questioning really didn’t make sense. [10] During the cross-examination the defendant produced a CD. It was said to be a recording of the incident on his mobile phone. The Magistrate permitted it to be played to the court in the presence of the witness, and the appellant was permitted to ask questions about it. I have listened to the CD which was tendered as exhibit A for identification as it never actually became part of the evidence before his Honour. The recording seems to be in three parts. The first part sounds like a recording of the occasion when the window was smashed, and there is conversation where the police officer places Mr Elliott under arrest, and something about why he was refusing. A lot of it was very difficult to hear. The second and third parts seemed to be a recording made by Mr Elliott of a telephone conversation with an unknown court officer about a document he referred to as a notice to admit facts. Both the second and third parts seemed to be identical and completely irrelevant to the proceedings. [11] The appellant suggested to Sergeant Tully that he placed his knee on his leg and a “blunt instrument” to the side of his neck during the incident, which the police officer denied. He also disputed that listening to the tape caused him to have any doubt about his evidence about the defendant’s demeanour, or, any of the other evidence about his observations recorded above. There was no further cross-examination, and the police Prosecutor closed the case for the prosecution. -- 7 of 13 -- 8 [12] His Honour, then set out, as he is required, to explain his rights to the appellant. His Honour asked him if he intended to give evidence and he said he did not. It followed that the CD which had been played to Sergeant Anderson did not become an exhibit. [13] What appears to have then happened after a short discussion about the status of the CD, is that the police Prosecutor addressed his Honour. I have raised this issue with the parties, and particularly Mr Stark, as to whether the Prosecutor had a right of final address; given that the appellant was unrepresented, and did not give or call evidence. I will return to this issue shortly. HIS HONOUR’S REASONS [14] His Honour then heard from the appellant, whose address concentrated substantially on irrelevant issues of law and fact, but his Honour interpreted the arguments made as amounting to a submission that the prosecution had not proved any of the charges beyond a reasonable doubt. [15] His Honour then delivered extempore reasons. At page 2 of the reasons, line 16 to 17, he correctly stated the law in relation to the onus and standard of proof. He accepted the evidence of Sergeant Tully, after canvassing all of the evidence, as being honest and reliable. [16] He then stated at 4-16: “ So applying the evidence to the facts, on the balance of probability, I find the defendant did obstruct Sergeant Anderson in the manner in which he has stated. ” -- 8 of 13 -- 9 [17] No complaint is made about this on appeal, nor is it suggested that his Honour erred in applying the wrong standard of proof. I suspect that this was just a slip of the tongue, as his Honour had previously clearly stated correctly the appropriate standard of proof to be applied. As I say, no complaint is made about this on appeal. [18] The observations of Sergeant Tully were sufficient to prove beyond a reasonable doubt the charge pursuant to section 79(1)(a) of the TORUM. His Honour dealt correctly with a number of submissions of law made by the appellant. [19] He then convicted the appellant and imposed an overall fine of $1,500 for all offences (as he was entitled to do) and imposed the minimum mandatory licence disqualification periods in relation to the section 79(1)(a) and section 80(11) offences. THE APPELLANT’S GROUNDS [20] The appellant’s complaints are difficult to understand. He makes similar arguments to those before his Honour which were rightly rejected. He attempts in his outline to introduce evidence, which he is not entitled to do so. There is no application to adduce new evidence, nor could such an application succeed as the appellant had the opportunity to give evidence below and declined to do so. [21] His arguments about his Honour lacking jurisdiction, or, the authority to exercise judicial power based on constitutional grounds are not sustainable. His arguments about the laws of the State not applying to him are without substance, and in this regard, reference is made to R v Stoneman [2013] QCA 209; and Carnes v Essenberg -- 9 of 13 -- 10 [1999] QCA 339. [22] There is absolutely no reason to impugn his Honour’s findings about the reliability and honesty of Sergeant Tully. Such findings, even on the reading of the record below seem inevitable and, of course, his Honour was in a much better position than me to observe Sergeant Tully giving his evidence and be subjected to cross-examination. As I’ve indicated, I’ve listened to the CD – exhibit A for identification – and I’ve noted its contents. I agree with his Honour that the recording, insofar as it relates to the incident does not, in any way, undermine Sergeant Anderson’s observations about indicia he observed, consistent with the appellant being under the influence of liquor or a drug when he was seen by police at the scene, and in charge of the motor vehicle. The appellant also complains that, in effect, he was denied procedural fairness by being supplied late with the statement of Senior Constable Simpson. As I’ve noted, he received this at the bar table and his Honour did give him time to read it. Her evidence was uncontroversial. It related to continuity of control of the items removed from the car by Sergeant Anderson and she was not subjected to any cross- examination. At the time the appellant did not complain to his Honour that he was disadvantaged for this reason. It is common ground that he had a brief of the prosecution evidence before the hearing, with the exception of the statement from Senior Constable Simpson. [23] Finally, he complains that his Honour was biased. The complaint is difficult to understand, but seems to relate firstly to the lawfulness of his Honour’s appointment, and secondly to the way in which his Honour conducted the hearing. The first point has no merit. As to the second, his Honour showed admirable restraint in dealing with -- 10 of 13 -- 11 the appellant who was apt to speak over him and to continuously raise irrelevant and frankly silly arguments. An example of this is the farcical situation that developed over the appellant’s attempt to enter a conditional plea of guilty to the charges. His Honour handled all this with professionalism and with good humour; even at one stage remarking to the effect that he would love to continue to chat with the appellant, but he needed to get on with a trial. There is absolutely no merit in this ground. [24] The only remaining issue not agitated as a ground of appeal is whether his Honour erred in law by allowing the police Prosecutor to address in circumstances in which the appellant was unrepresented and did not call or adduce evidence. Section 148 of the Justices Act 1886 is in the following terms: “ 148 Conduct of summary proceedings regulated The practice before justices upon the hearing of a complaint of a simple offence or breach of duty shall, in respect of the examination and cross- examination of witnesses and the right of addressing the justices upon the case in reply or otherwise, be in accordance as nearly as may be with the practice for the time being at the Supreme Court upon the trial of an issue of fact in an action at law. ” [25] The practice in the Supreme Court, informed by common law interpretation of the provisions of section 619 of the Criminal Code, is that if an unrepresented accused does not give or call evidence the prosecutor has no right of final address to the jury. The same practice would apply to a Judge alone trial. I’m not at all convinced that such a practice is imported into summary trials of simple offences or breach of duties by virtue of section 148, and I am not aware if the course taken by his Honour is a common practice in the Magistrates Court. By reference to the proviso, which does not apply here, in a case annotated to Judge Shanahan’s annotations to Carter’s Criminal Code, R v Wilkie (QCA, CA number 255 of 1997, 30 September 1997) the -- 11 of 13 -- 12 Court of Appeal ruled that: “ Where the effect of this section had not been adverted to on the trial (a reference to section 619) and the Crown prosecutor was permitted to address the jury where the accused had not adduced evidence, no miscarriage of justice had occurred as the Crown case was so overwhelming that it was inevitable the jury would have convicted him in the absence of such address. ” [26] So that there is no doubt, pursuant to section 225(3), on a rehearing of the evidence before his Honour I would have reached the same conclusions and made the same orders. [27] As confirmed recently by the Court of Appeal in Commissioner of Police v Al Shakarji [2013] QCA 319, an appeal of this nature is by way of rehearing on the evidence before the Magistrate. As Morrison JA noted in that case, this means that I am bound to follow the prescription of the High Court in Fox v Percy (2003) 214 CLR 118 at 126-127, and conduct a real review of the evidence before his Honour and make my own determination of relevant facts in issue, giving due deference and attaching due weight to his Honour’s views. As I’ve noted in this appeal, there was no application for leave to adduce fresh evidence. As Margaret Wilson J noted in Al Shakarji at [65], a rehearing is to be on the evidence given at the trial; that is a rehearing in a technical sense of a review of the record below, rather than a complete fresh hearing. It is well established that to succeed on this appeal, the appellant must establish some legal, factual or discretionary error: Teelow v Commissioner of Police [2009] QCA 84 at paragraphs [3] – [14]. As I’ve noted, in relation to subsection (1) of section 225 of the Justices Act 1886, the court may confirm, set aside or vary the appealed order or to make any order in the matter that the judge considers just, and the judge may exercise any power that could have been exercised by whoever made the order appealed -- 12 of 13 -- 13 against. [28] In my opinion, there is no doubt that on a rehearing of the evidence before his Honour, I would reach the same conclusions. There is also a complaint about the sentence. Given the appellant’s significant traffic history (predominantly for speeding) the sentence imposed was a modest one. The appeal is dismissed. [29] HIS HONOUR: I order the appellant to pay the respondent’s costs of and incidental to the appeal, fixed at $1800. -- 13 of 13 --