Embleton v Buck [2013] QDC 180

DISTRICT COURT OF QUEENSLAND CITATION: Embleton v Buck [2013] QDC 180 PARTIES: STEPHEN JOHN EMBLETON (appellant) V EVAN ROBERT BUCK (respondent) FILE NO/S: 162/12 DIVISION: Appeal PROCEEDING: Appeal from dismissal of complaint ORIGINATING COURT: Beenleigh DELIVERED ON: 9 August 2013 DELIVERED AT: Beenleigh HEARING DATE: 20 June 2013 JUDGE: Dearden DCJ ORDER: 1. Appeal granted. 2. The order of the learned magistrate at Beenleigh on 7 November 2012 that “the charge is dismissed” is set aside. 3. The charge of speeding in respect of the appellant is to be remitted to the Magistrates Court at Beenleigh to proceed according to law. CATCHWORDS: CRIMINAL LAW – APPEAL – appeal of dismissal of speeding charge – legal or discretionary error – parol evidence rule incorrectly applied – evidence improperly excluded LEGISLATION Police Service Administration Act 1990 s. 4.10 Transport Operations (Road Use Management) Act 1995 s. 113, s.116(1), s. 120, s. 120(2), Sch 4, Sch 10 Part 5, Sch 13 Traffic Regulation 1962 r. 4, r. 211, r. 211(1)(e), r211(2), r. 208 CASES Bank of Australasia v Palmer [1897] AC 540, 545 Goss v Lord Nugent (1833) 5 B & Ad 58, 64-5 -- 1 of 14 -- 2 COUNSEL: J Wooldridge for the appellant The respondent appeared unrepresented SOLICITORS: Office of the Director of Public Prosecutions for the appellant The respondent appeared unrepresented Introduction [1] The appellant Stephen John Embleton, (a Queensland police officer), appeals from the decision of the learned magistrate at Beenleigh on 7 November 2012, dismissing one charge of speeding against the respondent Evan Robert Buck. Background [2] The respondent was charged by complaint and summons dated 18 June 2012 as follows:- ―On the seventeenth day of March 2012 at Loganholme in the Magistrates Court District of Beenleigh in the State of Queensland, one Evan Robert Buck, being the driver of a vehicle namely a car, drove at a speed over the speed limit, namely 100 kilometres per hour, applying to the driver for the length of road, namely Pacific Motorway, Loganholme, where the said driver was driving, and it is averred that the said car is a vehicle as defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995, and it is averred that the said Pacific Motorway is a road as defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995.‖ Further particulars [3] The following details were contained in the Complaint – sworn and Summons, namely:-  Time about 1406 hours  Registration number QLD 762 KUI  Speed 112 kilometres per hour  Photographic detection device infringement notice number 2001387080 issued 21/03/2012 previously forwarded  Notice under s. 116(1) [Transport Operations (Road Use Management) Act 1995] accompanies this summons. -- 2 of 14 -- 3 Court History [4] On 20 July 2012, the respondent was dealt with in his absence, fined $133 and ordered to pay $78.50 costs of court. Subsequently, on 27 August 2012, upon the respondent‘s application, a rehearing was granted and the matter proceeded to trial before the learned magistrate at Beenleigh on 7 November 2012. [5] The trial proceeded at Beenleigh on 7 November 2012 with oral evidence called from Alistair Wiggins, technical director, Gatso Australia1 and Acting Senior Sergeant Nigel Smith from the Traffic Camera Office, Brisbane2. [6] The prosecutor then sought to tender two photographs with attached certificates said to have been taken by a Gatso speed camera. The learned magistrate stated (relevantly), ―The certificate‘s invalid. It can‘t go in, so therefore there‘s no case to answer‖3, went on to conclude that there was ―no case to answer‖ and held that the ―charge [was] dismissed‖.4 [7] Although the two photographs upon which the prosecution sought to rely and their attached certificates were not accepted into evidence by the learned magistrate, copies of the photographs are Exhibits SSP1 and SSP2 to the affidavit of Scott Pearson5, filed in this appeal. [8] The relevant certification was referred to by the Prosecutor at the trial in these terms: ―… signed by a Stephen J Ambleton (sic) occupier of the – Senior Sergeant – occupier of the office of Senior Sergeant, Traffic Camera Office, who is the authorised delegate of the Commissioner of the Queensland Police Service under section 4.10 of the Police Service Administration Act 1990 who certifies that this image was properly taken by a photographic detection device, being a Gatso speed camera system, model RS-GS2 serial number 0242 and that the photographic detection device was used at a specified location, namely the Pacific Highway, Loganholme at 1406 on the 17th of March 2012. That certificate was produced on the 16th of October 2012.‖6 1 Transcript 1-7 - 1-23. 2 Transcript 1-25 - 1-31. 3 Transcript 1-37. 4 Transcript 1-38. 5 Sworn 30 May 2013. 6 Transcript 1-31. -- 3 of 14 -- 4 Grounds of appeal [9] The Notice of Appeal filed in these proceedings stated the ground of appeal as:- ―The learned magistrate erred at law by dismissing the charge.‖ However the appellant seeks leave to add the following grounds of appeal:-  The learned magistrate erred in failing to consider the evidence of the two witnesses called by the prosecution;  The learned magistrate erred in refusing to accept the photograph(s) and accompanying certificate(s) into evidence and to consider that evidence as part of the prosecution case. [10] I consider leave should be granted to add the proposed further grounds of appeal, which more specifically identify the material issues on this appeal. [11] I also accept that it was necessary on this appeal to view the photographs in order to decide whether the learned magistrate erred in law in refusing to accept these photographs and the accompanying certificates into evidence. Accordingly, leave is granted for the affidavit of Scott Pearson7 to be filed and read on the appeal. [12] The data block of each of the two photographs sought to be admitted into evidence8 contains the following information:-  Time: 14:06:31  Image no: 165  Dist Interval: 10m  Direction: A  Model: RS-GS2-P  Date: 17/03/2012  Lane: 4  Elapsed time: 0.00s  Site Code: 3800104  Serial no: 0242  Speed: 112 km/h  Speed limit: 100 km/h  Location: Pacific Highway, Loganholme [13] The second photograph is in almost identical terms except as follows:-  Time: 14:06:32  Elapsed time: 0.32s  Speed: km/h 7 Sworn 30 May, 2013. 8 Exhibits SSP1 & SSP2, affidavit of Scott Pearson sworn 30 May 2013. -- 4 of 14 -- 5 [14] It is submitted on behalf of the appellant that the documentary evidence proposed to be adduced before the learned magistrate (but which the learned magistrate refused to accept) were photographs of the alleged speeding offence, containing a data block as prescribed in Traffic Regulation 1962 r.211, with certificates pursuant to Transport Operations (Road Use Management) Act 1995 s.120(2) under the hand of Stephen J Embleton, Senior Sergeant, Traffic Camera Office, dated 16 October 2012, stating: (i) The image was properly taken by a photographic detection device, being a Gatso speed camera system model RS-GS2 serial number 0242; and (ii) The photographic detection device was used at a specified location, namely Pacific Motorway, Loganholme at 14:06 on 17 March 2012.9 [15] It is further submitted by the appellant that ―the consequence of the certificate was, that if made under a valid delegation, once admitted into evidence, the photographs and certificate could provide evidence of the following factual matters: (i) The things depicted in the image, including the subject vehicle and the vehicle registration plates attached to that vehicle; (ii) That the photograph was taken at 14:06 hours on 17 March 2012; (iii) That the vehicle was travelling away from the camera; (iv) That the vehicle was at the time of the photograph travelling at a speed of 112 km/hr; (v) That the speed limit at the location where the photograph was taken was 100 km/hr; (vi) That the image was taken at Pacific Motorway, Loganholme of a vehicle travelling in the target lane; (vii) That any requirements prescribed by regulation about the operation and testing of the device were complied with at all material times.‖10 9 Outline of submissions (appellant) p.3 para 4.1. 10 Outline of submissions (appellant) p.3 para 4.2. -- 5 of 14 -- 6 Legislative framework [16] Traffic Regulation 1962 s.4 defines ―digital speed camera system‖ to mean ―a camera described in Schedule 10 Part 5‖. Relevantly, Schedule 10 Part 5 headed ―Digital speed camera system‖ refers to ―Gatso speed camera system models Radar AUS GS, RS-GS2 and RS-GS11‖. [17] Traffic Regulation 1962 r.208 headed ―Approved photographic detection devices‖ states ―a camera described in Schedule 10 is approved for section 113 of the Act, definition photographic detection device‖. [18] Transport Operations (Road Use Management) Act s.113 defines ―photographic detection device‖ to mean ―a device or system, that captures an image, of a type approved under a regulation as a photographic detection device‖. The definition‘ under the heading ―Examples‖ refers to:- ―- A digital device - A camera system, the components of which may include multiple cameras, trigger mechanisms, data transfer capability and image processing‖. [19] Transport Operations (Road Use Management) Act s.120(2) provides: ―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.‖ [20] Transport Operations (Road Use Management) Act s.120(4) provides: ―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.‖ [21] Traffic Regulation r.211(1)(e) relevantly provides:- -- 6 of 14 -- 7 ―For section 120 of the Act, a data block has the meaning given in – (e) for an image taken by a digital speed camera system– schedule 13.‖ [22] Traffic Regulation r.211(2) provides:- ―In this section– data block means the marking or writing made by a photographic detection device on an image taken by the device. on, an image, includes adjacent to or associated with the image.‖ [23] Schedule 13 headed ―Data blocks for digital speed camera systems‖ relevantly provides in Part 1: ―Images taken by Gatso speed camera system models Radar AUS GS, RS-GS2 and RS- GS11  ‗date‘ followed by a sequence of numbers is the date when the image was taken, in the order of day, month and year (ddmmyyyy)  ‗direction‘ followed by a letter ‗A‘ or ‗F‘ is the direction that the vehicle the speed of which was measured by the system (the target vehicle) was travelling in relation to the system‘s camera. ‗A‘ indicates the target vehicle was travelling away from the camera and ‗F‘ indicates the target vehicle was travelling towards the camera  ‗dist interval‘ followed by a number is the distance travelled by the target vehicle, in metres, from its location when an image of the vehicle was taken to its location when another image of the vehicle was taken  ‗elapsed time‘ followed by a number is the time elapsed, in seconds, from when an image of the target vehicle was taken to when another image of the vehicle was taken  ‗image no‘ followed by a number is the number allocated by the system to the image  ‗lane‘ followed by a number is the number given in the Traffic Camera Coding Manual for the lane in which the target vehicle was travelling  ‗location‘ followed by writing is the name of the location where the image was taken  ‗model‘ followed by writing is the model of the system used to take the image  ‗serial no‘ followed by a number or writing is the serial number of the system used to take the image -- 7 of 14 -- 8  ‗site code‘ followed by a number is the number given in the Traffic Camera Coding Manual for the location of the system‘s camera when the image was taken  ‗speed‘ followed by a number is the speed, in kilometres per hour, of the target vehicle measured by the system when the image was taken  ‗speed limit‘ followed by a number is the maximum speed limit, in kilometres per hour, for the place at which the image was taken when the image was taken  ‗time‘ followed by a sequence of numbers is the time in 24-hour clock mode when the image was taken in the order of hour, minute and second. Example— A data block may show the following information—  date: 01/09/2011  direction: A  dist interval: 10m  elapsed time: 0.383s  image no: 45  lane: 2  location: M7 Bowen Hills  model: RS-GS2  serial no: 2898  site code: 280007  speed: 94km/h  speed limit: 80km/h  time: 5:45:00. The data block indicates the following—  the image was taken at 5:45a.m. on 1 September 2011  the target vehicle was travelling away from the system‘s camera  the target vehicle travelled 10 metres from its location when an image of the vehicle was taken to its location when another image of the vehicle was taken  the time elapsed from when an image of the target vehicle was taken to when another image of the vehicle was taken was 0.383 seconds  the image was allocated the number 45 by the system -- 8 of 14 -- 9  the target vehicle was in the lane given the number 2 in the Traffic Camera Coding Manual  the location where the image was taken was the M7 at Bowen Hills  the model of the system used to take the image was RS-GS2  the serial number of the system used to take the image was 2898  the system‘s camera was located at the place given the number 280007 in the Traffic Camera Coding Manual  the speed of the target vehicle measured by the system was 94km/h  the maximum speed limit at that place and time was 80km/h. Discussion [24] As previously outlined, Exhibits SSP1 and SSP211 relevantly contain the following in the data block:- ― ● Model: RS-GS2- P‖ [25] The basis for the learned magistrate refusing to accept the photographs and certificates into evidence was that the data blocks in the relevant photographs referred to a ―model RS-GS2-P‖, whereas the certification by Senior Sergeant Embleton referred to a ―model RS-GS2‖. [26] The learned magistrate clearly expressed a view at the start of the trial that the reference in the data block to a model ―RS-GS2-P‖ was relevant to the application of the legislative provisions. Accordingly, the prosecution at the trial called oral evidence from two witnesses, Alistair Wiggins (technical director of Gatso Australia) and Acting Senior Sergeant Nigel Smith (Traffic Camera Office, Brisbane). [27] Mr Wiggins was provided with a photograph (apparently a copy of Exhibit SSP1) and asked to explain what it depicted. He indicated that it depicted ―a speeding offence‖ and further that he could ―tell from the information in the data block, time, the date, speed that the vehicle was travelling, the speed limit on the road.‖12 Mr Wiggins then, from the data block, identified that ―time is 1406 and 31 seconds … date was the 17th of March 2012, speed recorded 112 kilometres per hour, speed limit 100 kilometres per hour, the vehicle was detected in lane 4, image number is 11 Affidavit of Stephen Scott Pearson sworn 30 May 2013. 12 Transcript 1-8. -- 9 of 14 -- 10 165, the location is Pacific Motorway at Loganholme, direction ‗A‘ which means away from – there‘s a site code there which is unique site identifier. Serial number of the device. Model of the system. Also distance interval, which is the interval between the two photographs that are taken.‖13 [28] Mr Wiggins identified the model number of the device on the data block as ―RS-GS2-P‖ and gave evidence that ―basically the model of the system is an RS-GS2 and the ‗P‘ depicts the trigger device that‘s connected to the system … a parabolic antenna and hence ‗P‘.‖14 [29] Mr Wiggins gave evidence that ―there‘s a couple of different antennas that could be connected to [the RS-GS2 speed camera]‖. He gave evidence that if a ―slotted antenna‖ was connected, then ―you would put an ‗S‘ there‖ [a reference to an alternate suffix to the model number rather than ‗P‘].15 [30] Mr Wiggins then identified that the relevant certificate in respect of the photograph stated ―I certify that this image was properly taken by a photographic detection device being a Gatso speed camera system model RS-GS2 serial number 0242‖.16 [31] Mr Wiggins gave evidence that the two photographs17 reflected the taking of an initial photograph and then a second photograph 10 metres (.32 seconds) afterwards as a testing device for the speed camera.18 [32] When asked by the prosecution, ―Do Gatso make a system model number RS-GS2- P?‖ Mr Wiggins answered, ―No. RS-GS2.‖ Mr Wiggins went on to state, ―The system is an RS-GS2, but the system then can be connected to a number of trigger devices.‖19 [33] During the course of questioning by the learned magistrate, Mr Wiggins stated (relevantly), ―The antenna is … a trigger device. It‘s there to receive … the radar signals… but it‘s not actually carrying out the speed measurement … so basically 13 Transcript 1-8. 14 Transcript 1-8. 15 Transcript 1-8. 16 Transcript 1-9. 17 Exhibits SSP1 and SSP2, affidavit of Scott Pearson 30 May 2013. 18 Transcript 1-10. 19 Transcript 1-11. -- 10 of 14 -- 11 the part of the system that‘s carrying out the speed measurement, which is the crux of the matter here, … is the decision unit [which is] … part of the RS-GS2.‖20 [34] Acting Senior Sergeant Nigel Smith gave evidence that he was ―the subject matter expert and project manager for the installation of the fixed speed camera units at … the Pacific Motorway, Loganholme.‖21 He gave evidence that the camera installed at that location was ―a Gatso RS-GS2‖ which had ―a parabolic antenna device attached‖ which was ―lane specific‖.22 [35] Acting Senior Sergeant Smith gave evidence that the model of the relevant speed camera device was ―RS-GS2-P‖ which was ―an RS-GS2 device [to which] we‘ve attached a parabolic antenna‖ and further that ―the data block contains the ‗-P‘ to indicate to us that that‘s what is attached.‖23 [36] Acting Senior Sergeant Smith also, upon examination of the photographs shown to the witness Alistair Wiggins24, gave consistent evidence as to the interpretation of the details contained within the data block.25 [37] Although the learned magistrate did not, in terms, provide a decision that specifically articulated the reason for concluding that ―the certificate‘s invalid‖ and ―therefore there‘s no case to answer‖26, consequently ordering that ―the charge is dismissed‖27, the reasons appear to be most clearly articulated by the learned magistrate during the course of an exchange with the prosecution in these terms:- ―I don‘t accept [the photographs sought to be tendered in evidence] because the certification on the back refers to a Gatso speed camera system model RS-GS2, serial number 0242, whereas the photograph refers to a model RS-GS2-P, serial number 0242. So I am not satisfied that the certificate refers to the camera which is described on the front of the photograph as having taken the photograph.‖28 [38] After further submissions by the prosecutor at the trial, the learned magistrate stated:- 20 Transcript 1-20. 21 Transcript 1-25. 22 Transcript 1-25 - 1-26. 23 Transcript 1-26 - 1-27. 24 Exhibits SSP1 and SSP2, affidavit of Scott Pearson 30 May 2013. 25 Transcript 1-26. 26 Transcript 1-37. 27 Transcript 1-38. -- 11 of 14 -- 12 ―…on (sic) my opinion, the TORUM (sic) provisions provide for certifications specifically and to make hearings easier, to shorter hearings, certificates which make it unnecessary to call certain witnesses. But if documentary evidence as per the TORUM (sic) is to be relied upon, you can‘t look outside the document … or behind the document.‖29 [39] The learned magistrate went on to say:- ―There‘s a parole (sic) evidence rule, in certain cases where you look at documents, you have to rely on what‘s in the document. It doesn‘t permit you, say for instance it was a contract or something like that, it doesn‘t permit you to look behind the document and people come in and say, well, this is why this was put in the document. You have to look at what is in the document and that‘s what you rely on. And in my opinion, that‘s why that section in the TORUM (sic) is there for those certifications to be made but they have to be precise. You can‘t look behind it and say, well okay, it‘s got on the front here a model RS-GS2-P but the certification says a system model RS-GS2. We didn‘t put the ‗P‘ in there because that‘s unnecessary because that‘s a parabolic antenna. Well, so be it but the certificate – the reason that the TORUM (sic) provides for the use of certificates is for a reason and that‘s why they have to be, in my opinion, precise.‖30 Further discussion [40] The reliance by the learned magistrate on the ―parol evidence rule‖ (inaccurately referred to in the transcript as the ―parole evidence rule‖) is, with respect, completely misconceived. [41] The rule is conveniently summarised in Cross on Evidence31 in these terms:- ―Extrinsic evidence is generally inadmissible when it would, if accepted, have the effect of adding to, varying or contradicting the terms of a judicial record, a transaction required by law to be in writing, or a document constituting a valid and effective contract or other transaction.‖ Cross on Evidence goes on to cite judicial statements of the rule by Lord Morris in Bank of Australasia v Palmer [1897] AC 540, 545 and Denman CJ in Goss v Lord Nugent (1833) 5 B & Ad 58, 64-5. 28 Transcript 1-32. 29 Transcript 1-36. 30 Transcript 1-36 1-37. 31 Volume 1 para 39145 – Cross on Evidence, J D Heydon, Butterworths, Sydney (looseleaf). -- 12 of 14 -- 13 [42] It is clear, in my view, that the situation facing the learned magistrate here was not a question of applying the ―parol evidence rule‖, which has no applicability whatsoever to a document sought to be tendered pursuant to legislative provisions, but rather that the learned magistrate should have dealt with the issue as a matter of fact-finding in the light of the relevant evidentiary legislative provisions outlined above. [43] It is clear therefore that, in addition to relying upon the combination of a photograph and certificate, the prosecution was entitled to lead (and in fact did so), additional evidence explaining and clarifying the information contained in the data block, as well as technical aspects of the system that was utilised to obtain that relevant information. [44] The key issue of course is that, at the relevant time, a Gatso speed camera system model RS-GS2 was an ―approved photographic detection device‖ and the relevant data block referred to the model used as a ―RS-GS2-P‖. [45] The evidence from the witness Alistair Wiggins is to the effect that a reference in the data block to the model as being ―RS-GS2-P‖ was nothing more or less than the use of the suffix ―-P‖ to indicate that a model RS-GS2 Gatso speed camera system had been utilised to take the photograph, with a parabolic antenna as the trigger. Conclusion [46] The respondent was charged with an offence of exceeding the speed limit. The offence of speeding is contained in the Transport Operations (Road Use Management – Road Rules) Regulation r. 20. The offence, if contested, must be proved beyond a reasonable doubt by admissible evidence. To this end the Transport Operations (Road Use Management) Act s. 120 provides that a commissioner certified image from a ―photographic detection device‖ is evidence of various specified matters including (s. 120(2)(c)) ―the things detected in the image‖. [47] Further, s. 120(4) provides that ―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‖. -- 13 of 14 -- 14 [48] Relevantly, a ―Gatso speed camera system [model] RS-G2‖ falls within the definition of a ―digital speed camera system in the Traffic Regulation s. 4 & Schedule 10 Part 5 and within the definition of a ―photographic detection device‖ in Transport Operations (Road Use Management) Act s. 113 (see Traffic Regulation r. 208). Traffic Regulation rr. 211(1)(e) & 212 then define ―data block‖, and Schedule 13 sets out the information a ―data block‖ contains. [49] In the light of the evidential framework set out in the previous paragraph, I consider that the learned magistrate was obliged to consider as evidence not only the contents of the data block on the photo, but should also have considered that evidence contained in that data block in the light of the oral evidence called by the prosecution from the witnesses Alistair Wiggins and Acting Senior Sergeant Nigel Smith. In those circumstances, it is then clear that the prosecution would have demonstrated (had the relevant photographs and certificates been admitted) that the device to which the relevant certificate purported to relate was a ―photographic detection device‖; and that (in the light of the oral evidence) the model referred to in the certificate was, in fact, the model referred to in the data block (albeit with the suffix ―-P‖). In short, there was (potentially) before the learned magistrate sufficient evidence to conclude, beyond reasonable doubt, that the respondent‘s vehicle has exceeded the relevant speed limit at the time, date and place alleged. [50] It follows that the learned magistrate erred in law by refusing to admit the photographs and certificates into evidence, finding that there was no case to answer and dismissing the charge. Orders 1. Appeal granted. 2. The order of the learned magistrate at Beenleigh on 7 November 2012 that ―the charge is dismissed‖ is set aside. 3. The charge of speeding in respect of the appellant is to be remitted to the Magistrates Court at Beenleigh to proceed according to law. -- 14 of 14 --