Borcherdt v Winston [2012] QDC 367

DISTRICT COURT OF QUEENSLAND CITATION: Borcherdt v Winston [2012] QDC 367 PARTIES: Hendrikus Borcherdt (Appellant) V Winston (Respondent) FILE NO/S: D2999/12 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court of Queensland DELIVERED ON: 21 December 2012 DELIVERED AT: Brisbane HEARING DATE: 26 November 2012 JUDGE: KINGHAM DCJ ORDER: 1. Appeal dismissed. CATCHWORDS: APPEAL – TRAFFIC OFFENCE – SPEEDING - where the appellant contested the accuracy of the recording obtained by the mobile speed detection device – where the appellant relied on tests he had conducted of the accuracy of his speedometer – where he had no expertise in testing electronic equipment – whether the prosecution had made out its case on the evidence beyond reasonable doubt. APPEAL – PROCEDURAL FAIRNESS – LITIGANT IN PERSON – Where the appellant represented himself in the summary trial – where the appellant complained that he was treated unfairly by the learned Magistrate – whether the appellant was denied a fair hearing. Gobus v Queensland Police Service [2001] QCA 283 Fox v Percy (2003) 197 ALR 201 Mbuzi v Torcetti [2008] QCA 231 Teelow v Commissioner of Police [2009] QCA 84 Rowe v Kemper [2008] QCA 175 Webb v The Queen (1994) 181 CLR 41 Transport Operations (Road Use Management) Act 1995 -- 1 of 7 -- 2 Section 124(4) COUNSEL: Mr H Borcherdt, appearing for himself as the appellant. Ms J O’Brien for the Respondent SOLICITORS: Mr H Borcherdt appearing for himself as the appellant. Office of the Director of Public Prosecutions for the Respondent [1] Mr Borcherdt was driving along Hilder Road in the Gap to collect his children from school on 18 October 2011 at about 2.48pm. Office Gammon, who had set up for speed detection about 30 minutes earlier, heard a car come around a bend on that road. He estimated the car, driven by Mr Borcherdt, was travelling over the 50km per hour speed limit that applied to that stretch of the road. [2] The officer aimed a LIDAR device, a laser speed detection device, at the vehicle and recorded a speed of 65km per hour. He thought the car braked, because its bonnet appeared to dip, and he took another reading which showed the vehicle was travelling at 9km per hour over the speed limit. [3] He directed Mr Borcherdt to pull over and, after a conversation, issued an infringement notice charging him with travelling at 59km per hour in a 50 km per hour zone. [4] Mr Borcherdt told Officer Gammon there was no way he was speeding and that he would contest the charge. Later he filed a notice that he contested the accuracy of the LIDAR and the way in which it was used by Officer Gammon.1 His grounds for challenging this were brief - he asserted he did not exceed 50km per hour and alleged the device must not have been used appropriately or have malfunctioned. [5] After hearing evidence from a number of prosecution witnesses, including Officer Gammon, and then from Mr Borcherdt, who represented himself, the learned Magistrate found him guilty of exceeding the speed limit. She fined him $133 and ordered him to pay costs fixed at $78.50. [6] Mr Borcherdt has appealed against his conviction on two grounds: that he was denied a fair hearing by the Magistrate and that the prosecution did not prove its case against him beyond reasonable doubt. Was Mr Borcherdt denied a fair hearing? [7] There are a number of features of the hearing that Mr Borcherdt relied upon to support his allegation that the learned Magistrate was biased and treated him unfairly: (a) He was not allowed to cross-examine Officer Gammon about their past interactions; 1 s124(4) Transport Operations (Road Use Management) Act 1995 -- 2 of 7 -- 3 (b) He was not allowed to tender various documents: (i) an affidavit that he had prepared about the matter; (ii) documents about the placement of the speed detection device; (iii) documents about the performance of his own speedometer. (c) She cross-examined him in the witness box; (d) She did not allow him to make submissions at the conclusion of the case. [8] Mr Borcherdt appeared as a litigant in person. It is his right to do so and the learned Magistrate had an obligation to ensure that he understood the procedure adopted for the hearing.2 [9] It can be a difficult balancing act for a judicial officer to control the proceedings in a way that is impartial between the parties, and is seen to be so, while also fulfilling their responsibilities to a litigant in person. [10] It is a serious matter to accuse a judicial officer of bias. Fair treatment of all parties is a fundamental expectation of all judicial officers. [11] I have read the transcript of the trial in full, in reaching the conclusion that her Honour was not biased in fact, nor did she behave in a way that would give rise to a reasonable apprehension of bias3. [12] No doubt Mr Borcherdt found the experience of representing himself a challenging one. He was in an unfamiliar environment. It was apparent from the transcript that, at times, he did not understand the procedure. [13] However, her Honour did assist Mr Borcherdt. She fairly alerted him to potential issues, as a litigant in person. For example, at one stage he wanted to give evidence about previous dealings with Officer Gammon. Her Honour interrupted Mr Borcherdt so she could warn him about the effect of leading character evidence or evidence about past offences.4 [14] This matter is relevant, also, because Mr Borcherdt complained that he was not allowed to cross-examine Officer Gammon about their past interactions. The learned Magistrate ruled they were irrelevant to whether or not he was speeding on the day in question. Respectfully, I see no error in her ruling. [15] Mr Borcherdt was allowed to cross-examine Officer Gammon about his statement in which he said that Mr Borcherdt was known to him because of the events charged. He was allowed to put to Officer Gammon that he had had prior interactions with him. Officer Gammon conceded that was so and explained his use of the phrase “known to me” in his statement. Having secured that concession, there was little further that could be achieved by exploring the circumstances of their prior interactions. The learned Magistrate was correct to curtail cross-examination on matters that were not relevant to the matters in issue in the trial. 2 Chapter 12.4 Equal Treatment Benchbook Supreme Court of Queensland. 3 Webb v The Queen (1994) 181 CLR 41 at 50-52. 4 Transcript p1-50 Ls 1-10. -- 3 of 7 -- 4 [16] Mr Borcherdt said the learned Magistrate was unfair in not allowing him to refer to an affidavit he had prepared for the hearing. At the trial, her Honour was led to believe the affidavit had been prepared the day before the trial. During the appeal, Mr Borcherdt said he made notes on the computer shortly after the event and used them to prepare his affidavit. [17] Regardless, the approach taken at trial cannot, reasonably, be criticized. Her Honour gave Mr Borcherdt three options at the close of the Crown case: to lead no evidence and make no submissions; to make a statement from the bar table, in which case he could refer to his affidavit; or to give evidence, in which case he would be subject to cross-examination. He chose the last of the three options. Mr Borcherdt having elected how he wished to proceed, her Honour, correctly, required Mr Borcherdt to give evidence from his own recollection of events. [18] There were other documents which Mr Borcherdt said he was denied, unfairly, an opportunity to tender. Firstly there were documents relating to the placement of the speed detection device. It is evident that Mr Borcherdt sought to demonstrate the placement did not comply with the QPS policy for placement of such devices. Her Honour, correctly, identified that the placement of the device was a matter of policy, not a matter for the Courts. In the absence of any assertion that its placement had any impact on the accuracy of the LIDAR reading, it is hard to discern its relevance. [19] The other documents related to his own testing of the accuracy of his speedometer. He gave oral evidence about what testing he had done. The weight of that evidence was unlikely to be affected by any documents that recorded the results he gave evidence about. [20] One measurement he did was using distance over time on a highway travelling at a constant rate of 100km per hour. This was done a year before the trial, 3 months before the event. The documents he wished to tender did not seem to relate to this test, but to another he did some time after the event. That one used the GPS function of his smart phone. [21] Mr Borcherdt did not put the results of his tests to any of the expert witnesses who were called by the prosecution. Mr Borcherdt does not have, and did not assert, any particular expertise to test the accuracy of a speedometer. Her Honour allowed Mr Borcherdt to give evidence of when and how he sought to establish the performance of his speedometer and the results he obtained. She specifically referred to that evidence in giving her reasons. She explained why his evidence did not give her reasonable doubt about the accuracy of the LIDAR reading, given the evidence given by expert witnesses called by the prosecution. Given his lack of specific expertise and his use of devices that had not been calibrated for accuracy, Google and GPS supported measurements, as Mr Borcherdt described them, would not have taken the matter any further than his oral evidence did. [22] Mr Borcherdt asserted that he was at a disadvantage in giving evidence as he was taken through his evidence by the Magistrate, without the ability to refer to his affidavit. Having read both the transcript and Mr Borcherdt’s -- 4 of 7 -- 5 Notice of Appeal and submissions, it seems to me that Mr Borcherdt did give the evidence that was relevant to the issues her Honour had to determine. [23] In particular, he explained why he was convinced that, on the day, he did not exceed the speed limit, both by reference to his observation of his speedometer and the tests he did before and after the event to check its accuracy. At the conclusion of his evidence in chief, the learned Magistrate invited Mr Borcherdt to add anything else he wished to. She did this again at the conclusion of the prosecutor’s cross-examination. [24] Mr Borcherdt’s final complaint, in terms of the fairness of the trial, is that he was not given an opportunity to make submissions to the Magistrate before she made her decision. That is true. Her Honour was, perhaps, overly efficient in announcing there was no need for submissions. Magistrates preside in a very busy jurisdiction under the pressure of time and the imperative to dispose of matters expeditiously can be compelling. Nevertheless, judicial officers should ensure a litigant in person is given a reasonable opportunity to make their case. [25] In this respect, though, Mr Borcherdt was not treated less favourably than the prosecutor, who was also not invited to make any submissions. It could not be said her Honour’s decision not to take submissions evidenced bias. The case was a simple one, the evidence was in short compass and the issues were clear. While it would have been preferable for the learned Magistrate to have given Mr Borcherdt the opportunity to address her, the relevant arguments he wished to agitate were put during the course of his cross-examination of prosecution witnesses and his own evidence and were adverted to in her Honour’s reasons. Did the prosecution prove its case beyond reasonable doubt? [26] The appeal is a rehearing on the original evidence. I should draw inferences from primary facts, including facts found and facts not disputed. I may exercise the powers of the appellate court only where the appellant can demonstrate the decision under appeal is the result of some legal, factual or discretionary error.5 [27] I should not lightly interfere with findings on credit unless it can be shown that the learned Magistrate was in error in law or in fact.6 [28] I must afford respect to the decision of the learned Magistrate and bear in mind any advantage she had in seeing and hearing the witnesses give evidence. However, that does not excuse me from my function in rehearing the matter. I must make my own assessment of the evidence and form my own conclusions about the appellant’s guilt, having due regard to the findings and conclusions of the learned Magistrate.7 5 Teelow v Commissioner of Police [2009] QCA 84 at p3 6 Gobus v Queensland Police Service [2001] QCA 283 7 Fox v Percy (2003) 197 ALR 201 at [25]; Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2008] QCA 231 at [17] -- 5 of 7 -- 6 [29] Having reviewed the evidence led at trial, I am not satisfied that there is any basis for disturbing her Honour’s decision. The evidence led by the prosecution was sufficient to establish beyond reasonable doubt that Mr Borcherdt was travelling at 59km per hour at the time in question, despite the evidence give by Mr Borcherdt about his observations and his checks of his speedometer. [30] Mr Borcherdt was certain the reading of 59 kilometres an hour indicated by the speed camera did not accurately reflect his speed at the time. He looked at his speedometer at the relevant time and it indicated that he was travelling under the speed limit. [31] As her Honour correctly noted in her reasons, the strength of the prosecution case rested on the expert evidence given about the LIDAR machine and its operation on the day. [32] The LIDAR’s accuracy was checked within 12 months of the date of the offence by Sean O’Driscoll a technician with over 30 years experience in the repair and calibration of electronic equipment, first with the Australian AirForce and most recently with the QPS Calibration Lab at Alderley. His certification of the accuracy of the equipment was not effectively challenged under cross-examination. His supervisor, Mr Clarke, signed off on his work but was not involved in testing the particular machine. [33] Officer Gammon gave evidence of a course he had undertaken in the operation of a LIDAR. He certified and also gave oral evidence that he had checked its operation before and after he commenced speed detection duties that day. He completed the six confidence tests required to assure the accuracy of a LIDAR device in accordance with the manufacturer’s specifications and service guidelines. [34] He was able to explain in detail each of the tests and their purpose. He said that he always did these tests but also had a specific memory of performing them on this day. [35] After completing the checks, he was satisfied the device was operating normally and returning accurate results when he used the LIDAR on Mr Borcherdt’s vehicle. [36] Mr Borcherdt gave evidence, described above, about the performance of his speedometer. Because he is not an expert, his evidence has less weight than the evidence of experts about the reliability of the machine that measured the car’s speed. However, the question is not whether his evidence should be preferred over the prosecution evidence. Rather, it is whether it might give rise to a reasonable doubt about whether Mr Borcherdt was travelling over the speed limit. [37] Mr Borcherdt’s account is that he was travelling at or under 50km per hour. The difference between the result to be expected if his tests were reliable, and that obtained by a calibrated and recently tested LIDAR, is not insignificant – at least 9km per hour. The evidence led by the prosecution about the LIDAR device tends to undermine the credibility of Mr Borcherdt’s -- 6 of 7 -- 7 tests, in the absence of any scientific evidence to explain the discrepancy. Mr Boracherdt’s evidence about the tests does not leave me with a reasonable doubt about the evidence given by the prosecution witnesses about the accuracy of the LIDAR reading. [38] The other tack taken by Mr Borcherdt to challenge the prosecution evidence was to question Officer Gammon’s credibility. If successful, this might cast doubt on the Officer’s evidence about the tests he says he conducted before and after he used the LIDAR on the day of the alleged offence. [39] I have taken into account the matters that Mr Borcherdt raised in relation to Officer Gammon’s credibility but I am satisfied that he is both a reliable and a credible witness. [40] Officer Gammon was frank that he was remiss in not securing the audio recording of his conversation with Mr Borcherdt at the scene. Mr Borcherdt sought to make something of this. Its relevance is questionable. The prosecution did not allege that Mr Borcherdt made any admissions. Mr Borcherdt did not allege anything occurred in that conversation that would suggest Officer Gammon was an unreliable or untruthful witness. [41] The other issue as it related to Officer Gammon’s credibility was his statement about how he knew Mr Borcherdt. This matter has already been addressed. In my view, little turns on it and it would have had no bearing on my assessment of Officer Gammon as a witness had the trial proceeded before me. [42] Finally, as to credit, I must take into account that the learned Magistrate had the advantage of seeing and hearing Officer Gammon give evidence. It is clear that she did not form an unfavourable impression of Officer Gammon’s credit as a witness. [43] Mr Borcherdt was afforded a fair hearing. The evidence established the case against Mr Borcherdt beyond reasonable doubt. The appeal must fail. [44] The appeal against conviction is dismissed. -- 7 of 7 --