Croft v Commissioner of Police [2012] QDC 184

QDC [2012] 184 DISTRICT COURT APPELLATE JURISDICTION JUDGE CLARE SC No 625 of 2011 RICHARD DESMOND CLIFTON CROFT Appellant and COMMISSIONER OF POLICE Respondent BRISBANE ..DATE 22/02/2011 JUDGMENT -- 1 of 7 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HER HONOUR: Mr Croft was convicted of speeding after a summary trial in the Magistrates Court. He appealed the conviction and argued the matter today in person. The prosecution case rested on the testimony of two police officers, certificates relating to the use of a radar device and an averment as to the official traffic sign of 40 kilometres per hour. The officers had been operating roadside radar tests late at night on the Bribie Island Road overpass. It was an area of road works where the speed limit was signed at 40 kilometres per hour. The speed of the car driven by Mr Croft was measured twice by a LIDAR device at 79 kilometres per hour. Certificates for the LIDAR device were tendered pursuant to section 124 of the Traffic Operation Road Use Management Act. The effect of them was prima facie evidence that the device used on the 6th September 2009 at 12.25 a.m. had recently been tested in accordance with Australian standards and produced accurate results. The certificates were validly tendered. Before admitting them, the Magistrate explained their effect to Mr Croft and gave him an opportunity to object to the tender. He declined. Officer Radcliffe confirmed that the device had been tested shortly prior to the offence and found to be accurate. Mr Croft made some attempt to the officer’s competency but he had not given any prior notice of objection, as is required under the Act in section 124, subsection 4. -- 2 of 7 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 Accordingly, cross-examination about the accuracy of the device or the operator’s capabilities were disallowed. At the outset, the Magistrate explained to Mr Croft the need to put his case to the witnesses in cross-examination. While Mr Croft maintained his plea of not guilty, he did not challenge the police evidence that he was the driver of the car or that the only traffic signs were for 40 kilometres per hour or that the speed of his car was measured at 79 kilometres per hour. Those were the core facts which proved the offence. Mr Croft did not raise any facts that could go to a defence or justification in law. He elected not to go into evidence. The Magistrate, in explaining his decision, recognised that the burden of proving the offence was on the prosecution. He was satisfied on the uncontested, unchallenged evidence that the defendant drove his car at 79 kilometres per hour in the 40 kilometre per hour zone. Indeed, it was not reasonably open to his Honour to come to any other conclusion. No defence in law was raised. Accordingly, the Magistrate was bound to convict Mr Croft. A dismissal of the charge on the evidence before the Magistrate would have been perverse. Mr Croft has not now identified any appealable error. Here, as in the Court below, he pointed out inconsistencies on minor points. For example, there was some confusion between the police about the time which was narrowed by a roster. There was a 500 metre -- 3 of 7 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 variation as to the location of interception. There was a question whether the circle on the traffic sign was red or black. There was a reference by the Magistrate at one point to 75 kilometres per hour, which, in context, was clearly a slip, given his reference to 79 kilometres an hour immediately before and after that point in the reasons, following the uncontradicted evidence of 79 kilometres per hour. None of these inconsistencies had any material bearing on the ultimate question of whether Mr Croft exceeded the speed limit. The Magistrate noted that there were some differences between the evidence of the two officers. In fact, it was the Magistrate who pointed out the discrepancies in time to Mr Croft. Ultimately, his Honour found that the nature of those inconsistencies on peripheral matters, about two years after the traffic interception, did not diminish the reliability of the officers' account of the speed clocked. The Magistrate found the police to be credible witnesses. Mr Croft, like anyone else charged with an offence, had a right to appear with or without legal representation. Mr Croft elected to proceed without a lawyer. The obligation of the Magistrate was not to give him legal advice but to ensure that the trial was a fair one. Throughout the trial his Honour carefully advised Mr Croft of the trial process and Mr Croft's rights in some detail. It is obvious that the Magistrate was concerned to see that Mr Croft was not disadvantaged by the absence of a lawyer. At the -- 4 of 7 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 conclusion of the prosecution case, the Magistrate advised Mr Croft of his right to make a no case submission. Mr Croft declined but now complains that he had no proper notice to prepare. At the time he did not pursue an offered adjournment or indicate that he had an argument to present. He indicated he would need longer to obtain legal advice. Throughout proceedings he had been treated with respect and patience. The hearing for a simple traffic offence had spanned three days and with adjournments spread over a six month period. Mr Croft was given opportunity to testify and to call evidence. He elected to remain silent. Finally, he was given an opportunity to argue his case on the evidence. He suffered no unfairness. A determination had to be made in accordance with the law and the evidence presented at the trial. On the state of the evidence, a conviction was inevitable. There was no submission that Mr Croft, or any defence lawyer, could have made to escape it. On appeal, there was an application for the tender of new evidence comprising affidavits sworn by Mr Croft and his son. The critical part of that proposed evidence is to assert that the radar device was not used on the Croft car. At the trial, Mr Croft told the Magistrate that he was not challenging the way the radar was used. Furthermore, he had not given any notice of any challenge to the certificates under section 124 -- 5 of 7 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 of the Act. It was not suggested to any of the prosecution witnesses that the radar device was not used. There is no suggestion that the proposed new evidence was not available or now known at the time of the trial. On the written application for the tender of new evidence, in response to the question as to why the evidence was not called at trial, Mr Croft wrote: “on legal advice”. That was not explained. Today the only explanation Mr Croft offered for not calling the evidence at trial was that he was confused. That explanation is not a satisfactory one in light of the transcript. Mr Croft could not have been confused about his right to call evidence. The Magistrate told him at the very start of the trial that he could do so when the prosecution evidence had concluded. Mr Croft was also told of the requirement to put his case to the prosecution witnesses and he was told of the elements that the prosecution needed to prove to establish the offence. Subsequent to that, there was a lengthy adjournment. Mr Croft was told of his right to go into evidence towards the end of his cross-examination of the last witness on the 2nd September 2010. His cross-examination resumed in February of 2011 and at the conclusion of that day, at the conclusion of the prosecution case, Mr Croft was again told of his right to go into evidence. He was told that his closing argument would be limited to the evidence presented in the trial and that he would not be -- 6 of 7 -- 1-7 JUDGMENT 1 10 20 30 40 50 60 permitted to offer a version unless that version had been given or raised in evidence. Mr Croft told the Magistrate that he would not waste the Court's time by calling evidence. That, of course, was his choice. The circumstances do not provide any proper basis on which to permit the admission of further evidence on the appeal. There must be some finality to the trial process. The evidence was available at the trial. Mr Croft made a decision not to call it. This Court will not now receive that evidence on the appeal. It is evident that Mr Croft has been preoccupied with his case for a very long time. He feels that he has been the victim of a great injustice. He has a long list of complaints. As he frankly concedes, he is not a lawyer. None of his complaints have any substance in law. None of them have a material bearing on the question of his driving above the speed limit at the relevant time. Mr Croft has indicated a complaint to the Crime and Misconduct Commission. That is a separate matter. It is irrelevant to the question on this appeal, which is the sufficiency of the evidence at trial. The appeal against conviction is dismissed. ----- -- 7 of 7 --