Dewberry v Dixon [2011] QCA 238

SUPREME COURT OF QUEENSLAND CITATION: Dewberry v Dixon [2011] QCA 238 PARTIES: DEWBERRY, Patricia (applicant) v DIXON, Jeffrey Arthur (respondent) FILE NO/S: CA No 322 of 2010 DC No 53 of 2010 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Rockhampton DELIVERED ON: 16 September 2011 DELIVERED AT: Brisbane HEARING DATE: 31 May 2011 JUDGES: Margaret McMurdo P, Fraser JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application for leave to appeal refused CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant was found guilty of driving over the speed limit – where the applicant raised evidence to suggest that she was not the driver of the car captured in the speed camera photograph – where the Magistrate found that the applicant was mistaken in her own mind in parts of the evidence – where the applicant argued on appeal that the relevant Australian Standards had not been complied with as required by s 112 of the Transport Operations (Road Use Management) Act 1995 (Qld) – where the applicant did not provide written notice to the prosecution before the hearing that she intended to challenge the accuracy of the speed camera or the way in which it was used – where the applicant‘s appeal to the District Court was dismissed – whether the applicant should be granted leave to appeal District Court of Queensland Act 1967 (Qld), s 118(3) Transport Operations (Road Use Management) Act 1995 (Qld), s 112, s 120(2), s 124(4), s 124(5) -- 1 of 5 -- 2 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Mbuzi v Torcetti (2008) 50 MVR 451; [2008] QCA 231, cited Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited COUNSEL: The applicant appeared on her own behalf M B Lehane for the respondent SOLICITORS: The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent [1] MARGARET McMURDO P: I agree with Fraser JA's reasons for refusing this application for leave to appeal. [2] FRASER JA: The applicant seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) against a decision of a District Court judge dismissing her appeal against conviction for a traffic offence in the Magistrates Court. She was fined $133 and ordered to pay $74.35 costs of court. [3] The prosecution case was that at 7.55 am on 8 February 2009 on Gladstone Road, Rockhampton, the applicant drove a car bearing the registration number 388-KJA at a speed of 70 kilometres per hour, which was over the speed limit of 60 kilometres per hour. It was not in dispute that the applicant was the registered owner of the car registered number 388-KJA, or that the speed limit at the relevant place on Gladstone Road was 60 kilometres per hour. The evidence in the prosecution case, which took advantage of the provisions in the Transport Operations (Road Use Management) Act 1995 (Qld)1 (―TORUM‖) which facilitate proof of such charges, comprised six documentary exhibits. The Acting Magistrate analysed the documentary exhibits and concluded that, at least at a prima facie level, there was evidence to substantiate every element of the offence. [4] The applicant gave evidence which raised two possible defences. The first was that the speed camera image was not accurate because there was more than one vehicle captured in the image. The Acting Magistrate found that the applicant‘s evidence on that point was inadmissible because she had no expertise or qualifications which enabled her to express any such opinion. The applicant did not seek to challenge that finding. [5] The second possible defence was that the applicant was not the driver of the car captured in the photograph. Her argument was that another person with a nearly identical car must have attached a false registration plate bearing the number 388- KJA to his or her own car, and it was that car which was photographed by the speed camera. She gave evidence that she was driving her vehicle within the speed limit on Gladstone Road at the relevant place at about 8.15 am, but she denied that she was there when the speed camera image was taken at 7.55 am. She said that: she had looked at the clock in her car at a roundabout on the road; the clock showed 8.14 am and she knew that the clock was two minutes fast so that the time was 8.12 am; and she knew that it would take her two or three minutes more to get to the place where the speed camera image was taken. [6] The applicant gave evidence that she knew ―absolutely for certain that I and my car weren‘t there, but I‘m the only person in the world who does, and I can‘t prove it. 1 Reprint 10C, which was in force in February 2009. -- 2 of 5 -- 3 So I looked around, I thought, ‗[w]ell, that means somebody else must have been there with my numbers on the front of their car‘.‖ The applicant organised for photographs to be taken of her car some time after the alleged offence and those photographs were tendered in evidence. She gave detailed evidence to the effect that the appearance of the radio aerial and the numbers, letters, and other markings on the number plate on the car in the speed camera images differed from the appearance of the same details on her photographs of her car. [7] The Acting Magistrate examined the two sets of images, concluded that any apparent differences were attributable to the varying quality of the images, and rejected the applicant‘s evidence that she was not the driver of the car in the speed camera image. [8] In the appeal to the District Court, the judge reviewed the evidence which was before the Magistrates Court, referred to the Acting Magistrate‘s ―comprehensive and careful reasons‖, and concluded that there was no error in the Acting Magistrate‘s decision. His Honour also observed that it would be a remarkable coincidence that an identical or similar vehicle to the applicant‘s with the falsified number plates would have travelled on the same road 20 minutes before the applicant did. [9] In this Court the applicant repeated her arguments that the appearance of the radio aerial and the numbers, letters, and other markings on the number plate in the speed camera images differ from the appearance of the same details on her photographs. She argued that the differences could not be explained by differences in the quality of the two sets of images. However, although the speed camera images clearly show ―388-KJA‖ on the number plate of a recognisable make and model car, the images are generally darker and much less distinct than the applicant‘s photographs. The applicant‘s photographs were taken of a stationary car in very bright light. The appearance of the speed camera images is consistent with them having been taken at an angle to a fast moving car and in much darker conditions, although the quality of the photographs might instead be the result of some other factor such as the quality of the camera or its distance from the car. [10] There is plainly scope for misinterpreting fine details on the speed camera images in any attempt to compare them with the applicant‘s photographs. Indeed, the applicant herself agreed in evidence that after she received the infringement notice she told someone in the Traffic Camera Office that the vehicle shown in the speed camera images had a very large object on its roof rack, but that after further investigations she accepted that this was in fact the trailer of a truck travelling in the opposite direction on the other side of the median strip. Another example of the difficulty of relying upon the comparison undertaken by the applicant concerns her contention that the speed camera images showed a car which had a visible aerial stub but (unlike in her photographs) the vertical shaft of the aerial was not visible. Even in one of the applicant‘s otherwise very clear photographs, the aerial shaft is very nearly invisible against a background of trees. Nor does the aerial stub shown in one of the applicant‘s photographs differ from what is revealed in the speed camera images so as to suggest that the latter are not images of her car. The speed camera images also reveal a mottled appearance of the car surfaces, particularly the number plate, which is not apparent in the applicant‘s photographs. In these circumstances it seems unsurprising that some details, such as those concerning the aerial and the formation of letters, numbers and other markings on the number plate, -- 3 of 5 -- 4 do not clearly appear in the speed camera images in the same way that they appear in the applicant‘s photographs. [11] The Acting Magistrate was not prepared to accept the applicant‘s evidence that she was not the driver of the car shown in the speed camera image, finding that ―the defendant was mistaken in her own mind in parts of her evidence.‖ That finding, which necessarily turned to some extent upon the Acting Magistrate‘s assessment of the reliability of the applicant‘s evidence, must be given weight. In the appeal to the District Court, the judge was obliged to review the evidence, weigh the conflicting evidence, and draw his own conclusions, but in doing so the judge was bound to ―afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence‖.2 The applicant‘s arguments on this point fall short of establishing any ground for thinking that it was open to the judge to disregard the Acting Magistrate‘s rejection of the applicant‘s evidence. There was no error in the judge‘s decision. [12] The applicant also argued in support of her proposed appeal to this Court that the National Measurement Act 1960 (Cth) and Australian Standards arising under it, AS2898.1-2003 and AS2898.2-2003 ―make it a mandatory requirement that the Gatso speed camera must be used only by a Commonwealth Registered User whose name is recorded on the Commonwealth list as a Registered User of that apparatus.‖ The applicant did not identify any provision of the National Measurement Act which has any such effect. Instead, she referred to the provision in s 112 of TORUM that a police officer using a radar speed detection device or laser based speed detection device must comply with ―the appropriate Australian Standard for using the device, as in force from time to time‖ and she submitted that the relevant Australian Standards were AS2898.1-2003 and AS2898.2-2003. The applicant contended that those standards imposed mandatory requirements for all operators of all kinds of speed measuring equipment to be trained, examined successfully, and registered to use the particular equipment, and for photographs also to be checked afterwards by another person trained, successfully examined and registered to use the particular equipment. [13] In one of the documentary exhibits tendered by the prosecution, a senior sergeant in the Traffic Camera Office, who was proved by a separate exhibit to be an authorised delegate of the Commissioner of the Queensland Police Service for this purpose, certified that the image of the vehicle with the registration number 388-KJA ―was properly taken by a photographic detection device‖ described in the certificate and that the photographic detection device was used at the relevant location at ―07:55 on 8 February 2009.‖ Section 120(2) of TORUM provided that an image certified in such a way 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.‖ 2 Mbuzi v Torcetti (2008) 50 MVR 451 at 454 [17], referring to Fox v Percy (2003) 214 CLR 118 at 126 - 127 [25] and Rowe v Kemper [2008] QCA 175 at [5]. -- 4 of 5 -- 5 [14] Section 124 of TORUM provided: ―(4) A defendant who intends to challenge— (a) the accuracy of a speed detection device or vehicle speedometer accuracy indicator for which a certificate is given under subsection (1); or (b) the time at, or way in, which the relevant device was used; at the hearing and determination of a charge against the defendant under this Act must give written notice of the challenge to the prosecution. (5) 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 (4)(a) or (b); and (c) be given at least 14 days before the day fixed for the hearing.‖ [15] The applicant did not give written notice to the prosecution before the hearing that she intended to challenge the accuracy of the speed camera or the way in which it was used, whether on the present ground or otherwise, as required by s 124(4) and s 124(5) of TORUM. She did not advance this argument at the hearing in the Magistrates Court, where the respondent might have met it by argument about the effect of s 120 and s 124 or by evidence. The Australian Standards upon which the applicant now relies were not in evidence in the Magistrates Court and they do not form part of the record for this application. There is no evidence that the speed camera or any police officer did not in fact comply in any respect with any applicable Australian Standards. [16] For these reasons it would be inappropriate to grant leave to appeal to permit the applicant to argue this point. Orders [17] I would refuse the application. The respondent did not seek an order as to costs. [18] DAUBNEY J: For the reasons given by Fraser JA, with which I respectfully agree, I would also refuse this application. -- 5 of 5 --