Crossley v Auld [2011] QDC 270

DISTRICT COURT OF QUEENSLAND CITATION: Crossley v Auld [2011] QDC 270 PARTIES: DENNIS ALAN CROSSLEY (Appellant) AND DONALD JAMES BEAUMONT AULD (Respondent) FILE NO/S: Appeal 113/11, INGH-MAG 274/10 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Ingham DELIVERED ON: 17 November 2011. DELIVERED AT: Brisbane HEARING DATE: 28 October 2011 JUDGE: McGill DCJ ORDER: Appeal dismissed. CATCHWORDS: VEHICLES AND TRAFFIC – Driving Offences – speeding – whether speed limit sign legally effective – whether speed detection device used in accordance with Australian Standard Transport Operations (Road Use Management) Act 1995 ss 68, 69, 72, 75, 112, 124(4). Transport Operations (Road Use Management – Road Rules) Regulation 2009 ss 21, 315, 316. Day v Grice [2011] QCA 178 – cited. Maybir v Bone [2005] QCA 344 – cited. Mbuzi v Torcetti [2008] QCA 231 – cited. R v Hester [1973] AC 296 – cited. Robinson v R (1999) 197 CLR 162 – cited. Rowe v Kemper [2008] QCA 175 – cited. COUNSEL: The appellant appeared in person B. Clark (solicitor) for the respondent SOLICITORS: The appellant was not represented Director of Public Prosecutions for the respondent -- 1 of 10 -- 2 [1] On 3 June 2011 the appellant was convicted in the Magistrates Court at Ingham after a summary trial of one count of driving a vehicle at a speed over the speed limit. The magistrate imposed a fine of $600, in default 12 days’ imprisonment, and allowed two months to pay the fine. A conviction was not recorded. The appellant has appealed to this court against his conviction pursuant to the Justices Act 1886 s 222. This is an appeal by way of rehearing under s 223 of the Act, and I am required to review and weigh the evidence and draw my own conclusions, affording respect to the decision of the magistrate and bearing in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence.1 Evidence at the trial [2] The prosecution led evidence from a senior constable in the Ingham traffic branch that at about 4.28 pm on the day on question he was driving a marked police vehicle fitted with a mobile speed detection device south on the Bruce Highway in the vicinity of Eastern Creek, Yuruga, in an area where there were roadworks: p 4. There was a length of road where there was an 80 kph marked speed zone about three to four kilometres long for the roadworks. He saw approaching a line of at least six vehicles, activated the mobile speed detection device and noticed a speed of around 80 kph. He then saw a red vehicle approaching which appeared to be speeding: p 8. It overtook the other north-bound vehicles, and as it got ahead of them he activated the device and a detected speed of 117 was displayed: p 8. At that time there were no other vehicles between the police vehicle and the approaching red car: p 9. [3] He also said that the radar device produces a sound which varies according to the speed detected, with a higher frequency as the speed detected is higher. He said that it was a clear, uninterrupted sound, which indicated that only one vehicle was being detected. He said he checked the signs to ensure it was an 80 kph zone, pressed the button to lock the vehicle’s speed and his own vehicle’s speed on the radar unit display, then activated his lights and the red vehicle pulled over: p 10. After the other vehicles had gone past, he turned his police vehicle around and pulled up behind the red car. He had a conversation which was recorded. [4] A CD containing a copy of that recording was produced, tendered and made an exhibit, but apparently could not be played in court. The prosecutor also produced what was said to be a transcript of the tape, and the appellant said that he had a transcript and was prepared to accept it as evidence, and did not dispute the contents: p 11. The prosecutor then tendered the transcript as an exhibit, but it appears not to have been made an exhibit, although the transcript was put with the other exhibits. The prosecutor then led from the witness that the transcript was accurate on the basis of his recollection of what occurred that day: p 12. [5] In circumstances where the appellant did not dispute the accuracy of the transcript, and the disk was not functioning, the appropriate course was to make the transcript an exhibit, on the basis that the content of it was admitted. It was unnecessary to have the witness verify the content of the transcript, which may have been strictly speaking inadmissible opinion evidence. Copies of the infringement notices were also tendered, along with various certificates to which I will refer later. Finally, the witness said that he later continued to patrol to the south, stopping and checking at 1 Rowe v Kemper [2008] QCA 175; Mbuzi v Torcetti [2008] QCA 231 at [17]. -- 2 of 10 -- 3 the southern end of the speed zone that the 80 kph sign was still in place; he said that it had not moved from where it had been for several months: p 13. [6] There was some cross-examination about the legality of the reduction of the speed limit to 80 kph on this particular section of road; I will return to this issue. The appellant then elicited that the only information obtained from the speed detection device was the speed, with no other details of the identity of the vehicle detected, which was said to come from the witness’s visual observations at the time: p 17. He was then asked whether the ―police manual‖ stated that he was not allowed to use any speed detection device within 300 metres of a sign indicating a decrease in the speed limit, a matter which he denied saying he was not aware of a 300 metre rule. He was unable to comment on whether the sign was just under 500 metres back from where his vehicle had stopped: p 19. He did accepted, however, that if the sign was 500 metres back from the point where the vehicles had stopped, then it was possible that the appellant’s vehicle was only 200 metres past the sign at the time of detection: p 19. Later at p 22 he agreed that he could not be certain that that the time of detection the appellant’s vehicle was 5-600 metres from the speed sign. [7] There was some further cross-examination about whether the manual indicated that speed cameras were not to be used if the road conditions changed significantly, for example at roadworks, and he agreed but pointed out that his device was not a speed camera: p 22. He denied that the speed sign was just resting on the ground and said that it was fixed on two poles two or three metres above the ground: p 23. In re-examination the witness was asked a number of leading or otherwise inappropriate questions, including a question about the 300 metre limit being subject to operational requirements, which was actually inconsistent with the evidence of the witness: p 23. After the conclusion of the re-examination the defendant objected to the failure in that question to identify the relevant operational requirements, whereupon the prosecutor was invited to give an explanation of the operational requirements including the proposition that roadworks areas were classified as black spots, a proposition inconsistent with the evidence of his witness at p 22 line 41 that this was not a known black spot. That process was quite irregular and inappropriate. [8] As it happened, there was no evidence from the witness to the effect that there was any relevance in the 300 metre distance beyond the beginning of the 80 kph zone, so it is difficult to see how it could have been proper in re-examination to introduce evidence of some qualification of the significant of any 300 metre limit, even from the witness. This was in my view a significant departure from proper trial procedure, but since it was not shown that the 300 metre limit was of any legal significance, as explained below, this deficiency in the trial was in the event of no consequence. [9] The appellant did not give evidence himself, but called as a witness a retired police officer who prior to his retirement was in charge of prosecution pending lists at the Ingham station. He said that in the course of investigating whether there was sufficient evidence to proceed to prosecution after receiving an election for court notification, he had some concerns regarding the 80 kph sign at that location, and suggested that the police witness make some inquiries with the transport department to ascertain the lawfulness of the signs: p 28. He had a conversation with the appellant, the content of which he could not recall (p 27) and after that conversation he refrained from taking out a summons before he retired: p 29. -- 3 of 10 -- 4 Submissions at the trial [10] The appellant in his submission said that it was incumbent upon the prosecution to prove guilt, which was correct, and that he was not questioning the accuracy of the device nor the way it was used, but that the device relies completely on the aiming ability of the operator and if there was no documentary evidence as to his marksmanship ability, then the reading was moot. This was perhaps a colourful way of making the perfectly legitimate point that the device itself did not identify in any way the target vehicle but just measured the speed of something, and proof of the charge depended on acceptance of the evidence of the operator that it was the appellant’s vehicle that had produced that reading.2 [11] It was submitted then that the device used had to be able to give corroborating evidence but it did not do so, so that what had been put up was opinion and conjecture at best. There was no evidence to show that the police witness was able to assess the speed of the vehicle himself with any degree of accuracy so as to be able to tell just by looking at the vehicle that it was speeding. It was also submitted that there had been a failure to prove that the reduction in the speed limit was lawful, and it was noted that the prosecution had failed to provide a site management plan from Main Roads. He also asserted that he did not see the sign, and suggested it might have been obscured by a vehicle being overtaken, and that he had not deliberately disobeyed any speed rules. Nevertheless, the magistrate found the charge proved and he was convicted. Matters argued on appeal [12] The appellant submitted that it was highly improbable that the police witness had performed the necessary steps to take a valid radar reading as given in his testimony, but that submission had not been advanced during the trial and had not been raised by way of cross-examination, where the point that was made was that the vehicles were closing at a significant speed and that in those circumstances he could not be precise about the distances involved. It was also submitted that the police rules and the Australian Standards stipulate that a speed detection device must not be used within 300 metres of a sign indicating a decrease in the speed limit, and that the officer’s testimony was speculative about exactly where he gained the mobile radar reading, that is to say, at what point the appellant’s vehicle was when the reading of 117 kph was obtained. [13] It was not the case, however, that the police witness acknowledged that either police rules or the Australian Standards stipulated that the speed detection device must not be used within 300 metres of a sign indicating a decrease in the speed limit. On the contrary, when the witness was asked whether the ―police manual‖ contained such an exclusion, he said he did not know, and there was no evidence before the magistrate of the content of any police manual. He was not asked about whether there was any Australian Standard which contained a prohibition of that nature and the relevant Australian Standard was not tendered. He said something about the Australian Standard containing something which was of no relevance, and said he did not see any specific measurements in the Australian Standard: p 17. 2 So expressed, the proposition has the support of the Court of Appeal in Day v Grice [2011] QCA 178 at [47]. -- 4 of 10 -- 5 [14] The Transport Operations (Road Use Management – Road Rules) Regulation 2009 (―the Regulation‖) s 21 provides for the legal effect of a speed sign: ―(1) The speed limit applying to a driver for a length of road to which a speed limit sign applies is the number of kilometres per hour indicated by the number on the sign. (2) A speed limit sign on a road applies to the length of road beginning at the sign and ending at the nearest of the following— (a) a speed limit sign on the road with a different number on the sign; (b) an end of speed limit sign or speed derestriction sign on the road; (c) if the road ends at a T-intersection or dead-end – the end of the road.‖ [15] The Regulation in s 20 makes it an offence to drive over the speed limit applying to the driver for the length of road where the driver is driving. The complaint alleged an offence under s 20. In my opinion it is clear from s 21 that a speed limit takes effect at the sign, so that strictly speaking to avoid committing an offence under s 20 it is necessary for a vehicle not to be exceeding the speed indicated by the number on the sign at the point when the vehicle passes the sign.3 Experience indicates that drivers generally do not drive in that way when the effect of a sign is to reduce the speed limit, but if it is proved that the vehicle was exceeding the number of kilometres per hour on the sign at any point past the sign then (subject to any applicable defence) the offence created by s 20 has been proved. It may be that it would be relevant to penalty if the offence occurred close to the sign. [16] There is nothing in the Regulation which appears to modify the operation of that provision. The speed limit sign was averred in the complaint to be an official traffic sign as defined in s 4 of the Transport Operations (Road Use Management) Act 1995 (―the Act‖). The Act in Part 2 of Chapter 5 deals with official traffic signs in a general way and in s 72A provides that ―an official traffic sign must be installed in a way specified by the MUTCD.‖ Schedule 4 reveals that this means the Manual of Uniform Traffic Control Devices issued by the Chief Executive. This would be something different from the manual referred to during the trial in relation to the use of speed detection devices. [17] There is a requirement in the Act 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: s 112. If in fact the Australian Standard for using a speed detection device in force at the relevant time contained a prohibition on using the device to detect the speed of a vehicle which was within 300 metres of a speed sign by which the speed limit had been reduced, it would appear to follow that a detection within that limit was one which involved a failure to use the speed detection device as required by s 112 of the Act. The difficulty, however, is that there was no evidence of any such requirement in the applicable Australian Standard. 3 Maybir v Bone [2005] QCA 344 at [8]. -- 5 of 10 -- 6 [18] The magistrate had before her a certificate under s 124(1)(pb) of the Act by the police witness that a radar speed detection unit was used by him at the relevant time on the relevant date in accordance with the appropriate Australian Standard in force on that day: Exhibit 4. This was pursuant to that provision evidence of the matters stated. A defendant who intends to challenge the way the relevant device was used must give a written notice of challenge to the prosecution in the approved form, stating the ground on which the defendant intends to rely: s 124(4) and (5). The effect of the Act is that a challenge of the kind mentioned in subsection (4) can only be raised by notice given in accordance with that section or in circumstances identified in s 124A(2).4 [19] The appellant had apparently given a notice under subsection (4). Subject to the relevant ground having been set out in the notice and the notice otherwise being valid, he was therefore entitled to challenge the proposition that the device had been used in accordance with the Australian Standard, but there was no effective challenge to that proposition at the trial. The certificate, Exhibit 4, was by s 124 evidence that the device had been used in accordance with the standard, and in the absence of evidence to the contrary it was certainly open, and indeed appropriate, for the magistrate to rely on that evidence to be satisfied beyond reasonable doubt that it had been so used. [20] There was therefore an evidentiary onus on the appellant, to put forward by evidence some basis to contradict, or at least throw doubt on, that proposition, and that was not done. Even if the Australian Standard in force at the relevant time did contain a prohibition on using a detection device to detect the speed of a vehicle which as within 300 metres of a speed sign which effected a reduction in the speed limit, and I have no idea whether that was the case, there was no evidence of that before the magistrate. It was for the appellant to prove this in order to discharge the evidentiary onus on him; it was not a matter for the prosecution to prove that there was no such restriction in the relevant Australian Standard or, if there was, that the detection occurred when the vehicle was at least 300 metres past the sign. [21] Had it been necessary for the prosecution to prove that the appellant’s vehicle was at least 300 metres past the 80 kph speed sign at the time when its speed was detected by the detection device, it will be apparent from the evidence of the police witness to which I have referred earlier that the prosecution would not have been able to do this beyond reasonable doubt. But for the reasons I have given I consider that there was no such obligation on the prosecution given the state of the evidence in this case. There was therefore no substance to the ground that it was not proved that the appellant’s vehicle was at least 300 metres past the speed sign at the point where its speed was detected. [22] It was also submitted that the prosecution had not proved that the reduction in speed limit by the erection of the 80 kph speed sign had been legally put in place. It was submitted before the magistrate that it had not been shown the reduction in the speed limit was lawful, and that the prosecution had failed to provide a site management plan from Main Roads. In submissions to me the appellant said that under the Main Roads Act a speed limit reduction could only be effected lawfully if there was a site plan which had been approved by the minister. He was not able to refer me to the particular provision of the legislation relied on. There is at the 4 Day v Grice (supra) at [45]. -- 6 of 10 -- 7 present item in Queensland no ―Main Roads Act‖.5 The Transport Operation (Road Use Management) Act does not, so far as I can see, contain any such restriction. [23] Section 68 of the Act permits the chief executive, for the purposes of this or another Act, to install an official traffic sign on a road. Section 69 permits a local government to install an official traffic sign on a road that is not a declared road, or on a declared road with the chief executive’s written agreement. An official traffic sign includes a sign to regulate traffic: Schedule 4. It therefore includes a speed sign in accordance with the Regulation. Section 72 of the Act provides as follows: ―(1) Where a person is carrying out any works on any road … with the approval of the chief executive or a local government, the person … if satisfied in the circumstances of the case that a danger, hindrance or obstruction to traffic exists or is likely to exist, or that the use of the road …or any part thereof is prevented, hindered or obstructed or likely to be prevented, hindered or obstructed, by reason of the carrying out of the works, may install any official traffic sign which in the person’s opinion may be necessary or desirable for the purpose of regulating, guiding or warning traffic with respect to the works.‖ [24] Although that section is headed ―Installation of Official Traffic Signs by Prescribed Persons‖, on its face the section applies to any person carrying out works with the approval of the chief executive or a local government. The police officer spoke of there being roadworks undertaken on this stretch of road, and the natural inference would be that roadworks on the Bruce Highway would be undertaken with the approval of the chief executive. On the face of it then, whoever was undertaking the works was entitled pursuant to this section to put up a speed sign. [25] However, it appears to me that the terms of the Regulation are such that it is not necessary to show, in order to establish the legal validity of a speed limit sign, that it was installed by the chief executive under s 68, or by a local government under s 69, or by another person under s 72. It is apparent from the terms of the Regulation that what is required for a speed limit sign is simply that it display the physical characteristics identified for such a sign in Schedule 2. Section 315 provides that a traffic control device of a kind mentioned in the Regulation has effect for the Regulation if it is on a road and it complies substantially with the Regulation; it includes a presumption that the device so complies. Section 316 provides that, if a traffic sign is a reasonable likeness of a diagram in Schedule 2, it complies substantially with the Regulation. There is no express requirement that it be installed by any particular person, or with any particular authority. There is no other requirement so far as I can see in the Regulation for the validity of a speed limit sign. It may be that the effect of s 72A of the Act is that a speed limit sign will only be effective if it is installed in a way specified by the Manual of Uniform Traffic Control Devices. It is unnecessary to decide that question, because no reliance was placed by the appellant on any failure to comply with any particular requirement in that manual. 5 The Main Roads Act 1920 was repealed in 1991. -- 7 of 10 -- 8 [26] I can find nothing in the Act or Regulation which imposed any condition on the legal effect of something which meets the physical description of a speed limit sign by reference to any particular requirement which has to be complied with before it is installed. Indeed, it would be somewhat surprising if there were any such requirement. The only information which is conveyed to a motorist is that a particular sign looks like a speed limit sign. It is obviously impossible by looking at the sign to determine upon what authority it has been erected. In these circumstances, it would be unsurprising if the legislature provided that the speed limit sign was effective so long as it looked like a speed limit sign, and I can see nothing in the Regulation or the Act which indicates to the contrary. [27] Indeed, s 75 creates an offence of installing an official traffic sign without lawful authority. If something which looked like an official traffic sign but had been erected without lawful authority was ineffective as an official traffic sign, then it would be impossible to commit such an offence.6 If something which looked like an official traffic sign was not an official traffic sign unless installed with lawful authority, then there would be no need for this offence, and indeed it would be inappropriate to create it. The terms of s 75 of the Act suggest that something which looks like an official traffic sign may operate as an official traffic sign even if it is installed without lawful authority. [28] In these circumstances the appellant’s argument, that a failure on the part of the prosecution to prove that the 80 kph speed sign erected in connection with the roadworks had been lawfully installed meant that the prosecution had failed to prove the offence charged,7 has not been shown to be correct. If there is some provision which has the effect he described lurking in some legislation, which is possible, all I can say is the appellant did not identify it, and I have not located it myself. That the appellant’s witness had some doubt about the matter, if that was the case, is irrelevant, since the question is one of law. [29] As to the argument that the success of the prosecution depended upon the acceptance by the magistrate that it was the appellant’s vehicle which had been detected travelling at 117 kph, that did depend on the acceptance of the evidence of the prosecution witness, and on its persuasive effect. It was not necessary to provide corroborative evidence in the form of some indication from the detection device of the identity of what had been detected, if the police evidence, if accepted, showed beyond reasonable doubt that it was the appellant’s vehicle that had been detected. In the technical sense, there is no requirement for corroboration. An offence can be proved on the uncorroborated evidence of one witness if that evidence is accepted and leads to the satisfaction of the tribunal of fact beyond reasonable doubt.8 6 I acknowledge the section also extends to things that are in the nature of, or similar to, or which are likely to be mistaken for an official traffic sign; but it is the inclusion of the expression ―official traffic sign‖ which is significant. 7 The offence charged was exceeding a speed limit of 80 kph. If the magistrate had a reasonable doubt about whether the speed limit at the place at which the appellant’s speed was detected was 80 kph rather than 100 kph, the appropriate course would have been to amend the complaint under s 48 of the Justices Act, and convict the appellant of the offence of exceeding a speed limit of 100 kph. In that sense, it was not an argument which went solely to penalty. 8 R v Hester [1973] AC 296 at 324; Robinson v R (1999) 197 CLR 162 at [18]. -- 8 of 10 -- 9 [30] It was not necessary to show any particular expertise in marksmanship, but the witness was an experienced user of such a detection device in a police patrol vehicle. He gave evidence that there were no other vehicles between his vehicle and the appellant’s vehicle at the time the speed of 117 kph was detected, that the only other vehicles around were travelling behind the appellant’s vehicle, that before the appellant’s vehicle overtook the other vehicles a speed reading not in excess (or significantly in excess) of 80 kph had been obtained, presumably from one or more of those vehicles, and that the appellant’s vehicle had overtaken those vehicles and appeared to the police witness to be travelling significantly faster than them. All of that was evidence which he was entitled to give, and which if accepted was a plausible, indeed fairly compelling, case. [31] It was also submitted that the officer’s evidence that an audible tone produced by the detection device could provide an indication that a vehicle was travelling at excessive speed was unreliable in the absence of evidence that the police officer had perfect pitch. But it was not necessary to show that the police officer could, with the assistance of perfect pitch, identify the pitch of a particular tone emitted by the machine so as to be able to translate that into a particular speed. I would expect that with experience one would be able to recognise the difference between the pitch generated by a detected speed of about 80 kph and a significantly higher pitch which suggested a significantly higher speed. The prosecution was not seeking to prove that the appellant was travelling at a speed of 117 kph on the basis of the police officer’s interpretation of the pitch of the note emitted by his detection device, merely that that acted as an indicator to him that it might be worthwhile looking at the display to determine what speed was being detected. There was no substance to this argument. [32] The only significance of the police officer’s reaction to the tone generated by the detection device, and any opinion he formed about the apparent speed of the vehicle, was that it provided some justification for his observing the speed that the detection device was detecting. The real significance of the appellant’s evidence as to the detected speed was his evidence that the device had detected a speed of 117 kph. That was based on his having locked that speed into the device by pressing a locking button and having then copied it from the device onto the infringement notice, not a particularly demanding task. There is no reason to doubt that that exercise was performed reliably, and at that point the prosecution and the magistrate were entitled to rely on the certification to show that the detection device was detecting accurately the speed of something. Accordingly, there was no element of opinion evidence on the part of the police officer in the identification of the relevant speed as 117 kph. The appellant’s arguments appear to be based on a misapprehension of the significance of that evidence, and are misconceived. [33] The appellant also referred to some extent to evidence of his own observations and other factual matters which were not given in evidence before the magistrate and cannot be relied upon. Indeed, strictly speaking, his statement that he did not see the sign was not evidence, and should have been disregarded, unless perhaps it was treated as an admission against him, in which case it stands as corroboration of the prosecution evidence, because a person who believes that the speed limit is 100 kph may well be exceeding a speed limit of 80 kph. [34] There is no substance to any of the submissions advanced by the appellant on his appeal. He has not shown that the decision of the magistrate was wrong. Having -- 9 of 10 -- 10 considered the evidence, and bearing in mind that the magistrate found the prosecution witness to be credible and reliable, the decision to convict was correct. The appeal is dismissed. Comment [35] There are, however, two matters on which I think comment is justified. At one point while the appellant was questioning his witness, the magistrate interfered on the basis that he was asking a leading question: p 26. It was appropriate for the magistrate to ensure that the rules of evidence were complied with, but it would have been better if she had been as assiduous to prevent the police prosecutor from asking leading questions during the evidence-in-chief, and re-examination, of the prosecution witness. When a defendant is not represented, in my opinion it is particularly important that the court ensure that there is no slackness in relation to the rules of evidence by the prosecution. [36] If a defendant is legally represented, it may be accepted that leading questions, or indeed other forms of inadmissible evidence, to which no objection is taken, are being allowed with the consent of the defendant. In the present matter, where the appellant expressly agreed with the receipt of the transcript of the conversation with the police officer, and said he did not dispute it, there was no objection to the transcript being received in evidence, even though it would not otherwise have been admissible. But where an unrepresented defendant has pleaded not guilty and does not indicate that particular matters are not disputed, in my opinion it is the responsibility of the court to ensure that the rules of evidence are complied with by the prosecution. [37] The other matter arises from the history of the prosecution in the Magistrates Court which was set out in the outline of argument filed in this court. This was irrelevant to the matters in issue in the appeal, and unsurprisingly its accuracy or otherwise was not the subject of any submission on behalf of the respondent. I do not know therefore whether it is correct, but it alleges that on one occasion when the appellant had arranged to appear by telephone at a mention date, on the basis that the court would ring him when the magistrate was ready to deal with his matter, the magistrate proceeded to convict him in his absence under s 142 of the Justices Act without his ever being rung. (A rehearing was subsequently allowed.) If that occurred, it reflects no credit on the administration of that Magistrates Court. -- 10 of 10 --