Commissioner of Police v Parsons [2011] QDC 41

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner of Police v Parsons [2011] QDC 41 PARTIES: COMMISSIONER OF POLICE (Appellant) v ADRIAN ANTHONY PARSONS (Respondent) FILE NO: 83/2010 DIVISION: Appellate PROCEEDING: Appeal from Magistrate’s Court ORIGINATING COURT: Beenleigh DELIVERED ON: 8 April, 2011 DELIVERED AT: Beenleigh HEARING DATE: 9 February 2011 JUDGE: Dearden DCJ ORDER: (1) Verdict of acquittal set aside (2) Find the defendant guilty, as charged, of speeding CATCHWORDS: LEGISLATION: CASES: APPEAL – admissibility a tendered document Evidence Act 1977 (Qld) Police Service Administration Act 1990 (Qld) Transport Operations (Road Use Management Act) 1995 (Qld) Transport Operations (Road Use Management Act – Road Rules) Regulation 1999 (Qld) Hill v Lette [2010] QDC 136 House v The King (1936) 55 CLR 499 Lekic v Dixon [2009] QDC 111 COUNSEL: Mr B Power for the appellant The respondent appeared self represented -- 1 of 6 -- 2 SOLICITORS: Director of Public Prosecutions for the appellant The respondent appeared self represented Introduction [1] The appellant seeks to appeal against a verdict of acquittal by the learned magistrate at Beenleigh in respect of a charge against the respondent of disobeying the speed limit.1 Magistrates Court Trial [2] The trial proceeded before the learned magistrate at Beenleigh on 24 March 2010. The alleged offence occurred on 19 June 2009. The outline of the proceedings which follows draws from the Outline of the Appellant’s Submissions. [3] The prosecution called Senior Constable Lachlan McGraa and Sergeant Ian Crang as witnesses. [4] Senior Constable McGraa gave evidence in chief as follows:- (a) At the commencement of his shift on 19 June 2009 he conducted a number of daily confidence checks upon ultra-light LIDAR serial no. UX008727 and found it suitable for use. (b) He is a qualified operator of the ultra-light LIDAR 20 speed detection device. He attended a course some years ago and has recently attended an upgrade course or re-qualification for that device. (c) Exhibit 1 was identified as a calibration certificate for ultra-light LIDAR serial no. UX008727. (d) At 12.35 am on 20 June 2009 Senior Constable McGraa was located on the north bound lanes of the Pacific Motorway at Tanah Merah conducting speed detection on vehicles that were travelling northbound. The speed limit applicable to this part of the road is 100 kilometres per hour. (e) At this time Senior Constable McGraa observed a vehicle travelling in excess of that speed and targeted the vehicle with the ultra-light LIDAR serial no. UX008727 on a number of occasions. Initial detection was 116 kilometres per hour and a final reading was 120 kilometres per hour. (f) Senior Constable McGraa advised Sergeant Crang who was the driver of the vehicle Senior Constable McGraa was in, and they pulled out behind the vehicle which had been travelling in excess of the speed limit. This vehicle was intercepted in the vicinity of exit 28. (g) Exhibit 2 was identified as a certificate stating that the particular laser- based speed detection device serial no. UX008727 that Senior Constable McGraa had used at 12.35 am on 20 June 2009 was used by him in accordance with the appropriate Australian standard as in force on the day of use. 1 Section 20 Transport Operations (Road Use Management – Road Rules) Regulation 1999. -- 2 of 6 -- 3 (h) After stopping the respondent’s vehicle Senior Constable McGraa had a conversation with the respondent which was recorded. During that conversation the respondent admitted to driving at 108 or 112 [kilometres per hour]. Senior Constable McGraa told the respondent he was doing 120 kilometres per hour. A CD of the conversation was admitted as exhibit 3. A synopsis of the conversation was tendered as an aid to the court and the respondent indicated (when questioned by the learned magistrate) that there wasn’t anything in the transcript that he didn’t agree with. In particular the synopsis indicates that when asked by Senior Constable McGraa “Any idea why I have stopped the vehicle this evening?” the respondent said “Because I was speeding”, and when asked by Senior Constable McGraa “Do you know how fast you were going Sir” the respondent answered “I would say I was doing about 108 or 112.” [5] Senior Constable McGraa issued a traffic infringement notice to the respondent for travelling at 120 kilometres an hour in a 100 kilometre per hour zone. [6] When the prosecutor was asked by the learned magistrate at the end of the evidence in chief of Senior Constable McGraa “Have you got any other exhibits? Have you got any other certificates to tender?”2 and the learned magistrate clarified that it was a reference to the “instrument of delegation”, the prosecutor requested a short adjournment to “go and get them”. The learned magistrate indicated that after the respondent had cross-examined Senior Constable McGraa, the prosecutor would then be given “a short adjournment for the instrument of delegation.” [7] The respondent then cross examined Senior Constable McGraa about his aiming ability and the use of LIDAR equipment. [8] There was then a short adjournment for the prosecutor to retrieve the instrument of delegation or authority. Trial exhibit 4 was then tendered through Senior Constable McGraa, identified as an instrument of delegation or authority where the commissioner is given the power to issue a certificate stating in particular stated induction speed detection device, laser speed detection device, strip detection device or radar speed detection device has been tested and found to be accurate pursuant to Transport Operations (Road Use Management Act) (TORUMA s. 124(1)(pa)). [9] A second document tendered through Senior Constable McGraa (marked exhibit 5) was an instrument of delegation or authority that the powers, functions and duties had by [the Commissioner of Police] as a superintendent of traffic pursuant to TORUMA. [10] Sergeant Ian Crang gave evidence corroborating the evidence of Senior Constable McGraa. There was no cross examination of Sergeant Crang. [11] The learned magistrate then (upon the prosecution closing its case) stated3 “I note on the back of the instrument of delegation there is a notation that says “the within is a copy of the document of which it purports to be a copy dated at Beenleigh 4th day of August 2009” and that’s signed by a JP, but that’s even a photocopy. It’s not a – it’s not even an original. So, I am satisfied that that’s – that’s not sufficient evidence of that instrument of delegation, and as per that case of Lekic and Dixen, 2 Transcript p. 1-9. 3 Transcript 1-18. -- 3 of 6 -- 4 the – if the instrument of delegation isn’t presented to the court, well that’s lethal…and the prosecution…case must fail.” [12] The prosecutor then sought to be heard on the issue, and in particular argued that the photocopy itself was admissible under s 116 of the Evidence Act. [13] The learned magistrate then indicated that on all occasions in the past the original, had been handed up for the magistrate to sight. The learned magistrate went on to say “I think it’s even worse because the instrument of delegation, even though there is that on the back, that’s even a photocopy in itself. It’s not a – that’s not … an original and I’m not prepared to accept that. I mean, I just think those are the standards that we – if it was a much more serious offence, that’s the standard that the court would apply, and just because this is a less serious offence, we still have to apply those standards … so I’m not prepared to accept what you handed up as proper evidence.” [14] The learned magistrate then went on to conclude that the prosecution had not satisfied the onus of proof with regard “to that charge that he was doing 120 kilometres per hour”. 4 Grounds of Appeal [15] The appellant appeals against the acquittal on the following grounds:- (a) The learned magistrate erred in law by not accepting the copy of the document in accordance with Lekic v Dixon [2009] QDC 111. (b) The learned magistrate erred in law by not accepting the document pursuant to s. 116 of the Evidence Act 1977; and (c) The learned magistrate erred in law by not giving proper weight to the admission of the respondent in that he was travelling at 108 or 112 kilometres per hour at the time he was detected by police. [16] As Irwin DCJ held in Hill v Lette5 , “in order to make [the relevant exhibits] admissible, in this case proof of delegation was required. As this was not proven, the certificates were not admissible against the appellant”.6 Exhibit 1 was provided by Inspector Brian J Rogers who claimed to be “an authorised delegate of the Commission of the Queensland Police Service pursuant to s. 4.10 of the Police Service Administration Act 1990.”7 [17] The document tendered as exhibit no. 5 is (as had been conceded by the prosecutor at the trial before the learned magistrate) a photocopy of a certified copy of an original sighted by a Justice of the Peace on 5 June 2009. [18] It was argued before the learned magistrate (and before me in this court) that the delegation was admissible evidence. 4 Transcript 1-20. 5 [2010] QDC 136. 6 Hill v Lette [2010] QDC 136 p. 18. 7 Exhibit 1. -- 4 of 6 -- 5 [19] Evidence Act s. 116 provides: “Copies to be evidence Not withstanding any other provision of this part, where a document has been copied by means of a photographic or other machine which produces a facsimile copy of the document, the copy is, upon proof to the satisfaction of the court that the copy was taken or made from the original document by means of the machine, admissible in evidence to the same extent as the original document would be admissible in evidence without … (a) proof that the copy was compared with the original document; and (b) notice to produce the original document having been given.” [20] I do not consider that the learned magistrate was in error in not accepting the photocopy of the document of delegation, either pursuant to the decision in Lekic v Dixon8 nor pursuant to s. 116 of the Evidence Act 1977. It was an exercise of a discretion, and I do not consider that the learned magistrate was in error in refusing the admission of the document. [21] I conclude therefore that there has been no error in the exercise of the learned magistrate’s discretion9 and accordingly the appeal against acquittal fails in respect of grounds (a) and (b) of the grounds of appeal. [22] The contents of exhibit 3 (a CD containing a tape recording of the conversation between Senior Constable McGraa and the respondent at the road side indicates that the respondent, when asked what speed he was doing replied, “I was doing I would say probably about 108, 112.” The initial conversation involved Senior Constable McGraa asking the respondent if he had any idea why he had been pulled up and the respondent replied “because I was speeding”. [23] The bench charge sheet alleges against the defendant “that on 20th day of June 2009 at Tanah Merah in the Magistrates Court district of Beenleigh in the state of Queensland [the respondent] being the driver of a vehicle mainly a motor car drove at a speed over the speed limit applying to the driver for the length of road namely Pacific Motorway Tanah Merah where the said driver was driving … .” [24] The respondent’s admissions, both to “speeding” and to doing a speed which he variously estimated as “a 108” or “112” [kilometres per hour] is a clear admission, undisputed on the evidence before the magistrate to the offence as charged. [25] The Complaint and Summons particularised the speed infringement as being 120 kilometres per hour in a 100 kilometres per hour zone, but the offence itself is constituted by the driving of a motor car “at a speed over the speed limit applying” to the “length of road namely Pacific Motorway at Tanah Merah”. 8 [2009] QDC 111. 9 House v The King (1936) 55 CLR 499, 505. -- 5 of 6 -- 6 [26] It is in my view a clear admission in respect of the offence. This court is entitled to rely upon that evidence, and in my view the learned magistrate was obliged to rely upon that evidence.10 [27] It follows in my view that the learned magistrate erred in law by not giving proper weight to the admission of the respondent as to the speed he was travelling. Conclusion [28] Accordingly I order that the acquittal be set aside, and find the respondent guilty as charged. [29] In the absence of any admissible evidence as to the reading from the LIDAR speed detection device, I consider that the respondent should be dealt with on the basis that he exceeded the relevant speed limit of 100 kilometres per hour by travelling at a speed of 108 kilometres per hour. I will hear submissions on penalty. Costs [30] I will hear submissions from the parties on the issues of costs and appropriate penalty arising out of this decision. 10 Hill v Lette [2010] QDC 136 p. 20. -- 6 of 6 --