Andersen v Winston [2011] QDC 14

DISTRICT COURT OF QUEENSLAND CITATION: Andersen v Winston [2011] QDC 14 PARTIES: NEILS WILLIAM ANDERSON (appellant) v GLEN ROBERT WINSTON (respondent) FILE NO/S: BD 1722/10 DIVISION: Appellate PROCEEDING: Appeal against conviction ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 24 February 2011 DELIVERED AT: Brisbane HEARING DATE: 7 February 2011 JUDGE: Ryrie DCJ ORDER: Appeal allowed, conviction quashed, verdict of acquittal entered CATCHWORDS: APPEAL – against conviction – whether guilty verdict was unsafe and unsatisfactory Justices Act 1886 (Qld), s 222, s223 Transport Operations (Road Use Management – Road Rules) Regulations 1999 (Qld), s 300(1) Butcher v Woods [1996] QCA 465, considered M v R (1994) 181 CLR 487, considered Teelow v Commissioner of Police [2009] QCA 84 Mbuzi v Torcetti [2008] QCA 231, applied COUNSEL: The appellant appeared on his own behalf Mr C Lloyd for the respondent SOLICITORS: The appellant appeared on his own behalf Director of the Public Prosecutors for the respondent Introduction [1] This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld) from the conviction of the appellant in the Magistrates Court at Brisbane on 11th May 2010 following a summary trial of one count of using a hand held mobile phone while the -- 1 of 6 -- 2 vehicle which he was driving was stationary but not parked, contrary to s 300(1) of the Transport Operations (Road Use Management – Road Rules) Regulations 1999 (Qld). Preliminary point – Application for an extension of time [2] The Notice of Appeal was filed on 15th June 2010. As such, it was out of time. Counsel for the respondent properly conceded however that any delay was of no real moment as the explanation given by the appellant for that delay was satisfactory. Accordingly, it was agreed that leave should be granted subject to this court determining the merits of the appeal proper. The applicable law [3] Upon hearing this appeal, it is necessary for this court to give due regard not only to the reasons for the decision of the magistrate, bearing in mind the clear advantage that he had in seeing and hearing the witnesses who gave evidence before him, but also requires this court to review the evidence, to weigh the conflicting evidence and to draw its’ own conclusions based on the original evidence and on any new evidence allowed by leave: Mbuzi v Torcetti [2008] QCA 231 para [17]. The lower court proceedings [4] The prosecution case was that a police officer (“the police officer”) had observed the appellant in Nudgee Road Hamilton using his mobile phone (by depressing its’ key pad) while the vehicle which the appellant was driving was stationary but not parked in a line of traffic. That officer was the only witness called in the prosecution’s case. A tape recording of an exchange which subsequently occurred in Kingsford Smith Drive Hamilton, after the appellant had parked his vehicle in that location at the direction of the police officer, was tendered as part of the prosecution case (exhibit 2). After the close of the prosecution case, the appellant gave evidence. A street location map and 2 x photographs were tendered and marked as exhibits 1 and 3 respectively as part of his case. [5] The police officer gave evidence that he had intercepted the appellant on Nudgee Road after the appellant had been earlier observed doing a u-turn in a nearby street, namely Hants Street. The police had been performing random breath testing in that area. The police officer then gave chase, having formed the view that the appellant was a suspected drink driver attempting to evade the random breath testing unit. The police officer gave evidence that he then pulled up on his police motor bike beside the drivers’ side door of the appellant’s vehicle which was at that time, stationary in a line of traffic leading up to the intersection of Nudgee Road with Kingsford Smith Drive. He then spoke to the appellant. He said he was approximately a metre and a half away at that point and had ‘stood’ over his motor bike to talk to the appellant through the drivers’ side window which had been rolled down. He accepted during cross examination that the conversation which transpired between them also included an issue being raised by the appellant as to the safety of the proposed random breath test location proposed by the officer. He stated that after having a conversation with the appellant, with respect to where he required the appellant to park for that purpose, which was just around the corner in Kingsford Smith Drive, the police officer says that he then observed the appellant pick up his mobile phone in his right hand and use it (by depressing its’ key pad). He says he then warned the -- 2 of 6 -- 3 appellant that it was an offence to use his phone and to put the phone down. He said the appellant simply ignored him and continued depressing the key pad regardless. The traffic control lights at the intersection of Nudgee Road and Kingsford Smith Drive then turned green and the appellant then drove off, turned left and parked as required in Kingsford Smith Drive. It was at this point that the police officer then activated his digital micro recorder (exhibit 2). He stated that he parked his police, motor bike just on the inside of the fog line or fog marking on that roadway. A road side breath test was then conducted while the appellant was still seated behind the wheel which resulted in a negative reading as demonstrated on the relevant recording. During the course of cross examination, the police officer was questioned extensively in respect of that recording. He denied the propositions which were put to him namely that he had not in fact observed the appellant use a mobile phone at all while in Nudgee Road and that he had only issued the appellant an infringement notice for it subsequently because of the appellant’s continued bad behaviour towards him, particularly while they were both on the roadside in Kingsford Smith Drive which had escalated to a shouting match. The police officer rejected the proposition that he had only then issued the infringement notice because of ‘personal reasons’, as opposed to any legitimate police reason. [6] The appellant then gave evidence. In short, he stated that he had been attempting to get to work that morning in order to meet an appointment. In order to avoid traffic congestion on Kingsford Smith Drive he had attempted to use Hants Street. He admitted he had done a u-turn in Hants St as soon as he had noted that roadway was congested as a result of the random breath testing unit and was anxious to avoid that congestion. He said he then drove onto Nudgee Rd with a view to getting to work. While stationary in a line of traffic on that roadway he said he noticed the police officer pull up slightly behind but beside him on his police motor bike. He stated that he then engaged in a conversation with the police officer regarding whether it was in fact safe for either of them to have him park in Kingsford Smith Drive in order that a random breath test could then be performed in that location. During the course of his evidence in chief and again in cross examination he denied ever having used his mobile phone in the manner described by the police officer, even though he accepted that he did have a Black Nokia phone situated in the centre open console of his vehicle that day. He also denied that he had been told by the police officer that he was committing an offence and to stop doing it (that is, depressing the phone’s key pad) while he was on Nudgee Rd. [7] He gave evidence that he believed he had been aggressively dealt with by the police officer. He described him as ’not very friendly to him right from the start’ in that the police officer had dealt with him in a very unfriendly and aggressive manner right from the word ‘start – go’. He stated that this was the reason why he had initially asked the police officer which police station he was from directly after the random breath test had been completed and after being advised by the police officer ‘no problem’, all of which can be heard on the recording. He also gave evidence that he believed that the location of that test was unsafe because he travels that road all the time. He also described some of the vehicles travelling along that road having to stop or swerve partly into the other lane to avoid the police officer while the random breath test was being performed. He stated that after he had exited the vehicle he also felt it had been unsafe to do so. [8] The appellant also gave evidence that he did not hear the police officer direct him to produce his driver’s license about nine times. He believed that he may have had his -- 3 of 6 -- 4 head in the vehicle looking for it at that time and the officer was still situated near the back of the vehicle (as shown in exhibit 3). He also conceded that when he had told the police officer that he knew someone high up in the police department, that statement was in fact not true but that he had simply said that because he was so angry at that point for being given a infringement notice for something he had not done. The magistrate’s reasons for his decision [9] The learned magistrate properly stated the standard of proof to be applied in respect of the charge. His reasons for his decision also set out a brief overview of certain facts. It is implicit from those reasons that the magistrate ultimately preferred the evidence of the police officer. In particular, he considered that the police officer was a witness of credit on ‘all contested issues of fact’ and that the defendant was not a witness of credit of any contested issue of fact. In support of that determination, certain findings of fact (primarily it seems as to credit) were made as set out at pages 6 and 7 of his decision. The magistrate also had the opportunity to consider the witnesses while giving their evidence and the exhibits tendered. [10] The outline of submissions filed by the appellant (presumably prepared by him) sets out the grounds which the appellant seeks to rely in support of his appeal. In effect, he asks this court to conclude that the magistrate not only gave insufficient reasons for his decision regarding his ultimate (and decisive) finding that the police officer was a witness of credit but that any finding in that regard was unsafe and not open on the whole of the evidence. [11] After careful consideration, even affording the proper respect to the decision of the magistrate and the findings which he has made and giving due regard to any advantage that he had in seeing and hearing the witnesses while giving their evidence, I am respectfully unable to arrive at the same conclusion. Having made my own independent assessment of the evidence available for consideration, I am respectfully of the view that in the circumstances, the learned magistrate ought to have had a reasonable doubt regarding whether or not the appellant was in fact guilty of the offence charged. In arriving at that conclusion, I have taken into account the following matters: [12] The real possibility that it would be inherently unlikely that the appellant (or any person in the same position) would, after having been intercepted by a police officer and was being spoken to, would nevertheless still pick up a phone in that officer’s presence and commence to use it in front of that same police officer and continue to do even after the officer had apparently told him that it was offence to do so. [13] The continued denial by the defendant in that regard (as evidenced on the recording) which was immediate upon him learning that he was receiving a ticket in respect of it while standing on Kingsford Smith Drive. [14] The failure by the officer to activate his micro digital recorder upon interception of the appellant in Nudgee Rd, particularly in circumstances where the officer had already (reasonably) formed the view that he was a suspected drink driver. [15] A consideration of the subsequent events which then occurred while both parties were in Kingsford Smith Drive, in particular: -- 4 of 6 -- 5 [16] The initial and continued failure by the police officer, while in Kingsford Smith Drive, to raise any issue whatsoever regarding any earlier alleged use of the mobile phone observed by him even after giving due regard to the fact that the random breath test would been the officer’s primary focus initially at that location. Even it is accepted that ‘time’ may well be of real importance as to any administration of such testing and was therefore prioritised by the police officer on that day at that location (a fact given considerable weight by the magistrate to also explain why the officer had not activated his micro digital recorder on Nudgee Rd), that fact alone does not, in my respectful opinion, satisfactorily account for the police officers’ continued failure to raise with the appellant any issue whatsoever regarding any alleged mobile phone use observed by him earlier in Nudgee Rd at any time before he actually issued the infringement notice on that day.(T1-34) Indeed, the recording available (exhibit 2) reveals that immediately upon the random breath test being concluded and the appellant is heard asking the officer which police station he was from, a significant period of time has then elapsed before the police officer is even heard telling the appellant to get off the road. That period of time, in my mind, afforded the police officer ample opportunity to then inform the appellant that he would be receiving an infringement notice in respect of the earlier alleged mobile phone use, either on that day or at least at some time in the future. [17] It is implicit from the reasons for his decision, that the magistrate himself placed a great deal of weight on the issue of time (and opportunity) afforded to the officer on that day to explain why the officer had not in fact activated his micro digital recorder on Nudgee Rd or why he had not raised with the appellant any allegation regarding the mobile phone use any earlier than he did on that day insofar as any issuing of an infringement notice. It is also implicit that the magistrate, in so doing, used these bases to support his ultimate finding that the officer was a witness of credit on ‘all contested issues of fact’ and to find the appellant guilty. In my respectful opinion, having regard to the whole of the evidence, the magistrate did not give sufficient regard to the actual time that was in fact available to the officer on that day both before and after he had pulled up at the proposed random breath test location in Kingsford Smith Drive. [18] While it is accepted that the police officer’s initial suspicions may well have been reasonably based when he first observed the appellant in Hants Rd doing a u - turn, no explanation was provided to the court at all for its’ consideration which would account for the officer’s failure to activate his micro digital recording immediately upon intercepting the appellant in Nudgee Rd for that purpose. [19] The general tenor of the police officer’s evidence given at hearing was also of significance on the issue of time and/or opportunity generally. In effect, the officer’s own evidence was that ‘all he needs is to see it and he can issue a ticket’ (T1-36 L30) and that he would ‘tell a person if he is dealing with him or her for an alleged traffic offence what the nature of it was’ (T1-33 L35). The availability of time and opportunity afforded to the officer on that day in Kingsford Smith Drive as evidenced by exhibit 2 and the apparent failure by the magistrate to give sufficient regard to it, respectfully in my mind, raises sufficient doubt as to what the true position was on that day regarding any alleged mobile phone use. This is particularly so when regard is had to exhibit 2, which reveals that it was only after the appellant failed to leave the scene upon being told to do so, after having become quite angry and abusive towards the officer over alleged safety concerns, a fact never denied by the appellant, that the officer only then stopped his police bike -- 5 of 6 -- 6 engine and directed the appellant to produce his driver’s license for the purpose, it subsequently became clear, of issuing him an infringement notice for the earlier alleged mobile phone use which he said he had observed. [20] That recording also reveals that the officer, even at that point, still did not advise the appellant what the ticket was being issued for until he was asked, a fact inconsistent with the officer’s own evidence on this issue which was that he would tell a person if he is dealing with him or her for an alleged traffic offence what the nature of it was. Those matters, when taken together with the officer’s own reluctance to concede even the most basic things during the course of his evidence at hearing (T1-32, 33), such as his police motor bike engine starting up (a fact clearly heard on the recording) and the fact that the random breath test was well and truly completed by that point (a fact also clearly demonstrated on the recording), leads me to conclude that the learned magistrate ought to have had at least a reasonable doubt regarding what the true position was on that day in respect to any alleged mobile phone use as described by that officer and as such, ought to have dismissed the charge in those circumstances. [21] The respondent on this appeal primarily argued that the findings made by the magistrate as to credit were open on the evidence before him. While it is accepted that the advantage which a magistrate has from seeing and listening to witnesses is never to be disregarded, this court is still entitled nevertheless to take into account any doubts raised by the evidence including matters as to credibility. That is particularly so in a case such as this where the prosecution case relied solely on the acceptance of the police officer’s evidence as being both truthful and accurate beyond reasonable doubt in order to prove its’ case. It should also be remembered that the learned magistrate was not in any event, in any better position than this court is now to make any assessment of exhibit 2 in its’ entirety. [22] The respondent also submitted on this appeal that the evidence of the police officer, as recorded, telling the appellant to drive away several times prior to the issuing of the ticket on that day merely shows that the officer had been prepared to ‘overlook’ the subject offence, which he is entitled to do by law. That submission however overlooks the evidence which I have already referred and another possible explanation which is also open, that the evidence may be reasonably consistent with the subject offence not having been committed as alleged, particularly when regard is given to the subsequent events which then transpired between the parties as evidenced by exhibit 2 and the matters already discussed. As such, I am of the opinion that it was not open to the magistrate on the whole of the evidence to be satisfied of the guilt of the appellant beyond reasonable doubt. Conclusion [23] Accordingly, the appeal is allowed, the conviction is set aside, and in lieu thereof a verdict of acquittal is entered in respect of the charge. [24] I make no order as to costs. -- 6 of 6 --