Bennett v Jack [2010] QDC 135

1 DISTRICT COURT OF QUEENSLAND CITATION: Bennett v Jack [2010] QDC 135 PARTIES: TREVOR CHARLES BENNETT (Appellant) V COLIN ANDREW JACK (Respondent) FILE NO/S: D31/2009 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Gladstone DELIVERED ON: 23 March 2010 (ex tempore) DELIVERED AT: Gladstone HEARING DATE: 23 March 2010 JUDGE: Irwin DCJ ORDER: Appeal allowed, conviction and penalty set aside, verdict of acquittal entered. VEHICLES AND TRAFFIC – offences – speeding – photographic detection device – evidentiary certificates – whether offence proved VEHICLES AND TRAFFIC – offences – speeding – photographic detection device – where the evidence for the prosecution was in the form of certificates – where the appellant was charged with speeding on 28 January 2008 – where the prosecution evidence at its highest established that the appellant was speeding on 25 January 2008 – where no application was made to amend the charge in accordance with the evidence – whether there was evidence establishing beyond reasonable doubt that the appellant was speeding on 28 January 2008 CRIMINAL LAW – appeal against conviction – general principles – admission of fresh evidence – where the appellant was charged with speeding on 28 January 2008 – where the prosecution evidence at its highest established that the appellant was speeding on 25 January 2008 – where no -- 1 of 10 -- 2 ORDER 1 10 20 30 40 50 60 application was made to amend the charge in accordance with the evidence – where the appellant was in a position to adduce evidence that he and his vehicle were at another place on 28 January 2008 – whether the evidence could have been obtained with reasonable diligence for use at the trial Justices Act 1886 (Qld), s 222, s 223(2) Police Service Administration Act 1996 (Qld), s 4.10 Transport Operations (Road Use Management) Act 1995 (Qld), s 120(2), s 120(4) Transport Operations (Road Use Management - Road Rules) Regulation 1995 (Qld), s 20 Bevacqua v Wykes [2009] QDC 137, applied Gallagher v R [1986] 160 CLR 392, applied Graham v Queensland Nursing Council [2009] QCA 280, applied Lekich v Dixon [2009] QDC 111, applied Saunders v Bowman [2008] QDC 112, considered Stevenson v Yasso [2006] 2 QdR 150, cited COUNSEL: The appellant appeared on his own behalf S. M. Gordon for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent -- 2 of 10 -- 3 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 from the conviction of the appellant in the Magistrates Court at Gladstone on 2 November 2009 following a summary trial of one count of driving a motor vehicle on a road over the speed limit applying to that road, contrary to section 20 of the Transport Operations (Road Use Management - Road Rules) Regulation 1995. The prosecution case was that the appellant was the driver of a motor vehicle detected by a photographic detection device on 25 January 2009 travelling on the Bruce Highway at Tannum Sands at 143 kilometres per hour in a 100 kilometre per hour zone. No witnesses were called in the prosecution case, the evidence for the prosecution being in the form of documents which were made exhibits. Exhibit 1 was a photograph, certified as being properly taken by a photographic detection device, at a particular time and date at the Bruce Highway, Tannum Sands. It was certified by the respondent who also certified that he was an authorised delegate of the Commissioner of Police under section 4.10 of the Police Service Administration Act 1990. In Lekich v. Dixon [2009] QDC 111, and Bevacqua v. Wykes [2009] QDC 137, it was held that proof of that delegation was required. I am of the same view. Whether the tendering of instruments of delegation offered such proof in this case, is not necessary for me to determine, having regard to the view that I take about the effect of the evidence. -- 3 of 10 -- 4 ORDER 1 10 20 30 40 50 60 Assuming that the delegation was proved, the evidentiary effect of this certificate, under section 120(2) of the Transport Operations (Road Use Management) Act 1995 (the Act), was that the photographic image was taken at 10.13 on 25 January 2009 at the Bruce Highway, Tannum Sands, that the image was accurate, that is to say that the image accurately depicts that which occurred in front of where the camera was pointing, the things which are depicted in the image, and that any requirements prescribed by regulation about the operation and testing of the device were complied with for the specified device at all material times. In addition, by section 120(4) of the Act, the information which can be obtained from the data block on the photo was evidence before the Court, that is to say, evidence that at 10.13, on 25 January 2008, at the Bruce Highway, Tannum Sands, the device detected a vehicle, with Queensland registration number LIS37, travelling away from the device at 143 kilometres per hour relative to the ground. Part of Exhibit 1 was a smaller photograph certified in the same way, which is an enlargement of the area of the vehicle, so that the number plate is more legible. It's significance is to facilitate the identification of the registration of the vehicle shown in the centre of the photo and to which the recorded speed relates. Exhibit 3 was a certificate under the State Penalties -- 4 of 10 -- 5 ORDER 1 10 20 30 40 50 60 Enforcement Act 1999 that infringement notice 134283402 for exceeding the speed limit involved a vehicle with the registration number of LIS37. Exhibit 4 was a certificate that the appellant was the registered owner of the vehicle. Exhibit 5 was a certificate that the particular infringement notice was sent by mail to the appellant. Exhibit 6 was a certificate that the appellant, having been served with the infringement notice, did not provide a statutory declaration within 28 days in compliance with section 114 of the Act. The effect of this certificate is that the Commissioner had not been notified of any other person who was driving the vehicle at the relevant time, or the name and address of that person, or that the driver cannot be identified. The appellant, who was self-represented at the trial, gave evidence that he was travelling to Gympie in the vehicle with his wife and mother. He said he was in the back seat asleep and the driving was being done by his wife and mother. He said that he had made inquiries of them as to who was driving. However, neither could say who was driving at the particular time when the photograph was taken. Although the Acting Magistrate accepted the appellant was not driving the vehicle at the time the offence occurred, as the appellant was unable to identify who was driving at the relevant time, relying on Saunders v. Bowman [2008] QCA 112, he found the appellant guilty. He fined the appellant $933 and ordered him to pay costs of Court of $74.35. -- 5 of 10 -- 6 ORDER 1 10 20 30 40 50 60 The effect of Saunders v. Bowman is that a person, like the appellant, who is charged with an offence of driving a vehicle in excess of the speed limit, is deemed to be the driver of the vehicle unless he has taken certain steps, which include notifying the Commissioner in the manner I have described, and having a reasonable system in place for ascertaining the identity of the driver. The Acting Magistrate, having found that the Commissioner was not notified, and not being satisfied the appellant had such a reasonable system in place, convicted him on the basis that he was deemed to be the driver. The tenor of the appellant's grounds of appeal are it was unjust to make a finding of guilt against him when he was not the driver, and the photographic detection device was not set up appropriately, resulting in his being unable to determine who was driving the vehicle at the relevant time. However, it is not necessary for me to address these issues because, as is conceded on behalf of the respondent, the appeal must succeed for another reason, that is, even if the certificates on which the prosecution relied to establish the charge had the effect of deeming the appellant to be the driver of the vehicle, this was limited to deeming him to be the driver on 25 January 2009, whereas he was charged on the basis he was driving the vehicle in excess of the speed limit on 28 January 2009. There was no evidence he was the driver of the vehicle on 28 January 2009. This was not averted to by the Prosecutor, the Acting Magistrate, and, not surprisingly, -- 6 of 10 -- 7 ORDER 1 10 20 30 40 50 60 by the unrepresented appellant. In his most recent outline of submissions, which was received on 12 March 2010, the appellant is now alive to this point because he states he can now prove that on 28 January 2009 he was at work, some three hours away, and in possession of the car. He says this can be proven with a certified copy of his attendance at work and a signed statutory declaration. It is not surprising he did not seek to adduce this evidence before the Acting Magistrate, because the prosecution case was presented in such a way that he was entitled to consider the case which he had to meet related to his allegedly driving the vehicle on 25 January 2009, this being the date to which the certificates that were tendered, related. The manner in which the Acting Magistrate approached the trial would have reinforced this view in the mind of the appellant because, during the evidence, the Acting Magistrate referred the appellant to the effect of the certificates which had been tendered on the basis of Saunders v. Bowman, which was quoted to the appellant. Therefore, if it were necessary to do so, I would consider that special grounds exist to give leave to the appellant to adduce fresh evidence on this appeal under section 223(2) of the Justices Act. To establish special grounds three conditions must be fulfilled. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. Second, the evidence must be such that, if given, -- 7 of 10 -- 8 ORDER 1 10 20 30 40 50 60 it would probably have an important influence on the result of the case, although it need not be decisive. Third, the evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible. In this case I would be satisfied that these three conditions are fulfilled. It is only necessary to make additional observations on the first of these conditions. I would be satisfied that evidence could not have been obtained with reasonable diligence in relation to the issue which was the subject of the trial, that is notwithstanding the date of the charge, he had exceeded the speed limit on 25 January 2009. Further, as observed by the High Court in Gallagher v. R [1986] 160 CLR 392, per Gibbs CJ, at 395-396, the first condition is not a universal or inflexible requirement. The strength of the fresh evidence may, in some cases, be such as to justify interference with the verdict, even if the evidence might have been discovered before trial. However, it is not necessary for me to consider this fresh evidence in order to determine this appeal. The approach to an appeal under section 222 has recently been expressed in Graham v. Queensland Nursing Council [2009] QCA 280 by Fryberg J at [69]-[70] (with whose reasons the Chief Justice agreed) discussing the dictum of McMurdo P in Stevenson v. Yasso [2006] 2QdR 150 at [36]; [2006] QCA 40, where it was held: "The central task of an Appellate Court in an appeal by way of -- 8 of 10 -- 9 ORDER 1 10 20 30 40 50 60 rehearing is not to analyse the correctness or otherwise of the decision below, although an analysis may sometimes be helpful, it is to decide the case for itself. Often it will do so by considering only the evidence admitted at first instance, that is, usually the position in appeals under section 222 of the Justices Act 1866 ... that requires an Appellate Court to draw its own inferences from the facts established by the evidence, while respecting the advantage of the Court or Tribunal, at first instance, in seeing and evaluating witnesses. This is particularly relevant when issues of credibility arise.". Assuming that the delegations were proved in the present case, the prosecution evidence at it's highest established the appellant was exceeding the speed limit on the Bruce Highway, Tannum Sands on 25 January 2009. However, this is not what the appellant was charged with. As indicated, he was charged with committing this offence at that place on 28 January 2009. No application was made to the Acting Magistrate for the amendment of the charge in accordance with the evidence, nor has any such application been made before me. Further, the respondent concedes the appeal. Accordingly, there was no evidence before the Magistrate, and no evidence before me, that establishes, beyond reasonable doubt, the appellant was driving the motor vehicle on the 28th of January 2009 on the Bruce Highway, Tannum Sands at the speed above the speed limit applicable to that road. Therefore, the appeal against conviction is allowed. I set -- 9 of 10 -- 10 ORDER 1 10 20 30 40 50 60 aside the conviction and penalty, and order a verdict of acquittal be entered. I make no order as to costs. ----- -- 10 of 10 --