Clancy v Superintendent of Traffic [2008] QDC 73

DISTRICT COURT OF QUEENSLAND CITATION: Clancy v Superintendent of Traffic [2008] QDC 73 PARTIES: JERROD AIDEN CLANCY Appellant V SUPERINTENDENT OF TRAFFIC Respondent FILE NO/S: Appeal No. 150/05 PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Southport DELIVERED ON: 4 April 2008 DELIVERED AT: Southport HEARING DATE: 19 March 2008 JUDGE: Newton DCJ ORDER: Verdict set aside, new trial ordered before a Magistrate other than the Acting Magistrate who heard the case originally. Respondent pay appellant’s costs of the appeal. CATCHWORDS: CRIMINAL LAW – appeal and new trial – driving offences – retrial - driving in excess of speed limit – appeal against conviction – whether Acting Magistrate erred in law in employing method of reasoning which had effect of reversing onus of proof – whether decision of Acting Magistrate was against the weight of evidence. Justices Act 1886 as amended Hunter v Friedman [1994] QCA 475 - referred to The Queen v G [1993] QCA 267 - referred to McMaster v Compton [1996] QCA 098 – referred to COUNSEL: Mr B. Reilly for the appellant Mr R. Falconer for the respondent SOLICITORS: Buckland Criminal Lawyers for the appellant Director of Public Prosecutions (QLD) for the respondent -- 1 of 9 -- 2 [1] The appellant, Jerrod Aiden Clancy, was convicted on 4 March 2005 after a trial before an Acting Magistrate sitting at Southport of an offence of driving a motor vehicle at a speed in excess of the speed limit. The offence was alleged to have occurred at about 6.40pm on 12 September 2003, on Ashmore Road at Molendinar. Mr Clancy was convicted and fined $900.00 and ordered to pay costs of $62.10 and witness expenses of $100.00. In default of payment, a period of 21 days imprisonment was ordered. [2] Mr Clancy appeals against the conviction on the following grounds: 1. that the learned Acting Magistrate erred in law in employing a method of reasoning which either had the effect of reversing the onus of proof or which was indicative of such a reversal; 2. that the decision of the learned Acting Magistrate was against the weight of evidence, contrary to compelling inferences that arose from the evidence and one no court acting reasonably could have reached upon that evidence. [3] Two witnesses were called for the prosecution, namely Senior Constable John Clark and Senior Constable Christopher McLoughlin. The officers were conducting a mobile radar patrol on the evening of 12 September 2003, with Clark driving the police vehicle and McLoughlin seated in the front passenger seat. [4] In his evidence in chief Clark stated that at around 6.40pm police were patrolling and checking speeds of vehicles using a mobile radar device on Ashmore Road at Molendinar. At that time they were travelling in a northerly direction. He observed two vehicles travelling in a southerly direction slightly in excess of the speed limit to the south of the entrance to the Trinity Lutheran College. He then observed a third vehicle probably 100 metres to the north of the entrance to the college, travelling, in his opinion, well in excess of the speed limit. He then activated the mobile radar and obtained a speed of 104 kilometres per hour for that vehicle. He activated the lights and siren of the vehicle and executed a u-turn as the offending vehicle passed them. -- 2 of 9 -- 3 [5] The car was described as a small, red, two door sedan. He was not able to obtain the registration details, but saw the tail lights. He performed the u-turn and began to accelerate as fast as the police vehicle would permit. The offender caught up to the two vehicles which had been travelling slightly in excess of the speed limit, one was travelling in the right-hand lane and the other in the left. The red car then “undertook” one of the cars in the right-hand lane. He momentarily lost sight of it as he negotiated overtaking the two slower cars. After completing that manoeuvre, he saw the car again. It turned right into Harpers Road and accelerated away, he followed. It took about 500 metres to catch up to the vehicle (travelling at 100-120 kilometres per hour). The car pulled over in front of a scrap metal yard. Senior Constable McLoughlin left the police car and spoke with the driver.” [6] In cross-examination Clark stated that it was at night when the incident occurred and the headlights of the police vehicle were on. He locked the speed in just beyond the intersection with Jade Drive and made the u-turn near the main entrance to the college. When the speeding car was first observed, it was about 100 metres north of the main entrance to the college. There was a distinctive shape to the tail lights of the car as it passed. He performed the u- turn at about 30-35 kilometres per hour. He performed the two overtaking manoeuvres of the other two cars at about 100 kilometres per hour and then accelerated to 120-130 kilometres per hour to try and catch up to the car which still appeared to be accelerating. When he was endeavouring to catch the speeding car in Ashmore Road, there was 100-150 metres between it and the police car. Prior to making his statement, he was aware of the version of the appellant and had a conversation with the other officer. [7] In his re-examination Clark stated that when he lost sight of the vehicle, during the overtaking manoeuvres, it was for four, maybe five seconds. The tail lights of the car that the appellant was driving were rectangular and lean forward towards the top and are rather large for a small vehicle. He considered they were the same as the lights of the speeding car. There was some stainless steel equipment in the rear of the car. -- 3 of 9 -- 4 [8] Senior Constable McLoughlin was a passenger in the police vehicle driven by Senior Constable Clark. He states that in the vicinity of Jade Drive, he saw an oncoming car travelling south, which appeared to be speeding. It was about 150 metres or more north of the police car when he spoke with Senior Constable Clark who activated the radar. That vehicle was coming from the Molendinar area, Ernest. As the car passed police, he noted it was a small, red, two door car. He maintained a view of the car until it was intercepted and did not lose sight of the tail lights. After the overtaking manoeuvres of the other two cars, he then saw that the only set of tail lights “available to us” was that of the red two door Charade which was intercepted 150 metres or more into Harper Street. He could see no other vehicles in front of the car that turned into Harper Street. He had a conversation with the applicant which was tape recorded. He noted catering equipment in the boot. [9] In cross-examination Senior Constable McLoughlin stated that he received a letter from the appellant’s father concerning the incident prior to preparing his statement. He saw no cars coming from the school car park as they drove towards Jade Drive. As they drove in that area he gave the car park area of the college a “cursory glance”. The view of the car park of the college from Ashmore Road was obscured. (Descriptions of the content of the photographic exhibits were provided.) He always believed that the speeding car had come from north of Trinity Lutheran College. [10] In re-examination Senior Constable McLoughlin stated that at the time of the incident Trinity Lutheran College had only one entry and exit point, this has since changed and there is now an additional entry and exit point in the treed area. (It seems the additional entry/exit point is visible on the aerial map that was tendered by the defence.) [11] The appellant, Jerrod Aiden Clancy stated in his evidence-in-chief, that on the evening of 12 September 2003 he was working for his father in a catering company which was catering for a function at the restaurant at Trinity Lutheran College. Some time between 6 and 6.30 he had to return to the factory to pick up some zucchini. In order to do that he borrowed a car from one of the other workers. He left the college through the only exit after driving down through -- 4 of 9 -- 5 the school and turning left to exit. He then continued up Ashmore Road and turned right into Harper Street. In that street he became aware of a police vehicle behind him and pulled over once he considered there was room to do so. It was the first time he had driven that car. He did not know the speed he was driving at but took an estimate when police spoke to him. He had not driven that car north of the entry/exit point to the college. [12] In cross-examination the appellant stated the factory he was going to was situated in Nerang. [13] In re-examination the appellant stated he travelled down Harper Street in order to get onto Nerang-Southport Road to travel to the factory. After being intercepted by police, he obtained the zucchini from the factory and then returned to the college. [14] Dana Worling, called as a defence witness, stated in her evidence-in-chief that she was working at the college on 12 September. She owned a Daihatsu Charade which she drove to the college. At the college one of the chefs realised a vegetable, either broccoli or zucchini, was missing and the appellant was chosen to obtain the vegetable. Vegetables were contained in styrofoam containers. She was unable to recall the time that this occurred. She offered her car to the appellant to use to pick up the vegetables. The factory is 10 or 15 minutes away and the appellant was absent for “most probably half an hour”. By that time the meal had been delayed. The appellant returned with the vegetables. [15] In cross-examination, Ms Worling stated that most of the functions and services occur around 7pm, but she had no precise recollection of this function. [16] Martin Gottschall, also called as a defence witness, was a qualified mechanical engineer who had given evidence in the past about motor vehicle collisions and who had experience in preparing time estimates in relation to vehicle collisions. He had undertaken an analysis in relation to the present matter and the data sources for that were the statements of the two police officers and the appellant. It seems that a report prepared by the witness was tendered without objection. The report contained a reference to an aerial map of the relevant area and a -- 5 of 9 -- 6 series of tables which contained time and distance analyses. He indicated that he had traced the progress of the police vehicle, that of the appellant (on his version of events) and that of the offending vehicle. Mr Gottschall concluded that there would have been times that the offending vehicle was out of sight of the police. Assumptions made by the witness were said to include: • that the police car caught up to the appellant’s car about 200 metres into Harper Street; • that the offending vehicle slowed and turned left into Harper Street; • that the police coasted before the u-turn was undertaken and then proceeded to accelerate to the maximum possible in a two wheel drive vehicle and then travelled at 120 kilometres per hour. [17] Having produced the table, Mr Gottschall traced their progress onto the photograph to determine if the offending vehicle could have been out of sight of the occupants of the police vehicle. He concluded that there were times that the offending vehicle and the appellant’s vehicle (on his version of events) would have been out of sight to those in the police car. The witness indicated that his figures were robust and he tried to assess his bounds of error, he concluded that the vehicles were out of sight for substantial times and distances. He did not believe that the evidence given in court by the officers impacted in any “critical way” on his report. [18] In cross-examination the witness stated he gave the police vehicle the best acceleration it could physically have, in the calculations made. He had not taken into account the braking of the offending vehicle and any effect would depend on the duration of braking. [19] In re-examination Mr Gottschall stated that the braking would have an impact upon the exact times that the offending vehicle became invisible, but the duration of the loss of sight was so substantial, the braking would have had to be extreme to affect his conclusions. [20] In the course of the reasons for his decision the Acting Magistrate relevantly summarised the evidence of each witness and made observations as to credibility. In relation to Clark, the Acting Magistrate stated “I find the witness -- 6 of 9 -- 7 an honest and truthful witness and I accept the evidence of this witness”. The same observations were made in respect of McLoughlin. The Acting Magistrate then proceeded to make a number of findings after which he stated: “On the evidence before me there is nothing raised by the accused to allow me to reject the prosecution evidence. On the state of the evidence before me, I accept the evidence of Senior Constable Clark and Senior Constable McLoughlin and I reject the accused’s evidence where it is in conflict”. [21] Counsel for the appellant submits that this passage of the reasons indicates that the learned Acting Magistrate, despite having earlier set out the correct tests as to onus, fell into error at a crucial stage of the reasoning process. The passage, it is contended, reveals a process of reasoning which assumes, not only the truthfulness of the prosecution evidence, but also its reliability and then which requires some obligation on the accused person to impugn the prosecution case. [22] Such reasoning it is submitted, involves a reversal of the onus of proof. Counsel for the appellant suggests that the reasons revealed in the decision indicate that the court below had temporarily overlooked the important question of where the onus lay. There exists no obligation on any accused person to persuade a tribunal that the prosecution evidence is, for example, unreliable as to the crucial issue. Counsel points out that the question for the tribunal is whether, on the facts as found, guilt is established beyond all reasonable doubt. In such circumstances counsel submits that it would not be safe to let the conviction stand. [23] Counsel for the respondent submits that it is clear from comments made earlier in his reasons that the Acting Magistrate did have regard to the correct tests as to onus of proof. At p.3 of his reasons the learned Acting Magistrate stated: : “I clearly accept that any statutory defence or legal excuse as raised by the accused must be negated by the prosecution”. [24] It is contended by counsel for the respondent that the matter turned upon the question of the credibility of the witnesses and that the Acting Magistrate, -- 7 of 9 -- 8 sitting as the tribunal of fact, was entitled to positively accept, beyond reasonable doubt, the evidence presented by the prosecution on matters critical to the proof of guilt. The comment of the Acting Magistrate which is now criticised by the appellant should not, it is argued, be construed as having disregarded the exculpatory evidence of the appellant, but rather that in light of all the evidence the prosecution had proved its case beyond a reasonable doubt. [25] A mode of reasoning which tends effectively to reverse the onus of proof will render a conviction unsafe (Hunter v Friedman [1994] QCA 475 per Pincus J.A. at p.15). In a jury trial even where the summing up included proper and repeated directions as to the onus of proof, an erroneous direction which may have influenced the verdict will result in the quashing of a conviction (The Queen v G [1993] QCA 267 per Pincus J.A. at p.6). If there is at least a foundation, in the reasons given by the Magistrate for thinking that perhaps the proper standard and onus of proof were not applied, it would be unsafe to let a conviction stand (McMaster v Compton [1996] QCA 098 per Pincus J.A. at p.5). [26] In my view, notwithstanding the earlier comments of the Acting Magistrate with regard to the onus of proof which are not the subject of the complaint by the appellant, there is an erroneous mode of reasoning disclosed in the learned Acting Magistrate’s reasons which does tend effectively to reverse the onus of proof. It would accordingly be unsafe to allow the conviction to stand. [27] In the circumstances it is unnecessary to consider at length the submissions made on behalf of the appellant in relation to ground 2 of the appeal, namely that the decision of the learned Acting Magistrate was against the weight of the evidence, contrary to compelling inferences that arose from the evidence and one no court acting reasonably could have reached upon that evidence. I do not accept that the findings of the Acting Magistrate were unreasonable or necessarily against the weight of the evidence. I am unable to accept the submission that a proper appreciation of the evidence ought to have resulted in the existence of a reasonable doubt concerning the reliability of the identification of the appellant’s vehicle as the offending vehicle. However, I do accept that the tribunal of fact, before accepting and acting upon the evidence -- 8 of 9 -- 9 of the witnesses for the prosecution, must find their evidence to be not just honest but also reliable. In my view a Magistrate properly directing himself or herself as to the onus of proof, could properly convict on the evidence in this matter. [28] On the hearing of an appeal of this nature, this Court may confirm, set aside or vary the appealed order or make any other order in the matter the Court considers just (section 225(1) Justices Act 1886 as amended). If the Court sets aside an order, the Court may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration (section 225(3) Justices Act 1886 as amended). [29] I order that the verdict of the learned Acting Magistrate be set aside and that there be a new trial of the matter before a Magistrate other than the Acting Magistrate who heard the case originally. The respondent is to pay the appellant’s costs of the appeal. -- 9 of 9 --