El'Mansy v Rankin [2004] QCA 424

SUPREME COURT OF QUEENSLAND CITATION: El’Mansy v Rankin [2004] QCA 424 PARTIES: EL’MANSY, Essam (appellant/applicant) v RANKIN, Richard Battersby (respondent/respondent) FILE NO/S: CA No 262 of 2004 DC No 3946 of 2003 DIVISION: Court of Appeal PROCEEDING: Application for Leave s118 DCA (Criminal) ORIGINATING COURT: District Court at Brisbane DELIVERED EX TEMPORE ON: 4 November 2004 DELIVERED AT: Brisbane HEARING DATE: 4 November 2004 JUDGES: McMurdo P, Fryberg and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application for leave to appeal dismissed CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – application for leave to appeal against dismissal of an appeal against speeding conviction on the basis that evidence of a prosecution witness was illogical and could not support the charge – where witness was not cross examined – where there was other uncontested evidence which could support the conviction – where applicant sought to introduce new evidence and grounds of appeal not raised at trial or on appeal to District Court COUNSEL: The applicant appeared on his own behalf M J Copley for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent -- 1 of 7 -- 2 THE PRESIDENT: Mullins J will give her reasons first. MULLINS J: The applicant, who appeared for himself, was convicted after a trial in the Magistrates Court of one offence of speeding. He was fined the sum of $200 and ordered to pay costs in the amount of $61.40. The applicant appealed against his conviction to the District Court on the ground that the conviction was unsafe and unsatisfactory and contrary to law. His appeal was dismissed and he was ordered to pay costs of $1,000. The applicant applies for leave to appeal the decision of the learned District Court Judge on a number of grounds, including: (a) that he was not speeding as alleged; (b) there was a miscarriage of justice as he was not given a fair hearing by the Magistrate because he was unable to afford legal representation, he was not given the assistance of an interpreter and he was not given the opportunity to cross- examine the police officers at the trial; (c) the Magistrate accepted evidence from one of the police officers that was manifestly incorrect; (d) that the Magistrate was prejudiced against him based on his demeanour and the comments he made to him; (e) he was unfairly targeted by the police on this and past occasions because he had an old and dirty car and he had -- 2 of 7 -- 3 a medical condition which prevented him for wearing a seatbelt. Evidence was given before the learned Magistrate by two uniformed police officers, Sergeant Rankin and Constable Thring, who were in a stationary marked police vehicle positioned on the Alice Street on ramp to the Riverside Expressway at 6.10 a.m. on 24 December 2002. Sergeant Rankin observed a white Mazda sedan travelling outbound at a fast rate of speed along the Riverside Expressway in the second lane from the right and that it was the only vehicle on the road at that time. Sergeant Rankin observed Constable Thring to use a handheld speed detection device to ascertain the speed of the vehicle. The speed limit on the Expressway in the vicinity of the Alice Street on ramp was 70 kilometres per hour. Sergeant Rankin stated that he then drove the police vehicle in pursuit of the Mazda vehicle and intercepted it just outbound from the Vulture Street on ramp and identified the applicant as the driver of the vehicle. Sergeant Rankin stated that he asked the applicant, "Can you tell me what the speed limit is on the Riverside Expressway at the Alice Street on ramp?" and that he also asked the applicant, "What speed -- 3 of 7 -- 4 were you doing?" to which the applicant responded, "I don't really know but I hope I was doing 60." Sergeant Rankin said that he then informed the applicant, "You've just been detected on a handheld radar doing 102 kilometres an hour and that's a 70 zone." Sergeant Rankin stated that Constable Thring then showed the applicant a digital readout from the handheld radar and that the applicant responded, "I didn't know my car could go that fast." In his evidence, Sergeant Rankin estimated that the applicant was intercepted about 1.5 kilometres from where he committed the offence and that it took four to five minutes to move the police vehicle forward to intercept the applicant. Constable Thring stated that he was operating a laser speed detection device at approximately 6.10 a.m. on 24 December 2002 which recorded the white Mazda travelling at 102 kilometres per hour. Constable Thring was also able to say there was minimal traffic on the road at that time in the morning. Prior to commencing his shift, Constable Thring had tested the device in accordance with the manufacturer's specification and the test indicated that the device was operating accurately. He was also able to tender a certificate for the device which stated that it had been -- 4 of 7 -- 5 tested at 9.10 a.m. on 18 January 2002 and was found to be producing an accurate result. The applicant did not cross-examine the police officers. The applicant gave evidence that his vehicle had been intercepted by the police at the Cornwall and Juliette Streets exit and expressed his failure to understand why it took the police 4.5 kilometres from the Expressway before they stopped him. The learned Magistrate accurately recited the evidence that had been given before him. He noted the effect of the certificate under section 124, subsection 1, paragraph (pd) of the Transport Operations (Road Use Management) Act 1995 in respect of the speed detection device. The learned Magistrate was satisfied beyond reasonable doubt of all elements of the offence. On the appeal before the learned District Court Judge submissions were made by the applicant to the effect that if Sergeant Rankin was correct and it had taken four to five minutes to intercept the applicant's vehicle, it could not have been travelling at 102 kilometres per hour for it to have been intercepted where Sergeant Rankin said it was. The learned District Court Judge found there was evidence to support the conviction and that the evidence of the time and distances given by Sergeant Rankin were estimates. -- 5 of 7 -- 6 Both before the learned District Court Judge and this Court the applicant seeks to dispute the evidence of the police officers, when he elected not to cross-examine them before the learned Magistrate, after being given every opportunity to do so. On the hearing of this application, the applicant also indicated that he had further evidence he wanted to rely on about the operation of the speed detection device which he did not obtain until yesterday. There was no basis shown, however, for the Court to receive this evidence. Having regard to the evidence that was given before the learned Magistrate, and even accepting that Sergeant Rankin had to be mistaken in the estimate of the time it took to travel 1.5 kilometres to intercept the applicant's vehicle, there was no basis for the applicant to challenge successfully the Magistrate's decision. There is no error in the decision of the learned District Court Judge. It is not appropriate that the applicant seek to raise in this Court for the first time allegations of bias and prejudice against the learned Magistrate, when the applicant failed to do so before the learned District Court Judge. In any case, the transcript before the learned Magistrates shows that there -- 6 of 7 -- 7 is no substance to the allegations. The application for leave to appeal should be dismissed. THE PRESIDENT: I agree. FRYBERG J: I agree. The applicant's command of English before this Court, even colloquial English, demonstrated that it was unlikely that he suffered any disadvantage by reasons of English not being his first language. He suffered perhaps from not being a solicitor, as he put it, but that is the same for every unrepresented litigant. The applicant was given the opportunity to cross-examine the police officers at the trial. THE PRESIDENT: The application for leave to appeal is dismissed. ----- -- 7 of 7 --