Croll v Chrzescijanski[2002] QDC 129

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant in this case is Leonard Theodore Croll. He appeals from the decision of the Learned Magistrate at Brisbane from a conviction for speeding. The complaint was as follows:

“The complainant is Stanlislaw Chrzeschijanski, Sergeant of Police at Brisbane, Queensland: a member of the police service made this 20^th day of February 2001 for the undersigned, a Justice of the Peace for the said State, who says, that on the 19 day of March 2000 at Newmarket in the central division of the Brisbane Magistrates Court District in the State of Queensland, one Leonard Theodore Croll being the driver of a vehicle, namely a motor car drove at a speed over the speed limit, namely 60km per hour applying to the driver of the length of road namely Enoggera Road, Newmarket where the said driver was driving and it is averred that the said Enoggera Road is a road as defined in Schedule 4 of the Transport Operations (Road Use Management Act 1995” (TORUM).

2. [2]
   In the bench complaint sheet, the particulars provided that pursuant to section regulation 20 of TORUM-Road Rules the appellant exceeded 60km/h (default speed limit built up area) by at least 30km/h but less than 45km/h.

3. [3]
   In fact, s 20 of the said TORUM-Road Rules 1999 provides:

“Obeying the Speed Limit

20. A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.

Maximum penalty – 20 penalty units”.

4. [4]
   One then has to look at the TORUM-Driver Licensing Regulation 1999 which provides in Schedule 3 as follows:

Part 2 – 4 DEMERIT POINT OFFENCES

2  Speeding – 30-45km/h over speed limit.

The number of points for contravention of the Queensland Road Rules, section 20 by driving at least 30km/h, but less than 45km/h, over the speed limit is 4.”

5. [5]
   The appellant was convicted of speeding at 91 kilometres per hour in a 60km per hour speed zone and was fined $180 and ordered to pay court costs of $60.15. The amount was to be paid within five months in default 8 days imprisonment.

Grounds of Appeal

6. [6]
   The Notice of Appeal sets out the grounds as follows:

“1. The Learned Magistrate erred in fact and law in accepting the evidence of the two Police witnesses as being truthful. The most disgusting thing that can happen to a person is to be found to have lied when they were being truthful when they were lying.

2. The Magistrate erred in fact and law by accepting the evidence of Glen Robert Winston and Warren Glenn Carpenter as credible. Both Winston and Carpenter gave evidence and should have been able to convince the Magistrate beyond reasonable doubt. His worship, in taking sides against the defendant, and declaring his evidence to not be credible erred in fact and law and caused a miscarriage of justice.

3. The Learned Magistrate erred in fact and law when he denied the defendant/appellant an opportunity to properly cross examine Constable Glen Robert Winston.

4. The Learned Magistrate erred in fact and law when he denied the defendant/appellant an opportunity to properly cross examine Constable Warren Glenn Carpenter.

5. The Learned Magistrate erred in fact and law in that he gave undue weight to evidence given by the prosecution.

6. The Learned Magistrate erred in fact and law in that he allowed into evidence matters that were extraneous to his considerations. This occurred when his Worship accused the defendant/appellant of changing his story and had made up inventions about the Police standing over him.

7. The Learned Magistrate erred in fact and law in that he did not allow in evidence facts detailing the harassment and abuse of Police Power suffered by the Defendant/Appellant at the hands of the Police. Attempts were made to have the Judgment of His Honour Justice Forgo (sic) entered into evidence and these were denied. His Honour refused to accept that the defendant/appellant had been more than just unlucky in the number of times he had been booked by Police from Ferny Grove.

8. The Learned Magistrate erred in fact and law in that he accepted evidence that was tainted by neglect or dishonesty on the part of the witness Glen Robert Winston.

9. The Learned Magistrate erred in fact and law in that he accepted evidence that was tainted by neglect or dishonesty on the part of the witness Warren Glenn Carpenter.

10. The Learned Magistrate erred in fact and law in denying uncontested evidence led by the defendant.

11. The Learned Magistrate erred in fact and law in that he failed to consider evidence relevant and supporting of the defendant’s/appellant’s case.

12. The Learned Magistrate erred in fact and law in that he took matters extraneous to his considerations into account.

13. The Learned Magistrate erred in fact and law in that he ignored the significant of a previous ticket given to the Appellant/Defendant by Winston that was identical and indicated a propensity on the part of the Police Officer to up the ticket to 91, this being 1 over 30km/h.

14. The Learned Magistrate erred in fact and law in hat he ignored the significance of Kevin Ronald Stemm having signed the Certificate “Transport Operations (Road Use Management) 1995 Section 124(1) (pa) form.

15. The Learned Magistrate erred in fact and law in that he could not have found beyond reasonable doubt against the Defendant/Appellant and did unreasonably discredit the evidence given by the defendant.

16. The learned Magistrate erred in fact and law in that he did not see that the police story about them trying to catch up to me could not have been possible because of the distances opposed to time and the acceleration speed of the police vehicle.”

Questions of credibility

7. [7]
   Some 10 grounds of the Notice of Appeal, namely Grounds 1, 2, 5,6, 8, 9, 10, 11, 15 and 16 involve questions of credibility:

“Where credibility is a critical issue and a magistrate has made findings based on credibility an appellant cannot succeed unless it can be shown that the magistrate has failed to use or has misused his advantage in seeing the witnesses or has acted on evidence which was inconsistent with facts and controvertibly established by the evidence or which was glaringly improbable (Devries v The Australian National Railway Commission^[1]. See Riley v Doyle & Anor^[2]

8. [8]
   Apart from the oral submissions, the appellant provided typewritten notes of his arguments. It would be fair to say that the appellant conducted his appeal in the most professional manner. He was allowed access to the transcript over the luncheon period to supplement his earlier submissions.

9. [9]
   The findings in relation to credibility by the learned Magistrate were that he generally accepted the evidence of the police officers. Further, at page 9 of his reasons he referred to the experience and reliability of the evidence of Senior Constable Winston. Senior Constable Winston was cross examined at length, as was his corroborating officer, Constable Carpenter. There was some 80 pages of evidence in the case. In assessing Senior Constable Winston’s evidence the magistrate referred to his lengthy period of service in the police force and that he was the main prosecution witness and “hearing his evidence as a whole I thought that his evidence was good as a whole”^[3]. There was nothing in the evidence according to the magistrate which discredited the prosecution case. When the appellant was apprehended by police, the following interchange occurred:

10. [10]
    The appellant said that the transcript of the tape was not the full transcript and he later denied that he was speeding at 91km per hour. He did accept that he may have been checked by mobile radar at 71km per hour. In other words there was an admission at the trial and also an appeal by the appellant to that effect. An attack was made upon the evidence that the police had followed the appellant’s vehicle through three suburbs. The appellant suggested that they could have apprehended him earlier. In fact, the police officers had to turn their vehicle to follow the appellant after having clocked him on their own radar. As to the manner in which they followed the appellant thereafter, it was explained by them that they had to stop for traffic or lights. The learned Magistrate was entitled to reject the appellant’s evidence in favour of the police evidence as their evidence had not been discredited.

11. [11]
    In determining what approach should be adopted in a matter of this nature, one can have regard to the decision of the Queensland Court in R v Free^[4]. McPherson J with whom the other justices agreed said that in order to overturn the decision in that case that it “cannot be supported having regard to the evidence”. See also Bailey v Costin^[5] where the Court of Appeal stated:

“this appeal can succeed only if no reasonable magistrate could have reached a conclusion which a magistrate did or if there was no evidence to support that conclusion: See R v Robertson (1980) 2 A Crim R 369 at 373 but also see R v Free (1983) 2 QdR 183 at 191-2, which is authority for the view that where findings on credibility are accompanied by reasons in which error is detected, the court may interfere…”

12. [12]
    The fact that there may be some inconsistencies in the evidence of the Crown does not mean that the learned Magistrate was in error or that it was “so unreasonable that no reasonable magistrate could have reached it (the decision)”. I am satisfied that there is sufficient evidence to establish the speed of the appellant’s vehicle, the manner in which he was pursued, the admissions made by him, and more particularly the general findings of the magistrate supporting the charge.

13. [13]
    The evidence of the police officers Winston and Carpenter was that they observed the radar device in the police vehicle at 77 to 93 and it was locked on the device at 91. If that evidence be accepted, then evidence of excessive speed has been established. There is nothing in the evidence to show that the learned Magistrate acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence and which was glaringly improbable. The offence was alleged to have occurred on Enoggera Road, Newmarket. Winston also observed the speedometer of his car to indicate somewhere between 90 and 92km an hour along Enoggera Road. There was evidence that both the speedometer and the radar were tested and the appropriate certificate under the hand of the superintendent of traffic, Bernard Francis Christensen, was tendered^[6]. This tender was pursuant to provisions of s 124(1)(p) of the TORUM 1995 Act. Mr Christensen was an authorised delegate of the Commissioner of Police pursuant to s 4.10 of the Police Service Administration Act 1990 (Qld) relating to both the speedometer of the relevant police vehicle and the Kustom radar speed detection device. There is nothing suggested in argument by the appellant that the said certificates were invalid.

14. [14]
    Therefore, there is no ground established in this appeal relating to erroneous findings by the learned Magistrate on questions of credit.

Appellant under oath cross examined fully

15. [15]
    Section 21 of the Evidence Act 1977 (Qld) provides as follows:

“1. A court may disallow a question which in the opinion of a court is indecent or scandalous unless a question relates to a fact in issue in that proceedings or to matters necessary to be known in order to determine whether or not the facts in issue existed.

2. A court may disallow a question which in the opinion of the court is intended only to insult or annoy or is reasonably offensive in form.”

16. [16]
    One area where the appellant was unable to pursue his line of questioning related to cross examination of Mr Carpenter about a Criminal Justice Commission (CJC) investigation. The learned Magistrate ruled that that was not relevant. At first blush, it would seem that that ruling was incorrect. Cross-examination on a question of credit is allowable in order to pursue an issue in the case particularly the present case where the appellant was challenging the police evidence. See R v Lawrence^[7]. The court held that:

“that in cases where the matter of credibility was an extricable link with the principle issue and the court was confronted with testimony about that issue which was incapable of being verified or tested except by evidence from other sources that went to credit rather than directly to the issue, the court should be prepared in the interests of justice to relax a rule that independent evidence regarding a witness is denials on matters going to credit was not ordinarily admissible.”

17. [17]
    Where a defendant has been refused the right to cross examine on matters of credit then an appellate court may interfere: Mraz  v The Queen ^[8] where Fullagar J stated:

“… every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance was fairly open to him of being acquitted, there is, in the eye of the law a miscarriage of justice.”

18. [18]
    In his oral submissions, the appellant stated that Sergeant Stemm had attempted to call a Constable Flood in a previous prosecution where the appellant allegedly breached the speed limit. It was then intended to call Constable Carpenter who the appellant said was not present at the scene. The submission continued that the CJC had investigated the matter and that the question of Sergeant Stemm’s conduct and that of Constable Carpenter was called into question. I allowed evidence to be given by the appellant to that effect with a view to exploring the significance of the refusal by the learned Magistrate to allow the appellant to cross examine on this aspect. The appellant was then given the opportunity to provide written material overnight from the CJC. The material did not support the submissions by the appellant. A review by the CJC established that Constable Carpenter was the correct corroborating officer and that the only reason he was not put forward as the initial corroborating officer was that Sergeant Stemm had a mistaken recollection. He had failed to check with the Service documents. Sergeant Stemm had been disciplined in respect of that matter.

19. [19]
    Therefore, if Constable Carpenter had been cross examined he would have rejected the suggestions put by the appellant that he was in fact not the corroborating officer on that particular charge. The appellant swore before this court that Carpenter was not the corroborating officer. In view of these submissions put before me and the lack of support for those submissions from the documents, I am unable to accept the appellant’s evidence that he has been deprived of an opportunity of an acquittal on the hearing of the present charge. It could be considered that the questions he would have asked Constable Carpenter were of a collateral nature and that he would have been stuck with the answers given by Constable Carpenter. Even if this view were incorrect, I am not satisfied that there has been an erroneous approach by the learned Magistrate. There is evidence upon which the learned Magistrate could have acted in the present case even without the evidence of Constable Carpenter. That in fact was recognised by the learned Magistrate when she said “I have the corroborating officer here today but the main witness was a prosecution witness, Winston.” Therefore, I am unable to find that the appellant has been deprived of the opportunity of an acquittal when he was not able to cross-examine on the CJC investigation.

Similar fact evidence

20. [20]
    Senior Constable Winston had issued a speeding ticket to the appellant on an earlier occasion in May 1996. The speed recorded at that time was 91 kilometres an hour. Constable Winston has been stationed in the Ferny Grove/Mitchelton area for some time. The appellant believes that he is being persecuted by police and that the speed of 91 kilometres in the present case was more than just a coincidence. Even if the evidence of the previous speeding fine were permitted as similar fact evidence, it does not follow that an adverse inference can be drawn against the police officers in light of the express findings of credit. In any event, there may be some difficulty complying with the requirements of R v O'Keefe^[9]  in relation to the similar fact test. I am unable to conclude that the learned Magistrate was in error in rejecting the suggestion that there was some concoction on the part of the police officers. Constable Carpenter stated^[10] that “we do our statements independently”.

21. [21]
    Although it was suggested that the appellant was unable to cross examine Senior Constable Winston fully, no particulars were provided. Having perused the

transcript, the learned Magistrate, in my view, only interrupted when necessary and only curtailed cross examination where it was repetitive or annoying. I find that this ground of appeal has not been made out.

Crown 14 – Certificate signed by Kevin Ronald Stemm

22. [22]
    Sergeant Stemm had previous dealt with the appellant for speeding but the charge was dismissed as the learned Magistrate on that occasion could not be satisfied beyond a reasonable doubt as to the evidence placed before him. In fact, the appellant felt aggrieved by that decision of the learned Magistrate which accepted Stemm’s evidence as it was unnecessary for his decision. That finding was overturned in the District Court.

23. [23]
    Although Sergeant Stemm signed the initial certificate in the present case, certificates were signed by Mr Christensen as the Commissioner’s delegate. As mentioned those certificates were not challenged. Therefore, Sergeant Stemm had no role to play in the evidence before the learned Magistrate in relation to the present charge. I find the submission irrelevant. This latter submission was tied with the allegation of harassment by police. It may be that given the appellant’s traffic record that he has had regular contact with police in the Ferny Grove/Mitchelton area over the years. There may have been two occasions in which he was travelling at 91 kilometres an hour.

24. [24]
    The appellant did not contest the first speeding ticket although he professed at the hearing that he was not guilty of that offence also. The fact that Senior Constable Winston and Constable Carpenter took their statements from the same computer does not amount to a conspiracy. The fact may have been relevant in relation to the credit aspect which has been dealt with. Also, it was never put to either witness that there was another person involved in persecuting the appellant. There was no evidence that the police witnesses had got together to concoct their evidence. I have not been satisfied that the appellant has established any ground of his appeal to warrant interfering with the findings of the learned Magistrate.

25. [25]
    The appeal is dismissed.