Osgood v Queensland Police Service
[2009] QDC 287
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- Unreported Judgment
- Appeal Determined (QCA)
- Osgood v Queensland Police Service[2009] QDC 287
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Osgood v Queensland Police Service[2009] QDC 287
Osgood v Queensland Police Service[2009] QDC 287
DISTRICT COURT OF QUEENSLAND
CITATION: | Osgood v Queensland Police Service [2009] QDC 287 |
PARTIES: | OSGOOD Steven Edward (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 72 of 2008 |
DIVISION: | Appellate jurisdiction |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 4 September 2009 |
DELIVERED AT: | Cairns |
HEARING DATE: | 28 May 2009 |
JUDGE: | Bradley DCJ |
ORDER: | Decision of Magistrate confirmed |
CATCHWORDS: | TRAFFIC LAW – OFFENCES – PARTICULAR OFFENCES – DRIVING IN BREACH OF SPECIFIC SPEED LIMITS – where the appellant was convicted of the offence of speeding after a three day hearing – where the appellant was fined $250 and ordered to pay $65 court costs and $7,209.13 being costs of the prosecution – whether the Magistrate had no jurisdiction in that the proceedings were wanting of competency – whether there was a denial of natural justice and procedural fairness – whether the prosecution failed to prove their case Justices Act 1886 (Qld), s 222, 223, 223(2) Transport Operations (Road Use Management) Act 1995 (Qld), s 124 Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 20, 21 Allesch v Maunz (2000) 203 CLR 172 Rowe v Kemper [2008] QCA 175 Teelow v Commissioner of Police [2009] QCA 84 |
COUNSEL: | Appellant appeared in person P Wilson of Counsel for the respondent |
SOLICITORS: | Office of the Director of Public Prosecutions for the respondent |
- [1]On 11 March 2008, in the Magistrates Court at Cairns after a three day hearing, the appellant was convicted of the offence of speeding. The appellant was fined $250 and ordered to pay $65 court costs and $7,209.13 being costs of the prosecution.
- [2]The particulars of the complaint against the appellant are that at about 11.25 am on 23 June 2006 on the Kennedy Highway at Kuranda he drove a truck in an easterly direction at 93 km/h in an 80 km/h zone. The appellant, who was at the time employed as a casual delivery driver, was driving a Mazda diesel truck fitted with a refrigeration unit. The appellant’s speed was measured by a device attached to a police patrol car that was travelling west on the Kennedy Highway.
Grounds of appeal
- [3]The appellant, who represented himself both at the hearing in the Magistrates Court and in this appeal, maintained the following grounds of appeal:-
- (a)By right
- (b)No jurisdiction in that the proceedings were wanting of competency
- (c)Denial of natural justice and procedural fairness
- (d)The prosecution failed to prove their case.
First ground of appeal
- [4]The appellant conceded that as s 222 of the Justices Act 1886 gives him a right of appeal to this Court from the decision made by the Magistrate, there is no need to take the first ground of appeal any further.
Second ground of appeal
- [5]The appellant’s argument regarding jurisdiction is that ordinary Magistrates lack the expertise to properly make findings of fact in matters involving the use of highly technical equipment and scientific principles. In this case, the appellant’s speed was measured by a Decatur speed measuring device which was fitted to a police patrol car.
- [6]Prior to the hearing the appellant gave the prosecution the necessary notice under the Transport Operations (Road Use Management) Act 1995 (“TORUM”) to challenge the accuracy and operation of the speed measuring device. Evidence was given regarding these issues by witnesses called by the prosecution as experts in electronics and radar technology and in radar and laser speed detection. The expertise and qualifications of these witnesses was challenged by the appellant and they were extensively cross-examined in this regard. The appellant argues their evidence was wrongly admitted and their expertise not proven. A perusal of the evidence shows that the expertise of these witnesses was proven by their own testimony and their evidence was properly admitted.
- [7]The appellant argues that an ordinary Magistrate does not have the necessary qualifications, training or background to make determinations on such evidence and the appellant advocates the establishment of specialist courts to determine such matters. The appellant did however acknowledge that in the absence of such courts the Magistrates Court did have jurisdiction to hear the matter. The appellant cannot therefore succeed on this ground of appeal.
Third ground of appeal
- [8]The appellant was particularly concerned that the Magistrate did not have regard to an affidavit sworn by him on 2 January 2008 and filed in the Magistrates Court prior to the hearing in that court. The appellant was given leave by this Court to tender the affidavit as new evidence pursuant to s 223(2) of the Justices Act 1886.
- [9]The affidavit is headed “Affidavit of Rebuttal” and essentially repeats the appellant’s evidence in chief and exhibits copies of the documentary and other evidence relied upon by the appellant. Of particular importance to the appellant was a video tape referred to in his affidavit as a “recording taken of the relevant Kuranda road surface to this matter by myself”. This tape did become an exhibit in the proceedings in the Magistrates Court. The Magistrate did not however refer to it in his decision. I have viewed the video tape. It is apparently filmed from the front passenger seat of a vehicle and is of the road way, both in an easterly and a westerly direction apparently between the place of interception to the point where the defendant joined the highway and beyond. It is of little assistance to the court. The appellant’s affidavit does not add anything of relevance to the evidence that was adduced before the Magistrate and his allegation of bias against the Magistrate for refusing to allow him to rely on it as evidence is totally unfounded.
- [10]The appellant submits that he was intimidated by the Magistrate and discouraged from asking questions in cross-examination. He asserts he was “denied materials” and not allowed “to appear in an appropriate manner that I was entitled to exercise”. The transcript reveals no evidence whatsoever of biased or inappropriate conduct on the part of the Magistrate. The hearing went for three full days. The defendant made a no case to answer submission at the end of the prosecution case and repeatedly raised objections to evidence. The appellant was treated courteously and respectfully throughout and was given every reasonable opportunity to cross-examine witnesses, present his case and make submissions. He was not denied natural justice or procedural fairness.
Fourth ground of appeal
Evidence at trial
- [11]In order to examine the fourth ground of appeal it is necessary to summarise the evidence given at the trial. Senior Constable Ridgeway gave evidence that he was the driver of the patrol car and the operator of the Decatur device. He was cross-examined extensively by the appellant on all aspects of the operation of the Decatur device on that particular day in addition to his operation of the device generally, his further observations on that day and his knowledge and skill as an operator of the Decatur device.
- [12]Constable Bartlett gave evidence that he was the passenger in the patrol car and he corroborated Senior Constable Ridgeway’s evidence. Both police officers gave evidence that they observed the appellant’s vehicle travelling towards them around a bend, and each formed the view that it was exceeding the speed limit. That is when Senior Constable Ridgeway activated the Decatur device. The device indicated to him that it took an accurate and clear reading.
- [13]The evidence of the two police officers in relation to their discussions with the appellant was supported by a tape recording of roadside conversation between the appellant and Senior Constable Ridgeway. I have listened to that recording and although it was not possible to hear all of the conversation, particularly all of the appellant’s replies, what is audible is supportive of the police version of events.
- [14]Rodney Ian James’ evidence was that he was a former employee of the Queensland Police Service (QPS) as a Technical Officer in the Radio and Electronics Section calibration laboratory. He was in that position for around 12 years and his duties were the maintenance and calibration of all speed detection devices used by QPS in a NATA accredited laboratory. He holds an associate diploma in electronics engineering and has specialist experience in radar technology with both the QPS and the Defence Department spanning three decades. Mr James gave expert evidence in relation to tests performed on the Decatur device and LIDAR (light detection and ranging) device used in connection with the testing of the speedometer on the police vehicle. He gave extensive evidence about the testing of the Decatur device and described how he was unable to get it to give a false reading. He went on to explain the fail-safe nature of the device and gave his professional opinion that the device was accurate and would not produce a result if there was any kind of interference.
- [15]Senior Constables Gregory Rose and Andrew Taylor gave evidence regarding the relevant testing procedures carried out at the times relevant to the deeming evidentiary provisions of TORUM.
- [16]Thomas Malcolm Mulciar is a consulting engineer and evidence was led from him as an expert in the field of speed measuring devices including Decatur devices and LIDAR devices. He said that he was involved in the setting of the Australian Standards applying to speed measuring devices. He gave evidence about how the Decatur device was operated. He gave a detailed explanation of the cosine effect which relates to the use of a speed measuring device based on technology employing the Doppler effect on a vehicle which is travelling around a bend which causes the speed measuring device to pan to follow the vehicle. He gave evidence that the cosine effect could only work to reduce the speed of the vehicle being measured and would therefore only work in favour of the motorist. His evidence was, however, that it would have had a negligible effect on the speed measuring device in this case.
- [17]The appellant himself gave evidence that he did not believe that he was exceeding the speed limit at the time he encountered the patrol car. He said that he had just made a delivery to a resort down Greenhill Road and that he turned right from that road onto the Kennedy Highway. He was paid on an hourly basis and thus had no incentive to speed. His load, which was a light one, was of fresh produce which could be damaged if thrown around in a vehicle travelling at speed. He was driving towards the traffic lights at the Kuranda turnoff when he was detected by the police. The appellant’s evidence was that his vehicle was not capable of reaching the speed of 93 km/h in those circumstances, taking into account the nature of the road conditions and the distance in which he had to build up that speed. His evidence was that he did not know whether his vehicle was capable of reaching that speed at all.
- [18]The appellant called Scott Levine who purported to give evidence as an expert in the field of motor mechanics. His evidence was that he performed a test on the defendant’s vehicle some three months after the date of offence, on 28 September 2006. Mr Levine attempted to test the parameters of the vehicle in terms of speed in the appropriate road conditions under two circumstances. Firstly, from a standing start over the distance claimed to have been travelled on the day in question by the appellant and, secondly from a rolling start over the same distance. Mr Levine’s evidence was that the highest speed he could reach before coming to the lights at the Kuranda turnoff was 82 km/h.
- [19]It was Mr Levine’s opinion as a motor mechanic that a vehicle of the type driven by the appellant took some distance to build up speed as it was a vehicle designed for the purposes of carrying a heavy load rather than achieving a high speed. In Mr Levine’s opinion the vehicle was capable of travelling at 93 km/h. Mr Levine admitted he did not know if the tests he conducted mirrored the conditions existing on the date of the offence in terms of the vehicle carrying a comparable load, the mechanical condition of the vehicle, the conditions of the road and the way in which the driving commenced. Mr Levine did not check the accuracy of the vehicle’s speedometer and stated that during the test he had no intention of driving the vehicle over the 80km/h speed limit.
Rehearing
- [20]Section 223 of the Justices Act 1886 provides that this appeal is by way of rehearing on the evidence given at trial and on the new evidence adduced.
- [21]As noted by Muir JA in Teelow v Commissioner of Police [2009] QCA 84 at para [3]:-
“A characteristic of an appeal “by way of rehearing” is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the Court from which the appeal comes.”
- [22]At para [4] Muir JA refers to the High Court’s decision in Allesch v Maunz (2000) 203 CLR 172 at 180-181:-
“the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error… At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was an error at first instance.”
Muir JA went on to say:-
“On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of decision of appeal.”
- [23]The duty of a District Court Judge hearing an appeal under s 222 of the Justices Act 1886 was confirmed and elaborated on by the Court of Appeal in Rowe v Kemper [2008] QCA 175. The Judge is required to make his/her own determination of relevant facts in issue from the evidence, “giving due deference and attaching a good deal of weight to the Magistrate’s view.” (para [3]). The Judge must conduct a “real review of the evidence drawing his own inferences and conclusions” (para [5]).
- [24]In his decision the Magistrate made various findings regarding the credibility of witnesses and the reliability of their evidence. There is nothing in the transcript of the proceedings in the Magistrates Court or in the submissions made before me that caused me any concern about adopting the Magistrate’s findings in this regard. The Magistrate said that he had no doubt that the four police officers who gave evidence before him gave “honest and reliable and accurate evidence”. He noted that cross-examination by the appellant failed to cast doubt on the validity and accuracy of the results produced by the testing of Constables Rose and Taylor.
- [25]The Magistrate found that Senior Constable Ridgeway was an “impressive witness, not just in his demeanour, in that he was able to answer all questions confidently, but the cross-examination did not expose one flaw in his testimony”. The Magistrate also found that the oral testimony of the police officers Ridgeway and Bartlett, regarding their interaction with the appellant, was supported by the tape-recording of the conversation. On the other hand, the Magistrate found the appellant’s evidence unreliable and described him as “constantly evasive in his answers to simple straight forward questions put by the prosecutor”.
- [26]The appellant makes totally baseless assertions that the various certificates tendered by the prosecution pursuant to the evidentiary provisions of TORUM were forged. The certificates and documents produced in accordance with s 124 of TORUM were properly proven and produced and were therefore evidence of the matters they referred to. The evidence of the witnesses only reinforced and confirmed the evidence of those documents. There was no defence expert evidence to contradict that of the prosecution.
- [27]The appellant also contended that the prosecution had failed to adduce any evidence of the precise length of the road that he was driving on. The appellant was referring in this regard to the wording of the complaint against him: “that on 23 June 2006 at Kuranda in the Magistrates Court district of Cairns in the said State one Steven Edward Osgood being the driver of a vehicle namely a truck drove at a speed over the speed limit, namely 80 kilometres per hour applying to the driver for the length of road namely Kennedy Highway Kuranda…” (emphasis added). The appellant’s argument was that no actual identification of a particular piece of road and its measurement had been proved by the prosecution.
- [28]The phrase “the length of road” is to be found in s 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 the provision under which the appellant was charged. The section reads as follows:-
20.Obeying the speed limit –
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.
- [29]The following section reads relevantly as follows:-
21.Speed limit where a speed limit sign applies
(1)The speed limit applying to a driver for a length of road to which a speed limit sign applies is the number of kilometres per hour indicated by the number on the sign.
(2)A speed limit sign on a road applies to the length of road beginning at the sign and ending at the nearest of the following –
(a)a speed limit sign on the road with a different number on the sign;
(b)an end speed limit sign or speed de-restriction sign on the road;
(c)if the road ends at a T-intersection or dead end – the end of the road.
- [30]The Magistrate ruled that the “length of road” in the complaint is that defined in s 21. The Magistrate ruled that there was evidence upon which the Court could rely regarding the signage on the road which would allow the Court to ascertain the relevant speed limit applying to the appellant in the circumstances. Those rulings were clearly correct on the evidence.
- [31]As I understand it, the appellant’s argument is primarily that because the police vehicle was coming over the crest of a hill and around a bend, and because the police vehicle was not therefore parallel to his, the accuracy of the reading taken by Senior Constable Ridgeway must be in doubt. The overwhelming prosecution evidence however is that the device was operating accurately, being used in accordance with the statutory requirements and gave an accurate reading.
- [32]On the evidence the following has been proven beyond reasonable doubt –
The Decatur speed measuring device was operated properly and produced accurate results at the relevant time.
The Decatur speed measuring device had been properly tested in accordance with the relevant Australian Standard.
The tests carried out by Mr James and Senior Constables Rose and Taylor were properly and accurately conducted.
The testimony of Mr James and Mr Mulcair sufficiently proved their qualifications and areas of expertise.
The appellant does not know what speed he was travelling at the relevant time.
There was no evidence to support the appellant’s assertion that the truck he was driving was not capable of travelling at 93 km/h.
The tests conducted on the truck by Mr Levine did not prove that the truck the appellant was driving, was incapable of reaching speeds of more than 82 km/h.
The fact that the appellant was driving the truck around a sweeping bend at the time of detection and the consequent cosine effect did not cast doubt on the accuracy of the reading of the speed detection device.
A combination of the testimony of the witnesses and the certificates tendered under TORUM leads to the conclusion that the speed measuring device was operated according the relevant Australian Standard at the relevant time.
The appellant was driving the truck at a speed of 93 km/h within an 80 km/h speed zone on 23 June 2006 and was guilty of the offence.
- [33]The Magistrate’s decision is confirmed and the appeal is dismissed.