White v Commissioner of Police
[2010] QDC 243
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- White v Commissioner of Police[2010] QDC 243
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White v Commissioner of Police[2010] QDC 243
White v Commissioner of Police[2010] QDC 243
DISTRICT COURT OF QUEENSLAND
CITATION: | White v Commissioner of Police [2010] QDC 243 |
PARTIES: | COLIN WHITE (Appellant) AND COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | Appeal No. 2667/09 |
DIVISION: | Appellate |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 17 June 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 May 2010 |
JUDGE: | Reid DCJ |
ORDER: | Appeal dismissed. |
CATCHWORDS: | S 222 APPEAL – meaning of rehearing – consideration of evidence – failure to wear seat belt. Transport Operations (Road Use Management – Road Rules) Regulation 2009, s 264 Justices Act 1886, s 222 House v R (1936) 55 CLR 499 – contrasted Mubuzi v Torcetti 2008 QCA 231 – applied Fox v Percy (2003) 214 CLR 118 – cited Rowe v Kemper [2008] QCA 175 – cited Nguyen v Chand (2010) QDC 227 – cited |
COUNSEL: | G. J. Barr (a solicitor) for the appellant D. Balic for the respondent |
SOLICITORS: | Butler McDermott Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent |
- [1]This is an appeal against conviction after a summary trial of a charge pursuant to s 264 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 of failing to wear a seatbelt whilst driving a motor vehicle on 1 January 2009.
- [2]The appeal is pursuant to s 222 of the Justices Act 1886.
- [3]It was submitted to me on behalf of the appellant that the appeal was to be determined on the principles espoused in House v R (1936) 55 CLR 499. That case however was an appeal from the exercise of a discretion relating to a sentence imposed under the Bankruptcy Act. Section 223 of the Justices Act provides that this appeal shall be by way of a rehearing. On such an appeal, a Judge should afford respect to the decision of the Magistrate and bear in mind any advantage he or she may have had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions (see paragraph 17 of Mubuzi v Torcetti 2008 QCA 231 – from which this summary of the applicable law is taken - Fox v Percy (2003) 214 CLR 118 at [25] and Rowe v Kemper [2008] QCA 175 at [5] cited therein).
- [4]I approach the matter on that basis, rather than in accord with House v R (supra).
Facts
- [5]The appellant was driving his maxi taxi on Morayfield Road near Caboolture at about 1 pm on 1 January 2009. As he approached the intersection with Walker Street, the traffic lights that control the intersection were red. He was travelling in the left-hand of two northbound lanes.
- [6]Unknown to the appellant, Constable Radcliffe was driving an unmarked police vehicle in the right-hand of the northbound lanes. Traffic slowed and then stopped for the red light. The taxi approached and then passed the police vehicle from the rear.
- [7]Constable Radcliffe said that when he was performing duties in an unmarked vehicle one of his main priorities was to look for offences by surrounding vehicles. He said that as the appellant approached and then passed him to his left he had a clear view of the appellant. When the appellant passed him, Constable Radcliffe said he was doing about 5 kilometres per hour before stopping for the red light, and the appellant’s vehicle was going only a little bit faster. He said he had a clear view out of his passenger-side window as the appellant’s vehicle drove past him to his left. He said he could not see any seatbelt strap across the appellant’s right shoulder (T5‑l 40, T17 l10 and T17 l31). Constable Radcliffe then pulled in behind the appellant’s vehicle as it drove off along Morayfield Road when the lights changed to green.
- [8]Constable Radcliffe said that after he pulled in behind the vehicle he “could clearly see the two black straps and the silver buckle against the pillar to the right of the driver’s shoulder.”
- [9]He says he then pulled the appellant over and spoke to him. Before considering this conversation, it is worthwhile considering the detailed evidence about the observations of the seatbelt by Constable Radcliffe.
- [10]In cross‑examination Constable Radcliffe said (T11‑l 23) that he first thought the appellant might not have been wearing a seatbelt from his observations in his rear vision mirror. He therefore expressly looked at the appellant as he was being passed by him (T11‑l 27). It was at this stage that Constable Radcliffe “flicked on [his] red and blue lights” (T11‑l 38).
- [11]Constable Radcliffe later agreed in cross examination that, from his observations in his rear vision mirror he had the “impression” that the appellant was not wearing a seatbelt (T16‑l 5). This is consistent with his evidence at T11‑l 23 that I have earlier referred to.
- [12]It was only when he clearly saw, as the appellant passed him, that the appellant did not have a seatbelt over his right shoulder that he said he turned his red and blue lights on. I infer that he had then formed the view the appellant had committed an offence. This is consistent with his evidence at T17 l11 that he formed the intention to intercept him at that stage but continued observations from behind him which confirmed his view.
- [13]As Constable Radcliffe drove behind the appellant’s vehicle he said he made observations (T12‑l 20) of two black straps and a buckle against the B pillar on the right-hand side of the vehicle. It is somewhat curious that at p 17 line 34ff, the following exchange took place:
“When you spoke with my client, you told him and the court has heard the recording, that your observations consistent with your evidence today is that from behind, for the assistance of the court towards the bottom of p 2(a) where you stated to my client, ‘Just what I saw from behind I could see the buckle and two straps against the B- pillar’?—Mmm. …hmm
That’s…and that’s the observation which you primarily relied upon in issuing the ticket to my client, is it not?—That’s what I told the driver. That’s what I told the driver at the time, yes.
But it’s also primarily the observation that you relied upon when you issued the ticket?—As well as the strap not coming across when he went past me.”
- [14]In this passage Constable Radcliffe appeared to accept that it was primarily the observation when he was to the rear of the appellant’s vehicle on which he relied in coming to the conclusion that the appellant was not wearing a seatbelt, although it’s clear that he also said that he was also relying on his observations of the appellant as he went past him, as I earlier referred to.
- [15]At p 18 of the transcript, Constable Radcliffe insisted that, from behind, it was possible to clearly see two separate seatbelts – that for the driver, and another for the rear-facing passenger behind the driver. He said at p 18 lines 15ff:
“There’s no mistaking the two separate belt straps in the vehicle from behind. Absolutely no way and particularly when he’d gone past me you could see no strap that combined with what I’d seen was more than enough for me to write the ticket.”
- [16]In my view, photos tendered as evidence at the trial cast doubt on this observation. Photos taken from the outside of the vehicle are perhaps of little worth, since they depend very much upon the angle of the photograph which in turn significantly affects the amount of reflected light on the glass. In my view the photos taken from inside the vehicle suggest there would be real difficulty in differentiating between the two internal, right-hand seatbelts shown in two internal photos; I rely on those photos taken from the inside rear of the vehicle, being part of Exhibit 2 tendered at the trial as supporting the view that Con Radcliffe may have been mistaken when he said it was possible to differentiate the two seat belts..
- [17]At page 20 of the transcript Constable Radcliffe said, in response to a suggestion that the seatbelt and buckle that was unfastened, and which he observed, was not the driver’s side seatbelt, but that of the rear-facing passenger:
“No, he was getting a seatbelt (sic) based on the fact that I didn’t see a strap across his shoulder to start with, but it just reinforced what I had already seen prior to …”
It appears he was then interrupted by a further question.
- [18]I assume that his reference to “seatbelt” at the commencement of this answer was in fact a reference to his “getting a ticket” for the observed breach.
- [19]Again, at p 21 line 11 of the transcript he said:
“I had enough view of him as he passed and knew that a seatbelt wasn’t being worn.”
- [20]The transcript of the record-of-interview (Exhibit 1) was accepted by all parties to the appeal as being an accurate record of the interview Constable Radcliffe had with the appellant. At p 1 the following passages occur:
| “RADCLIFFE: | Do you know why I pulled you up? |
| WHITE: | Possible a touch over the speed limit, I suppose, coming up there. |
| RADCLIFFE: | Well, you were doing that, but you didn’t have your seatbelt on either. |
| WHITE: | Oh, right. |
| RADCLIFFE: | You know that you are required by law to wear a seatbelt now unless you’ve got passengers in the car. |
| WHITE: | Yeah. |
| RADCLIFFE: | Yeah. Why didn’t you have it on? Have you got a medical exemption? |
| WHITE: | No, I was just on my way to pick up a fare. |
| RADCLIFFE: | Okay, but you know you’ve got to have your belt on? |
| WHITE: | Yeah.” |
- [21]Later at p 2 the following exchange takes place in respect of whether or not Constable Radcliffe could see the driver’s side seatbelt from the rear:
| “RADCLIFFE: | Just what I saw from behind, I could see the buckle and two straps against the bead pillar. |
| WHITE: | No, that’s that one there. |
| RADCLIFFE: | Sorry, no, no, it’s that one I could see and my details are on the bottom and the payment options are on the inside of the ticket.” |
- [22]Although the answers to some questions in the taped interview amount only to admissions of the state of the law, his response of “Oh right” to the police officer’s statement “… you didn’t have your seat belt on earlier”, and the passage:
| “RADCLIFFE: | Why didn’t you have it on, have you got a medical exemption” |
| WHITE: | “No I was just on my way to pick up a fare” |
Can in my view only really be sensibly construed as admissions by the appellant that he did not have his seatbelt on.
- [23]The later passage set out in paragraph 21 hereof appears to show that at the time of issuing the ticket for breach of the relevant regulation, Constable Radcliffe indicated to the appellant that he was charging him because of his observations from the time he was behind the taxi. It was apparently based on that indication by Constable Radcliffe that the appellant’s solicitor put to the constable the passage referred to in paragraph 13 hereof that it was that observation that he had primarily relied on in issuing the ticket. As I have previously indicated, in his evidence Constable Radcliffe agreed that although that was what he told the driver, he did say that he relied on that as well as the strap not coming across from his shoulder as he observed when the appellant drove past Constable Radcliffe prior to the red traffic lights.
- [24]The appellant’s assertion in cross examination that Constable Radcliffe gave him no opportunity to tell him he did not have his belt on, should not, in my view, be accepted. In my view by his answers set out in paragraph 20 hereof he in fact accepted he did not have it on. Furthermore, in my view he had ample opportunity to expand further on his responses if he had wanted to do so. To say he was never given an opportunity to deny he did not have his belt on (as he asserted in cross examination at p 29, lines 18-20) is absurd. Likewise, I do not accept his answer to the second last question in paragraph 20 above was confined to a response only to the second part of the question. In my view, properly construed, it indicated an acceptance by the appellant of the fact that he did not have his seat belt on.
Decision of the magistrate
- [25]The magistrate, in convicting the appellant:
- (a)unreservedly accepted the evidence of Constable Radcliffe rather than that of the appellant;
- (b)said that Constable Radcliffe’s evidence that the appellant was not wearing a seatbelt effectively relied on “three points of observation”;
- (c)said that the appellant, by his answers in the record of interview, had “quite clearly not offered an explanation or response to the specific allegations made by the officer in relation to the wearing of the seatbelt.”
- [26]As I have said with respect to (b) above, the third “point of observation” appears to me to have significant difficulties attached to it. I think, insofar as the magistrate relied on the third point of observation of Constable Radcliffe, he was not justified in doing so. In my view this is clear from the internal photographs to which I have referred.
- [27]The learned magistrate as I have said accepted the evidence of Constable Radcliffe. including the passages that I have referred to.
My decision
- [28]The appellant challenges his conviction on a number of grounds:
- That Constable Radcliffe was effectively relying on three points of observation in concluding the appellant was not wearing his seatbelt.
- That the contents of the interview of the appellant by Constable Radcliffe did not amount to an acceptance of guilt.
- That the Magistrate wrongly refused the appellant’s request that the Magistrate conduct a view of the taxi.
- [29]In the passages I have referred to Constable Radcliffe clearly said that he was initially alerted to the likelihood the appellant was not wearing his seatbelt when he observed him in the rear vision mirror. When he was passed by the appellant he said that he clearly saw the driver did not have a seatbelt on. He then activated his red and blue lights and pulled in behind the appellant. This is consistent with his making a decision to charge him. His observation, about which I accept there must be some doubt, of the vehicle from the rear he said confirmed his view. In my view it is doubtful whether this further observation was of critical importance to the conclusion he had already reached, despite his specific reference to it in the interview with the appellant. In my view this is so, despite the short passage of p 17 lines 45-52 to which I have referred. Such a conclusion would be inconsistent with his other stated testimony and inconsistent with his decision to activate his red and blue lights at that earlier stage.
- [30]In my view the evidence of Constable Radcliffe of his observations of the appellant as he passed to the left of Constable Radcliffe, as he approached the traffic lights at slow speed should be accepted by me, as the magistrate also did. The fact that Constable Radcliffe activated his red and blue lights immediately thereafter as he pulled into the left-hand lane behind the appellant’s vehicle is, as I have said, strongly indicative of the fact that he had then formed the view that the appellant did not have his seatbelt on. As I have noted his evidence was that his observations from the rear merely confirmed that view.
- [31]The acceptance of the fact that the appellant did not have his seat belt on is strengthened considerably by the view I have taken of evidence of the interview of the appellant by Constable Radcliffe.
- [32]In my view the decision not to have a view of the taxi is irrelevant because of the attitude I have taken as to the Constable’s capacity to distinguish the 2 seatbelts near to the B pillar on the driver’s side of the vehicle. The view, in my opinion, could not have taken the matter any further.
- [33]In the circumstances I find that the evidence of Constable Radcliffe and the content of the interview of the appellant cause me to conclude beyond reasonable doubt that the appellant did not have his seatbelt on.
- [34]In that circumstance, the appeal should be dismissed.
- [35]I will hear argument as to the appropriate order as to costs but direct the parties to the recent decision of Martin SC DCJ in Nguyen v Chand (2010) QDC 227.