Al Shakarji v Mulhern[2010] QDC 476

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal from a decision of a magistrate at Bowen who on 10 June 2010 convicted the appellant of one count of exceeding the speed limit.  The appellant was fined $200 plus costs of court of $71.50.  The appeal is brought against conviction on the grounds set out in the appellant’s outline of argument.  Summarising them as best I can, they are as follows:

1. The magistrate erred in failing to reject the prosecution witness as unreliable in circumstances where he had fabricated a transcript of a conversation which was inconsistent with a recording of the conversation.

2. The police witness had not tested the radar detection device in a particular way prior to using it on that day and had therefore not complied with police procedures or the requirements of the manufacturer of the device so that the device was not proved to have been operating reliably.

3. The magistrate erred in failing to take into account in assessing the appellant’s credibility that he was of good character having no criminal history.

4. The magistrate erred in being satisfied that the police witness had correctly identified his vehicle as the vehicle the speed of which was measured by the device, in circumstances where this depended entirely on the witness’s evidence and where the officer’s certificate that the device had been used in accordance with the particular Australian standard was not correct as the necessary tests had not been performed before and after the shift.

5. The magistrate erred in failing to reject the evidence of a police witness that he showed the appellant the reading recorded on the device.

2. [2]
   Broadly speaking, the appellant’s case was that on the evidence before the magistrate, the magistrate erred in failing to find that there was at least a reasonable doubt as to whether the appellant was exceeding the speed limit on that day, particularly in circumstances where the appellant had given evidence that he was aware that he was driving through a school zone and had checked the speed of his vehicle to ensure that he was not exceeding the speed limit. I will say something about some of these specific allegations and then, in view of the broad nature of the grounds on which the conviction is challenged, consider the evidence generally in order to make up my own mind about the matter, making allowance for the advantage that the magistrate had in having seen and heard the witnesses.^[1]

3. [3]
   As to the first ground, the reference to fabricating a written transcript of a conversation is a reference to some notes which the police officer made on the back of the form, a copy of which was provided to the appellant that day, which the police officer said was intended to summarise the effect of the conversation he had had with the appellant. The appellant put in evidence a DVD containing an audio file which he recorded that day, which he said was inconsistent with the notes on the back of the form, but the magistrate found that what had been recorded was not the whole conversation between the appellant and the police officer, but a second conversation, after the police officer had been back to his vehicle and returned to the appellant’s vehicle. Further, the appellant conceded to me in submissions that some of that audio file consisted of something he dictated to his recording device at the time, rather than a recording of a conversation between him and the police witness.

4. [4]
   On the basis accepted by the magistrate, what had occurred here was that there were in effect two conversations between the police officer and the appellant, notes of the first being taken on the back of the form, and the second being recorded by the appellant. On this basis, there was no inconsistency between the notes and the recording, at least so far as the recording was a recording of an actual conversation. Indeed, there was no real inconsistency between the appellant’s evidence and what was included in the notes that were made by the police officer; the inconsistency in the versions arose because the appellant said that other things had been said which had not been included in the notes. Obviously the notes did not purport to be a complete record of the conversation, being no doubt no more than a note of such of its features as the police officer thought at the time it would be helpful for him to be able to recall reliably later.

5. [5]
   As discussed later, there was an error of law by the magistrate in relation to those notes, but not that relied on by the appellant. There was no finding that the notes made by the police officer had been fabricated, nor did the evidence indicate that any such finding would have been available to the magistrate; indeed, there was really no evidence to support a conclusion that the notes had been fabricated in any meaningful sense. There was no proper basis shown in this way for a conclusion that the evidence of the police witness ought to have been rejected because his credibility had been destroyed in this way. The first ground of appeal fails.

6. [6]
   The third ground of appeal can be speedily dealt with. There was no evidence during the trial of an absence of criminal history on the part of the appellant, so inevitably the magistrate did not take that into account. The sentencing proceedings were not transcribed apart from the decision, so I do not know whether reference was made to the absence of criminal history at that point; it would not have been inappropriate to do so, though in the circumstances it would probably not have carried any great weight. But, so far as it was a matter which affected the credibility of the appellant, the magistrate cannot have erred in failing to take it into account if there was no evidence of it before him. This was certainly not a matter of which a magistrate was to be expected to take judicial notice. There is therefore no substance to this ground.

The trial

7. [7]
   In order to deal with the remaining grounds, I need to say something about the evidence in the trial, and the course of proceedings in the Magistrates Court.  The police prosecutor called a police officer and through him tendered three certificates:  Exhibit 1, a certificate that the witness had completed a particular training course; Exhibit 2, a certificate by the acting officer in charge at Bowen that he was an authorised delegate of the Commissioner and that a particular laser based speed detection device was tested on 28 October 2008 in accordance with the appropriate Australian standard in force on that day and found to produce accurate results at the time of testing, and Exhibit 3, a certificate by the witness that that same speed detection device was used by him at 8.45 am on 22 April 2009 in accordance with the appropriate Australian standards in force on that day.

8. [8]
   The officer said that on 22 April 2009 at 8 am he went to a school zone on Herbert Street, Bowen, where he checked the presence of a school sign and another traffic sign with revolving orange lights, which indicated that from 8 am to 9 am on school days the speed limit was 40 kilometres per hour:  p 10.  He then positioned himself at the intersection of Herbert and Kennedy Streets.  At about 8.45 am he observed a vehicle, sited the vehicle using the device, pressed and released the trigger and then pressed the trigger again, which activated a red laser dot which he placed on the front number plate of the vehicle.  The device then produced an audible tone and the number 57 appeared on the device:  p 11.  He then went on to the road, directed the driver of that vehicle to stop off the road in a designated spot.  The defendant was the driver and the only person in the vehicle.

9. [9]
   The police officer gave evidence of a conversation, some details of which were given at p 12.  The officer then went on to say that he made some notes on the back of the traffic infringement notice which was issued to the defendant, and was asked to and did read the notes into the record.  That was not the correct procedure.^[2]  The contents of the contemporaneous notes were not at that stage admissible in evidence; they were a prior consistent statement by the witness.  It would have been open to the witness to seek leave to refer to those notes for the purpose of refreshing his memory in the witness box, but that was not done.  In any case, strictly speaking, he still would not have been reading the notes into the record, but giving the conversation from his memory with the benefit of such assistance as the notes provided.  That aspect of the procedure accordingly was wrong, but the earlier evidence of the police officer of the conversation was certainly admissible.

10. [10]
    Under cross-examination the police officer said that there were no other vehicles in front of or behind the defendant’s vehicle and no vehicles in the lane to the side: p 17.  The officer said that he had a general practice that if there were other vehicles in front or behind he would note that on the back of the ticket:  p 18.  He said the device was hand-held, and he did not know the width of the laser beam that was used by it.  He said that the distance given by the device as the distance at which the speed was measured was 152.3 metres:  p 18.  The defendant showed him an aerial photograph which he apparently obtained from Google Earth, which was said to depict the location, but the police officer said he could not identify anything:  p 19.  He drew a diagram of the area, which became Exhibit 5.

11. [11]
    I must say that the notion that a Google Earth aerial photograph is something that needs to be proved for the purposes of court proceedings is one that strikes me as being at least somewhat unsatisfactory in the 21^st century.  It is true that the traditional approach is that maps produced from government sources are admissible ipso facto, although commercially produced maps may not be so admissible and strictly speaking may require some evidence by way of verification.^[3]  I might say that in my experience, extracts from commercial maps are readily and frequently tendered in court with the most nominal of verifying evidence from a witness, and it seems to me that, within reasonable limits, these days commercial maps should be accepted as showing at least a general layout of streets, etc.

12. [12]
    The Google Earth system, however, is somewhat different. It is possible by looking at the view from different heights to start off with the whole of a town or city visible, and then get progressively closer to the relevant part of it. In the present case, the appellant could presumably have produced a Google Earth photograph of the whole of Bowen, then a photograph of part of Bowen which was recognisably a part of the first photograph, and so on to the point where this incident occurred. If the first photograph was obvious enough so that the magistrate, who was the resident magistrate in Bowen, was able to recognise it, then I think that judicial notice could have been taken that that was a photograph of Bowen, and in that way the subsequent photographs would have proved themselves by reference to that.

13. [13]
    Alternatively, presumably at some point a photograph showing all or part of Bowen would have been recognisable by a police officer who spent three years there doing traffic work. The offence occurred on what passes for a main road in Bowen, and I may say that the officer’s inability to recognise the scene from the aerial photograph, which became Exhibit A and which I have seen, strikes me as somewhat surprising.  If all else failed, the appellant when he gave evidence could have proved it by saying he recognised what was shown in it.  The matter went a little further than that, however, in that the appellant was seeking to use a measuring function available through the Google Earth program to determine the distance between particular points shown on the photograph.  That I think is more problematical.  Even if the aerial photograph is admissible, as something that proves itself, the calculations performed on it, even using the computer program available in connection with it, may be something that needs further evidence.

14. [14]
    It is not necessary for me to express a concluded opinion upon this point, and in any event it will be better for the applicable issues to be decided by the Court of Appeal. I would regard it as absurdly unrealistic for something of this nature not to “prove itself”, but the law of evidence is full of rules which are absurdly unrealistic. It is unnecessary for me to decide the matter, however, because issues such as the distance from the location where the police officer was standing and the crest of the hill, or even for that matter the location of the crest of the hill, would require further evidence. In principle it could be given by the defendant, though I think it would be necessary for him to measure the various distances himself in order for him to be able to do so. Alternatively, evidence could (at least in principle) be given by, say, a surveyor as to the dimensions concerned. Indeed, if the surveyor measured the distance between two points visible on a Google Earth photograph, any other dimension on the Google Earth photograph could be obtained by calculation.^[4]

15. [15]
    At p 24 an objection was taken to a question as to how long it took to go through the process of measuring the speed of a vehicle, which was correctly overruled on p 25, as the question was clearly not prohibited by s 124(4) of the Transport Operations (Road Use Management) Act, the section relied on for the objection.  I will have something more to say about the section later.  At p 26 there was cross-examination about how long it took for the machine to measure the speed, something the police officer did not know; I suspect that the actual process of measurement would take a very short period of time, though there may then be some quite brief delay before the machine performs the calculations necessary to convert what has been measured into the speed of the vehicle and display that figure.

16. [16]
    The police officer was also not able to give even an approximate time that he had the defendant’s vehicle under observation before measuring the speed with the device: p 27.  That is understandable, given the number of vehicles he must have measured, though I would expect that ordinarily an experienced traffic policeman should be able to form an impression of whether an approaching vehicle was worth measuring very quickly, that is in less than one second.  The defendant then played a recording of a conversation which the police officer said was what occurred when he was issuing the ticket; there had been a previous conversation which was not recorded:  p 35.  The police officer acknowledged that in the recording the defendant had said that he was not speeding, he had checked his speed before he went up the hill, and he agreed that that was not in his statement:  p 37.

17. [17]
    A video recording of the scene was then played, which the police officer said he recognised: p 39.  This became Exhibit 5, though not immediately.  The police officer said that he also tested the device after conclusion of the shift, though this was not documented:  p 40.

18. [18]
    At this point in the cross-examination things became somewhat bogged down. The defendant, as he explained in an exchange with the magistrate, was seeking to cross-examine with a view to showing that, if the device had been operated in accordance with the Australian standard, because of a time of three seconds specified in that standard, the police officer must have had the device on his vehicle at a time when his vehicle, if it were travelling at 57 kilometres per hour, would have been a further 47.5 metres away from the officer than the point where the speed measure was undertaken by the device.  The device measured that distance at 152.3 metres, giving a total distance of 199.8 metres.

19. [19]
    The appellant wished to prove that this would have put his car at this point at the top of the hill; the officer’s evidence was that the defendant’s vehicle was driving down the hill at the time his speed was measured. In circumstances where the police officer had said that before he began to sight the defendant’s vehicle with the device, he had had it under observation for long enough to make an assessment that it appeared to be exceeding the speed limit, that would have involved the proposition that the vehicle was, for most of the time before that point, and on those assumptions, behind the hill and not visible to the police officer. In short, if the device had been operated in accordance with Australian standard, the evidence that the officer had given would have been impossible.

20. [20]
    In my opinion that was a legitimate line of cross-examination with a view to testing the credibility of the witness. The proposition that the vehicle that was measured with the device used by the police officer was the defendant’s vehicle depended upon the evidence of the police officer, and only on that evidence; there is nothing generated by this device to identify the vehicle the speed of which has been measured.^[5]  There is no difficulty in principle in a defendant defending a charge of this nature on the basis that his vehicle was travelling at a particular speed (presumably within the speed limit), and if the police officer’s device registered a higher speed the explanation must be that what was detected was the speed of something other than the defendant’s vehicle, the most plausible candidate being a different vehicle.  In those circumstances, any line of questioning which tends to suggest that the police officer has, or may have, erred in identifying the defendant’s vehicle as the vehicle the speed of which was measured at 57 kilometres per hour is a legitimate line of questioning with a view to challenging the credibility of the witness, in relation to his evidence that what was measured by the device (presumably accurately) was the defendant’s vehicle.

21. [21]
    Such a line of questioning does not infringe s 124(4) of the Act.  Section 124 of the Act, which is headed “Facilitation of Proof” provides in subsection (1) that in any proceedings under or for the purposes of the Act various propositions set out in lettered paragraphs thereafter apply.  Most of these are designed, as is suggested by the section heading, to facilitate the proof of various matters.  The paragraphs include paragraph (pa) that a certificate purporting to be signed by the Commissioner and stating, relevantly, that a laser-based speed detection device was tested at a particular time in accordance with the appropriate Australian standard for testing the device in force at that time and was found to produce accurate results at the time of testing is evidence that the device is producing accurate results when so tested and for one year after the day of testing.  Paragraph (pb) provides that a certificate purporting to be signed by a police officer stating a particular state of laser-based speed detection device was used by the officer at a stated time in accordance with the appropriate Australian standard for using the device in force on the day of use is evidence of the matter stated.  The certificate, Exhibit 2, was tendered purportedly in reliance on s 124(1)(pa).^[6]  The certificate, Exhibit 3, was no doubt tendered under s 124(1)(pb).

22. [22]
    In this context, s 124(4) provides:

“A defendant who intends to challenge—

1. (a)
   the accuracy of the speed detection device or vehicle speedometer accuracy indicator for which a certificate is given under subsection (1); or

2. (b)
   the time at, or way in, which the relevant device was used;

at the hearing and determination of the charge against the defendant under this Act must give written notice of the challenge to the prosecution.”

23. [23]
    Subsection (5) then contains restrictions on the way in which that written notice can be given.  For present purposes, it may be accepted, as the magistrate accepted, that no notice satisfying subsection (5) had been given.  I am not aware of any authority from the Court of Appeal as to the effect of subsection (4), but it is not difficult to conclude that paragraph (a) is concerned with the accuracy of the relevant device, that is the ability of that device to detect a speed accurately, and paragraph (b) complements subsection (1)(pb), and is concerned with the issue referred to in that paragraph of whether the device was used in accordance with the appropriate Australian standard in force on that day or, if there was no appropriate Australian standard, the manufacturer’s specifications.  In the present case the certificate was to the effect that it was used in accordance with the Australian standard.  It seems to me therefore that, on the face of it, it is a challenge to the use of it in that way which is the subject of subsection (4)(b).

24. [24]
    In other words, it is the use of the device as a speed detection instrument which is subject to the operation of this provision. The device, however, is not specific as to the particular speed which it measures. Presumably within certain limits the device can measure the speed of anything. Accordingly a certificate that the instrument was correctly used in accordance with the Australian standards suggests that the device correctly measured the speed of something at that time in that way, but the proposition that the thing the speed of which was measured was something relevant to the charge, that is to say, the defendant’s vehicle, is not a proposition which is concerned with the issue of whether or not it was used in accordance with the Australian standard; it is a question of whether or not the police officer who was using the device accurately identified the defendant’s vehicle as the thing the speed of which was measured by the device.

25. [25]
    In this context, therefore, there is nothing in subsection (4) which prevented the defendant in the present case from disputing the police evidence that the thing, the speed of which was (presumably) correctly measured by the officer (presumably) in accordance with the Australian standard, was the defendant’s vehicle.  It follows that any line of questioning directed to that issue was properly admissible and not excluded by subsection (4).  That would include questions directed to issues of credibility, because that is always in issue when a prosecution depends on acceptance of controverted evidence of the prosecution witness.  It certainly would not exclude questions about the logical implications of the device having been used as required by the Australian standard.  Because the speed detection device does not identify the particular thing the speed of which has been detected, the issue of whether or not that thing was the defendant’s vehicle is not something which is concerned with either the accuracy of the device or whether it has been correctly used.

26. [26]
    It is not at all clear from the transcript that followed that this was properly appreciated by the magistrate; it seems tolerably clear that it was not appreciated by the police prosecutor. At one point, the defendant produced what he said was the applicable Australian standard and showed it to the police officer, who maintained that he did not recognise it: p 46.  Given that the officer had certified that he had used the device in accordance with the Australian standard, in my view it was a legitimate, and not contrary to s 124(4), to require the prosecution to produce a copy of the standard referred to in the certificate, in order to give meaning to the certificate.  That would not involve calling somebody from the Australian Standards Association to prove the standard; if the police officer can certify that he has used something in accordance with a particular Australian standard, he can obviously identify the particular Australian standard referred to in the certificate.  If the Australian standard produced by the prosecution was in fact the same standard as that a copy of which had been shown to the witness which the witness had not recognised, that would be relevant to the witness’s credibility, because it would suggest that he had signed a false certificate (a proposition the proof of which is not excluded by subsection 124(4)).

27. [27]
    The magistrate at p 15 of his reasons said that the effect of subsection (4) was that the appellant could not challenge the procedure which the police officer followed.  That was not what the subsection said.  He went on to say, “In my view, for this section, the word procedure refers to the way in which the relevant device was used, and hence I cannot consider how long Constable Rowe said you were under observation, whether it was downhill or on the straight section of road and so on and so on.”  That in my opinion involved giving too wide an operation to the section.  The question of how long the vehicle was under observation was not something which depended on whether the device was used correctly, it depended on the police constable’s evidence about what he did before and while he used the device.  Even if there can be no challenge to whether the device was used correctly, there can still be evidence led as to how long it takes (or should take) to use the device correctly. That does not in my view contravene subsection (4).  It follows that in my opinion on p 15 the magistrate gave too wide an operation to subsection (4).

The appellant’s evidence

28. [28]
    The appellant gave evidence that on the day in question he was travelling between where he was living in Bowen and where he was then working over a route he had travelled each day in the previous week, and each day in that week. He knew of the presence of the school zone and knew that the speed was 40 kilometres per hour, and said he made sure before he went up the hill that that was his speed:  p 49.  When he went down the hill the police officer came out and waved him down.  He said that he had a car in front of him and two cars to the side of him in the second lane.  The car in front was about 50 metres in front.  He said that there was a female police officer with the officer; when speaking with the police officer he had queried the alleged speed, and said that he had checked his speed.  He said he was not shown any readings from the device, and he did not ask to see it, though he was told that the speed was measured at 57.

29. [29]
    Under cross‑examination the appellant agreed that he did not record the first part of the conversation:  p 51.  He did dispute some of the police officer’s evidence as to what occurred in that part of the conversation.^[7]  He conceded he was aware at the time it was a 40 kilometre zone:  p 53.  When asked about the reading which was detected by the device, he said that the procedure in which it was used must have been incorrect, on the basis of the distance at which the speed was detected, and bearing in mind the observation time and the time for locking on the target:  p 54.

30. [30]
    In re-examination the appellant challenged whether the copy of the ticket that he received was a copy of the document that was produced in evidence by the prosecution: pp 56-7.  A similar argument was advanced before me as well.  The magistrate said that on the basis of his examination of the two documents they were the same, and I would arrive at the same conclusion from my examination of the two documents; there is perhaps some slight misalignment; markings in squares, for example, are slightly higher on one than on the other, but it does seem to me that the markings on the copy given to the defendant were a carbon copy of the markings made on the top document.  There is also the consideration that both have serial numbers which match.  Both documents were made exhibits by the magistrate.

Submissions at trial

31. [31]
    In closing submissions the police prosecutor submitted that the effect of s 124 was that the certificates which had been tendered became conclusive evidence that the detection device was operated correctly and was in correct working order, on the basis that the contrary had not been proved.  Otherwise, he invited the magistrate to accept the evidence of the police officer and to find all the elements of the events proved beyond reasonable doubt.

32. [32]
    The appellant submitted that the ticket with the notes on it was not the original of the ticket given to him so that the notes could not be used against him: p 65.  He submitted that for this and other reasons the police officer’s testimony was doubtful and therefore should not be accepted.  He said that he was fully aware of his speed prior to, and was checking his speed as he was, going down the hill.  He raised an issue about whether the police officer was authorised to use the device for the purposes of the Australian standard, and about the fact that the device was not mounted on a tripod but was hand held at the time.  He submitted that various matters could have affected the speed reading, a proposition which was not supported by any evidence.  He referred to the conflict in evidence about whether there was other traffic about at the time, and suggested that the reading could have been taken of one of the other cars.

33. [33]
    The appellant also argued that the police officer must not have followed the proper procedures in measuring the speed, because the distance given by the device for the measurement was 152.3 metres, and under the Australian standard the minimum time to lock the device on to the target was given as three seconds, in which a vehicle travelling at 57 kilometres per hour would have covered about 48 metres.  Accordingly, at the time when that process commenced, the vehicle must have been almost 200 metres from the point where the police officer was, which would have put the vehicle at the top of the hill.  Since the three seconds did not cover the period of observation when the police officer had said he had seen the appellant’s vehicle and decided that it was speeding, or at least was worth aiming the device at, it follows that that period of observation must have occurred at a time when the appellant’s vehicle was beyond the crest of the hill.  That was inherently implausible, and accordingly it followed that the appellant must not have applied the correct procedures.

34. [34]
    As presented, that argument may well have run into difficulties with s 124(4).  However, the argument could have been developed in a different way:  that if in the period of time when the appellant’s vehicle was visible the police officer had had time to observe the vehicle, reach some conclusion about its speed, then site the vehicle through the device and do what under the Australian standard was to take a minimum of three seconds, and obtain a speed reading at a time when the vehicle was still over 150 metres away, the appellant’s vehicle must have been travelling more slowly than 57 kilometres per hour, so that the device when it obtained a reading of 57 kilometres per hour must have been measuring the speed of something else.  In circumstances where on the defendant’s evidence there were other vehicles around, the obvious explanation is that the police officer had actually measured the speed of a different vehicle, and had mistakenly attributed that to the defendant’s vehicle.

35. [35]
    Such an argument, it seems to me, does not involve the proposition that the device was inaccurate, or that it was incorrectly operated in the sense that I have explained earlier. It was therefore not an argument which was excluded in any way by s 124(4) of the Act.  However, the argument in fact presented, that the police officer must not have used the device properly because there was not sufficient time to have done all the things required to be done, including in particular spent a minimum of three seconds locking the device on the target vehicle, was an argument which involved the proposition that the police officer had not used the device properly.  It was therefore on the face of it excluded by s 124(4) of the Act.  As well, that provision prevented the appellant from taking the point referred to in the second ground referred to earlier, which also fails.

36. [36]
    There is also an evidentiary difficulty with the alternative argument: it involves an assumption as to the distance at which a vehicle would have been visible to a person in the position of the police officer. It might well have been possible for the defendant to give evidence about this, but such evidence was not given. Even assuming the location of the crest of the hill was determined with some precision, that does not determine the point at which a vehicle approaching over the hill would have been first visible to someone in the position of the police officer. The argument, therefore, does on any view of the matter, it seems to me, suffer from a logical gap.

Reasons of the magistrate

37. [37]
    In his judgment the magistrate referred to the relevant provisions of s 124, found that no notice had been given in accordance with subsection (4), and stated briefly the effect of the absence of such notice.  He then summarised the evidence of the police officer, and referred to the notes on the back of the ticket, Exhibit 6.  The magistrate noted that the appellant had not either in the recorded conversation which became Exhibit 5, or in cross-examination, asserted that he had not been shown the reading on the device, as the police officer said, although such an assertion had been made when the appellant gave evidence.  The magistrate then summarised the appellant’s evidence, noting that his evidence was only that he had checked his speed as he was going up the hill, not that he had checked his speed either at the top or when he was going down the hill; there was no dispute that at the point at which the speed was said to have been detected the vehicle would have been going downhill.  The magistrate also referred to the fact that the police officer had not been cross-examined about whether there was another, female, police officer present on that day.

38. [38]
    The magistrate said that although the appellant had referred to the Australian standard, he had produced no evidence of this standard: p 11.  The appellant during cross-examination said that he had a copy of the Australian standard with him, and the magistrate said that it was necessary for the evidence to be produced from people who know about that evidence, and suggested that it be shown to the police officer:  p 46.  The document the appellant had was shown to the police officer but he said he did not recognise it, and the magistrate then said that because he had not recognised it “that’s all there is about it”.  In substance, it seems to me that that was a ruling that the appellant could not put the copy that he had with him in evidence.  It certainly seems to have been treated in that way by the appellant, who did not thereafter pursue the question of putting the version of what he said was a standard downloaded from the Standards Australia website into evidence, though in the course of submissions he was asked by the magistrate, and told the magistrate, of a website where the standard could be obtained.

39. [39]
    Section 49 of the Evidence Act 1977 provides relevantly:

“If an Act … adopts by way of reference wholly or in part any of the standard rules, codes or specifications of the bodies known as the Standards Association of Australia, Standards Australia … evidence of any such standard, rule, code or specification may be given—

1. (a)
   by the production of a document purporting to be a copy of it and purporting to be published by or on behalf of the Standards Association of Australia, Standards Australia …; or

2. (b)
   by the production of a document purporting to be a copy of it and purporting to be printed by the government printer or by the authority of the government of the state.”

40. [40]
    Standards Australia is the body which is responsible for making Australian standards.  Section 124, by referring to certain things having been done in accordance with the applicable Australian standard, is referring to the standard made by Standards Australia.^[8]  The effect of s 49 appears to be that a document which purports to be a copy of an Australian standard purporting to be published by Standards Australia amounts to evidence of such standard.  No doubt at the time s 49 was enacted, the legislature was contemplating a document that was published in a physical sense, that is to say, a booklet incorporating the standard, but these days a document may be published by publishing it on a website.  One advantage of using a printed document is that its physical appearance may well suggest a degree of integrity, but the authenticity of a document said to have been printed from a website can easily be checked by reference to the document that is published on the website.  It seems to me that in principle a document purporting to be a copy of a standard published on the Standards Australia website satisfies the requirement of s 49(a) of the Evidence Act, so that, if the appellant had given evidence that that was the source of his document, it was open to him simply to tender it.

41. [41]
    It does not seem to me, therefore, that in principle there was any such obstacle, and the magistrate’s ruling that the document was not admissible, at least unless the police witness identified it as the applicable Australian standard, involved an error of law.^[9]  Although Standards Australia is not a government body, there is a memorandum of understanding between it and the Commonwealth government which recognises it as the peak non-government standards body in Australia.^[10]  In these circumstances, it is unsurprising that its publications should be treated as similar to official publications and documents, which will generally prove themselves, that is to say, documents purporting to be copies of them can simply be tendered as evidence at a trial.

42. [42]
    The magistrate subsequently referred to the notes made on the back of the ticket, which he said in his experience was common practice for officers issuing such tickets. He continued:

“The law is well settled that notes made as soon as possible after an event, called contemporaneous notes, are admissible as evidence of what they say.  They may be proved to be incorrect, but if there is no better evidence, they may then become conclusive evidence of what they say.”

43. [43]
    That in my view also involved an error of law. Counsel for the respondent submitted that that approach was justified by the terms of s 101(3) of the Evidence Act 1977.  That subsection provides:

“Nothing in this part shall affect any of the rules of law relating to the circumstances in which, where a person called as a witness in any proceeding is cross-examined on a document used by the person to refresh the person’s memory, that document may be made evidence in that proceeding, and where a document or any part of a document is received in evidence in any such proceeding by virtue of any such rule of law, any statement made in that document or part by the person using the document to refresh the person’s memory shall by virtue of this subsection be admissible as evidence of any facts stated therein of which direct oral evidence by the person would be admissible.”

44. [44]
    It follows therefore that in some circumstances the contents of a contemporaneous notes used to refresh the memory of a witness may become evidence, but that will occur only where by virtue of a rule of law such a document may be made evidence. This is a matter addressed in Forbes “Evidence law in Queensland” (8^th ed. 2010) paras 101.9-101.11; I will not quote the passage, but the point is that the note does not become evidence simply because it has been used by the witness to refresh a witness’s memory, and in a criminal case may not be tendered simply as a prior consistent statement; the defendant may require the contemporaneous note to be tendered, but that was not done by the appellant here.

45. [45]
    If a witness is cross-examined on parts of the note not used to refresh memory, the party calling the witness may require the cross-examiner to tender the note, but that also did not happen here. Indeed, it seems to me that the police officer’s notes were never tendered as such; what happened here was that the notice was tendered, for reasons which are not perhaps entirely clear, and it was assumed that the effect of that tender was that the officer’s notes written on the back also became evidence. That in my view was not the case. Nothing had happened to make those notes admissible in evidence under the rules referred to in Forbes, and therefore they never became evidence of the truth of what was recorded in them under s 101(3).  This was also an error of law by the magistrate.

46. [46]
    Finally, the magistrate referred to the effect of subsection 124(4) as I have already mentioned, giving to that subsection too wide an operation.  The magistrate then went on to say that he can only accept what the certificates say, and Constable Rowe’s evidence that he measured the appellant’s speed at 57 kilometres per hour.  He then found the offence proved beyond reasonable doubt.

Analysis

47. [47]
    In my opinion, the absence of a notice under subsection (4) did not mean that the appellant was not entitled to question the police officer about what it was that had to be done in order to use the device in accordance with the Australian standards, so long as this was directed to an argument that the police officer must have (or may have) incorrectly identified the appellant’s vehicle as the vehicle the speed of which had been measured by the device, because if the appellant’s vehicle had been the vehicle in question and its speed had been measured in accordance with the Australian standard, the appellant’s vehicle would not have been visible for the length of time necessary in order to have enabled the police officer to have done what he said in evidence he had done.  Such a proposition suggests that the vehicle must have been visible to the police officer for longer than would have been the case if it was travelling at 57 kilometres per hour, which supports the inference that on this occasion, assuming the police officer correctly measured the speed of something at 57 kilometres per hour, this police officer had made a mistake in attributing the measurement he obtained using the device to the appellant’s vehicle.  That line of cross-examination was not excluded by s 124(4).

48. [48]
    In circumstances where the police officer said that he measured the appellant’s vehicle at a particular speed, and the appellant said, at least inferentially, that his speed was not in excess of 40 kilometres per hour, that raised an issue of credit which was to be resolved not by reference to any statutory presumptions as to the use of the speed detection device, or for that matter its accuracy, by the resolution of an issue of credit as to whether the police officer had correctly identified the appellant’s vehicle as the vehicle the speed of which had been measured by the device.

49. [49]
    The appellant was entitled to put in evidence the Australian standard in order to support the cross-examination; indeed, assuming that the document the appellant was seeking to tender was the applicable Australian standard, a matter which was not explored because the matter was resolved simply on the basis that it was not admissible, the fact that the police officer did not recognise the standard that he had certified he had applied when using the device was in my view in itself a matter relevant to the officer’s credibility. Of course, it may be that the standard which the appellant produced was not the appropriate standard, but in those circumstances the appropriate basis for an objection to its admissibility would have been on the ground of relevance.

50. [50]
    It follows that in the present case, since it appears that the magistrate resolved the issue by being satisfied on the basis of the police officer’s evidence beyond reasonable doubt that it was the appellant’s vehicle that had been detected by the device, that conclusion was reached after the appellant was prevented from developing a line of cross-examination by the error of the magistrate in failing to accept into evidence a copy of an Australian standard which on the face of it appears to have been admissible under s 49 of the Evidence Act and by excluding a line of cross-examination which was not excluded by s 124(4).^[11]  In those circumstances the appellant was deprived of a proper opportunity to test the credibility of the police officer in cross-examination.  It follows that I do not have the benefit of evidence from the police officer which is so tested, so I do not have material upon which I can properly reach a conclusion with a view to deciding the matter in issue for myself.  Had it not been possible for me to order a new trial, I would have had to order hearing de novo for myself.  Fortunately it is now possible for me to order a new trial.

51. [51]
    Accordingly, the appeal is allowed, the conviction is quashed and the matter is remitted for retrial to the Magistrates Court at Bowen.  I think on the whole it would be better for the retrial to take place before a different magistrate.  I do not know where the police officer is now stationed, but I gather the appellant is now living in Townsville, and it may be that it would be more convenient for all concerned for the trial to take place in Townsville anyway; but I will leave that for the Magistrates Court.