Saba v Commissioner of Police
[2012] QDC 203
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- Saba v Commissioner of Police[2012] QDC 203
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Saba v Commissioner of Police[2012] QDC 203
Saba v Commissioner of Police[2012] QDC 203
DISTRICT COURT OF QUEENSLAND
CITATION: | Saba v Commissioner of Police [2012] QDC 203 |
PARTIES: | GEORGE SABA |
FILE NO/S: | 775 of 2012 |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Holland Park |
DELIVERED ON: | 20 July 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 July 2012 |
JUDGE: | Devereaux SC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL PROCEDURE - APPEALS - APPEALS AGAINST CONVICTION AND SENTENCE - PROCEDURE FOR APPEAL - APPEALS FROM MAGISTRATES COURTS - QUEENSLAND - APPEALS TO THE DISTRICT COURT – where magistrate made factual error CRIMINAL PROCEDURE - APPEALS - APPEALS AGAINST CONVICTION AND SENTENCE - PROCEDURE FOR APPEAL - APPEALS FROM MAGISTRATES COURTS - QUEENSLAND - APPEALS TO THE DISTRICT COURT – where litigant in person paid for transcript of Magistrates Court proceeding – whether transcript is a disbursement - whether transcript was a necessary cost in conducting appeal Justices Act 1886 ss. 222, 226, 232A Justices Regulation 2004 Recording of Evidence Act 1962 s. 13 Recording of Evidence Regulation 2008 Cachia v Hanes (1994) 179 CLR 403 Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 |
SOLICITORS: | The appellant appeared on his own behalf M.J. Wilson appeared for the respondent |
- [1]Mr Saba appeals against his conviction for speeding. His trial took place in the Magistrates Court at Holland Park on 3 February 2012. He was fined $200 and ordered to pay certain costs.
- [2]The appellant’s handwritten grounds are:
The magistrate made a mistake she accepted my evidence that I turned right into Granadilla St that puts my car in front of the pedestrian crossing which is about (70) metres away from the said crossing then she said that I crossed the pedestrian crossing. I could not have done so, because the said crossing was behind me, Darlington St is 130 metres from where the policeman was standing, the police man lazer device showed 141.3 metres as my location, this could not have been my car or my speed.
- [3]Senior Constable Savoia gave evidence that on 2 March 2011 he tested a laser-based detection device at the Boondall Police Station and found it to be accurate. Later, he went to Macgregor and positioned himself facing north on Granadilla Street near the corner of Epsom Street. The speed limit in the area was 50 kph. He could see along Granadilla Street for about 300 metres. A pedestrian crossing was about 200 metres away. He monitored the cars heading south towards his position as they went over the pedestrian crossing. One, a red car, appeared to him to be travelling faster than the speed limit. He trained the device on it. The reading was 63 kph. The device displayed a distance of 141.3 metres from the car to him at the time of the speed check. He intercepted the car and spoke to the driver, who was the appellant. The conversation was recorded. It includes statements by the appellant that he was travelling at about 60 kph. It also includes the officer recording that the appellant crossed the pedestrian crossing just before the officer checked his speed.
- [4]The officer said there were no other cars between the appellant’s car and his position, nor was there a car directly behind the appellant’s car at the time of his observations. The prosecution tendered photographs of the road, a recording and transcript of the roadside conversation and certificates issued pursuant to ss. 124 (1) (pa) and (pb) of the Transport Operations (Road Use Management) Act 1995. The certificates were evidence that the device was tested and found to be accurate on 18 February 2011 and that the officer used the device in accordance with the appropriate Australian Standard.
- [5]The appellant, who conducted the trial (and appeal) himself, told the officer during cross-examination that he had passed the officer’s car, which was parked at a position located in photograph 1, on Granadilla Street just north of the Epsom Street junction, turned left into Thames Street and then turned right into another street, then right again into Darlington Street, then right again onto Granadilla and headed south towards the officer’s position. So, it was put, the appellant did not drive over the pedestrian crossing - it was north of the t-junction of Darlington and Granadilla. The officer refuted this version, saying,
‘It would be impossible for me to check your speed at 63 kilometres an hour, at a distance of 141.3 metres which is only say about 60 metres this side or south of the pedestrian crossing. If you are saying, what you are saying, that you turned out of a street this side of the pedestrian crossing. I don’t know how you could do that. What I saw was you, approaching the pedestrian crossing, north of it, you were heading southbound, approaching the pedestrian, you’ve gone across the pedestrian crossing, and that’s when I’ve checked your speed.’[1]
- [6]The appellant gave evidence consistent with what he put in cross examination. He travelled with his son from Sunnybank, along Granadilla Street. He saw the police car parked on the left side of the road (I infer he was travelling north). He turned left into Thames Street and dropped his son off, then he turned right into another street he thought was called Bradford, then right again into Darlington Street. That brought him back to an intersection with Granadilla Street where he turned right and travelled toward the officer. He did not pass over the pedestrian crossing - that was to his left as he emerged from Darlington Street.
- [7]The appellant did not admit that he had told the officer his speed was about 60 kph. He said he told the officer it could not have been 60. The magistrate experienced considerable difficulty obtaining clear answers from the appellant. Her Honour reminded the appellant that his evidence was that he had not reached 60 kph but it was in the fifties. Eventually he said, ‘I think I told him quite clearly I – I didn’t believe that I was – the speed limit. I didn’t believe I was 50.’[2]
- [8]The prosecutor argued that the appellant’s account of his driving should not be accepted because, among other things, he did not tell the officer at the scene that he had just pulled out from the side street.
- [9]The appellant urged his version on the learned magistrate and argued his statements recorded at the scene should not be interpreted as admissions he was driving faster than 50 kph.
- [10]The learned magistrate referred to the transcript of the road side recording ‘mainly’ as proof that the appellant was the driver of the red car the officer stopped.[3] That is, her Honour stopped short of relying expressly on the alleged admission that the appellant travelled at 60 kph. With respect, her Honour was correct not to rely on the recording as such a confession. The appellant does not, as I hear the recording, clearly admit driving at 60 kph.
- [11]The learned magistrate went on to accept the appellant’s evidence of the route he travelled - into Thames, Chadford[4] and Darlington Streets and then turning right onto Granadilla Street. Her Honour also accepted, however, the evidence of the officer – that he saw the appellant’s car drive over the pedestrian crossing and checked its speed at 63 kph at a distance of 141.3 metres. By inference, her Honour did not, therefore, accept the appellant’s evidence that he did not pass over the crossing.
- [12]Her Honour based these conclusions on her interpretation of the photographs. She concluded that the crossing was between Darlington and Thames Streets, so the appellant must have crossed it as he approached the officer’s position.
- [13]At the hearing of the appeal, the respondent accepted her Honour’s interpretation of the photographs led her to a crucial factual error. It was common between the parties that the crossing was significantly north of the intersection of Darlington and Granadilla Streets. If he had travelled as he said, the appellant could not have passed over the crossing. The respondent conceded the appeal should be allowed, that the order convicting the appellant should be set aside and the matter returned to the Magistrates Court for rehearing.
- [14]I am satisfied that is the proper result. Once it is understood that the pedestrian crossing was not where her Honour thought it was, the appellant’s evidence cannot sit beside the officer’s evidence. The officer’s evidence that he saw the appellant’s car go over the crossing was essential to his identification of it as the car he trained the instrument upon. Moreover, his evidence that the crossing was about 200 metres from his position requires that Darlington Street was substantially closer to him. Photographs 2 and 3 show a mild incline from the crossing to the officer’s position. If the appellant, as the magistrate found, emerged from Darlington Street it would be difficult to conclude he reached the recorded speed at the distance of 141.3 metres from the officer.
- [15]In short, the learned magistrate’s verdict involved a significant factual error. Having conducted my own examination of the record, I am not satisfied I can properly decide the guilt of the appellant upon appeal. Nor is it possible to determine what decision her Honour would have made but for the factual error. This is why I accept the respondent’s submission the case should be sent back.
- [16]The appellant sought an order for costs, namely the amount of $243.60 he paid for the transcript of the proceedings before the magistrate. The respondent opposes any order for costs because the amount is not a disbursement or because it was not a reasonable expense.
- [17]The appeal to this court is pursuant to s. 222 of the Justices Act 1886. This provision is within Division 1 of Part 9 of the Act. Section 226 provides that the judge may make such order as to costs to be paid by either party as the judge may think just. Section 232A limits that discretion[5] to awarding costs only for an item allowed for Part 9 Division 1 under a prescribed scale and up to the limit prescribed. Regulation 18 of the Justices Regulation 2004 provides that the relevant scale is in schedule 2. Schedule 2 – entitled, Scale of Costs for Act, Part 6, Division 8[6] and Part 9, Division 1, contains 3 parts.
Part 1 – General, includes provisions that:
- The scale sets out the only items for which costs may be allowed and the amounts up to which costs may be allowed;
- An item in part 2 covers all legal professional work, even if the work is done by more than one lawyer;
- A cost is to be allowed only to the extent that incurring it was necessary or proper to achieve justice or to defend the rights of the party.
Part 2 - Amounts up to which costs may be allowed for legal professional work, in effect, sets out amounts for preparation by and attendance at court of lawyers.
Part 3 – Disbursements (Including disbursements to witnesses and interpreters), provides, in part,
5 Disbursements, other than to witness for attending
Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.
Disbursements for the attendance of witnesses are provided for in items 6 and 7 of Schedule 2.
- [18]The respondent, referring to Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181, submits that the cost of the transcript is not a disbursement. In that case, the Court of Appeal confirmed a magistrate’s decision to award costs to a successful defendant-in-person limited to costs of filing and other court fees. The successful self-represented defendant was not entitled to reimbursement of his travel costs. North J, with whose reasons McMurdo P and Henry J agreed, considered Justices Act ss. 158 – 158B, earlier Court of Appeal cases and the High Court decision in Cachia v Hanes (1994) 179 CLR 403.
- [19]North J referred to the submission of counsel for the Commissioner of Police that the term ‘disbursement’ ‘should be given its ordinary meaning of a payment made on behalf of a client by a lawyer to a third party’.[7] Later, North J referred to the ‘settled meaning of such terms as “costs” and “disbursements”’.[8]
- [20]Agreeing with North J’s reasons, McMurdo P added,
Until the High Court revisits its decision in Cachia v Hanes or the Queensland parliament legislates otherwise, as the magistrate and on appeal the District Court judge recognised, the applicants’ costs were limited to the costs of filing and other court fees.[9]
- [21]None of the cases just referred to - Cachia v Hanes, Merrin and the two earlier Queensland Court of Appeal cases discussed by North J in Merrin – involved consideration of whether a successful self-represented appellant could be awarded the cost of the transcript of the proceeding below. Item 5 of schedule 2, by referring to allowances to interpreters, makes plain that ‘payments’ include payments other than filing and court fees. Nothing in the language and context of item 5 of the schedule 2 requires that the successful appellant should not be indemnified for the cost of the transcript.
- [22]The respondent argued that any award of costs for the transcript was limited by Schedule 3 of the Justices Regulation 2004. Section 19 of the Regulation provides that the fees payable to the clerk of the court are in schedule 3, subject to certain exemptions in sections 19A and 19B. Regulation 19 and schedule 3 do not purport to limit awards of costs. In any case, payment for the transcript is not within any item on schedule 3. A transcript of proceedings may be obtained from the State Reporting Bureau upon written application and payment of a fee: Recording of Evidence Regulation 2008, made pursuant to s. 13 of the Recording of Evidence Act 1962. That fee is not a ‘court fee’ limited by schedule 3 to the Justices Regulation 2004.
- [23]I am satisfied it was necessary and proper to incur the cost of the transcript for the purposes of preparing and conducting the appeal. Establishing the error asserted required detailed reference to the transcript of evidence and the magistrate’s reasons for decision.
- [24]The orders will be:
- The appeal against conviction is allowed.
- The orders of the learned magistrate are set aside.
- The proceeding is sent back to the Magistrates Court for rehearing.
- The respondent is to pay the appellant’s costs in the sum of $243.60.
Footnotes
[1] 1-16.40-45
[2] 1-25.40
[3] Reasons 1-3.55
[4] The Magistrate’s naming of the street is apparently correct.
[5] Subject to a proviso that does not apply in this case: sub232A(2)
[6] Costs in proceedings for simple offences and breaches of duty
[7] [2012] QCA 181 at [32]
[8] Ibid at [39]
[9] At [2]