DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant, Steven Lionel McCollom (a Queensland police officer), appeals from the decision of the learned acting magistrate at Beenleigh on 26 June 2012, dismissing one charge of speeding against the respondent, Glen Kovarik.

The Law

2. [2]
   I refer to and adopt my exposition of the relevant law applicable to an appeal under Justices Act (Qld) 1886 s.222, as set out in Moore v Queensland Police Service [2012] QDC 133 paras 2-4.

3. [3]
   In this appeal, no further evidence has been lead on the appeal, and so to succeed, the appellant has to “establish some legal, factual or discretionary error”.^[1]

Appeal grounds

4. [4]
   The appellant appeals against the dismissal of the complaint against the respondent, Glenn Kovarik on the following grounds:

1. The learned magistrate (sic) erred in finding that there was no case to answer, and dismissing the compliant;

2. The learned magistrate (sic) erred in not receiving into evidence, and considering as admissible evidence, the copies of the instruments of delegations sought to be relied upon by the prosecution.^[2]

The Hearing

5. [5]
   The trial commenced before the learned acting magistrate at the Beenleigh Magistrates Court on 26 June 2012, with the prosecutor seeking to tender a number of documents prior to calling witnesses. After the prosecutor indicated that the first document sought to be tendered was a photograph of the alleged infringement, certified pursuant to Transport Operations (Road Use Management) Act 1995 (TORUMA) s.120(2) by a Senior Sergeant Stephen Embleton from the Traffic Camera Office (an authorised delegate from the Commissioner of the Queensland Police Service under Police Service Administration Act (Qld) 1990 s.4.10), the learned acting magistrate then addressed the respondent stating “Now, Mr Kovarik, as part of my obligation to ensure that you get a fair hearing, there will be a number of documents about which I will be raising objection on your behalf.”^[3]

6. [6]
   The learned acting magistrate provisionally admitted the relevant document^[4]subject to a ruling that he foreshadowed on admissibility. The prosecution then tendered a second photograph which was a close up of the registration number of the vehicle alleged to have been speeding^[5], and an exhibit (pursuant to TORUMA s.120(2)(a)) signed by Senior Sergeant Embleton, certifying the testing of the Speed Camera System Radar used to produce trial exhibits 1 and 2. The prosecutor then sought to tender a “certified original copy” of delegation D25-13 by the Commissioner of the Queensland Police Service to various delegated persons and positions including (relevantly) “the Senior Sergeant Traffic Camera Office” dated 27 April 2010^[6]. What was sought to be tendered was, as noted above, “a certified original copy” of delegation D25-13^[7], signed by a Justice of the Peace and endorsed “this is to certify that this is a true copy of the original document which I have sighted; and is a facsimile copy made from the original by means of a photocopy machine.”, which endorsement then bears a signature, the name “B.M. Joy”, the title “J.P. (Qual)” and the date “6 February 2012”.^[8]

7. [7]
   The prosecutor sought to hand up to the learned acting magistrate “a copy of the delegation with the original stamp from that Justice of the Peace (Qualified)”, which he sought to have returned and to substitute a copy of the “certified original”.^[9]The learned acting magistrate then provisionally admitted the copy document, returning the “original certification by the JP” to the prosecutor.^[10]

8. [8]
   The prosecutor then made submissions as to the admissibility of the Justice of the Peace certified copy of the notice of delegation^[11].

9. [9]
   The learned acting magistrate, after inviting the respondent to make submissions, an invitation declined because there was, the respondent said, nothing that he could add, then proceeded to refer to a previous decision which he had himself delivered on the relevant legal issues^[12], and delivered ex tempore reasons for not admitting the certified copy of the notice of delegation^[13]. During the course of that ex tempore decision, the learned acting magistrate indicated that he would provide (in due course) supplementary written reasons for his decision. The learned acting magistrate’s supplementary written reasons were delivered on 29 August 2012^[14].

10. [10]
    The trial then proceeded after the tendering of further documents, with oral evidence called from Rodney James, a Queensland Police Service employee responsible for overseeing the calibration and maintenance of speed camera units, and from Senior Constable Peter Lane, the police officer responsible for deploying the speed camera unit which produced the relevant photographs on which the charge of speeding relied.

11. [11]
    At the conclusion of the prosecution case, the learned acting magistrate then addressed the respondent (in part) as follows:

“Mr Kovarik, I’ll be brief. Ordinarily, at this point you have got some options about what you do. One of each (sic) which includes making a no case to answer submissions. I’ll be making that on your behalf because consistent with the ruling I made earlier about the admissibility at the instruments of delegation they’re inadmissible.”^[15]

12. [12]
    The learned acting magistrate went on to formally rule “that evidence” [a reference to the document containing the copy of the delegation from the Police Commissioner] as “inadmissible” and then stated that as a result, “there is no evidence of many of the elements of the events including identification and speed to support the charge” and ruled “the complaint is dismissed”.^[16]

Supplementary reasons for the extemporaneous ruling delivered at Beenleigh on 26 June 2012

13. [13]
    The learned acting magistrate provided supplementary reasons in a written document delivered on 29 August 2012.

14. [14]
    The learned acting magistrate identified that the issue was not “the admissibility of an original document” i.e. the original signed delegation by the Police Commissioner but “the method of proving a copy of the relevant original document”^[17].

15. [15]
    The learned acting magistrate referred to s.116 of the Evidence Act 1977, which he correctly identified as requiring “that before the court may admit a copy of a document pursuant to the section there must be proof, to the satisfaction of the court, of the following matters; that the copy was taken or made from the original documents; and further, that such copy was produced by means of a photographic or other machine which produces a facsimile copy of the document.”^[18](Emphasis in original).

16. [16]
    The learned acting magistrate then went on to state “It seems to be that to found the proper exercise of the discretion, there must be some evidence lead which is directed at the following matters: the nature of the machine or the means by which the copy has been produced and thus whether such method meets the requirement that it have (sic) been copied by means of a photographic or other machine which produces a facsimile copy; and the provenance of the document from which the copy was made.”^[19]

17. [17]
    The learned acting magistrate stated that “evidence required to bring the court to the necessary state of satisfaction [in Evidence Act s.116, must be] admissible according to the ordinary rules of evidence.”^[20]

18. [18]
    The learned acting magistrate noted the terms of the endorsement by the Justice of the Peace namely “this is to certify that this is a true copy of the original document which I have sighted; and is a facsimile copy made from the original by means of a photocopy machine.”^[21], and then proceeded to identify what he described as “a number of difficulties” with the prosecutor seeking to prove the provenance of the relevant document and the method of copying by such a certificate.^[22]

19. [19]
    The learned acting magistrate found that “the justices’ endorsement upon the document is an unsworn statement by a person who, ostensibly, holds no special position or authority in relation to the document”; and “in relation to the justice’s statement as to whether the copy has been made by the photocopier or was taken from the original that justice stands in no better position than any other witness in criminal or quasi criminal proceedings.”^[23]

20. [20]
    The learned acting magistrate noted that “it would be a denial of natural justice to a party against whose interests such document might be admitted if that party were not permitted the opportunity to test the evidence upon which the court might subsequently exercise its discretion. The process of merely tendering a copy without oral evidence denies the defendant an opportunity to test the provenance of the purported original or the means by which the copy has been produced. Ordinarily the restriction or termination of a defendant’s rights to test the evidence lead against him is the province of statute. It certainly should not be for the convenience of the prosecution. In my view, the copy sought to be tendered is inadmissible.”^[24]

21. [21]
    The learned acting magistrate observed further that “it does not seem to me to be too much to require the prosecution to comply with the statutory or other legal requirements for admissibility of those documents [permitted in compliance with formal requirements] and to otherwise ensure the efficacy of such documents” and went on to cite with approval the decision of Fraser JA in Dixon v LeKich [2010] QCA 2013, para 26^[25].

Appellant’s Submissions

22. [22]
    The appellant’s argument is that the combination of the provisions of Evidence Act s.116 and s.42, read with Justices of the Peace and Commissioners for Declarations Act (Qld) 1991 s.29(2), has the effect that the acting learned magistrate did not properly exercise his discretion in refusing to admit the copy of the delegation into evidence, in that the learned acting magistrate failed “to give proper considerational weight to all relevant considerations and circumstances including the roles, responsibilities and duties of JPs, the requirement to give judicial notice, the practical effect of the decision and the prior decision of the District Court” (in Van den Hoonr v Ellis [2010] QDC 451 (per Dorney QC DCJ para 32)). The appellant submits that “the magistrate’s discretion has miscarried so as to require the intervention of the court”^[26].

Discussion

23. [23]
    Evidence Act s.116 provides:

Notwithstanding any other provision of this part, where a document has been copied by means of a photographic or other machine which produces a facsimile copy of the document, the copy is, upon proof to the satisfaction of the court that the copy was taken or made from the original document by means of the machine, admissible in evidence to the same extent as the original document would be admissible in evidence without”

1. (a)
   proof that the copy was compared with the original document; and

2. (b)
   notice to produce the original document having been given.

24. [24]
    Evidence Act s.42 relevantly provides:

1. Judicial notice must be taken of –

1. (a)
   The signature of a person who is or has been the holder of a public office; and

2. (b)
   The fact that the person holds or has held the office.

2. For subsection (1), the following offices are public offices –

…

5. (e)
   The office of a Justice of the Peace or Commissioner of the Declarations.

25. [25]
    Justices of the Peace and Commissioners for Declarations Act 1991 s.29 relevantly provides:

1. A Justice of the Peace –

…

2. (b)
   May … attest any … document that may be … attested under any Act or law.

26. [26]
    In Van den Hoorn v Ellis [2010] QDC 451, Dorney QC DCJ held that “[I]t is clear that, by s.42 [of the Evidence Act], judicial notice must be taken of the signature of a person who is a Justice of the Peace and the fact that that person holds that office. That provision, taken together with s.116 of the Evidence Act 1977, which permits copies to be given in evidence where the relevant court is satisfied that the copy was made from the original document by means of a photographic or other machine which produces a facsimile copy (being so admissible in evidence to the same extent as the original document, without proof that the copy was compared with the original document or that a notice to produce the original document was given), means that it was open to the learned Magistrate, as he did, to accept both Exhibit 4 and Exhibit 6 [delegations purported to be given by the Chief Executive of the Department of Transport and Main Roads]. Correspondingly, it is also open to me, on review, to be satisfied – which I am (particularly bearing in mind: the certificate by the JP on each stating letter that it is “a true” copy of the original which was “sighted” by the certifier; and the definitions in s.104 [of the State Penalties Enforcement Act s.1999].”^[27]

27. [27]
    The word “attest” is not defined in either the Justices of the Peace and Commissioners for Declarations Act 1991, nor the Acts Interpretation Act 1954. The dictionary meaning of the word is as follows:

The Macquarie Concise Dictionary^[28] –

1. to bear witness to; certify; declare to be correct, true, or genuine; declare the truth of, in words or writing; especially, affirm in an official capacity: to attest the truth of a statement. 2. to give proof or evidence of; manifest: his works attest his industry – v.i. 3. to certify to the genuineness of a document by signing as a witness. [L: bear witness].

The Shorter Oxford English Dictionary^[29] –

1. Bear witness to, affirm the truth or validity of; testify, certify formally. 2. of things: be evidence or proof of; testify to, tend to confirm. 3. Call to witness. 4. Put (a person) on oath; esp. administer an oath or allegiance to or enrol (a recruit) for military service. 5. bear witness, testify to. 6. Enrol oneself as ready for military service.

Relevantly, those definitions indicate that among the meanings for word “attest”, is “to certify”.

Conclusion

28. [28]
    In my view, the learned acting magistrate fell into error by failing to conclude (in the exercise of his discretion) that the prosecution had proved “to the satisfaction of the court” that the certified copy of the Police Commissioner’s delegation, of which Trial Exhibit 4 is a copy, was taken or made from the original document by means of “a photographic or other machine which produces a facsimile copy.”

29. [29]
    I reach that conclusion, given the obligation of the learned acting magistrate to take “judicial notice” of the signature of the Justice of the Peace, and the fact that he or she held that office^[30], and the provisions of s.29 of the Justice of the Peace and Commissioners for Declarations Act which specifically provide that the powers of a Justice of the Peace include attesting (i.e. certifying) “any… document that may be … attested under any Act or law”. Relevantly, in my view, the provisions of Evidence Act s.116 permit the attestation (i.e. certification) of copies of original documents.

30. [30]
    Acts Interpretation Act (Qld) s.27(1) authorises the Police Commissioner to delegate a function or power to “the holder of a specified office”^[31]; that delegation was certified pursuant to Justice of the Peace and Commissioners for Declarations Act s.29, and that should, in my view, be considered sufficient to meet the relevant threshold (i.e. “prove to the satisfaction of the court”) pursuant to Evidence Act s.116.

31. [31]
    I note, as an aside, that a judicial officer, obliged by law to be scrupulously fair, does not “raise objections” on behalf of a litigant, nor make “no case” submissions on behalf of a litigant. The learned acting magistrate was, of course, entitled to test prosecution submissions on any matter, but not “on behalf of ” the defendant – to do so was, I consider an, unacceptable entry into
    the arena in an adversarial system of justice, even though the defendant was unrepresented.

Conclusion

32. [32]
    I conclude that the learned acting magistrate has fallen into discretionary error, or alternatively, an error of law, in ruling Trial Exhibit 4 inadmissible. The learned action magistrate’s conclusion that the charge against the respondent of speeding be dismissed, should be set aside.

Orders

33. [33]
    Orders

1. Appeal granted

2. The order of the learned acting magistrate at Beenleigh on 26 June 2012 that “the complaint [of speeding] is dismissed” is set aside.

3. The charge of speeding is to be remitted to the Magistrates Court at Beenleigh to proceed according to law, before another magistrate.