Sanderson v Warren[2013] QDC 131

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal, under s. 222 of the Justices Act 1886 (Qld), from the decision of a magistrate convicting the appellant of speeding. The trial was heard at Noosa on 14 December 2012.

2. [2]
   Two police officers, Skywalker and Lilley, were checking the speed of cars travelling through a school zone at Cooroy. The speed limit at the time was 40 kilometres per hour (kph). Skywalker gave evidence that he saw two cars approach and about 70 metres behind them was the appellant’s car. The cars were rounding a bend travelling towards him. From the way the appellant’s car closed the gap, Skywalker considered it was travelling in excess of the limit. He trained a LIDAR device on the car and saw the reading, 62 to 61 kph. He intercepted the appellant and their conversation was recorded. I have listened to the recording. During it, the appellant told the officer the speed signs in the area were confusing and also that he was simply following the car in front.

3. [3]
   The appellant gave evidence that he was following the cars in front of him closely, such that he was not sure at first whether it was him the police officer was directing off the road. Although he told the officer the various speed zones were confusing he did not admit driving at 61 kph and, in fact, he told the officer he was doing 40 kph. The officer did not show him the reading.

4. [4]
   The learned magistrate first dealt with a procedural matter, concerning the complaint and summons, which is not challenged on appeal. His honour then made plain that, in a case such as this where there was a conflict between the evidence of the defendant, whose character had not been impugned, and the evidence of a police officer, the question was whether the court was satisfied beyond reasonable doubt of guilt.

5. [5]
   The issue was whether the appellant had driven faster than 40 kph. The learned magistrate accepted Skywalker’s evidence of opinion that the appellant’s car was travelling faster than the limit, based on Skywalker’s long experience as an officer in traffic matters. His honour then accepted Skywalker’s evidence that the reading on the laser device was 62 kph and went down to 61 kph. The learned magistrate noted the appellant’s recorded comments that the speed signs were confusing and concluded, “I think he was confused about the speeding.”

6. [6]
   The appeal is by way of rehearing on the evidence given in the proceeding before the magistrate: Justices Act s. 223. The appellant did not seek to place more evidence before me. I have reviewed the entire record and, for the following reasons, confirm the magistrate’s decision: Justices Act s. 225.

7. [7]
   The appellant appeared without legal representation before the learned magistrate and in the appeal.

8. [8]
   The grounds of appeal on the Notice were:

1. Magistrate accepted evidence not in the brief.
2. The prosecution offered, and the magistrate accepted, a false document.
3. The magistrate accepted the police officer’s experience and ignored the good character of the appellant.

9. [9]
   In his written outline, the appellant argued 10 points, which incorporated the grounds of appeal.

10. [10]
    The first point is that the magistrate was wrong to admit the recording of the roadside discussion. The recording that came to be tendered was produced by the prosecution only on the day of trial. It was the officer’s ‘master tape’, containing his interactions with various people over two days. He had extracted the relevant transaction onto another cassette, but that was unclear. The appellant submits this was tainted evidence. The magistrate admitted the recording and I see no error in his having done so.

11. [11]
    The second point is related to the first. The appellant submitted the recording should not have been accepted because it had not been disclosed as required by Division 3 of Chapter 62 of the Criminal Code. The learned magistrate held that those provisions did not apply to the trial. I agree. This was not a prescribed summary trial and so was not a relevant proceeding: Code s. 590AD. But that is unnecessary to decide because failure to comply with the chapter division in a proceeding does not affect the validity of the proceeding: Code s. 590AC(2). The recording played was a clearer recording than the one disclosed. No prejudice arose. The appellant claims this was an ambush and demonstrated the magistrate’s bias against him. I am satisfied of neither proposition. The recording actually helps the appellant make one of his points, which I refer to below.

12. [12]
    The third point corresponds with ground 2. Exhibit 1 was a certificate that one A.N. Ellacott attended and satisfactorily completed a ‘Police Speed Detection Operator’s Course’ in September 2000 and is authorised to use a particular device. Skywalker gave evidence that he was A.N. Ellacott but he changed his name ‘by the registrar’s office, legally, yeah, in the year 2005, I think it was’.^[1]His name is now Zen Skywalker. Leaving aside the wisdom of the name change, it was open to the learned magistrate to accept the witness’s oral evidence of it. That done, there was, and is now, no basis for labelling the certificate a false document.

13. [13]
    The fourth point, related to the third, was that the ‘Record of Endorsements’ on the reverse side of the certificate was blank. This, it was argued, showed the witness had not, in accordance with the relevant Australian Standard, renewed the certificate. Skywalker testified that ‘every so often’ officers ‘do upskilling’.^[2]He did not recall how often but said notice would be given to officers, they would do the training and the upgrade would be logged on to a computer.

14. [14]
    To deal with this argument it is first useful to notice some relevant legislative provisions. To exceed the speed limit is an offence against s. 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld). The prosecution relied in this case on the evidence of Skywalker as to (i) his assessment that the appellant was exceeding the limit as he caught up to the cars in front of him and (ii) his evidence of the reading on the speed detection device.

15. [15]
    Section 112 of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM’) provides that:

‘When using a radar speed detection device or laser-based speed detection device, a police officer must comply with—

2. (a)
   the appropriate Australian Standard for using the device, as in force from time to time; or

2. (b)
   if there is no appropriate Australian Standard for using the device in force at the time of the use—the manufacturer’s specifications for the device.’

16. [16]
    Section 124 of TORUM facilitates proof. Subsection (1) includes:

2. ‘(pa)
   a certificate purporting to be signed by the commissioner and stating a particular stated induction loop speed detection device, laser-based speed detection device, piezo strip speed detection device or radar speed detection device—

2. (i)
   was tested at a stated time in accordance with—

2. (A)
   the appropriate Australian Standard for testing the device, as in force on the day of testing; or

2. (B)
   if there is no appropriate Australian Standard for testing the device in force on the day of testing—the manufacturer’s specifications; and

2. (ii)
   was found to produce accurate results at the time of testing;

is evidence that the device was producing accurate results when so tested and for 1 year after the day of testing;

2. (pb)
   a certificate purporting to be signed by a police officer stating a particular stated laser-based speed detection device or radar speed detection device was used by the officer at a stated time in accordance with—

2. (i)
   the appropriate Australian Standard for using the device, as in force on the day of use; or

2. (ii)
   …..;

is evidence of the matters stated;^[3]

17. [17]
    The prosecution tendered certificates under these subsections proving that Skywalker used the device in accordance with the appropriate Australian Standard and the laser-based detection device was tested on 3 October 2011 in accordance with the appropriate Australian Standard and was found to produce accurate results.^[4]

18. [18]
    Prima facie, s. 112 of TORUM was satisfied. But the appellant refers to the Police Traffic Manual to argue that Skywalker was not shown to be appropriately qualified to use the device. In particular, he refers to the manual at 6.9.2, which includes the following:

‘6.9.2 Authorisation, re-authorisation and competency reassessment of speed detection device operators

POLICY

The Officer in Charge of the district or region in which the officer is stationed is to ensure that officers who successfully undertake courses in the operation of speed detection devices are issued with appropriate authorisation.

The authorisation of authorised speed detection device instructors and operators lapses if an authorised instructor or operator:

2. (i)
   has not used the relevant speed detection device within a 12 month period as per the Australian Standard; or

2. (ii)
   has not successfully completed the relevant reassessment course in ADVANCE2 in the preceding 36 months.’

19. [19]
    Exhibit 1 certified Skywalker’s authority to operate a device named ‘LIDAR – LTI 20/20 Ultralyte’. The Record of Endorsements includes the information that a certain part of Australian Standard 2898 imposes requirements upon operators of radar devices. As mentioned above, the exhibit contains no evidence of renewal.^[5]The s. 124 certificates, exhibits 6 and 9, refer to a laser device only by serial number. So there is confusion over whether Skywalker’s authority was to use the laser device or a radar device. And his evidence of later training is not strong. But Skywalker gave detailed evidence of testing the device he used before and after the activities of the day.^[6]I infer, as the learned magistrate obviously did, that Skywalker was thoroughly competent to use the device. The appellant does not submit the device was faulty. He did not give notice of such a contest below, as required by TORUM subs. 124(4). Ultimately, the requirement in TORUM s. 112 is satisfied by the certificate, exhibit 6. In the face of the certificate nothing really turns on the issue of the officer’s training since 2000.

20. [20]
    In any case, failure to satisfy s. 112 would not, according to its terms, render inadmissible the officer’s evidence as to the reading produced on the device. Perhaps it would enliven the discretion to exclude the evidence or affect the assessment of the reliability of the officer’s evidence. But it is unnecessary, in this case, to consider these matters because, as I have just mentioned, there is no reason to doubt Skywalker’s skill and experience in the use of the device.

21. [21]
    The appellant’s fifth point concerns advice the magistrate gave him at the close of the prosecution case and develops into an allegation of bias. Before the appellant stated that he would give evidence, the learned magistrate correctly told him he may give evidence but was not obliged to. During the discussion, the appellant said, “I’ve stated time and again I wasn’t speeding”.^[7]  In this context, the learned magistrate advised the appellant, “…if you don’t give evidence, then the evidence of the prosecution is uncontested, which means that the evidence of the officer as to the speed is uncontested.”^[8]Stating he was happy to give evidence, the appellant then did so. In context, the magistrate’s advice was not wrong. In any case, the appellant gave evidence. Neither that exchange nor any other during the trial leads me to conclude the proceeding miscarried because of judicial bias.  There is nothing in this complaint.

22. [22]
    The sixth point complains, in effect, that the magistrate’s conclusion that the appellant was confused about the speed zone was unfounded in the face of the appellant’s denial he was speeding. Having listened to the recording I reach the same conclusion as the learned magistrate, despite the appellant’s ultimate assertion on tape that he was travelling at 40kph.

23. [23]
    The seventh point complains, in effect, that the magistrate was wrong to rely on Skywalker’s experience as a police officer in estimating the speed of a car. Not only am I satisfied, having reviewed the record, which included the evidence of the other officer on duty, that it was open to rely on Skywalker’s stated 10 years experience as a traffic officer, it was not that evidence alone which supported the finding of guilt.

24. [24]
    The appellant’s eighth point asserts that his car was not travelling in a straight line towards the officer, and so the device was not used in accordance with the relevant Australian standard and the reading was unreliable. The magistrate’s conclusion that the appellant exceeded the speed limit depended on his honour’s acceptance of Skywalker’s evidence of the reading along with the certificates tendered under TORUM s.124. Nothing in my review of the record – which includes photographs of the road taken from several distances and in both directions - suggests the magistrate was wrong to do so. Relevantly, Skywalker swore he observed the appellant’s car coming around the corner and as it straightened up, he trained the device on it and, “it was two or three seconds after that  … attracting your vehicle speed that I unlocked the speed on. So it would have been around – anywhere between 140,120 metres away.”^[9]

25. [25]
    In his ninth point, the appellant renews the attack on the reliability of Skywalker, by asserting the witness lied about whether he showed the appellant the reading on the device, and submits the learned magistrate failed to recognise the lie when deciding to accept Skywalker’s evidence. The appellant put to Skywalker that, in breach of the Police Traffic Manual, he did not afford the appellant an opportunity to see the reading. Skywalker swore he did so.

26. [26]
    The part of the Police Traffic Manual the appellant refers to includes the following:

‘6.5.7 Providing evidence of speed detected to intercepted drivers

POLICY

A driver of a motor vehicle intercepted as a result of the use of a speed detection device, where the driver's speed has been detected above the prescribed speed limit should, where practicable, be afforded the opportunity by the authorised operator to view the speed displayed on the speed detection device.

When deciding whether to allow the driver to view the speed detection device, officers are to consider the safety of all persons, including other road users. Certain operational circumstances relating to the deployment of the speed detection device at a particular time may prevent the authorised operator from allowing the driver to view the displayed speed on the speed detection device.’

27. [27]
    I have listened to the recording of the transaction. It is not obvious from the recording that the officer showed the appellant the reading. In fact, it is difficult to identify a moment in the transaction when the officer might have been showing the appellant the reading. The self-represented appellant did not play the recording during cross-examination and the officer was not re-examined on the point. Skywalker did not include showing the reading to the appellant in his narrative of the transaction during evidence in chief, but he was not asked to give such detail. The learned magistrate did not refer to the issue in his reasons.

28. [28]
    Upon such review of the record as I can make I doubt Skywalker showed the reading to the appellant. But the record is simply insufficient to support a finding on the balance of probabilities either way. In any case, failure to show the reading to the appellant, although possibly a breach of the Traffic Manual, would not undermine the conviction. It is not analogous to cases of improperly or illegally obtained evidence giving rise to discretionary exclusion.

29. [29]
    The tenth point is that the learned magistrate failed to give weight to certain remarks of Ellis DCJ in R v Howard Lim (Unreported, New South Wales District Court, Judge Ellis, 7 October 2011), the essence of which is that a court must not simply accept the evidence of a police officer over that of a defendant of apparently good character. The learned magistrate was expressly aware of the remarks. The finding that he accepted the evidence of the police officer did not involve the failure to consider the remarks. In fact, as I have mentioned above, the learned magistrate correctly said that in a case of such a conflict, the question was whether the court was satisfied beyond reasonable doubt of guilt. No error emerges from the learned magistrate’s finding.

30. [30]
    Upon my review of the record I am satisfied the appellant was guilty of the offence. I am so satisfied despite certain imperfections in Skywalker’s evidence. I have expressed some doubt that he showed the appellant the reading on the device. His authorisation certificate, Exhibit 1, had difficulties. And his manner when dealing with the appellant, which is examinable by listening to the roadside recording, left much to be desired.

31. [31]
    I confirm the magistrate’s decision.