Cady v Cremasco[2013] QDC 171

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   Mr Cady seeks to appeal his convictions for two traffic offences, committed on 12 February 2012. The first charge was for failing to keep to the left of the centre of a road or dividing line.^[1]The second was for failing to keep off a painted island.^[2]

2. [2]
   The appeal was filed on 2 November 2012, which means it is out of time. Because the respondent had previously, erroneously, submitted the appeal was within time, Ms Wooldridge submitted, fairly, that the Court should extend the time for filing the appeal.

3. [3]
   On 20 September 2012, the first charge was heard by way of a summary trial which proceeded in Mr Cady’s absence and resulted in his convictions, for reasons given by the learned Magistrate who presided at trial.  An application to rehear the matter^[3]was refused on 18 October 2012. That decision is not under appeal. Mr Cady was convicted of the second offence, on the day of the summary trial, on Mr Cady’s indication to plead guilty to that charge.

Grounds of appeal and other applications

4. [4]
   The appellant’s grounds of appeal can be summarised as follows:

• The appellant wishes to withdraw his plea of guilty in respect of the second charge;
• The Learned Magistrate mistook the evidence in respect of whether the “painted island” was actually painted, and whether the “dividing line” was actually broken; and,
• The appellant wishes to call fresh evidence in respect of whether the “painted island” was actually painted, and whether the “dividing line” was actually broken.

Should Mr Cady be allowed to withdraw his plea of guilty to the second offence?

5. [5]
   If a defendant provides written notice they wish to plead guilty, the Justice may proceed to hear and determine the case in their absence as if the defendant had appeared and pleaded guilty.^[4]Here, the learned Magistrate recorded the appellant had indicated a plea of guilty to the second charge,^[5]by telephone and through various email communications with the Court.^[6]

6. [6]
   A defendant who pleads guilty may only appeal “on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate”.^[7] This section has been interpreted to bear its literal meaning,^[8]but will not preclude an appeal where the plea of guilty was equivocal or really amounted to a plea of not guilty.^[9]

7. [7]
   A court is entitled to act on a plea of guilty "when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea"^[10]A plea of guilty will not ordinarily be set aside unless "the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence".^[11]

8. [8]
   Mr Cady is of full age. There is nothing in his communications with the Court to suggest that his plea was made equivocally. There is no evidence he did not understand the effect of his plea; indeed he provided written submissions on penalty.^[12]

9. [9]
   There is no basis to vacate his plea, and to the extent that his Notice of Appeal might be accepted as an application to do so, that is refused.

Should Mr Cady be allowed to lead additional evidence on appeal?

10. [10]
    Before the appeal hearing Mr Cady provided the Court with two photographs of a relevant stretch of the road that he had obtained from the Department of Main Roads.  He asked the Court to take these photographs into account in determining his appeal.

11. [11]
    The Court can grant leave to lead additional evidence if there are special grounds for doing so.^[13]

12. [12]
    In determining whether there are special grounds, there are three factors to be considered:

1. Whether the evidence relied on could, with reasonable diligence, have been produced by the accused at the trial;
2. Whether the evidence is apparently credible or at least capable of belief;
3. Whether the evidence if believed might reasonably have led a tribunal of fact to return a different verdict. ^[14]

13. [13]
    Mr Cady had the opportunity to secure this evidence before the trial. The offences occurred in February 2012. The matter was mentioned on 3 occasions in July and August 2012. When Mr Cady’s application for rehearing was heard in October 2012, it appears he still had not obtained the evidence.^[15]  Although it is evident Mr Cady had made some attempts to get further evidence, I am not satisfied that it was not, with reasonable diligence, available to him before the trial in September.

14. [14]
    Respectfully, I concur with and adopt the following observations of Henry J in Powell v Chief Executive Officer of Customs:^[16]

“The appeal process is not a forum for attempts to litigate cases afresh in a manner different from that which was unsuccessful at first instance. As was observed in Pavlovic v Commissioner of Police the consideration that evidence could with reasonable diligence have been produced at trial:

“…reflects the primary importance of the trial in the administration of justice. A trial cannot be regarded as a dress rehearsal or as the first step in a process which inevitably leads to an appeal and a possible retrial.”^[17]

15. [15]
    Even were I persuaded that the photographs were not available with reasonable diligence, I accept Ms Wooldridge’s submission that they would not reasonably lead to a different verdict.

Did the learned Magistrate err in his findings of fact on the evidence before him?

16. [16]
    On appeal, this Court must bear in mind any advantage the learned Magistrate had in seeing and hearing the witnesses giving their evidence. Nevertheless, it must review the evidence, weigh the conflicting evidence, and draw its own conclusions.^[18]

The first offence – failing to keep to the left of the centre of a road or dividing line

17. [17]
    Section 139(2) of the Transport Operations (Road Use Management - Road Rules) Regulation 2009 (Qld) provides that a driver on a road with a dividing line (except 2 continuous dividing lines) must drive to the left of the dividing line, except as permitted under section 134 or 139(2).

18. [18]
    Section 134 deals with overtaking and does not apply. Although the line was broken when he crossed it, Mr Cady acknowledges that he travelled to the right of the line after it had become unbroken.

19. [19]
    Section 139(2) deals with avoiding obstructions. Mr Cady overtook three cars. They could not be considered to be obstructions.

20. [20]
    Senior Constable Dominic Trevor Cremasco, the arresting officer. As well as his oral evidence gave oral evidence and produced video and audio recordings taken from his personal video camera on which he had recorded Mr Cady’s and other vehicles on the day of the offences. In his absence, a photograph provided by Mr Cady was admitted as an exhibit and Senior Constable Cremasco was asked to consider it during his evidence.

21. [21]
    Mr Cady argued the dividing line was broken when he crossed it. There is no issue about that. In his conversation with the officer at the scene, Mr Cady acknowledged he noticed the line became unbroken after he had commenced overtaking. His argument seemed to be that he did not know it was going to change to an unbroken line when he started to overtake and, then, he crossed back, leaving a safe and appropriate distance between his car and the last one that he overtook. He also said the heat shimmer prevented him from seeing the line clearly and the roadworks which had patched over some sections of the line markings made it harder to see when the line became broken.

22. [22]
    His Honour accepted the officer’s evidence that the line markings were clearly visible and rejected Mr Cady’s argument that they were not clearly visible in the distance. It was open to him to do so.^[19]

23. [23]
    Senior Constable Cremasco gave evidence that there was not enough room for the appellant to complete an overtaking manoeuvre, prior to reaching the unbroken centre dividing line.^[20]It was open to the learned Magistrate to accept that evidence.

24. [24]
    Senior Constable Cremasco gave evidence that Mr Cady remained on the right hand side of the road for more than 100 metres, or 4 – 5 seconds, after the centre dividing lane became unbroken.^[21]

25. [25]
    Mr Cady seemed to argue the learned Magistrate could not be satisfied beyond reasonable doubt about that evidence, because it was based on the officer’s estimates of time and distance using a personal video camera that had not been calibrated in accordance with national regulations.

26. [26]
    There is nothing in that argument. It was a camera the officer used as a personal aide. His Honour acted on the officer’s oral evidence. What was recorded assisted the officer in making his estimates of time and distance. There was no suggestion that the recording established those facts, such that a proper calibration against a national standard was required.

27. [27]
    During the hearing, his Honour made admirable efforts to ensure that Mr Cady’s case, as best he could understand it, was put to the witness.^[22]  In his absence, Mr Cady cannot expect the Magistrate, sitting as the impartial decision maker, to act as his advocate. He fairly and appropriately probed the officer’s evidence before he accepted it, bearing in mind the arguments that he understood Mr Cady to make.

28. [28]
    I can find no error in his Honour’s factual findings in relation to this offence.

The second offence – failing to keep off a painted traffic island

29. [29]
    In relation to the second offence, the case against Mr Cady was that he took the Toowoomba Exit off the Cunningham Highway and performed a u-turn over a painted traffic island, which was surrounded by a solid line. The offence was constituted by crossing the painted traffic island.

30. [30]
    Section 138(1) of the Transport Operations (Road Use Management - Road Rules) Regulation 2009 (Qld) provides that a driver must not drive on or over a single continuous line, or 2 parallel continuous lines, along a side of or surrounding a painted island, except as permitted under this section or section 139(4), which deals with obstructions.

31. [31]
    Mr Cady’s argument appeared to be that the section of road he crossed was not a painted traffic island.

32. [32]
    The term “painted island” is defined in the fifth schedule of the Road Rules, as an area of a road that—

“has painted on it stripes or chevrons in white or another colour that contrasts with the colour of the road; and

2. (b)
   is surrounded either—

1. (i)
   by a line or lines (whether broken or continuous); or

1. (ii)
   partly by a combination of a line or lines (whether broken or continuous) and partly by a kerb or by a structure on or next to the road.”

33. [33]
    As well as Senior Constable Cremasco’s evidence about the state of the markings on the road, his Honour had before him video and photographic evidence, including one submitted by Mr Cady himself which clearly showed markings on the road that complied with the definition of the term painted island.

34. [34]
    Mr Cady did not seem to contest that he crossed some markings, just whether they met the statutory definition. In any case, his Honour was entitled to accept Senior Constable Cremasco’s evidence that he observed Mr Cady do a u-turn over the painted traffic island, which was surrounded by a solid continuous white line.^[23]

35. [35]
    I can find no error in his Honour’s factual findings in relation to this offence.

The illness of Mr Cady’s son,

36. [36]
    Mr Cady drew the Court’s attention to passages in the transcript of the officer’s evidence in which he appeared to express some scepticism about what Mr Cady had said about his son’s illness.^[24]Mr Cady also said that the officer did not check on his son and was not even aware that Mrs Cady was in the car, because he did not look inside it.

37. [37]
    It would, no doubt, be distressing to a parent concerned about their child’s welfare for that concern to be dismissed or treated with scepticism. However, the officer’s opinion about Mr Cady’s son’s state of health is entirely irrelevant to whether Mr Cady is guilty of the offences with which he was charged. The learned Magistrate did not refer to that evidence, presumably because he understood it had no relevance. Mr Cady’s concern for his child is arguably relevant to penalty, as it give context to his conduct and may explain why he was distracted, leading to poor judgment.

Sentence

38. [38]
    At the appeal hearing, Mr Cady made submissions about the penalty. He argued there had been an increase in the penalty and that this was in contravention of the International Covenant on Civil and Political Rights, article 15.

39. [39]
    Mr Cady may have been confused because there were two penalties; one relating to each charge. On the first charge, which went to trial on Mr Cady’s plea of not guilty, he was fined $300.00 and ordered to pay court costs of $81.55. On the second charge, on which he was convicted on his plea of guilty, he was fined $180.00. The fines were referred to SPER.

40. [40]
    It seems some communications Mr Cady had with SPER (the State Penalties Enforcement Registry) led him to think there had been an increase in penalty somewhere along the process. In fact there was not.

41. [41]
    To the extent that Mr Cady might argue the penalties were excessive, Ms Wooldridge drew to the Court’s attention that Mr Cady had not appealed against sentence, only against the convictions.  He could only argue the question of sentence if the Court extended time within which to appeal against sentence. Although his Honour did not specifically refer to the illness of Mr Cady’s son in determining sentence, this was a matter addressed by Mr Cady in his written submissions on penalty, which his Honour did specifically refer to.^[25]His Honour took into account the fine that Mr Cady would have paid if he had paid the ticket without contesting it. In each case, that was $180. It could not be argued, reasonably, that the penalties of $180 for the second offence (which he pleaded guilty to) and $300 for the first offence (which went to trial) were excessive.

42. [42]
    Orders:

1. Time to file the Notice of Appeal against convictions is extended to 2 November 2012.
2. The application by Mr Cady to vacate his plea of guilty to the second offence is refused.
3. The appeal is dismissed.
4. No order as to costs.