Gall v Commissioner of Police
[2013] QDC 173
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- Unreported Judgment
- Gall v Commissioner of Police[2013] QDC 173
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Gall v Commissioner of Police[2013] QDC 173
Gall v Commissioner of Police[2013] QDC 173
DISTRICT COURT OF QUEENSLAND
CITATION: | Gall v Commissioner of Police [2013] QDC 173 |
PARTIES: | Bradley Peter Gall (Appellant) v Commissioner of Police (Respondent) |
FILE NO/S: | 467/13 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrate’s Court at Ipswich |
DELIVERED ON: | 2 August 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 July 2013 |
JUDGE: | Kingham DCJ |
ORDERS: |
|
CATCHWORDS: | APPEALS – PROCEDURE – ISSUE NOT RAISED AT TRIAL – where the appellant sought to agitate an issue not raised at trial where no evidence sought to be led about fresh issue. APPEALS – APPEAL AGAINST CONVICTION – where the appellant was convicted of disobeying a speed limit – where the appellant disputes that the speed recorded by police was attributable to his vehicle – where police witnesses gave potentially inconsistent evidence regarding the speed they observed the appellant travelling at a particular location – whether the learned Magistrate erred in determining that the speed registered was attributable to the appellant’s vehicle. Justices Act 1886 (Qld) ss 222 & 223(2). Transport Operations (Road Use Management - Road Rules) Regulation 2009 (Qld) s 20. Fox v Percy (2003) 214 CLR 118, applied. Gallagher v The Queen (1986) 160 CLR 392, applied. Howard Lim v Regina, unreported decision of Ellis DCJ, New South Wales District Court, No. 56957 of 2011, 7 October 2011, distinguished. Pavlovic v Commissioner of Police [2006] QCA 134, applied. Powell v Chief Executive Officer of Customs [2012] QCA 338, applied. Rowe v Kemper [2008] QCA 175, applied. |
COUNSEL: | The appellant appeared on his own behalf. Ms K Potter for the Respondent. |
SOLICITORS: | The appellant appeared on his own behalf. Office of the Director of Public Prosecutions (Qld) for the Respondent. |
Background
- [1]Mr Gall appeals his conviction for disobeying a speed limit.[1] The particulars alleged were that, on 30 June 2012 at 9.20pm, Mr Gall drove a motor vehicle on Smiths Rd, Goodna at 108km per hour in a 60 km per hour speed zone. He was convicted after a summary trial in Ipswich and was fined $1,000 plus costs of $81.65.
- [2]In his Notice of Appeal, Mr Gall stated his ground of appeal was that the Magistrate ignored conflicting evidence from police witnesses. In his outline of argument, he submitted the learned Magistrate could not be satisfied of his guilt beyond reasonable doubt because of inconsistencies between the officers’ statements made at the scene and their evidence at trial. He also argued that her Honour failed to give due weight to his denial of the charge and his good character.
- [3]The only matter in dispute at trial was whether Mr Gall was travelling at 108km per hour as alleged by the police. That was the speed shown on the mobile radar device used by the arresting officers.[2] Mr Gall did not dispute the radar device showed that reading, nor did he argue the device was not properly calibrated. At the appeal hearing, Mr Gall clarified his grounds of appeal.
- [4]Firstly, he argued the accuracy of the reading could be affected by two variables that he said applied in this case: the presence of a high voltage power line and the presence of large metal objects, such as another car.
- [5]Secondly, he submitted the device was calibrated and tested and officers are trained on a scenario of a car travelling along a flat straight road. In this case, he argued, the reading was taken down a hill around two sweeping bends.
- [6]Thirdly, he argued the conflicting accounts given by the officers in describing the terrain and estimating his speed at various times he was under their observation, cast doubt on their reliability as witnesses. This also related to his argument that the learned Magistrate had failed to give sufficient weight to his prior good character and his denial of the charge.
- [7]An appeal is a rehearing of the original evidence.[3] 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.[4]
The accuracy of the reading given the presence of high voltage power lines and other vehicles
- [8]At trial, Mr Gall challenged the reading because of the presence of another vehicle.[5] Mr Gall’s car and the police car, from which the mobile device was operated, were travelling in opposite directions, towards each other. Mr Gall led evidence that there was another vehicle between Mr Gall’s car and the police car that was travelling in the same direction as the police car.[6] The arresting officer, Senior Constable Brett did not agree there was another vehicle.[7] In any case, she gave evidence that, were there another car travelling towards the police car, as Mr Gall said it was, it would not have affected the reading.[8]
- [9]The learned Magistrate understood Mr Gall’s argument and canvassed the evidence given by Senior Constable Brett, the other attending officer, Senior Constable Campbell as well as that given by Mr Gall and his passenger. Her Honour accepted the evidence of Senior Constable Brett that the device was set in opposite directional mode, which meant that it would only record the speed of a vehicle travelling towards the police car, not one travelling in the same direction.[9] She was entitled to accept the officer’s evidence about the setting of the device and there was no evidence to challenge the officer’s evidence about the way in which the device operates in that mode. I do not detect any error in her Honour’s clearly enunciated reasoning on this issue.
- [10]The point that Mr Gall seemed to agitate on appeal, was the influence of the presence of high voltage power lines or a large metal object, such as another car. This is a different argument to the one agitated at trial by the learned Magistrate.
- [11]The Commissioner objected to the Court receiving any additional evidence about these matters. The Court can grant leave to lead additional evidence if there are special grounds for doing so.[10]
- [12]In determining whether there are special grounds, there are three factors to be considered:
- a)Whether the evidence relied on could, with reasonable diligence, have been produced by the accused at the trial;
- b)Whether the evidence is apparently credible or at least capable of belief; and
- c)Whether the evidence if believed might reasonably have led a tribunal of fact to return a different verdict.[11]
- a)
- [13]Respectfully, I concur with and adopt the following observations of Henry J in Powell v Chief Executive Officer of Customs:[12]
“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.”[13]
- [14]From Mr Gall’s most recent submissions, it seems that he does not ask for leave to lead further evidence. Instead, he stated in his submissions that he had learned power lines and large metal objects could have an impact on the device through further research.
- [15]His source of information is unidentified and its reliability, therefore, is something the Court cannot assess. Nor is the Court able to determine whether the information would have been available to Mr Gall at trial or whether it might have led to a different outcome. In those circumstances, the test for allowing additional evidence has not been satisfied. To the extent that Mr Gall seeks to rely on this argument, then, it must fail.
Using the device down hill on sloping bends
- [16]Mr Galls’ second argument was that the mobile radar device was calibrated and tested on flat straight roads and that is how officers are trained to use it. None of those propositions was put to any witness at trial. The observations set out in [13] of these reasons are relevant to this second argument as well. Mr Gall has not sought leave to lead evidence to establish those propositions. Once again, the argument is based on unspecified information not before the Court.
- [17]
- [18]When he cross-examined her, Mr Gall put to Senior Constable Brett that the reading was taken down a hill around two sweeping bends. It is clear enough from her response that she understood this to be a question directed to the accuracy of the reading. She said the bends were only slight. She explained the radar emits a beam and, as long as the car is in front of the radar, it will pick up the car’s speed.[16] She also gave evidence that she did not lose sight of Mr Gall’s vehicle at any time during her period of observing and recording its speed.[17]
- [19]Mr Gall did not articulate this second ground so clearly during the summary trial. However, the learned Magistrate accepted that the police officers were experienced and trained in the use of the devices.[18] That was not challenged. Nor was there any evidence before her, and there is none before this Court, that the terrain for this stretch of the road would affect the accuracy of the reading. The appeal on this ground must, likewise, fail.
Inconsistencies in the officers’ accounts and the weight given to Mr Gall’s good character and denial
- [20]The final ground articulated by Mr Gall was that his conviction depended on the Magistrate rejecting his denial and accepting the evidence by the officers’ that they had correctly identified his vehicle as the one detected and measured by the mobile device. He argued her Honour should have rejected their evidence about that, because of inconsistencies in the officers’ evidence when describing the terrain and their location when estimating his speed at various times he was under their observation.
- [21]In his submissions filed on 12 July 2013, Mr Gall provided transcript references from the trial which, he argued, established his point. I have had regard to those passages and to the Commissioner’s response.
- [22]There is one relevant inconsistency between the evidence given by Senior Constable Brett and a statement made by Senior Constable Campbell at the scene. That related to the speed detected for Mr Gall’s car when it was driving up the hill. At the scene, Senior Constable Campbell put the speed at 80 something, while Senior Constable Brett said in her evidence that it was 108kms per hour up the hill.[19] That officer said the speed was detected at 87 km per hour on the flat at a time when she estimated the speed to be in the vicinity of 90 km per hour.[20]
- [23]When Senior Constable Campbell was cross-examined about that apparent inconsistency, she said it was difficult to say exactly where the flat stopped and the incline started.[21]
- [24]Both officers gave evidence that the car was recorded at more than 80 km per hour at some stage and, before he was pulled over, Mr Gall’s car was recorded as travelling at 108 km per hour.
- [25]The learned Magistrate did not directly advert to the argument that she should reject the officers’ evidence that it was Mr Gall’s car that was recorded, because of inconsistencies in the officers’ evidence. However, I am not persuaded the inconsistency in the officers’ description of the terrain at the time they noted a reading of more than 80km per hour could, reasonably, cast doubt on their evidence that the device recorded Mr Gall’s vehicle and no other.
- [26]This is not a case of the learned Magistrate having to decide between conflicting accounts of the officers and Mr Gall. The observations of Judge Ellis in Howard Lim v Regina[22], which Mr Gall relied upon, are not of assistance.
- [27]Her Honour did not need to reject Mr Gall’s evidence in order to be satisfied beyond reasonable doubt that it was his car that the mobile radar recorded travelling at 108 km per hour.
- [28]Both officers gave evidence that there was only one vehicle coming towards them. That was the vehicle driven by Mr Gall.[23] That evidence does not conflict with Mr Gall’s evidence that there was another vehicle travelling in the same direction as the police car.[24] Senior Constable Brett explained why such a vehicle, if it were there, would not have affected the reading.[25]
- [29]In this case, her Honour had to decide whether she was left in a state of reasonable doubt about whether the reading on the device was attributable to Mr Gall’s car. She clearly understood this was the central issue and that the prosecution case rested on the evidence of the officers about this matter.[26] Respectfully, her Honour cogently and concisely addressed this question. She stated her reasons for being persuaded beyond reasonable doubt with specific reference to the evidence led during the trial.[27] I see no error in the findings of fact made by the learned Magistrate or in her process of reasoning to her conclusion.
- [30]Orders:
- The appeal is dismissed.
- No order as to costs.
Footnotes
[1] Transport Operations (Road Use Management- Road Rules) Regulation 2005 (Qld) s 20.
[2] Transcript (Summary Trial Proceedings) 1-7[51] – [55]; 1-9[1] – [5].
[3] Justices Act 1886 (Qld) s 222.
[4] Fox v Percy (2003) 214 CLR 118, 126 [25] per Gleeson CJ, Gummow & Kirby JJ. See also Rowe v Kemper [2008] QCA 175 at [5] per McMurdo P.
[5] Transcript (Summary Trial Proceedings) 1-14[25] - [26], 1-18[25]-[29].
[6] Transcript (Summary Trial Proceedings) 1-29[12] – [14], 1-36[31]-[32].
[7] Transcript (Summary Trial Proceedings) 1-14[25] – [26].
[8] Transcript (Summary Trial Proceedings) 1-18[25]-[29].
[9] Transcript (Decision) 1-3[52]-[58]; 1-10[51]-[58]; 1-16 lines 10 – 22.
[10] Justices Act 1886 (Qld) s 223 (2).
[11] Gallagher v The Queen (1986) 160 CLR 392, 395 per Gibbs CJ.
[12] Powell v Chief Executive Officer of Customs [2012] QCA 338 at [41].
[13] Pavlovic v Commissioner of Police [2006] QCA 134 at [38].
[14] Transcript (Summary Trial Proceedings) 1-13[27]-[43].
[15] Transcript (Summary Trial Proceedings) 1-10[50] – 1-13[25].
[16] Transcript (Summary Trial Proceedings) 1-14[27]-[30].
[17] Transcript (Summary Trial Proceedings) 1-9[54]-[55].
[18] Transcript (Decision) 1-6[29]-[35].
[19] Transcript (Summary Trial Proceedings) 1-17 [21]-[31].
[20] Transcript (Summary Trial Proceedings) 1-10[42]-[43]; 1-15[3]-[9].
[21] Transcript (Summary Trial Proceedings) 1-25[5]-[9].
[22] Unreported decision of Ellis DCJ, New South Wales District Court, No. 56957 of 2011, 7 October 2011.
[23] Transcript (Summary Trial Proceedings) 1-14[25]-[26], [36]-[38]; 1-22[1]-[2].
[24] Transcript (Summary Trial Proceedings) 1-29[9]-[15].
[25] Transcript (Summary Trial Proceedings) 1-18[25]-[29].
[26] Transcript (Decision) 1-10 [39]-[44].
[27] Transcript (Decision) 1-12 [2] – 1-13[41].