White v Commissioner of Police
[2013] QDC 311
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- Unreported Judgment
- White v Commissioner of Police[2013] QDC 311
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White v Commissioner of Police[2013] QDC 311
White v Commissioner of Police[2013] QDC 311
DISTRICT COURT OF QUEENSLAND
CITATION: | White v Commissioner of Police [2013] QDC 311 |
PARTIES: | COLLIN WHITE (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | D133/13 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 6th December 2013 |
DELIVERED AT: | Maroochydore District Court |
HEARING DATE: | 1st November 2013; submission received 27th November 2013 |
JUDGE: | Robertson DCJ |
ORDER: | The appeal is dismissed and the appellant is to pay the respondent’s costs in the sum of $1,800 with that amount to be paid to the registrar of the District Court at Maroochydore within three months of today’s date and then paid to the respondent. |
CATCHWORDS: | APPEAL against conviction for speeding; whether appellant denied a fair trial; where appellant had given a non-compliant Notice to challenge aspects of the speed detection device; where at directions hearing he did not seek to pursue the issue; where at start of trial he was given the opportunity to adjourn to enable him to deliver a compliant Notice; where appellant declined that offer; where appellant sought recall of first police witness on resumed hearing; where he had supplied information directly to the Court during the adjournment which his Honour had caused to be provided to the prosecution; where appellant was given extensive scope to cross-examine on issues he regarded as relevant; where decision based essentially on findings of fact based on assessment of credibility Legislation: Criminal Code Act 1899 Justices Act 1886 Justices Regulation 2004 Transport Operations (Road Use Management) Act 1995 Cases: Al Shakarji v Mulhern [2010] QDC 476 Commissioner of Police v Al Shakarji [2013] QCA 319 Fox v Percy (2003) 214 CLR 118 Teelow v Commissioner of Police [2009] QCA 84 Tierney v Commissioner of Police [2011] QCA 327 |
COUNSEL: | Mr A Stark – ODPP (for the respondent) |
SOLICITORS: | Mr C White (self represented appellant) |
- [1]After a two day trial extending over two days 21 February 2013 and 20 June 2013, on 26 August 2013, his Honour Magistrate Taylor in the Maroochydore Magistrates Court convicted Collin White of speeding on the Bli Bli Road, Bli Bli on 15 February 2012.
- [2]Mr White appealed against that conviction by a notice filed pursuant to s 222 of the Justices Act 1886 on 28 August 2013. Both parties have filed outlines which I have considered.
- [3]As confirmed recently by the Court of Appeal in Commissioner of Police v Al Shakarji [2013] QCA 319, an appeal of this nature is by way of rehearing on the evidence before the Magistrate. As Morrison JA noted in that case, this means that I am bound to follow the prescription of the High Court in Fox v Percy (2003) 214 CLR 118 at 1126-1127, and conduct a real review of the evidence before his Honour, and make my own determination of relevant facts in issue, giving due deference and attaching due weight to his Honour’s view.
- [4]In this appeal, there is no application for leave to adduce fresh evidence. There is particular need to pay heed to the correct legal approach in a case such as this where the learned Magistrate’s ultimate decision was based on his assessment of the credibility of witnesses. As Margaret Wilson J noted in Al Shakarji (at para [65]), a rehearing is to be on the evidence given at the trial; that is a rehearing in the technical sense of a review of the record below, rather than a complete fresh hearing.
- [5]It is well established that to succeed on his appeal, Mr White must establish some legal, factual or discretionary error: Teelow v Commissioner of Police [2009] QCA 84 at [3] – [14]; Tierney v Commissioner of Police [2011] QCA 327.
The proceeding below
- [6]The trial commenced with a discussion between his Honour, the prosecutor and Mr White about Mr White’s intention or otherwise to challenge the accuracy of the LIDAR device used by police to detect speed, and whether he had given an appropriate notice under s 124(4) of the Transport Operations (Road Use Management) Act 1995 (the TORUM). There was a direction hearing before a different magistrate a few days before about this issue. Ultimately after the conclusion of the hearing I directed that a copy of the transcript of the directions hearing before her Honour Magistrate Hennessy on 18 February 2013 be obtained and copies were supplied to the parties with an invitation to make submissions within seven days. Only the respondent has made a further submission which does no more than repeat what was said in the Outline. I will deal with this issue later in my reasons.
- [7]His Honour gave Mr White a fair and comprehensive direction as to the trial process and his rights and no complaint is made in this regard.
- [8]The first witness was Senior Constable Lilly from the Sunshine Coast District Traffic Branch. His evidence was to the following effect. He is an authorised officer to use the LIDAR device. Although not asked directly if he was so authorised on 15 February 2012, there was no suggestion that he was not so authorised at that time. His qualifications tendered without objection indicate that he had completed courses prior to that date, and was authorised to operate the LIDAR device.
- [9]Between 6.00am and 7.00am on 15 February 2012, he said he conducted tests on the laser LIDAR device serial number OXO14619 in accordance with various guidelines and Standards, and found that the device was working in accordance with those Standards. He was on a 6.00am to 4.00pm shift that day performing traffic duties with Senior Constable Ward. At some time between 3.00pm and 4.00pm on that same day, he tested the device again and it was producing accurate results. A number of certificates (Exhibits 2 and 3) were tendered through him relating to the device being tested and found to be accurate at the Police Calibration lab on 21 July 2011, and under the hand of Senior Constable Lilly certifying that the device was used by him at 2.15pm on 15 February 2012 in accordance with the appropriate Australian Standard. The effect of Exhibit 2 is that it is evidence that the device was producing accurate results for one year after the date of testing which was 21 July 2011.
- [10]The two relevant Australian Standards were tendered as Exhibit 4.
- [11]Senior Constable Lilly told the court that at around 2.00pm on 15 February 2012, he and Senior Constable Ward set up a static site on Bli Bli Road near the intersection with Willis Road. He and Ward had at first checked and confirmed that there were two 60 kph speed limit signs on Bli Bli Road facing traffic travelling in an easterly direction. The site was set up to conduct speed enforcement using the LIDAR device at around 2.10pm. At approximately 2.15pm he noticed a white vehicle travelling in an easterly direction. He spoke to Ward and then targeted the vehicle by putting the aiming dot of the device on the number plate of the vehicle and pressing the trigger. The number 94 appeared in the inscape display. He then indicated to the vehicle to pull over. He noted that it was a Daihatsu registered 418-GER. Senior Constable Lilly then approached the driver. There is no dispute that it was Mr White.
- [12]The police officer then had a conversation with Mr White which was recorded. A copy of the recording was tendered as Exhibit 5 and a transcript was provided as an aid, and the recording was played in the court.
- [13]The police officer showed Mr White the display which he said recorded the speed of his vehicle at 94 kilometres per hour at 215.2 metres. Mr White, in summary, challenged the speed, thought the speed limit was 80 kilometres per hour, and did not know when he last looked at his speedometer. As can be heard from the conversation, the police officer was initially prepared to write the speed at 90 kilometres per hour to reduce the penalty, but changed his mind when Mr White argued with him and said he would challenge the matter in court. A ticket was issued for 94 kilometres per hour with a penalty of $466.
- [14]The police officer gave evidence that after they had finished duties at the site, at around 3.10pm Senior Constable Ward took a series of digital photographs. The first in a series of three, he said depicted the view he had of the Bli Bli Road and of vehicles travelling east towards his position. On that photograph he has marked with a red circle where he says Mr White’s vehicle was at the time he targeted it with the LIDAR. As he notes, Mr White’s vehicle was in a position behind the truck depicted, and would have been obscured by a truck in that position. He told his Honour that when he targeted Mr White’s vehicle and operated the device, there were no other vehicles in his line of sight. The second photo depicts where he sat when he operated the device. Photograph three depicts the two 60kph speed signs facing drivers travelling east with an intersection indicator sign which Senior Constable Lilly said was for the intersection between Bli Bli Road and Bennets Road, which he said was 900 metres west of where he and Senior Constable Ward had set up. He gave evidence that those speed limit signs govern that whole distance of 900 metres. He also corrected the suggestion he had made earlier about another 60kph speed sign near School Road, which was not the case.
- [15]The cross-examination of Senior Constable Lilly by Mr White then proceeded over 65 pages of transcript. To say that it highlights the difficulties for courts in dealing with self represented litigants is an understatement. Much of it was irrelevant, some is repetitive, and having read it, his Honour exhibited patience and courtesy of Job like proportions in dealing with Mr White. There were questions about the officer’s formal statement, and some sort of suggestion that the road signs depicted in Exhibit 3 were placed there without authority. There were many exchanges between his Honour and Mr White as his Honour patiently endeavoured to keep the questioning relevant, and to explain the differences between evidence and arguments.
- [16]At one point Mr Whit was critical of the police officer for changing the speed on the ticket, asserting some sort of breach of duty. Both the witness and his Honour attempted to explain to Mr White the nature of discretion invested in police officers in certain circumstances.
- [17]When the hearing resumed on 20 June 2013 his Honour heard an application by Mr White to recall Senior Constable Lilly on the basis of a letter sent to his Honour by Mr White on 22 March 2013 attaching a number of emails including one from a body called Aussie Speeding Fines, authors of “Speeding Fines – What you REALLY Need to Know”. The letter is on file with the date stamped 22 March 2013. At his Honour’s direction, a copy was sent to the prosecutor prior to the resumed hearing.
- [18]It is only necessary to quote in part from the email exchange to understand the issue that was troubling his Honour at this point in the trial. In his email to “Aussie Speeding Fines” Mr White said that in relation to the evidence of Senior Constable Lilly “(he) gave testimony that if a LIDAR device is moved at the exact time of (sic) which he depresses the trigger he does not get a speed reading – he gets an error reading. Am trying to establish whether or not that is true”.
- [19]The reply from “The Team” was to this effect:
“Not only will moving the radar whilst you take the reading not give you an error, it is a common (sic) used practice called ‘sweep error’… that makes it very easy for the police to ‘create’ false readings deliberately.
All you have to do is ask the cop on the stand if he knows what a sweep error is – he has to answer yes otherwise you have just proven his incompetence because it is in the training manual itself – and you then ask him if he can prove to the court that the reading he obtained could not have been obtained as a result of a sweep error.
Case closed;
Go get em.”
- [20]There then followed a lengthy discussion which referred back to the earlier directions hearing and the first day of the trial.
- [21]The effect of all this discussion was that the prosecutor conceded, and had always conceded, that Mr White had given a Notice in time pursuant to s 124(4) of the TORUM of matters set out therein, but that his notice was defective in that, it referred to a radar device not an LIDAR. As the prosecutor explained on many occasions, she brought on the directions hearing three days before the trial to resolve the issue and Mr White explained to the other magistrate that he did not intend to take the matter further.
- [22]In the lengthy discussion on the first day of the trial it was made abundantly clear to Mr White that if he wished to file a new s 124(4) notice, an adjournment would be granted to enable him to do that. The prosecutor made it clear that if it was necessary as a result to call an expert, and the challenge to the accuracy of the device was unsuccessful and Mr White convicted, police would seek the costs of the expert, one of whom would come from interstate. This was all explained to Mr White, and he clearly understood. He had a copy of the Standard with him in court which he had purchased. He wished to proceed, and indeed at T1-19 L31 he said “I can’t find any issue in there (referring to the Standard) where the police office has not complied with the Australian Standards”. What is clear is that Mr White wanted to challenge Senior Constable Lilly’s evidence on the basis that there was not a direct line of sight between the device and the vehicle because of curves in the road, and because the police officer was “on a different horizontal plane” to his vehicle. These questions were asked by Mr White. The police officer confirmed his evidence-in-chief that being above the defendant’s vehicle, in the sense that police were at the top of the hill, made no difference at all to the accuracy of the reading. Mr White also asked many questions directed at the proposition that the police officer may have moved when operating the device which the officer rejected.
- [23]Ultimately his Honour refused the defendant’s application to recall Senior Constable Lilly on the basis that Mr White was precluded from asking about “sweep error” because he had not given proper notice under s 124(4) and had not taken up the opportunity to give a proper notice at the start of the hearing when the adjournment was offered to him.
- [24]Senior Constable Ward was then called, and essentially he confirmed Senior Constable Lilly’s evidence as to what occurred. He confirmed Senior Constable Lilly’s evidence that at the time he saw his colleague aim the LIDAR at the white vehicle, there were no other vehicles in front of it. It was suggested to him by Mr White that at that time he said “here comes a car, let’s stick him up with the retained reading that we have on the lighter?” (sic) – it should be LIDAR. The police officer denied anything like that was said. He said words to the effect “look at this vehicle this vehicle is speeding”. Senior Constable Ward denied suggestions that he had altered the photograph.
- [25]He confirmed that he saw 94 displayed on the device after Senior Constable Lilly had used it in relation to Mr White’s vehicle. He also confirmed that underneath the 94 was displayed 215.2 which is the distance in metres from the device to the vehicle at the time the device was activated. As he said, that information remains displayed on the device until it is used again. Mr White then took up a theme of what would be serious criminal conduct by both police officers, to the effect that the reading on the device was as a result of the police retaining it on the device and simply using it then to book other motorists. Senior Constable Ward strongly rejected the suggestion; in fact at one point he said that while Mr White was still there and after the reference to the device in the conversation with Lilly, he, Ward used the device on a truck which stopped, and the driver was issued with an infringement notice by Ward showing a different speed.
- [26]Mr White then gave evidence. He told his Honour about the vehicle he was driving which he said he never drove over 90 kilometres per hour over a period of two years. He referred in detail to his business deliveries on 15 February 2012 and that he had collected a consignment of five floral arrangements at Nambour at 2:03pm according to his delivery book. At the time he was intercepted by police he was heading towards Twin Waters, and he arrived there at 2:34pm after being stopped by police.
- [27]He had, he said, re-enacted the journey from Nambour to where he was stopped, and he suggested (really by way of submission), that over that time he averaged 32 kilometres per hour.
- [28]He agreed he was the driver of the vehicle that was stopped by the police officers. He did not suggest (consistently with what he told Lilly at the scene) that he looked at his speedometer prior to being intercepted. He said he was driving along at a “comfortable” speed. He said as he came around the bottom corner he saw police up on the road. He did not suggest that there was any vehicle between himself and the police. In answer to a question from his Honour, he accepted that the transcript of the conversation with Senior Constable Lilly was accurate with the exception of a few words.
- [29]During cross-examination he accepted that he was the driver of the vehicle and was intercepted at around 2:15pm. The prosecutor had misheard some evidence given by Mr White in the early part of his evidence. He had told his Honour that “the vehicle struggled at certain sections out on the Bruce Highway within the regulated zone of 110kph.” He did not say that in fact it did struggle as the prosecutor had noted. Nevertheless, he did accept that the vehicle was capable of travelling at least 110 kilometres per hour “if you want to push the limits”. He agreed that he hadn’t driven that road a lot and did not recall noting the speed signs.
- [30]In his final address, the appellant essentially argued that the prosecution had failed to prove that his vehicle was travelling at 94 kilometres per hour. Although difficult to follow, in effect, he submitted that his Honour would have a reasonable doubt about the reliability and truthfulness of the police officers, in particular Senior Constable Lilly, and would acquit on that basis. He submitted that the reading shown to him by Senior Constable Lilly on the day was a “retained” reading, and then criticised the police officer’s honesty on the basis that he did not initially record the speed as 94kph in the ticket.
- [31]He referred to a decision of McGill DCJ in Al Shakarji v Mulhern [2010] QDC 476 which relates to another speeding offence contested by the unsuccessful respondent in the 2013 Court of Appeal case referred to earlier. I will make reference to that case later as it is raised in the appellant’s outline.
His Honour’s reasons
- [32]His Honour delivered his reasons for convicting Mr White on 22 August 2013. Essentially, after summarising the evidence discussed in more detail above, he found the police officers were honest and straight forward and he believed their evidence. He rejected Mr White’s evidence where it conflicted with the evidence of the police. He specifically rejected what he described as “contentions” made by the appellant that the officers had colluded to stitch him up and that the speed of 94kph had been retained on the LIDAR device and was a reading from another vehicle.
- [33]His Honour dealt with s 24 of the Criminal Code. This was not raised by Mr White but his Honour was obliged to deal with any legal excuse if raised properly on the evidence. His Honour identifies as the mistake as to a state of things the defendant’s belief that he was travelling at an average of 32 kilometres but up to 64 kilometres per hour through the course of his trip from Nambour to where was stopped by police. At page 6 of his reasons his Honour identified a number of aspects of Mr White’s own evidence, and found that on the evidence, the prosecution had satisfied him beyond a reasonable doubt that if he did in fact have a mistaken belief, that belief was not reasonable.
The appeal
- [34]The notice of appeal and outline filed 13 September 2013 are again infected by the misunderstandings and ignorance of the law and legal system by many lay people. In essence, the appellant contends that his Honour erred in accepting the police evidence and should have entertained a reasonable doubt.
- [35]The first ground is not a ground of appeal. The record shows that on 19 July 2012 the appellant was convicted in his absence and fined. That order was set aside on 6 December 2012 and ultimately the matter proceeded to trial. In oral argument before me Mr White accepted that this ground was not sustainable.
- [36]The grounds, or submissions set out at pages 2-4 demonstrate Mr White’s lack of legal knowledge. Motive, means, and opportunity are not issues that arise in a trial of this nature unless the defence was that he was not the driver. There is no merit in any of these grounds.
- [37]The other grounds referred to at pages 5, 8, 9, 10, 11, 12, 13 and 14, can be dealt with together. All are overcome, when one considers his Honour’s conclusions on credibility and reliability. Having reviewed the evidence carefully, I can find no basis to criticise those findings. On all the evidence before him, his Honour was entitled to make the factual findings that he did. If the appellants’ contentions to the effect that a fact finder must be “one hundred (100) percent” sure of a fact before accepting it then, of course, no one would ever be convicted.
- [38]The remaining grounds are articulated at pages 6-7 of the outline. I take these to contend that his Honour erred in law in not permitting the appellant to challenge the accuracy of the LIDAR device, and in not acceding to the appellant’s application made at the start of the second day of the hearing for the recall of Senior Constable Lilly who was said by the prosecutor to be overseas. In other words, I take the submission to be that the appellant was denied a fair trial as a consequence of either or both of these issues.
- [39]In relation to the first issue, it is clear from the above analysis of the exchanges at the start of the trial, that the appellant was given every chance to have an adjournment so that he could amend his s 124(4) notice, and he was put on notice that if an expert was called and he was convicted, he might have to pay the costs of the experts. This is all in the context which is described above, including the earlier directions hearing where the appellant apparently indicated he did not wish to pursue the matter. The lengthy exchanges between his Honour and the appellant show that he was able to understand the issue; indeed he had a copy of the relevant Australian Standard, and stated in effect that he could not see any basis for alleging that the police had not complied with the Standard.
- [40]Since hearing the appeal I have read on the lower court file what I presumed to be the s 124(4) notice referred to at the commencement of the hearing and the start of the second day. It is dated 12 December 2012 and signed by Mr White. It is filed out of order immediately after a notice to the parties for the directions hearing on 18 February 2013, and an email to the registrar from the prosecutor dated 14 February 2013 referring to a five page notice raising 16 issues.
- [41]A careful reading of that document indicates perhaps why Mr White did not press his notice to challenge the accuracy of the device, or that Senior Constable Lilly had not complied with the appropriate Standard.
- [42]As a result of locating the notice on the file, and Mr White’s letter to his Honour referred to and discussed in great detail at the commencement of the second day of the hearing, together with an email fro the prosecutor to the Registrar dated 14 February 2013, I determined to order a copy of the transcript of the directions hearing before Magistrate Hennessy on 18 February 2013. Copies of all these documents have been provided to the parties.
- [43]It is not disputed that the notice on the file under cove of letter dated 12 December 2012 is clearly the notice that was the subject of the directions hearing and the discussion at the start of the trial. Prior to receiving the transcript and later in the day on 1 November 2013 I forwarded all other documents to the parties and invited submissions as to the following matters of fact and law:
“(a)Is the notice dated 12 December 2012 the notice referred to in discussion with his Honour at the commencement of the Magistrates Court hearing; (neither party suggest otherwise)
(b)In relation to 22 March 2013 letter (the Aussie Speeding Fines issue), are there any implications in light of s 124A(2) of the Transport Operations (Road Use Management) Act 1995”.
- [44]As I have noted the notice is clearly defective and Mr White was clearly apprised of the issue both at the time of the directions hearing and when the trial commenced before his Honour. The prosecutor raised similar issues before Magistrate Hennessy on 18 February 2013 to what she raised before his Honour on the first day of the hearing. At the conclusion of the discussion her Honour said to Mr White “okay, I don’t know that we need to do anything further about it this morning (referring to the notice) because you’ve now heard what the prosecutors position is” to which Mr White replied “yep. I won’t waste the court with those issues on Thursday”.
- [45]As I have noted earlier having now perused the notice it is understandable why Mr White did not take up the opportunity to have an adjournment and to pursue issues relating to the accuracy of the LIDAR or the way in which the device was used on the day.
- [46]To some extent, as indicated above, he was permitted to intrude in cross-examination into some of those areas but there was nothing in the evidence to undermine Senior Constable Lilly’s evidence that the LIDAR was accurate both before and after the detection and that it was operated in accordance with the Australian Standards.
- [47]The other issue raised relates to the Aussie Speeding Fines issue and s 124A(2) of the TORUM. Mr White has not made any further submission, and there is no ground articulated in any meaningful way anywhere in the Notice of Appeal or the outline and were I consider it to have merit I would reopen the appeal and allow both parties to address the issue.
- [48]Although the issue about “sweep error” was not known to the appellant before the hearing, and, for present purposes I will accept that he complied with s 124A(2)(b), it seems to be an issue to do with the way in which the device is operated, and not a challenge to the certificate under s 124(1)(2)(b). The appellant was given every opportunity to question Senior Constable Lilly as to how he operated the device and did so extensively. In the absence of any more detail about the issue raised in the Aussie Speeds email, it cannot assist the appellant.
- [49]This is not an issue of the type identified by his Honour judge McGill SC DCJ in Al Shakarji v Mulhern [2010] QDC 476 as articulated in para [47]-[48] of his Honour’s reasons. This was not the issue raised by the appellant and given his Honour’s findings there was no scope for such an issue on the basis of the conclusions his Honour reached in relation to the evidence.
- [50]It follows that the appeal has no merit and is dismissed.
- [51]The prosecutor has applied for costs fixed at $1,800. The appellant made no specific submissions in response to that application.
- [52]Such an order may be made pursuant to s 226 of the Justices Act 1886, and in deciding what award of costs is just, pursuant to s 232A, allowance may only be made up to the amount allowed for in an item in the Justices Regulation 2004. The respondent was legally represented in this appeal and there is no reason for doubting that as much as $1,800 has been incurred in the representation.
- [53]The orders of the court are that the appeal is dismissed and the appellant is to pay the respondent’s costs in the sum of $1,800 with that amount to be paid to the registrar of the District Court at Maroochydore within three months of today’s date and then paid to the respondent.