Moss v Commissioner of Police[2013] QDC 73

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was convicted in the Redcliffe Magistrates Court on 25 June 2012 of one count of driving a vehicle in excess of the 60 kilometre per hour speed limit on Anzac Avenue, Kippa‑Ring on 28 August 2011. It was alleged that he was travelling at a speed of 101 kilometres per hour.

2. [2]
   He was convicted after a trial, fined $933.00 and was ordered to pay court costs of $78.50. These amounts were referred to the State Penalty Enforcement Registry.

3. [3]
   The appellant filed a notice of appeal against his conviction on 23 July 2012.

Circumstances of the offence

4. [4]
   The appellant was allegedly driving his vehicle on Anzac Avenue at Kippa‑Ring on 28 August 2011 when he was detected by a photographic detection device to be travelling at 101 kilometres per hour in a 60 kilometre per hour zone. An infringement notice was issued to the appellant.

Details of the summary trial

5. [5]
   The matter was tried summarily on 25 June 2012. The appellant represented himself. The prosecution did not call any witnesses. The prosecution case was constituted by a number of certificates which were tendered as exhibits. Relevantly, they included:

a.A photograph (Exhibit 1) showing a vehicle bearing registration number 520 CYA, said to be travelling at a speed of 101 kilometres per hour at 12.27 p.m. on 28 August 2011, accompanied by a certificate issued pursuant to s120(2) of the Transport Operations (Road Use Management) Act 1995 (‘the Act’) certifying the image was taken by an approved photographic detection device, that being a GATSO Speed Camera;

b.A certificate issued pursuant to s120(2A) of the Transport Operations (Road Use Management) Act 1995 certifying that the photographic detection device was tested in accordance with specifications and regulations and that it was producing accurate results (Exhibit 7);

c.A certificate issued pursuant to s 60(2) and s 124(1) of the Transport Operations (Road Use Management) Act 1995 certifying a vehicle bearing registration number 520CYA was registered to the appellant on the date of the offence (Exhibit 6);

d.A certificate issued pursuant to s 157(2)(a) of the State Penalties Enforcement Act 1999 certifying the infringement notice had been sent to the appellant (Exhibit 4);

e.A certificate issued pursuant to s 157(2) of the State Penalties Enforcement Act 1999 certifying the infringement notice involved a vehicle bearing registration number 520CYA (Exhibit 5);

f.A certificate issued pursuant to s 157(2)(j) of the State Penalties Enforcement Act 1999 certifying that no notice had been received from the appellant that another person was driving the vehicle at the time of the offence (Exhibit 3); and

g.Two duly executed instruments of delegation (Exhibits 8 and 9).

6. [6]
   The appellant gave very brief evidence that he recalled driving down Anzac Avenue at Kippa‑Ring on 28 August 2011. His evidence however did not go beyond that as he informed the Magistrate after giving that evidence that he did not wish to give evidence from the witness box and be subjected to cross-examination. Notwithstanding that he had been sworn as a witness he was permitted to return to the bar table and he gave no further evidence.

7. [7]
   In relation to Exhibit 1, s 120(2) of the Act provides that an image produced by the prosecution purported to be certified by the Commissioner of the Queensland Police Service stating that the image was properly taken by a photographic detection device at a specified location is evidence:

1. (a)
   That the image was taken at the specified location and time;

2. (b)
   Of the accuracy of the image;

3. (c)
   Of the thing depicted in the image; and

4. (d)
   That any requirements prescribed by a regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times.

8. [8]
   Furthermore, subsection (4) provides that any marking or writing made by a photographic detection device on an image is taken to have the meaning prescribed under a regulation and is evidence of what it is taken to mean.

9. [9]
   Relevantly, Exhibit 1 has a “data block”^[1] in its top right corner which contains information required by Part 3 of Schedule 11 of the Traffic Regulation 1962. In addition to hand written information (I assume in the operators hand writing) which is of no particular relevance to this matter, it also shows on the top line of the digital information the letter “F” which indicates that the subject vehicle is travelling towards the camera. That line also displays the vehicle’s speed in relation to the ground at the time the image was taken. It shows the vehicle was travelling at a speed of 101 kilometres per hour. The next line down shows the time and date that the image was taken and the bottom line shows the number given in the traffic camera coding manual for the location of the systems camera when the image was taken (first six digits on the line) as well as the speed limit at that location (next three digits) and the number allocated sequentially by the system for each image taken by the systems camera after the film magazine was inserted in the camera (last three digits). Relevantly that information advised that the subject vehicle was travelling towards the camera at a speed of 101 kilometres per hour in a 60 kilometre per hour zone at 12.27 pm on 28 August 2011.

10. [10]
    The photograph itself shows a white Ford wagon (registration number 520CYA) travelling towards the camera whilst straddling the broken white centre line of the two lanes of travel in that direction. It also shows another vehicle some distance behind also travelling in the same direction. Only a small portion of that vehicle is visible at the right hand edge of the photograph. Behind that vehicle a very small portion of the roof and the driver’s side view mirror of another vehicle, also travelling in the same direction is visible.

11. [11]
    In relation to Exhibit 7, s 120(2A) of the Act provides that such a certificate is evidence of the matters stated and is evidence that the device was producing accurate results when so tested and continued to do so for one year following the date of testing. The date of testing was 9 December 2010. This certificate therefore was evidence that the device was producing accurate results in August 2011.

Grounds of appeal

12. [12]
    In his Notice of Appeal, the appellant has stipulated his ground of appeal as being:

“Magistrate ignored the fact that the main prosecution witness was missing at the hearing.”

13. [13]
    In his outline of argument the appellant has formulated a number of additional grounds upon which he has based his appeal. He submits:

1.The complete evidence tendered by the prosecution failed to prove the very first element of the charge;

2.That no such evidence was tendered that the speed camera complied with “Chapter 6 of the current QPS Commissioners (sic) Rules”;

3.That the police witness must be present along with sworn statements by that witness as part of the brief of evidence, and that witness must provide the court with a certificate stating the device was used in accordance with Australian Standards, and no such witness was present and did not sign any such certificate;

4.That the certificates tended (sic) by representatives of the camera office were worthless;

5.There were multiple vehicles in the photographic image;

6.That the learned Magistrate “cannot lawfully prevent a defendant from questioning his accused just because they failed to provide an intention to challenge form”;

7.That “for a Magistrate to sit there and state that they can hear no evidence from a defendant (and) refuse to allow a defendant to ask legitimate questions of their accuser is not justice”;

8.That the appellant was not afforded procedural fairness in that the learned Magistrate did not explain the consequences of electing not to give evidence;

9.The learned Magistrate failed to give weight to the defendant’s “no case to answer” at the start of proceedings for the failure of the prosecution to provide their camera vehicle operator as a witness;

10.That the learned Magistrate “gave no weight whatsoever to the appellant’s good character and denial of the charge”.

Consideration of issues

14. [14]
    I will deal firstly with ground number 8 above, that is that the Magistrate did not afford procedural fairness to the appellant.

15. [15]
    The appellant was self-represented at the trial. The learned Magistrate accordingly took some time to explain to the appellant the trial process and the options which were open to him particularly in relation to the decision that he needed to make as to whether or not to give evidence. In that regard, the transcript shows that the following exchanges occurred:

“BENCH:Yes. Ok. So, unless you’ve got anything else you want to raise at this stage, I’ll explain a couple of things by way of procedure to you and it’s a little bit short-circuited because of the fact that there won’t be any police actually giving evidence from the witness box; So it’s a paper prosecution so to speak, that’s what they call it, on the papers.

And then what you do is – you’ll have the right to see any of those papers that get tendered up, those documents as exhibits. Then you can jump in the box and give your evidence, that’s the witness box there and the prosecutor can ask you questions by way of cross-examination.

Now, there are a couple of things to that; As I say – explain this to anybody that’s in your position that’s not legally represented, you don’t have to get in the witness box if you don’t want to because you have to remember that once you give your evidence in chief you will be cross-examined by the prosecutor and the prosecutor can challenge you on your evidence because you’ve given your evidence in chief.

As an alternative to your giving evidence from the witness box, you can simply make a statement from the bar table and no adverse inference can be drawn from that. The only problem with you giving a statement from the bar table, as compared to giving evidence from the witness box is the fact that; if you give evidence from the witness box it carries greater weight than you making a statement from the bar table because of the fact – one of the main reasons being is that the prosecutor doesn’t have the chance to cross-examine you on your evidence and test your evidence, so to speak, you know what I mean?  And it’s not given on oath or affirmation, it’s simply a statement from the bar table, ok?  That’s if you choose to go that way^[2].

…

BENCH:Then once they’ve handed up all those documents and they’ve been admitted and marked, then they close their case and you give either your evidence from the witness box or you make your statement from the bar table – once you’ve closed your case, that is once you finish perhaps giving your evidence from the witness box and you retreat to the bar table, then I would normally hear from the prosecutor as to why I should find you guilty and then you can address me as to why I should find you not-guilty. And then I should be in a position hopefully to give my decision, ok?^[3]

…

BENCH:No. Well, you don’t – you don’t have to be – I mean, you don’t have to put yourself in a position of giving evidence from the witness box. The problem with that is, as I’ve explained, if you don’t give evidence from the witness box, if you make a submission from the bar table, it doesn’t carry the weight that it normally would if it was under oath or affirmation from the witness box see? 

The thing with you giving evidence from the witness box is you will be cross-examined by the prosecutor and you know, you don’t have to be fearful of that, you just have to be mindful of the fact that you will be challenged because you give your evidence on oath, the prosecution will try to basically find faults or problems with your evidence. You know they will try and prove the charge beyond a reasonable doubt because that’s their role to do that.^[4]

…

BENCH:…I don’t want to rush you into anything. You can have a bit of at think about how you want to approach it, whether you take – give evidence from the witness box or you simply make a submission from the bar table.

Just be mindful that it just doesn’t carry the weight that it normally would if you were giving evidence from the witness box because see the prosecution can’t – is left at a disadvantage because they can’t challenge you on a statement from – you made from the bar table; that’s what I’m explaining.^[5]

   …

BENCH:Just be – I understand what you’re saying but just bear in mind that if you just decide to go with the submission from the bar table and I don’t know obviously what’s in your statement, but if you make a submission from the bar table and you elect not to give evidence from the witness box, the prosecution may well say; “well, you know, I object because” – it may be a self serving thing or whatever, whereas- and they don’t have the chance to cross-examine you. Whereas if you’re in a witness box you give your evidence-in-chief and then they will cross-examine you, or the prosecutor will.^[6]”

16. [16]
    At the close of the Prosecution case the Magistrate asked the appellant if he would like to give evidence from the witness box. The appellant indicated that he would and he was then sworn as a witness. There was then a discussion between the appellant and the Magistrate regarding how he would give his evidence-in-chief. The appellant gave the following brief evidence before he was interrupted:

“I didn’t see the – I didn’t see the camera vehicle as I drove past it, so I recall driving down that road on that particular day, yes.”^[7]

17. [17]
    Following that comment, a discussion took place between the appellant and the Magistrate about how the appellant would give his evidence in chief. The appellant indicated that he had a prepared statement from which he wished to read. During that discussion the appellant said that he had made a mistake and that he had changed his mind and wished to make a statement from the bar table rather than from the witness box. During that discussion the following passage appears:

“BENCH:…because you haven’t done anything at all, you haven’t really gone into evidence at all, if you want to, say, “Look, I just simply want to make a statement from the bar table”, it’s up to the prosecutor as to whether she objects and I wouldn’t have thought that she’d probably be raising the objection at this stage. But…?.. Ok

 …the thing is as I tried to attempt to say before ---? …because I didn’t realise that I had to ----

 …if you do read out a statement from the bar table, there may be well some points in there that she may object to, and I don’t know what your statement says. But, do you have any objection to him referring to his statement or not, in his evidence?”^[8]

18. [18]
    Later, during that same discussion, the Magistrate told the appellant that he could read from his statement at “the end” as a submission. After he was excused as a witness the Magistrate asked the prosecutor if she had any objection to the appellant making a statement from the bar table to which the prosecutor responded that she did not. The Magistrate then said to the appellant:

“BENCH:Ok. You can return to the bar table. Just bear in mind you’ve been given the opportunity to give the evidence from the bar table – from the witness box, I should say, and you’ve elected not to.”^[9]

Shortly thereafter the Magistrate said:

“If you want to make a statement now, rather than not giving any evidence, you can make your statement and ---”

19. [19]
    Whilst the Magistrate attempted to ensure that the appellant had a fair trial, it did not occur for two reasons. The first is that the Magistrate repeatedly advised the appellant that he could give a statement from the bar table in lieu of giving evidence from the witness box. Of course, that was incorrect. Only submissions can be made from the bar table. Any statement of fact made from the bar table does not constitute evidence. I perceive that the appellant would have been left in no doubt from the comments of the Magistrate that he could, if he wished, make a statement of fact from the bar table. No other conclusion could be drawn from the Magistrates comments. That was confirmed by the appellant’s attempt to give “evidence” of his recollection of the speed that he was travelling at, at the relevant time, from the bar table.^[10]

20. [20]
    Secondly, the Magistrate failed, at the appropriate time, to inform the appellant of the potential consequence of failing to give evidence i.e. there would be no evidence before the court to challenge the prosecution evidence. That warning only occurred after the decision to not give evidence had been made.^[11]

21. [21]
    These were matters directly relevant to the decision that the appellant had to make as to whether or not to give evidence. In the absence of a correct understanding of these basic rules of evidence and procedure and their potential consequences, an informed decision could not be made.

22. [22]
    A trial Judge or Magistrate has an overriding duty to ensure a fair trial.^[12]In MacPherson v R (1981) 147 CLR 512 the trial Judge failed to advise the self-represented accused of his right to challenge the voluntariness of his confession on  a voir dire in the absence of the jury. The High Court held that such advice should have been given. The situation in this case is analogous.

23. [23]
    That which is required to ensure a fair trial will vary from case to case depending upon individual facts and circumstances.^[13]In my view, despite his obvious good intention, the Magistrate in this matter failed to ensure that the appellant was fairly tried. The appeal should succeed for that reason, although in my view the appropriate order would be to remit the matter to the Magistrates Court for rehearing to be presided over by another Magistrate, thus ensuring that justice is ‘seen to be done’.^[14]

24. [24]
    As far as the remaining grounds of appeal are concerned I’m of the view that they are without merit. I will deal with them each briefly in term.

Magistrate ignored the fact that the main prosecution witness was missing at the hearing

25. [25]
    It cannot be said that “the Magistrate ignored the fact that the main prosecution witness was missing at the hearing” when the legislation specifically allows a prosecution case on a matter such as this to be presented by way of duly authorised certificates. Furthermore, prior to the commencement of evidence, the Magistrate specifically asked the appellant if he wished to question the police officer involved to which the appellant said that he did not.^[15]The appellant had not given a notice pursuant to s 120 (8) of the Act indicating that he intended to challenge the accuracy of the photographic detection device or the image that was taken by that device or a marking or writing made by that device on the image.^[16]In the absence of such a notice there is no legislative requirement for the operating police officer to give evidence at trial. It would therefore be quite wrong to find that the conduct of the prosecution case by way of the tendering of certificates permitted at law in some way rendered the trial unfair.

The complete evidence tendered by the prosecution failed to prove the very first element of the charge

26. [26]
    There is no merit to the submission. The prosecution established each element of the offence by way of the certificates that were lawfully tendered. The first element of the offence for this charge is that “a driver must not drive at a speed over the speed limit”. The evidence in this trial demonstrated that the appellant was detected by a Gatso speed camera system model radar AUS 24, travelling at a speed of 101 kilometres per hour in a 60 kilometre per hour speed zone.^[17]There was no reason for the Magistrate to not accept that evidence.

No such evidence was tendered that the speed camera complied with “Chapter 6 of the current QPS Commissioners Rules”

27. [27]
    It is not clear what the appellant is referring to when he speaks of the QPS Commissioners Rules. I can find no evidence of the existence of any such rules. I suspect he is referring to a traffic manual which is located on the Queensland Police Service website that has a “Policy” provision within the “Right to Information” section.^[18]Assuming that is the policy that the appellant refers to, it does not constitute a law but rather a Queensland Police Service rule or guideline. There is no legislative requirement that the speed camera had to comply with such a guideline or policy. There is no merit to this ground.

The police witness must be present along with sworn statements by that witness as part of the brief of evidence, and that witness must provide the Court with a certificate stating that the device was used in accordance to the Australian standards, and no such witness was present and did not sign any such certificate.

28. [28]
    As I have already indicated there is no requirement at law for a police officer to provide oral testimony in a matter such as this. The prosecution established the elements of the offence through the exhibits which were tendered at the trial. Those exhibits were certificates, the tender of which was permitted under this Act and the State Penalties and Enforcement Act 1999. They comply with and are admissible under those pieces of legislation. In that regard the certificate attached to Exhibit 1 specifically states that the image was properly taken by the relevant photographic detection device (my underlining). That is evidence upon which the Magistrate could and did rely to show that the device was used in an appropriate way. There is no merit in this ground.

The Certificates tendered by representatives of the camera office were worthless

Once again there is no merit to this submission. The certificates were executed by a duly authorised delegate.

There were multiple vehicles in the photographic image

29. [29]
    The appellant placed some reliance in submissions on the fact that a small portion of a following vehicle can be seen in the image in Exhibit 1. He argued that the Court could not be satisfied to the requisite standard that it was his vehicle that was monitored by the detection device as travelling at 101 kilometres per hour given that another vehicle travelling in the same direction can be seen in the image. However before he could legitimately raise this issue, the appellant was required, pursuant to the provisions of s 124 (4) and (5), to submit a notice in the approved form stating the grounds upon which he intended to challenge either the accuracy of the speed detection device or the way in which the relevant device was used at the time. Failure to submit such a notice prohibited the appellant from challenging or raising this issue at the hearing. Not only did he not provide the requisite notice, but during discussions with the Magistrate, the appellant indicated that he was not challenging the accuracy of the speed detection device.

30. [30]
    In those circumstances, the appellant cannot now come to this court and claim that there was an unfairness that occurred in the trial below. And, so far as the image contained in Exhibit 1 is concerned, when it is considered together with the other certificates that were tendered during the hearing, there was sufficient evidence to enable the Magistrate to find beyond reasonable doubt that the appellant’s vehicle was the vehicle travelling at 101 kph at that time.

The learned Magistrate “cannot lawfully prevent a defendant from questioning his accuser just because they failed to provide an Intention to Challenge form”

31. [31]
    The learned Magistrate explained to the appellant that, if he was intending to challenge in anyway the accuracy of the equipment used by the Queensland Police Service, there was a procedure to follow.^[19]The appellant made it clear on more than one occasion that he did not intend to challenge the accuracy of the speed camera.^[20]

32. [32]
    He nevertheless submitted that there was nothing in the legislation to prevent him from questioning the operator as to whether the Queensland Police Service were acting outside their own guidelines.^[21]The Magistrate asked the appellant “did you want to be able to question the police officer involved?” and the appellant informed the magistrate “no, I wanted to be able to read a statement”. The appellant was therefore not prevented from questioning his accuser. He indicated unambiguously to the Magistrate that he did not wish to question the police officer involved and that all he wanted to do was to read a statement which he had pre-prepared. The Magistrate did not prevent the appellant from asking any questions.

That “for a Magistrate to sit there and state that they can hear no evidence from a defendant (and) refuse to allow a defendant to ask legitimate questions of their accuser is not justice”

33. [33]
    At no stage did the learned Magistrate state that he could hear no evidence from the appellant. In fact the Magistrate, as I have already explained, went to some lengths to explain the process to the appellant. Unfortunately, the advice that the Magistrate gave in that regard was inadequate in the circumstances. That inadequacy is relevant to the issue of there being a lack of procedural fairness, but it is incorrect to say that the Magistrate refused to allow the appellant to give evidence or to ask legitimate questions.

The learned Magistrate failed to give weight to the defendants “no case to answer” at the start of proceedings for the failure of the prosecution to provide their camera vehicle operator as a witness

34. [34]
    The appellant did not submit that he had no case to answer at the start of the proceedings. This ground has no merit.

That the learned Magistrate “gave no weight whatsoever to the appellant’s good character and denial of the charge”

35. [35]
    As I have already stated, the appellant effectively gave no evidence in this matter. There was therefore no evidence of good character nor a denial of the offence placed before the court. This ground has no merit.

Orders

1. Appeal allowed.
2. The orders of the learned Magistrate made on 25 June 2012 are set aside.
3. The matter is remitted to the Magistrates Court at Brisbane for rehearing to be presided over by a different Magistrate.