Kolanowski v Commissioner of Police
[2014] QDC 118
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- Kolanowski v Commissioner of Police[2014] QDC 118
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Kolanowski v Commissioner of Police[2014] QDC 118
Kolanowski v Commissioner of Police[2014] QDC 118
DISTRICT COURT OF QUEENSLAND
CITATION: | Kolanowski v Commissioner of Police [2014] QDC 118 |
PARTIES: | JOHN ROBERT KOLANOWSKI v COMMISSIONER OF POLICE |
FILE NO/S: | 6/14 |
DIVISION: | Crime |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 9 May 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 April 2014 |
JUDGE: | Butler AM SC DCJ |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – VEHICLES AND TRAFFIC – appeal against conviction – photographic detection device – whether proof of speed established PROCEDURE – COSTS – self-represented litigant – whether costs of lost business opportunity, and out of pocket expenses may be awarded |
COUNSEL: | The appellant appeared on his own behalf. P Price for the respondent. |
SOLICITORS: | The appellant appeared on his own behalf. Director of Public Prosecutions for the respondent. |
- [5]The appellant brings this appeal under s 222 of the Justices Act 1886 (“the Act”) against his conviction and sentence in the Brisbane Magistrates Court. On 5 December 2013 the appellant was convicted after a summary trial of one charge of driving a vehicle at 61 km/hr in a 40km/hr speed zone. He was sentenced to a fine of $366 with no conviction recorded. Costs of $83.40 were awarded.
- [6]The appellant’s notice of appeal filed on 6 January 2014 provided two grounds of appeal:
- (1)“Severity of fine”; and
- (2)“Magistrate did not have any comprehension of the workings of the TruCam device and was swayed by prosecution paperwork”.
- [7]At the appeal hearing the appellant, who represented himself, advised that he only wished to press an appeal against conviction. He did not seek to advance any argument in respect of severity of sentence.
- [8]The appellant’s outline of submissions filed on 6 January 2014 advanced two bases upon which it is submitted the present decision should be overturned. They are:
“(a)The prosecution has not established beyond a reasonable doubt that the data block on Exhibit 1 was made by the relevant TruCam device and accordingly there is no speed of the defendant’s vehicle on the relevant date, and
- (b)Compliance with s112 of the TORUM Act has not been established beyond a reasonable doubt.”
- [9]These bases are derived from an unreported decision of Magistrate Springer in Canavan v Queensland Police.[1] They focus on two issues arising from the interpretation of the Transport Operations (Road Use Management) Act 1995 (“the TORUM”) in TruCam device cases which have been the subject of divergent judicial decisions in the Magistrates Court.
- [10]The provisions in issue, ss120(4) and 112 of the TORUM, were amended in February 2014, presumably to address arguments of the type being advanced here. In this decision I will be applying the law as it stood at the time of the Magistrates Court hearing in December 2013 and consequently my decision will have no utility as precedent for how the legislation as it presently stands should be construed.
Appeal provisions
- [11]Section 223 of the Justices Act 1886 (“the Justices Act”) provides that an appeal under s222 is by way of rehearing on the evidence, both original and new. Such an appeal is to be distinguished from an appeal de novo.
- [12]The authorities make it clear that on an appeal by way of rehearing in accordance with s223 a Judge is required to conduct a real review of the evidence, drawing his or her inferences and conclusions, while giving due respect to the decision of the Magistrate and bearing in mind any advantage the Magistrate may have had in seeing and hearing the witnesses give evidence.[2]
- [13]This approach is in accordance with the decision of the High Court in Fox v Percy:
“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”[3]
- [14]These principles are accepted and I now proceed to consider the evidence and submissions on that basis.
The prosecution case
- [15]Before the Magistrate the prosecution alleged the appellant was detected to be speeding in a school zone by a police officer using a manually operated TruCAM speed detection device.
- [16]The police prosecutor tendered documentary exhibits, including certificates issued under the TORUM, to prove various matters such as the speed of the vehicle and the time of detection. In addition he called the operator, Constable Beckett, to testify as to her operation of the device.
- [17]Of particular importance among the exhibits were two photographs said to be of images recorded by the TruCAM device which were tendered as Exhibits 1 and 2. On the face of Exhibit 1 there is a photographic image and to the side of the photograph a data block containing the following information:
“Serial No.: TC001852
Operator No.: 1798
Last aligned: 15/04/2013 14:00
Date: 15/04/2013
Time: 14:28
Speed Limit: 40 km/h
Speed:- 61 km/h
Distance: 039.3 metres
Site Code: 100605”
Exhibit 1 was relied upon by the prosecution to prove the vehicle’s speed.
The appellant’s submissions
- [18]The appellant’s submissions on this appeal firstly attack the prosecution’s reliance on the data block appearing in Exhibit 1 as being proof of the speed of the subject vehicle. Secondly, he submitted that there was no compliance with the requirements of s112 of the TORUM.
- [19]Resolution of these questions largely turns on interpretation of the evidentiary provisions of the TORUM on the one hand and the applicability of s112 of the TORUM to TruCam devices on the other.
- [20]In respect of the data block, the appellant also submitted the police had impermissibly manipulated the images in the tendered photographs and fabricated the data block information. It was submitted the prosecution had failed on the facts to prove the data block information was made by the relevant TruCam device.
The respondent’s submissions
- [21]The respondent argued that the learned Magistrate was entitled to be satisfied beyond reasonable doubt of the appellant’s guilt on the evidence led by the prosecution. It was submitted that the prosecution complied with the legislative provisions of the TORUM and produced the required certificates to prove the content of the images and data block information.
- [22]The decision of Canavan v Queensland Police relied upon by the appellant was distinguished on the basis that in the present case the prosecution called evidence from the operator to supplement the evidentiary certificates.
The appellant’s case at first instance
- [23]Before the Magistrate the appellant focused his argument on a challenge to the data block.[4] In this court his argument was enlarged to encompass a challenge under s112 of the TORUM.
- [24]In order to challenge the accuracy of speed detection device or the way in which the device was used at a hearing, a defendant must give written notice: s124 of the TORUM. The appellant did give a notice of intention to challenge which was read into the transcript:
“The intention to challenge is – the defendant’s hereby notified that they intend to challenge or dispute the image from the photographic detection device. It says [indistinct] but I think it means in this case he’s challenging the image and the marking or writing made by photographic detection device. The grounds state that there’s no data block information, no authorisation of operator, no deployment log, no image numbers.”[5]
- [25]This constituted ample notice of the challenge to the data block information but did not provide notice of a challenge to a requirement under s112 for compliance with the Australian Standard or manufacturer specifications for use of the device.
Consideration
- [26]This appeal is by way of rehearing on the original evidence and consequentially it is necessary to consider all the evidence before the Magistrate to determine if it is capable of sustaining the prosecution charge. However, the appellant has identified two specific grounds upon which it is submitted the prosecution should be overturned. Accordingly it is appropriate I address those points before considering the prosecution case as a whole.
- [27]I will turn first to the submission that the prosecution failed to establish compliance with s 112.
Compliance with s112
- [28]Although the appellant’s outline of submissions raised in general terms the ground relating to s112 of TORUM, no further detailed submissions were directed to that ground on the appeal.
- [29]The appellant called no evidence at the hearing below and directed no submissions to the Magistrate on failure to comply with s112. In cross-examination of the police witness Constable Beckett, the witness was asked whether the TruCam manual said the device takes still photos and she replied that it stated it can be used in single shot, high definition mode. The appellant asked no other question touching on the manufacturer’s specifications for the device or on compliance with any Australian Standard. It follows that there was no evidence adduced by the defence or disclosed in cross-examination of non-compliance with an Australian Standard or manufacturer specifications.
- [30]The learned Magistrate did address whether the TruCam device used in this case was subject to the requirements of s112 of the TORUM and concluded that it was not. This question has been considered in a series of Magistrates Court decisions. A number of Magistrates have found that s112 is applicable to TruCam devices.[6] A contrary view was taken in Queensland Police Service v Morris, a decision which was followed by the learned Magistrate at first instance.[7]
- [31]The question was considered by McGillDCJ in Crabbe v Queensland Police Service.[8] His Honour found it unnecessary to decide the issue but did make the following obiter remarks:
“It was submitted for the respondent that this section did not apply, on the basis that the relevant detection device was a photographic detection device, which is within Division 2 of Part 7 of the TORUM Act, while s 112 is within Division 1 of Part 7. I am not at all sure this is correct. There is no statement in the Act that the divisions of Part 7 are mutually exclusive. Neither ‘radar based speed detection device’ nor ‘photographic detection device’ is defined, or at least the former is not defined in a way which would exclude the latter. It may be that the provisions of s 112 would be inapt in their application to a fixed photographic detection device, but it is not clear why they could not apply to a mobile device operated by a police officer. As far as I know, the Gatso speed camera system is in fact, or incorporates, a radar based speed detection device, and if so, on the face of it s 112 would apply. It is however not necessary to decide this.”[9]
- [32]In the evidence adduced in the present case, the police witness conceded that the TruCam incorporated a laser for speed detection.[10] In the absence of any statutory definition of the term “laser-based speed detection device”, I consider the words of s112 must be given their ordinary meaning. The TruCam device meets the literal description of being a laser-based speed detection device. Where a laser‑based speed detection device has both laser and photographic components it may also meet the description of being a photographic detection device within the meaning of s113. I see no reason on a construction of the relevant provisions why the one device may not fall within the ambit of both sections. Accordingly, I consider that the requirements of s112 applied to the TruCam device in this case.
- [33]This does not, however, resolve the question in favour of the appellant. The prosecution tendered an exhibit by an Acting Senior Sergeant of the Traffic Camera Office, who was proved by a separate exhibit to be an authorised delegate of the Commissioner of the Queensland Police Service for this purpose, certifying that the image of a vehicle bearing the registration number 866ROA was “properly taken by a photographic detection device being an LTI speed camera system model LTI 20-20 TruCam” and that the device was used at a specified location at “14:28 on 15 April 2013”. Section 120(2) of TORUM provides that an image so certified is evidence of the following matters:
- (a)the image was taken at the specified location and time;
- (b)the accuracy of the image;
- (c)the things depicted in the image;
- (d)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.
- [34]This provision seems sufficient to prove the image was properly taken in compliance with statutory requirements.[11] In any event, no notice was given of an intention to challenge the use of the device as being contrary to the requirements of s112. Argument on this point was not advanced at the hearing in the Magistrates Court and therefore the prosecution had no opportunity to meet it by argument or evidence. No evidence is before the court showing that the requirements of s112 were not complied with. As McGillDCJ said, this is not a matter which can be dealt with by way of assertions from the Bar Table.[12]
- [35]There is no evidence that use of the TruCam device did not in fact comply with any applicable Australian Standards or manufacturer specifications.[13]
- [36]The appellant cannot succeed on this ground.
The data block
- [37]It is obvious that establishing the speed of the vehicle at the relevant time is essential to proof of the charge. Because the operator did not claim any independent recollection of the speed recorded for a particular vehicle, the prosecution is solely reliant upon data gathered by the device in order to prove the speed of the vehicle. They sought to use information recorded in the data block appearing in Exhibit 1 to prove the speed. In order to do this the prosecution sought to rely on facilitation of proof provisions in the legislation.
- [38]The appellant’s submission about police manipulation of images and fabrication of data was not supported by the evidence. The submission appears to be based on an assumption that the two photographic exhibits tendered as Exhibits 1 and 2 related to different points in time and were stills later extracted from video recorded by the device. That suggestion was rejected by the police witness in cross-examination and is inconsistent with what can be seen in the images. The appellant failed to give or call evidence to contradict the witness. I accept the officer’s evidence in this regard. The witness testified that single shot images were taken which could be viewed in the TruCam device in conjunction with data recorded at the time the image was taken but also could be viewed without the data to allow unimpeded visual identification of the vehicle and number plate shown in the image.
- [39]In proof of the information appearing in the data block in Exhibit 1 the prosecution rely upon the provisions of s120 of TORUM.
- [40]Section 120(2) provides as follows:
“An image produced by the prosecution purporting to be certified by the Commissioner stating that the image was properly taken by a photographic detection device at a specified location and time is evidence of the following matters –
- (a)the image was taken at the specified location and time;
- (b)the accuracy of the image;
- (c)the things depicted in the image;
- (d)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.”
- [41]The certificate on the rear of Exhibit 1 by a duly authorised delegate of the Commissioner of the Queensland Police Service, whose delegation was proved through another certificate, provides that the image was properly taken by a photographic detection device being “LTI Speed Camera System LTI 20-20 TruCam bearing the serial number TC001852” and the device was used at a specified location namely Dawson Parade, Keperra at 14:28 on 15 April 2013.
- [42]The image in Exhibit 1 is comprised of a photograph of a vehicle registered number 866ROA and to the side of the photograph a data block containing the information set out above at [15], including the line “Speed Limit: 40 km/h”. The serial number of the device and the time shown in the data block each accord with that appearing on the attached certificate.
- [43]Section 120(4) provides that:
“A 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.”
- [44]Section 120(9) reads:
“In this section –
On, an image, includes adjacent to or associated with the image.”
- [45]The appellant submits, in reliance upon the reasoning in the Magistrates Court decision of Canavan v Queensland Police, that:
“There is no legislative presumption or deeming provision or evidence that the ‘marking or writing’ constituting the data block was ‘made’ by a photographic detection device.”[14]
- [46]
- [47]The evidentiary aid in s120(2) establishes the accuracy of the image in Exhibit 1 and is proof of the things depicted in the image. At issue is whether the data block in Exhibit 1 is part of “the image” or a thing “depicted in the image” within the meaning of that section. On the basis of the wording of this sub-section taken alone I may well have concluded that the data block was part of the “image”. However when subsection 2 is read in conjunction with subsections 4 and 9 a different conclusion emerges.
- [48]Subsections 4 and 9 speak of a marking or writing made on, adjacent to or associated with an image. Accordingly markings or writings made by the device are distinguished from and treated as being different to what is understood to be an image under s120.
- [49]So construed, the writing in the data block is not part of the image within the meaning of s120(2) and therefore that subsection cannot be relied upon to establish the writing was made by the photographic detection device. Furthermore, I have failed to identify any other evidentiary provision that may be relied upon.
- [50]Subsection 4 requires that a marking or writing be “made” by the photographic detection device before the further evidentiary provisions in aid of proof to be found in the Traffic Regulation 1962 can be called into operation. It is those provisions which would establish proof of the speed of the vehicle recorded in the data block.
- [51]Where the prosecution relies upon evidentiary aids to prove an offence the statutory provisions must be construed strictly.
- [52]In the absence of any legislative presumption or deeming provision, it is necessary to look to the oral evidence in the police case. The witness called was an operator of the device and her experience was limited to that specific role. She claimed no technical expertise as to the how the device or any broader system it was part of operated. She explained that she was not in the traffic support office and therefore did not know how the exhibits were printed out.[17]
- [53]The witness testified that operators cannot amend or change the data in the device once it is recorded[18] and that the data, including the vehicle’s speed, is all digitally recorded in the device and uploaded by the operator at the end of the deployment.[19] She explained that when images were viewed in the TruCam device there was data adjacent to each image but “in a different spot” and with “more information on it than the data block”.[20]
- [54]There was no evidence before the Magistrate as to how the photographic document which is Exhibit 1 was produced or by whom. Presumably it is produced within the traffic camera office. No witness was called as to what occurs there. Nor was there any evidence led as to what a “LTI speed camera system model LTI 20-20 TruCam” actually is. It may well be it is a combined hardware and software system, so that the TruCam device in conjunction with computer based software could be said to “make” the data block writing that appears in the Exhibit. The definition in s113 of the TORUM extends the meaning of a photographic detection device to a camera system the components of which may include multiple cameras, trigger mechanisms, data transfer capability and image processing. The findings in one Magistrates Court judgment suggest that there was evidence presented in that case as to such a TruCam system.[21] Unfortunately no such evidence was led before the learned Magistrate in this matter. The only evidence related to a device used at the roadside.
- [55]It follows there is no proof of the truth of the contents of the data block in Exhibit 1 and consequently there is no evidence of the speed at which the defendant’s vehicle was travelling in the speed zone.
- [56]The prosecution must fail on this basis.
- [57]It should be noted that this conclusion is based on the legislation as it stood prior to 19 February 2014 from when s 120(4) was amended to provide that a marking or writing on the image is taken to have been properly made by the photographic detection device.
Appellant’s application for costs
- [58]The ordinary rule in relation to costs is that costs follow the event and that costs would be awarded in favour of a successful litigant.
- [59]However, there’s no common law entitlement to costs. The concept of costs is entirely a creation of statute. On a section 222 appeal in the District Court, costs fall to be awarded under section 226 of the Justices Act 1886. Although that provision is in general terms, its application is limited by sections 232 and 266 of the Act. Section 266, subsections (1) and (2) provide for the making of regulations as to when costs are payable and the amount of costs that may be awarded. Section 266, subsection (4) provides that the power to make a regulation about costs include power to provide for a scale of costs.
- [60]The scale of costs appears in the Justices Regulation 2004, section 18 of which prescribes the scale of costs for part 9, division 1 of the Justices Act, the division within which section 226 appears. Schedule 2 sets out the scale of costs. It provides that the only items for which costs may be allowed for part 9, division 1 of the Act – that’s the part under which section 222 appeals appear – are set out in the scale. In other words, one has to look to the scale of costs in schedule 2 of the Justices Act to find the only items for which costs may be allowed.
- [61]Relevant to this is section 5 of the scale, which is in respect of disbursements. It’s a provision that is headed “Disbursements, other than to witness for attending.” It reads:
“Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as an advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.”
- [62]The interpretation of that provision was considered by the Court of Appeal in Merrin v Commissioner of Police[22], a decision which is binding upon me. In Merrin the court was considering the very scale of costs that applies here and were considering the section on disbursements in that scale of costs. The court in Merrin was considering whether the Act and the Regulation permitted the inclusion of allowance for costs for travelling expenses, and perhaps other costs and expenses, incurred by Mr and Mrs Merrin in attending upon the court and in the preparation of the defence of the charges brought against them.
- [63]The court in Merrin considered previous decisions of the Queensland courts and found that the court should follow a High Court decision of Cachia v Hanes[23], and a further decision of the Queensland Court of Appeal in Worchild v Petersen[24]. References to those cases give an indication of the limitations that application of the scale of costs must impose on any award I make today. The court in Worchild v Petersen said this:
“The principle referred to as never being doubted is that a person who is not within the limited exception defined in Guss...”
– and that was the case of a self-represented registered lawyer –
“... cannot recover costs in respect of time lost by him in preparing and conducting his case.”
- [64]The Queensland Court of Appeal, in saying that, was following the decision of the High Court of Australia in Cachia v Hanes. In that case, the issue before the court was whether allowance should be made for the appellant’s claim for compensation for the loss of his time spent in preparation and conduct of his case and for out-of-pocket expenses, being travelling expenses associated with the preparation and conduct of his case. The Full Bench of the High Court, being five judges in a majority decision, said as follows:
“To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.
This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant, as Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, "but not to the costs and expenses of his travell and losse of time".
- [65]The court in Merrin v Commissioner of Police said that the term “disbursements”, and the meaning of “costs” as indicated by the tenor of the High Court decision, must be given effect and following the decisions I’m referred to, the court in Merrin v Commissioner of Police affirmed the decision in the court below refusing travelling costs in that case. In support of the majority judgment by Justice North in Merrin, the President of the Court of Appeal said that the applicant’s costs were limited to the costs of filing and other court fees.
- [66]Applying those decisions to the application here, the costs sought by Mr Kolanowski in the first four items relate to his time lost and loss of ability to conduct his business when attending court. The fifth item relates to the cost of a meal. The seventh item relates to worry, stress and suffering. And the eighth item relates to return bus fares. All of those items fall in the categories of expenses that Merrin v Commissioner of Police said are unrecoverable as costs by a litigant in person.
- [67]Accordingly, following that decision, I have no power under the Justices Act and the Justices Regulation to award costs for those items.
- [68]The remaining item sought is an item relating to legal advice in the sum of $400. Legal advice could only be recoverable if it was obtained from a registered legal practitioner, namely, a practising solicitor or barrister. Furthermore, in order to recover the sum, it would be necessary to show that it was reasonable, and documentation, including invoices in relation to it, would be required. From what I have been told by Mr Kolanowski, he is not aware whether the advice he sought was from a legal practitioner and he is not in a position to provide documentation.
- [69]In those circumstances, I cannot award costs for that item.
Orders
- [70]The appeal is upheld.
- [71]The finding of guilt and the conviction on the charge the appellant exceeded the speed limit on 15 April 2013 are set aside. The defendant is found not guilty of the charge and discharged.
- [72]Appellant’s application for costs is refused.
- [73]No order as to costs.
Footnotes
[1] 18 December 2013.
[2] Rowe v Kemper [2008] QCA 175 at [3]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7].
[3] Fox v Percy (2003) 214 CLR 118 at 126 (internal references omitted).
[4] Transcript 1-76, line 40.
[5] Transcript 1 – 3, lines 15 - 25.
[6] Queensland Police Service v Takoushi, 26 September 2013; Queensland Police Service v Rouse [2013] QMC 21; Queensland Police Service v Green, 6 March 2014.
[7] 29 October 2013.
[8] [2013] QDC 122.
[9] [2013] QDC 122 at [24].
[10] Transcript 1-40, line 5.
[11] Dewberry v Dixon [2011] QCA 238 at [13].
[12] Crabbe v Queensland Police Service [2013] QDC 122 at [24].
[13] Dewberry v Dixon [2011] QCA 238 at [12]-[16].
[14] Canavan v Queensland Police, 18 December 2013, p 9.
[15] Police v Curtain, 20 September 2013; Police v Takoushi, 26 September 2013; Queensland Police Service v Rouse [2013] QMC 21; Queensland Police Service v Green, 6 March 2014.
[16] 29 October 2013.
[17] Transcript 1-42, ll 18-19.
[18] Transcript 1-36, ll 30-40.
[19] Transcript 1-48, ll 40-45; 1-49 ll 1-8.
[20] Transcript 1-35, ll 30-45.
[21] Queensland Police Service v Morris, 29 October 2013.
[22] [2012] QCA 181.
[23] (1994) 179 CLR 403.
[24] [2008] QCA 26.