Al Shakarji v The Commissioner of Police
[2015] QDC 176
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Al Shakarji v The Commissioner of Police[2015] QDC 176
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Al Shakarji v The Commissioner of Police[2015] QDC 176
Al Shakarji v The Commissioner of Police[2015] QDC 176
DISTRICT COURT OF QUEENSLAND
CITATION: | Al Shakarji v The Commissioner of Police [2015] QDC 176 |
PARTIES: | MUSTAFA AL SHAKARJI (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 312/12 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrate’s Court of Townsville |
DELIVERED ON: | 16 July 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 May 2015 |
JUDGE: | Shanahan DCJ |
ORDER: | Appeal dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST CONVICTION – UNSAFE VERDICT – where appellant was convicted on summary trial in the Magistrates Court of exceeding the speed limit and fined – where the appellant appealed the conviction to the District Court pursuant to s 222 Justices Act 1886 – where appeal was allowed and conviction and sentence set aside – where Commissioner of Police appealed to the Court of Appeal – where leave was granted, appeal allowed, the District Court orders set aside and matter remitted to the District Court – where appellant sought to argue issues concerning validity of certificates tendered and not objected to at trial – where appellant challenged witness credibility and reliability – where appellant raised concerns about where the radar detection device was mounted in police vehicle – where this anomaly was not explored at trial – where in his closing address the appellant tried to argue issues concerning police compliance with training manuals and Australian standards relating to radar detection without placing these into evidence – where on all the evidence it was proved beyond reasonable doubt that police had correctly targeted appellant’s vehicle – where it was open to the learned Magistrate to convict. CIVIL LAW – APPEAL AGAINST COSTS – FAIRNESS AT TRIAL – where upon conviction the learned Magistrate ordered the appellant pay expert witness costs of $3,724.70 – where on this appeal, the appellant argued the learned Magistrate had erred in making that order – where appellant argued the late disclosure of the expert witness’s report denied him an opportunity to cross-examine the expert witness on the width of the radar beam – where respondent argued the expert witness gave other relevant evidence – where there was evidence of a single Doppler tone – where the prosecution was entitled to call the expert witness – where the learned Magistrate had a discretion to order costs pursuant to s 157 Justices Act 1886. Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld) s 20 Justices Act 1886 (Qld) ss 157, 222, 223 Al Shakarji v Commissioner of Police [2012] No 312 of 2012, unreported 21 December 2012 Commissioner of Police v Al Shakarji [2013] QCA 319 Fox v Percy (2003) 214 CLR 118 M v R (1994) 181 CLR 487 Rowe v Kemper [2009] 1 Qd R 247 |
COUNSEL: | Mr Al Shakarji appeared on his own behalf. Mr M B Lehane for the respondent. |
SOLICITORS: | Director of Public Prosecutions (Qld) for the respondent. |
- [1]This is an appeal from a conviction for an offence of exceeding the speed limit contrary to s 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 1999. It is also an appeal against a costs order made at the summary trial. The appeal is pursuant to s 222 Justices Act 1886.
- [2]After a two day summary trial the appellant was convicted of exceeding the speed limit of 60km/h by travelling at 88km/h on the Ring Road, Townsville on 14 March 2012.
History of the matter
- [3]The matter has some history. A summary trial took place on 3 and 4 September 2012. The appellant represented himself on that trial.
- [4]The appellant appealed that conviction to the District Court pursuant to s 222 Justices Act 1886. On 21 December 2012 that appeal was allowed and the conviction and sentence were set aside and no retrial was ordered (Al Shakarji v Commissioner of Police No 312 of 2012, 21 December 2012). The appellant represented himself on that appeal.
- [5]The respondent sought leave to appeal that decision to the Court of Appeal. On 25 October 2013 the Court of Appeal granted leave to appeal, allowed the appeal, set aside the orders of the District Court and remitted the matter to the District Court for determination (Commissioner of Police v Al Shakarji [2013] QCA 319). The appellant represented himself on that appeal.
- [6]The present appeal was heard on 29 May 2015 in Brisbane. The appellant represented himself on that appeal although he had previously been represented by lawyers who sought, and were granted, leave to amend the grounds of appeal after the matter had been remitted to the District Court.
The grounds of appeal
- [7]The original grounds of appeal were:
“(a) inadequate disclosure by the prosecution/prosecutorial misconduct;
- (b)error in not allowing the applicant to tender certain documents;
- (c)error in not allowing the applicant to read his written submissions into the record;
- (d)error in not allowing the applicant to tender his written submissions as evidence;
- (e)error in not requiring the prosecution to make submissions and not instructing the prosecution to hand a copy of their written submissions to the applicant;
- (f)that the Magistrate saying ‘save it for the appeal’ numerous times during the applicant’s submissions indicated that he had already decided the issue of the applicant’s guilt;
- (g)error in imposing a fine that was excessive in all the circumstances and in making the applicant pay the cost of a witness.”
- [8]On 17 November 2014 the appellant was granted leave to abandon grounds (a) to (g) above and to substitute new grounds of appeal:
“(a) the Stipendiary Magistrate erred proceeding with the trial;
- (b)the verdict was unsafe and unsatisfactory; and
- (c)the Stipendiary Magistrate erred in ordered (sic) the appellant to pay witness costs for Mr Mulcare.”
The appeal hearing
- [9]Counsel prepared and filed an outline of argument addressing the amended grounds of appeal. The respondent has also filed an outline in response.
- [10]At the hearing of the appeal, the appellant, who then represented himself, sought to argue issues concerning the validity of certain certificates tendered at the summary trial (Exhibits 1, 8, 9, 10 and 11). Prior to the summary trial the appellant had filed a notice of intention to challenge the certificates (Exhibit 13). At the trial the appellant indicated that he no longer wished to challenge the accuracy of the radar device or the accuracy of the speedometer in the police vehicle. The only matter in issue was the operation of the device by the police officer (T1 – 3 to 4; 1 – 13; 1 – 44; 1 – 76; 1 – 80; decision 2 – 4). In his closing address the appellant tried to raise issues about the police officer’s compliance with training manuals and compliance with Australian standards (none of which had been placed in evidence). He was reminded by the learned Magistrate that the real issues were about the police officer’s operation of the device and whether the officer had targeted the appellant’s vehicle (T1 – 118; 2 – 8).
- [11]The Court of Appeal noted that applications to adduce new evidence by the appellant prior to the first appeal to the District Court did not include the Australian Standards for Radar or the Queensland Police Service Speed Management Training Mobile Radar Participants Manual (paragraph [14]). Morrison JA noted at paragraph [16]:
“the only issue was about whether the speed recorded was that of the respondent’s car, or someone else’s car. The respondent was right to make that concession, as at the trial he made it plain that there was no issue about the accuracy or testing of the radar device, but merely its operation in the sense that the traffic officer targeted the wrong vehicle.”
Morrison JA noted that the respondent had confirmed a second time to the District Court judge (on the first appeal) that the issue at the trial was whether the reading was taken from the respondent’s car or not (paragraph [18]).
- [12]After hearing the appellant’s arguments concerning the certificates, I declined to allow him to address me further on the topic or to attempt to amend his grounds of appeal. The matter of the validity of the certificates had not been raised on the trial, the first appeal, the appeal to the Court of Appeal or on the Application to amend the grounds of appeal for the present appeal. Indeed, some 21 months had passed since the Court of Appeal’s decision without the issue being raised by the appellant until the oral hearing on 29 May 2015. The matter had never been made an issue before then.
The Court of Appeal decision
- [13]The Court of Appeal found that the District Court judge who heard the first appeal had not properly discharged his functions in relation to appeals pursuant to s 222 Justices Act 1886. The District Court judge found that the appellant had not received a fair trial. The Court of Appeal found that that finding was not warranted and that the District Court judge erred in his conclusion. The judge further erred in not making his own assessment of the evidence and forming his own conclusions about the issue of the guilt of the present appellant, having due regard to the findings and conclusions of the Magistrate, as is required on an appeal by re-hearing pursuant to s 222 Justices Act 1886. Some of the comments of the Court of Appeal as to the fairness of the trial have relevance in the consideration of the amended grounds of appeal.
The trial
- [14]The trial took place over two days and, as noted, the appellant represented himself. There were three witnesses called by the prosecution: Constable S Donnelly, Mr K Lau, an engineer, who produced a map of the road and various road works then present and Mr Mulcare, an engineer, with a qualification in electrical engineering, who gave expert evidence concerning the operation of the radar device. The fairness in the prosecution’s calling of Mr Mulcare and the order made that the appellant pay his costs as an expert witness are issues raised in this appeal. The appellant gave evidence on the trial. A consideration of the grounds of appeal requires an examination on the evidence at the trial.
- [15]The trial commenced with discussions about the prosecution planning to call the expert Mr Mulcare (T1 – 3 to 19). The appellant indicated that he was disadvantaged by the late disclosure of Mr Mulcare’s evidence and that he needed further time to examine the material. He indicated that at a conference with the police prosecutor, he was told that if he was only challenging the operation of the radar device by the police officer, it would not be necessary to call any experts. The appellant argued on the first appeal that the prosecutor had told him that she would not call Mr Mulcare. He recorded that conversation and was granted leave to call it as evidence on the first appeal. I have listened to that recording (Exhibit 1 on the first appeal). It is difficult to discern but at no time could the prosecutor be heard to say what was alleged. On the trial, the police prosecutor contested that the appellant would be disadvantaged by the calling of Mr Mulcare. The matter of late disclosure by the prosecution had been raised at a mention of the matter on 30 August 2012 prior to the trial and the appellant had been advised that an adjournment of the trial might be sought. The appellant had indicated that he did not want the trial adjourned as he was moving to Sydney (T1 – 18). On the present appeal the appellant accepted that that had been his position (appeal transcript T1 – 19 to 20). The trial prosecutor stated that she had always intended to call Mr Mulcare (T1 – 17). The prosecutor also stated that in an earlier email communication from the appellant, dated 21 August 2012, he indicated that he did not intend to call any experts and that this predated the conference she had with him (T1 – 19). No adjournment was sought by the appellant and the learned Magistrate deferred consideration of the expert’s opinion until after the appellant’s cross-examination of the police officer. After the evidence of the police officer, the learned Magistrate commented on the narrow focus of the trial (whether the police officer had targeted the appellant’s vehicle) and inquired whether the prosecutor still intended to call the expert (T1 – 80). The prosecutor did call Mr Mulcare and questioned him about certain issues raised in the appellant’s cross-examination of the police officer. The appellant cross-examined Mr Mulcare (T1 – 88 to 92). The appellant returned to his argument about the late notice of Mr Mulcare’s evidence in his address (T2 – 2 to 6). He pressed his argument that he was disadvantaged although he did not specify in what manner. The learned Magistrate insisted he address on the evidence called. At no time had the appellant sought an adjournment of the trial.
- [16]Constable S R A Donnelly gave evidence that on 14 March 2012 he was conducting traffic patrol in an unmarked police vehicle in the Townsville area. He had been trained in the use of the Decatur Genesis Mobile Radar Device and had just over two years’ experience with that device (T1 – 21). A certificate as to that training was tendered (Exhibit 1). His evidence was that the device sat on the dashboard of the car with an antenna on the right hand side of the dashboard. A photograph was tendered of the positioning of the radar device (on a different vehicle) (Exhibit 2). The Constable gave evidence that that was “where it sits on all cars”. Video evidence later tendered, however, showed that the metallic box part of the device was attached to the steering column of the car driven by Constable Donnelly (Exhibit 7 (a video re-enactment by the Constable shortly after issuing the ticket) and in some frames of Exhibit 17 (a recording made by the appellant after he became aware that there was a police car behind him)). This discrepancy was not raised on the trial, but it was argued on the appeal by the appellant as indicating that the evidence of Constable Donnelly should have not been accepted.
- [17]Constable Donnelly gave evidence of various testing of the device both before and after his shift (T1 – 26 to 29). He gave evidence that at approximately 3.20pm on 14 March 2012 he was travelling on the Ring Road at Townsville through road works where the speed limit was 60km/h. His speed was just under the speed limit. In his rear vision mirror he saw a gold Toyota Camry sedan coming up quickly from behind him (T1 – 30). Two lanes were open at that position and he saw the vehicle coming up on him in the inside lane and passing him on the driver’s side. His evidence was that, in his opinion, the vehicle was exceeding the speed limit. He moved to the inside lane and followed. He activated the radar device. He set it in the “same direction mode”. He ensured that he was receiving a clear audible Doppler tone which indicated that the device was targeting only one vehicle. He was targeting the Toyota Camry sedan as it was the only vehicle “between me and him” (T1 – 31). He turned the antenna off which locked in the target’s vehicle at 88km/h and the police vehicle at 58km/h.
- [18]The Toyota moved to the outside lane to pass a blue car and then moved back to the inside lane ahead of that car. At that stage the road works reduced the lanes to one and the police vehicle was caught behind the blue car. When the two lanes eventually opened up again in an area where the speed limit was 80km/h, Constable Donnelly accelerated heavily to catch up with the gold Toyota. This was some one and a half to two kilometres on from where he had first seen the Toyota (T1 – 33). He activated his lights and siren and intercepted the Toyota. The appellant was the driver. Constable Donnelly produced a map of the area prepared by engineers and showing the then present road works (Exhibit 5) and marked on it various positions (T1 – 35).
- [19]Constable Donnelly approached the vehicle and had a conversation with the appellant. He invited the appellant to look at the readings on the radar device. The appellant did so. He had a conversation with the appellant and issued a traffic infringement notice. Under cross-examination, that conversation was explored. In that conversation the appellant denied speeding and nominated a black BMW as the speeding vehicle (T1 – 72). That conversation was recorded by the appellant and later became Exhibit 17.
- [20]Constable Donnelly’s evidence was that after issuing the certificate, he returned to the start of the road works, activated a video device and drove once again over the whole distance as a re-enactment. That video was tendered (Exhibit 7). The appellant objected to its tender on the basis it had not been disclosed within time (T1 – 39 to 40). The prosecutor contested that and indicated that the material had been properly disclosed. The objection was withdrawn (T1 – 41). Although the recording contained comments by the Constable which were basically self-serving (as indicated by the learned Magistrate at T1 – 41 to 42), the recording did show the state of the road at the time, including the road works and was admissible for that purpose. I am of the view that there was no unfairness to the appellant by its tender. In any event, the recording shows the positioning of the radar device, which the appellant now relies upon in his argument.
- [21]Various certificates were tendered: Exhibit 6 as to the production of the map by a computer; Exhibit 8 as the operation of the device in accordance with Australian standards; Exhibit 9 as the appropriate fitting of the device in accordance with Australian standards; Exhibit 10 as to a delegation of authority by the Commissioner of Police; and Exhibit 11 as to the testing of the radar device in accordance with Australian standards. The prosecutor also tendered the traffic ticket (Exhibit 12) and the notice of intention to challenge some of the certificates (Exhibit 13) but noted the appellant’s concession that that was no longer an issue (T1 – 44).
- [22]Constable Donnelly gave evidence that upon returning to the start of the road works and before starting his video device he wrote notes on the back of the ticket (T1 – 37). Under cross-examination, Constable Donnelly stated that he had drawn pictures and wrote on the back of the ticket at the interception point before returning to do the drive through (T1 – 75). That difference was argued in the appellant’s written outline to impact on Constable Donnelly’s credibility.
- [23]On questioning by the learned Magistrate, Constable Donnelly gave evidence that by his observations alone he was of the opinion that the Toyota was exceeding the speed limit. He noted the car went past him “considerably quickly” and at least in excess of 80km/h 9T1 – 46 to 47). His evidence was that the radar device was used to confirm his observations (T1 – 48).
- [24]The appellant cross-examined Constable Donnelly. The appellant questioned him as to his experience operating the radar device, and the detail of the testing of the device performed by him on the day (T1 – 54 to 56). He cross-examined as to the impact on the Doppler effect of other traffic, the width of the radar beam at various distances and the “reflective capability” of various objects (T1 – 57).
- [25]The Constable was adamant that at the relevant time there were only three vehicles present: the appellant’s Toyota, the blue car travelling more slowly and the Police vehicle (T1 – 59 to 60). Other traffic did not occur until near the interception position.
- [26]The Constable confirmed he had a clear Doppler tone when he switched off the antenna (T1 – 62 to 64). He denied the suggestion that the appellant’s car was always ahead of his vehicle. He denied that there were other cars ahead at the relevant time other than the blue car (T1 – 66; 70). The constable could not recall seeing a black BMW at the relevant time (T1 – 66; 70). Constable Donnelly recalled the appellant mentioning a black BMW at the time of the interception (T1 – 71 to 72).
- [27]In responding to suggestions that he had targeted the wrong vehicle, Constable Donnelly was adamant that he had targeted the appellant’s vehicle: “I targeted the correct vehicle” (T1 – 72); “the gold Camry because I was directly behind the car” (T1 – 73); there was a “clear audible Doppler tone… it was that car that I targeted. The gold Toyota” (T1 – 74); “I targeted the right vehicle” (T1 – 77).
- [28]Mr K Lau, an engineer, was called. His evidence was that he had produced a map (Exhibit 5) on a computer. It was an accurate representation of how the traffic management was set up at the relevant time (T1 – 50). After inexplicably asking Mr Lau if he knew the penalties for perjury, the appellant made no real challenge to Mr Lau’s evidence.
- [29]After Constable Donnelly had completed his evidence, the learned Magistrate noted the narrowed focus of the trial (whether the Constable had targeted the appellant’s vehicle) and questioned the prosecutor as to whether there was any need to call Mr Mulcare. The prosecutor did call him about specific matters.
- [30]Mr Mulcare gave evidence that he was an electrical engineer with substantial experience with radar devices. The appellant indicated that he was not going to challenge Mr Mulcare’s expertise (T1 – 82) (which he later did in cross-examination and closing address). A resume of Mr Mulcare’s experience was tendered (Exhibit 15).
- [31]Mr Mulcare gave evidence as the width of the radar beam at various distances (T1 – 85). He noted the Decatur device had “very satisfactory, surprising directionality”. He gave evidence as to the Doppler tone and the necessity to have a clear tone. He noted the theoretical possibility of having a clear tone from two moving objects but noted that the objects would have to maintain constant speeds; that was unlikely (T1 – 85). He described how, if there were two frequencies involved, the Doppler tone would be “a warble, a scratchy noise”. He described how the “same direction mode” on the device eliminated other objects travelling in the opposite direction (T1 – 86). He described the locking button and its instantaneous effect of locking the target’s speed so that it could be shown (T1 – 86).
- [32]The appellant cross-examined Mr Mulcare. He again inexplicably reminded him that he was under oath and questioned him about the difference in qualification between an electrical engineer and an electronics engineer (T1 – 88). There was no distinction. He questioned him about the single clear Doppler tone and the width of the beam (T1 – 89 to 90). Again Mr Mulcare described the device as being “surprisingly directional” (T1 – 91). He was questioned about the reflective qualities of objects of different sizes. The appellant questioned him about the distance in front of the radar device at which a vehicle speed could be measured. Mr Mulcare responded that in his experience this distance could be up to 1km where there was only one target vehicle (T1 – 90). In my view the appellant’s questioning of Mr Mulcare was relevant and logical if ultimately unproductive. It is difficult to envisage what other areas he could have effectively challenged if he had had further time.
- [33]The appellant elected to give evidence. His evidence was that the police vehicle was always behind him. He had a feeling it was a police vehicle because “undercover police cars follow me around” (T1 – 95). His evidence was that he was travelling behind a small blue car going at 50km/h. To his side was a black BMW and behind that was the police vehicle. His evidence was “I started monitoring of the situation because I had a feeling something was going to come up” (T1 – 96). Under questioning from the learned Magistrate he stated that Constable Donnelly was a total stranger to him.
- [34]His evidence was that the black BMW sped up to pass the blue car. He then changed lanes to overtake the blue car without exceeding the speed limit (T1 – 96). He continued on to the 80km/h zone. He saw the police car very close behind him. He pulled over and turned on his video recording device (T1 – 97). He was allowed to tender that recording (Exhibit 17) on the basis that he thought it was significant that the police officer had left out any detail of that conversation from his statement. As the learned Magistrate had already noted, that conversation was not admissible as it contained no admissions and was indeed self-serving.
- [35]The recording was played and the learned Magistrate questioned the appellant as to why he was talking to himself on that recording. In his findings the learned Magistrate was of the view that the appellant was attempting to set up a defence (Decision 2 – 8).
- [36]The appellant sought to tender a three-page statement he had prepared. This was correctly refused by the learned Magistrate with the comment that the appellant had to give oral testimony. He sought to tender transcripts of other cases concerning operation of the radar device (T1 – 101). This was also correctly refused as irrelevant because of the narrowed focus of the trial.
- [37]Under cross-examination he confirmed that he had never been behind the police vehicle at all and had not overtaken it (T1 – 109). He denied that he had travelled at 88km/h at any stage (T1 – 114).
- [38]In his closing address, the appellant indicated that he thought the police manuals and procedure would be in evidence. There was no application at that stage to call the manuals or to re-open his case. As the Court of Appeal noted, the appellant conducted his trial competently, he was an intelligent man and the trial process was clearly explained to him, particularly in relation to the tender of material upon which he wished to rely. He availed himself of that process. In any event, considering the issue in the trial had become whether the Constable had targeted the correct vehicle and the appellant’s abandonment of his challenge to the certificates, it is difficult to see how resort to the manuals would have been relevant. In my view there was no unfairness in the trial as a result.
- [39]In his closing arguments the appellant continually raised the late disclosure of the evidence of Mr Mulcare and the disadvantage that that placed him in. He also contested Mr Mulcare’s resume. The learned Magistrate noted that he hadn’t objected at the time (T2 – 2). The appellant complained of late disclosure and the learned Magistrate queried as to how this was relevant at that stage of the trial. The learned Magistrate tried to get the appellant to address him on the evidence and the relevant issue: whether it had been proved that the police officer had correctly targeted the appellant’s vehicle (T2 – 7).
- [40]The appellant continued to address that the certificates were invalid and not in compliance with the Australian standards (T2 – 8). He alleged bias on the part of Mr Mulcare and sought to draw some distinction between an electrical and an electronic engineer.
- [41]Of relevance, he submitted that the learned Magistrate should not accept the evidence of Constable Donnelly in that he was inaccurate and unreliable.
- [42]On occasions, the learned Magistrate made comments about some of the appellant’s submissions that he should “save it for the appeal”. Considering that the appellant was not making submissions on the evidence and continued to raise issues which he had previously abandoned (e.g. by not seeking an adjournment in relation to the late disclosure and indeed rejecting the possibility of an adjournment, and by attempting to challenge the certificates by reference to Australian standards after he had indicated that challenge was abandoned), it is not surprising that the learned Magistrate kept trying to bring him back to the point. The Court of Appeal noted that whilst this was robust there was no unfairness to the appellant. I respectfully agree.
- [43]The learned Magistrate did not call upon the prosecutor.
- [44]The learned Magistrate noted that the issue in the trial was whether the police officer had correctly targeted the appellant’s vehicle. He noted the appellant’s evidence that he was not exceeding the speed limit and that it was a black BMW that was speeding. The learned Magistrate found that he was satisfied that Constable Donnelly correctly used the radar device and targeted the appellant’s vehicle. He described the Constable’s evidence as “very reasonable, very experienced, very prepared”. He noted that he was extremely comfortable in accepting the officer’s evidence. He rejected the appellant’s evidence to a large extent. He described some aspects of that evidence as strange, particularly his comments about being targeted by police and activating the video camera in an apparent attempt to set himself up for a trial. The learned Magistrate noted that the police officer was a stranger to the appellant. The learned Magistrate noted that he was “very uncomfortable” with the evidence of the appellant and had no hesitation in rejecting it. He was satisfied beyond reasonable doubt that the offence had been proved. He convicted the appellant and fined him $500. He also ordered that the appellant pay costs of $3,724.70 in relation to the evidence of Mr Mulcare.
The nature of the appeal
- [45]This is an appeal pursuant to s 222 Justices Act 1886. Section 223(1) provides that such an appeal is by way of rehearing on the evidence given in the proceedings before the magistrate together with any new evidence allowed by leave. At the first appeal the appellant was granted leave to adduce a recording of a conversation he had with the prosecutor (Exhibit 1 on the first appeal). It is appropriate to abide by that grant of leave. An appeal judge must also bear in mind the advantage the learned Magistrate had in seeing and hearing the witnesses give evidence.
- [46]On such an appeal, the appellate judge is required to make his or her own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view (Fox v Percy (2003) 214 CLR 118; Rowe v Kemper [2009] 1 Qd R 247).
Consideration
- [47]Ground 1 of the amended grounds of appeal is that the Stipendiary Magistrate erred proceeding with the trial. In the appellant’s written outline this was amended to:
“The learned Stipendiary Magistrate erred in proceeding with the trial because the expert’s report (Mr Mulcare’s report) had not been provided in an appropriate timeframe to allow the appellant sufficient time to prepare his defence.”
- [48]Although no formal application was made to amend the ground of appeal, I am prepared to consider the expanded ground of appeal. It simply contains a further explanation of what was meant by the original ground.
- [49]As noted above, the self-represented appellant on a number of occasions during the trial indicated that he was disadvantaged by the late disclosure of Mr Mulcare’s report (paragraphs 15, 39 above). He did not specifically elaborate on the disadvantage. He cross-examined Mr Mulcare logically and competently about the issues raised in Mr Mulcare’s evidence-in-chief. Those matters were aimed at issues raised by the appellant in his cross-examination of Constable Donnelly: the width of the radar beam; the relevance of the Doppler tone; the same direction mode of the device and the operation of the locking button. As I noted above (paragraph 32), it is difficult to envisage what other areas could have been canvassed if the appellant had been given further time.
- [50]The written outline sought to argue that the appellant had only at the conference with the prosecutor decided not to call his experts. He was thus denied the opportunity to confer with his experts about Mr Mulcare’s report. As noted above, this was in contest at the trial in that the prosecutor indicated that the appellant had already indicated that he was not going to call his experts prior to the conference (paragraph 15 above). In my view this was not a relevant disadvantage suffered by the appellant.
- [51]The issue on the trial was a relatively simple one: whether it had been proved beyond reasonable doubt that Constable Donnelly had targeted the appellant’s vehicle with the radar device. This ultimately depended upon an evaluation of Constable Donnelly’s evidence, not the capabilities of the radar device.
- [52]The written submissions of the appellant make much of the evidence of Mr Mulcare about the width of the radar beam at various distances. This would only have relevance if one disregards the evidence of the relevance of the single Doppler tone as showing that there was only one vehicle and thus raising a possibility of targeting the wrong car. This was not the evidence of Constable Donnelly. The plain evidence of Constable Donnelly was that he had received a single Doppler tone at the time he switched off the antenna and recorded the readings. This entailed consideration of whether Constable Donnelly’s evidence should have been preferred to the appellant’s evidence. There was no real disadvantage to the appellant as sought to be argued in the written submission.
- [53]In any event, the appellant had at no stage sought an adjournment of the trial to overcome any disadvantage he suffered. In fact, he positively opposed the suggestion the trial should be adjourned because of his personal circumstances (paragraph 15 above).
- [54]In my view, the appellant suffered no relevant disadvantage by the learned Magistrate continuing with the trial. The appellant seemed to be asking the learned Magistrate to disregard the evidence of Mr Mulcare rather than seeking more time to consider it. That might reveal a misconception of court processes on the part of the appellant but, in my view, he suffered no disadvantage. The issue on trial had become a narrow one: whether the constable had targeted the appellant’s vehicle and not some other speeding vehicle. The issue was not about the capacities of the radar device and whether it could confuse the speeds of two vehicles, but whether Constable Donnelly’s direct evidence as to the vehicles on the road when he operated the device should be accepted. This ground of appeal has no merit.
- [55]Ground 2 argues that the verdict was unsafe and unsatisfactory. In relation to that ground, an appeal court must consider whether it thinks that, on the whole of the evidence, it was open to the fact finder to be satisfied beyond a reasonable doubt that the accused was guilty (M v R (1994) 181 CLR 487). In answering that question, the Court must not disregard or discount the consideration that the fact finder had the benefit of having seen and heard the witnesses. That is similar to the requirements under s 223 Justices Act 1886.
- [56]The written submissions of the appellant challenged the credibility and reliability of Constable Donnelly’s evidence. There are a number of issues raised. I am of the view that some of them have no weight. The written outline contains an exhaustive analysis of Constable Donnelly’s evidence about the lanes he travelled in at various times and the distances and time periods involved in travelling between the marks made on Exhibit 5. The appellant contends that the times and distances do not accord with logic and calculations as to the time to travel over particular distances at given speeds. The evidence given by Constable Donnelly was at best estimates as to the positioning, distance and time. It is hardly surprising that scientific calculations produced anomalies when one is considering estimates. In my view there is no impact on Constable Donnelly’s credibility from those apparent anomalies. Similarly, Constable Donnelly’s evidence about the lanes “inside” or “outside” depend on the use of those terms by the particular user. It may be that his use of the term “my lane” was simply a reference to the lane he had been in rather than the one in which he was then in. This was not explored at the trial. If there are differences in his evidence as to which lane he was in at a particular time (and, in my view, that is equivocal) then they have no impact on his credibility; it is a very minor matter.
- [57]It was also submitted that the learned Magistrate also relied on evidence from Mr Mulcare as to distances apparently told to him by Constable Donnelly the day before trial. That was during a drive through in the absence of the defendant. The learned Magistrate was wary of that evidence (T1 – 83) and did not rely on it in reaching his decision. He noted that its relevance was to simply give a general appreciation of the scene. The relevance of Mr Mulcare’s evidence as to this aspect was as to the various width of the radar beam at particular distances. As noted above, that would only have been of relevance were one to disregard the evidence about the clear Doppler tone and its impact.
- [58]The appellant argues that Constable Donnelly gave different accounts as to when he wrote notes on the back of the ticket (Exhibit 12). In evidence-in-chief, the Constable’s evidence was that he wrote them after he had returned to the start of the drive through re-enactment (T1 – 37). In cross-examination, he stated that he wrote the notes on the back of a ticket at the interception point and before he decided to drive back (T1 – 75). There is a difference in his evidence which was not the subject of submissions before the learned Magistrate. It was not further explored on the trial.
- [59]Of more substance is the conflicting evidence as to the positioning of the radar device in the police vehicle. Constable Donnelly gave evidence that the radar device sat on the dashboard with an antenna on the right hand side of the dashboard (T1 – 23). A photo was tendered showing the positioning of a black box device on the dashboard (Exhibit 2). This was not the actual police vehicle, which had been disposed of in the interim. Constable Donnelly’s evidence was that that was where it was on all cars (T1 – 23). However, the digital recordings of the actual car (Exhibits 7 and 17) plainly show that the black box device is attached the top of the steering column in Constable Donnelly’s car. The antenna device can be seen to the right hand side of the dashboard. Again, this issue was not brought to the attention of the learned Magistrate or further explored on the trial. It is worth noting that the certificate (Exhibit 10) proved that the device was fitted according to Australian standards.
- [60]The respondent argues that there may well be some ambiguity as to which part of the radar device Constable Donnelly was referring to as being mounted on the dashboard. However, the black box shown in Exhibit 2 is plainly attached to the steering column in Constable Donnelly’s car as seen in Exhibits 7 and 17. There is an obvious inconsistency in the evidence. As noted, this was not explored on the trial.
- [61]The anomalies in the evidence of Constable Donnelly set out in the previous two paragraphs cause me some concern. They were not explored on the trial and no mention of them was made to the learned Magistrate in submissions. There may well be explanations for them.
- [62]The evidence given otherwise by Constable Donnelly was clear and concise. It was challenged by the appellant and Constable Donnelly was consistent throughout. He was adamant when asked on several occasions that he was directly behind the appellant’s car, that there were no other relevant speeding cars in the vicinity, that he targeted the appellant’s car and that he obtained a clear Doppler tone before locking the device. He saw no black BMW speeding. He was also adamant of his opinion that from his own observations the appellant’s car was speeding.
- [63]The learned Magistrate had no hesitation in accepting Constable Donnelly’s evidence and in rejecting the evidence of the appellant. He had the advantage of witnessing each give evidence. His view should be given due weight.
- [64]I have considered all the evidence in the trial including that admitted by leave. I have viewed each of the digital recordings. The anomalies in the evidence of Constable Donnelly identified above do not persuade me that he was not a witness of credit. He was clear on his evidence that he correctly targeted the appellant’s vehicle. The appellant was a stranger to him and any suggestion he was unfairly targeting the appellant for some ulterior purpose has no weight. The learned Magistrate was entitled to accept his evidence. Similarly, the unusual features in the appellant’s evidence and his conduct of the case generally, including his suggestions of perjury to expert witnesses, were sufficient to enable the learned Magistrate to reject his evidence.
- [65]As noted by the Court of Appeal, the issue in the trial was a straightforward one: whether on all the evidence it was proved beyond reasonable doubt that Constable Donnelly had correctly targeted the appellant’s car. In my view, the evidence did establish that.
- [66]The conviction was open on the evidence and ground 2 is not made out. It was open to the learned Magistrate to convict. Similarly, my own conclusion is that the evidence proved beyond reasonable doubt that the appellant was guilty of the offence.
- [67]The appeal against conviction is dismissed.
The costs order
- [68]The final appeal is that the learned Magistrate erred in ordering the appellant pay the witness costs for Mr Mulcare. The learned Magistrate heard arguments about the costs (decision 2 – 10 to 15). He ordered the appellant pay $3,724.70.
- [69]The appellant in his written outline argued that the learned Magistrate erred in ordering the payment of the witness costs. He reiterated the disadvantage suffered by a late disclosure of the report. He argued that this denied him the opportunity of independent expert analysis particularly as Mr Mulcare’s evidence as to the width of the radar beam, was based on information provided by Constable Donnelly, the day before, as to the distance he was behind the appellant’s car.
- [70]The respondent submits that this was not the only relevant evidence given by Mr Mulcare. His evidence was also important with respect to the relevance of a clear Doppler tone and the distance in front of the device capable of measurement.
- [71]In my view, the prosecution was entitled to call Mr Mulcare as an expert in relation to the width of the radar beam, the relevance of the clear Doppler tone and the locking mechanism of the device because of the appellant’s cross-examination of Constable Donnelly as to his operation of the machine and the possibility of error in targeting a specific car. It was in cross-examination of Mr Mulcare that the appellant explored the distance in front of the police vehicle that the radar device could detect. Mr Mulcare’s evidence was that in his experience he had been able to detect vehicles “up to a kilometre away where there is only one target” (T1 – 90). These aspects were in issue given the evidence of Constable Donnelly that he locked the device when he had a single clear Doppler tone from the appellant’s vehicle, and the appellant’s contention that the constable had targeted a different speeding vehicle and the possibility of mistake in the constable’s operation of the radar device.
- [72]The order for costs was made pursuant to s 157 Justices Act 1886. Such an order is in the exercise of a discretion by the learned Magistrate. I can see no error in the exercise of that discretion. I am of the view that it was appropriate for the prosecution to call Mr Mulcare to give evidence about the issues I have noted in paragraph 71 above. It was thus appropriate for the learned Magistrate to make a costs order. The appeal against that order is dismissed.
Fairness of the trial
- [73]Concerns have been raised about the fairness of the trial, particularly in relation to the first ground of appeal in the present appeal. This matter was considered by the Court of Appeal. Morrison JA found at paragraph [55], “I do not consider that the Magistrate’s conduct had the effect of denying the respondent a proper hearing, or that a substantial wrong or miscarriage of justice had been occasioned.” In separate reasons, Margaret Wilson J and North J agreed. With respect, I also agree.
- [74]The appeal is dismissed. I will hear the parties as to costs.