Church v Commissioner of Police
[2015] QDC 259
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- Unreported Judgment
- Appeal Determined (QCA)
- Church v Commissioner of Police[2015] QDC 259
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Church v Commissioner of Police[2015] QDC 259
Church v Commissioner of Police[2015] QDC 259
DISTRICT COURT OF QUEENSLAND
CITATION: | Church v Commissioner of Police [2015] QDC 259 |
PARTIES: | SHERRILYN CHARMAINE CHURCH (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | Warwick D 2/15 |
DIVISION: | Civil |
PROCEEDING: | s 222 appeal |
ORIGINATING COURT: | Warwick Magistrates Court |
DELIVERED ON: | 16 October 2015 |
DELIVERED AT: | District Court, Brisbane |
HEARING DATE: | 26 August 2015 |
JUDGE: | Butler SC, DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – appeal against conviction for speeding – whether charge proved. |
COUNSEL: | The appellant appearing on her own behalf. C.S. Whelan for the respondent. |
SOLICITORS: | The appellant appeared on her own behalf. Director of Public Prosecutions for the respondent. |
- [1]The appellant was the driver of a vehicle intercepted by Police for speeding on the New England Highway at Spring Creek on 5 March 2014. She was convicted on 13 February 2015, after a trial in the Magistrates Court at Warwick, of travelling at a speed of 116 kilometres per hour in a 100 kilometre per hour zone. The magistrate imposed a fine of $300 and ordered $87.70 cost of court be paid.
- [2]This is an appeal under s 222 of the Justices Act 1886 (Qld) against both conviction and sentence.
The test to be applied upon appeal
- [3]The Court of Appeal in White v Commissioner of Police[1]conveniently summarises the principles that are applicable in dealing with an appeal under s 222 of the Justices Act 1886:
“The appeal brought by the applicant to the District Court under s 222 of the Justices Act was an appeal by way of rehearing, as provided for in s 223 of that Act. On such an appeal the District Court Judge was required to make his own determination of relevant facts and issues from the evidence, giving due deference in attaching a good deal of weight to the magistrate’s view.”
- [4]The court later in the judgment continued as follows:
“In the appeal to the District Court, s 223 of the Justices Act provides for a rehearing on the evidence given at trial, and any new evidence produced by leave. That is a rehearing, in the technical sense consisting of a review of the record of the proceedings below it, rather than a completely fresh hearing. To succeed on such an appeal an appellant must establish some legal, factual or discretionary error.”[2]
- [5]This appeal will be determined in accordance with those principles.
The appellant’s case before the Magistrate
- [6]The appellant advised the magistrate that she did not dispute that she was travelling at 116 kilometres per hour in a 100 kilometre per hour zone when observed by police. She told the magistrate “I was driving at 116 when he flashed me.”
- [7]Her defence was that she was acting reasonably in speeding to escape an extraordinary threat from another vehicle. In legal terms the appellant raised a claim of extraordinary emergency under s 25 of the Criminal Code. She testified that she was menaced by a truck over a distance of 18 kilometres and in fleeing the truck exceeded the speed limit.
New evidence
- [8]Two police statements provided by the appellant were received into evidence as new evidence without objection by the prosecution. The appellant sought to rely upon those statements as demonstrating inconsistency between what police had said in the statements and what appeared in their evidence before the magistrate.
The prosecution evidence before the magistrate
- [9]The prosecution led evidence from the two police officers who stopped the appellant. The appellant then gave evidence on her own behalf and was cross-examined by the prosecutor.
- [10]Certificates were led through the police witnesses attesting to the accuracy of the speedometer, the mobile radar and its operation. The appellant did not challenge this evidence or the fact that she was travelling at a 116 kilometres per hour as alleged.
- [11]The police witnesses said that after obtaining a radar reading from the appellant’s oncoming vehicle they did a U-turn and pulled up behind her then stationary vehicle. Senior Constable Pike testified that just prior to stopping he activated a body worn video recorder, alighted from the police vehicle and approached the driver’s side of the appellant’s vehicle. His evidence was that he then had a conversation with the appellant the whole of which was recorded by his body worn camera. That video was tendered in DVD form and played in the Magistrates Court. I have viewed that video. The second officer, Senior Constable Cremasco, was present during the conversation Senior Constable Pyke had with the appellant.
- [12]After an initial conversation with the appellant, Senior Constable Pyke returned to the police vehicle and is seen completing a speeding time ticket. At that time Senior Constable Cremasco remained at the appellant’s vehicle. Senior Constable Cremasco in evidence said he then required the appellant to provide a specimen of breath for a breath test. That conversation was not recorded.
- [13]The video records images from inside the police car as it comes to a stop. Senior Constable Pyke is seen on the video alighting from the vehicle, walking to the appellant’s vehicle, and speaking to her. The officer introduced himself and the appellant immediately explained that she had been driving for a long time, had experienced a micro-sleep and at that point her foot was heavy on the accelerator. Towards the end of the conversation, the police officer suggested that her vehicle could not have quickly reached a speed of 117 kilometres an hour and the appellant responded that she had recently passed a slow-moving truck and had to travel at 120 kilometres an hour to get past it.
- [14]The appellant put to Senior Constable Pyke that she told him she had to drive at 120 to overtake a truck that was blocking her as it had been harassing her for 17 or 18 kilometres. The appellant said she was fleeing a truck in order to be safe, that she could not use her mobile phone as it was flat, and there were no shoulders to stop on. The police officer’s response was that the entire conversation he had with her was recorded on the video. No mention of being harassed by a truck is heard on the video recording.
- [15]The appellant put to the police officer that the offending truck passed them as he approached her window. He responded that the vehicle that went past as he was approaching her was a maroon sedan that is visible in the video. He said, “That was the nearest vehicle behind you at the time. That came past after you had passed us.”
- [16]Under cross-examination Senior Constable Cremasco said that when he was alone with the appellant administering the random breath test, he did not recall any conversation by her about being harassed by trucks or other traffic. The appellant put this question to Senior Constable Cremasco:
“Q. Is it true that I told you about the offending truck driver to any degree whatsoever, that I was under duress?
A. No, not to me you didn’t. At – I do recall at the end of the conversation with Senior Constable Pyke you mentioned a truck and you were doing 120 kilometres an hour to overtake it. That’s the only conversation that I recall having with – with the truck.”
Defence evidence before the Magistrate
- [17]The appellant gave evidence on her own behalf. She testified as follows:
“And all I can say to you is that I was relieved and fleeing from a menace when tiredness hit me, and I think it was because of sheer relief that I had finally put an end to the harassment and erratic driving that I suffered for – for more than 17 kilometres. I was in extenuating circumstances. I wanted to call the police. I couldn’t. My mobile phone battery was flat. There were no shoulders on the road. It’s an elevated flood road. There’s just deep culverts either side, and many times a truck tried to push me over the culvert when I tried to overtake him, and it was quite a terrifying experience for me, but when I finally got ahead of him, because I was going down a hill, I lifted my foot off the accelerator, the car began to slow, but, your Honour, I wasn’t in a hurry in slowing down in front of that truck. I was actually fleeing and wanting to put a distance between me and the truck driver. I wanted to get to an area where there were people so that I could make a report and call the police, and I told the police – the minute his head appeared in my window, I told him exactly what I had been experiencing, and that there was – the relief of actually getting out onto a clear road and making distance between me and that truck led to that sense of – of fatigue that hit me because the emergency was over, but that was my second conversation to the policeman about being tired, and I do wear an alarm.”[3]
- [18]Under cross-examination the appellant said that there was a conversation that had not been recorded and did not appear on the DVD.[4]In her cross-examination of Senior Constable Pike the appellant put to him he had approached her car on three occasions; that on the first approach she gave an explanation of the harassment and fear that she had suffered over a long period from the truck and it was the second approach by him that is seen on the DVD. The appellant said that on the second occasion he introduced himself as if it were an initial approach. He denied this.[5]
Appellant’s submissions on appeal
- [19]The appellant’s notice of appeal stated her grounds as:
“Justice was perverted because Police falsified reports and DVD evidence. That DVD evidence caused the magistrate to err.”
- [20]The appellant alleged evidence had been tampered with and falsified by police officers and the fact she had reacted to an extraordinary emergency was covered up by police. A written outline by the appellant emphasised that the magistrate placed weight upon DVD evidence which she alleged was falsified by police.
- [21]In oral submissions the appellant advanced a hypothesis as to how the police video evidence failed to contain a conversation she had testified to having with the officers. The appellant argued that a conversation during which she told police of having been harassed on the highway by a truck causing her to speed to escape the harassment occurred when she was first approached by an officer. She submitted that the video tendered by the prosecution only recorded the second time she was approached by the officers. The appellant submitted that the officers had falsely denied the initial conversation and had acted deceptively during the second conversation shown in the video in order to convey the impression it was their first and only conversation with her.
- [22]The appellant did not advance any argument in support of an appeal against sentence.
The issue
- [23]The issue to be determined before the magistrate was whether the prosecution had negatived beyond reasonable doubt the defence of extraordinary emergency.
- [24]The learned magistrate set out s 25 of the Criminal Code in his decision. The section reads:
“Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”
His Honour correctly identified that the prosecution bore the onus of negativing this exculpatory provision and acknowledge it had been raised on the evidence.
- [25]The learned magistrate considered the testimony of the police witnesses, the testimony of the appellant and the tendered video. Ultimately he did not accept the appellant’s account of what had occurred. He accepted the evidence of the Police witnesses.
- [26]It is necessary that I make my own determination of fact from the evidence, including the new evidence, while giving due deference to the magistrate’s assessment of the witnesses. If I am left with a reasonable doubt as to whether the prosecution have negatived the exculpatory provision then the appellant must be given the benefit of that doubt.
Consideration
- [27]The appellant testified before the magistrate of being placed in fear by the erratic and menacing behaviour of a truck driver. She said “I was isolated and alone on the road with an erratic truck driver”. The appellant described attempting on a number of occasions over 17 or 18 kilometres to pass the truck. She also spoke of slowing to let the truck go but said that the truck driver slowed in front of her. Her explanation for not simply stopping by the road and allowing the truck to move away was that it was not possible, that there were no shoulders and that she could not pull off the road safely. She said that if she could have, she would have stopped and allowed the truck to disappear into the distance but she did not have that freedom.
- [28]The appellant’s description of a truck driver’s behaviour does not fall outside the realms of possible behaviour. However, the appellant’s description of her own response seems less plausible. The conduct of the driver is alleged to have occurred at about midday, on a clear day, on a fairly busy road (as appears from the traffic noticeable on the video) over a considerable distance. It seems implausible that the only option available was to pass the offending vehicle at speed. Having regard to the nature of the road depicted in the tendered photographs and the distance of 17 kilometres referred to, it is hard to accept that the appellant had no opportunity to pull over and allow the truck to move away from her.
- [29]As the existence of an extraordinary emergency emerges only from the testimony of the appellant it is necessary to consider the reliability of her account in that regard. While the reservations stated in the previous paragraph would not be sufficient of themselves to cause the appellants evidence to be rejected, it is necessary to consider those reservations in light of any other factors raising questions about her credibility as a witness.
- [30]It is to be expected that if the appellant had been subjected to menacing conduct up until just before her apprehension for speeding, she would have immediately proffered that explanation to the police officer questioning her. Her own evidence is that she did just that. However, no such explanation is to be heard in the recorded conversation. The appellant meets this by alleging that the police officer conducted an earlier unrecorded conversation with her in which she did make such a complaint. Both police officers deny that occurred. There is no apparent motive for the police officers to have conducted themselves in that way. The appellant suggests that it may have been to seek a bribe but she does not allege that any such request was made. Given the competing accounts, there seems to be no scope for misunderstanding or confusion. It is the appellant’s contention and necessary to her account that the police acted fraudulently and in a premeditated way in order to give a false impression on the recorded video.
- [31]In my assessment, the appellant’s description of an earlier conversation is inconsistent with her demeanour and responses when approached by the officer, as seen on the video. Her initial reaction does not appear consistent with her already having had a conversation with the officer. In a fairly lengthy conversation advancing explanations for how she came to be speeding, none refer to intimidating conduct by another driver. Indeed, when she speaks of a truck it is in the context of describing how she passed a slow vehicle; an explanation inconsistent with that put by her in cross-examination of a truck blocking her at high speed. Her answers and lengthy explanations at no time refer to an earlier conversation. On my assessment of her evidence I do not find the appellant to be a credible witness when she says that she had an initial unrecorded conversation with the police officer. That finding necessarily affects her credibility in relation to the whole of her account of having been menaced by another driver.
- [32]I find the appellant did not raise any alleged harassment when speaking to the officers. In light of that finding, viewed in combination with the reservations detailed above, I do not accept as credible or reliable the appellant’s account that she acted to avoid harassing behaviour by another driver.
- [33]I am fortified in my rejection of the appellant’s evidence by the findings of the learned magistrate, who had the benefit of seeing her testify. His Honour concluded:
“I accept the prosecution’s version where it conflicts with the defendant’s version. I just do not accept her version.”
- [34]I recognise that in assessing the evidence it is not a question of determining which version is to be preferred. The onus of proof remains upon the prosecution. Having rejected the evidence of the appellant I must put that evidence aside and ask if the prosecution has proved its case beyond reasonable doubt.
- [35]Upon an assessment of the officers’ evidence, I find the testimony of each to be consistent with the other and consistent with what can be seen on the video. I accept the evidence of the police officers as being credible and reliable. Having regard to the officers’ testimony, what can be seen on the video, the photographs and all the surrounding evidence, I am satisfied that the prosecution have negatived extraordinary emergency and proved the offence of speeding.
- [36]I am satisfied the prosecution have established beyond a reasonable doubt that the defendant was speeding without any reasonable cause. Accordingly, I find the charge was correctly proven.
Sentence
- [37]The appellant made no submission that the fine of $300.00 was excessive. Having regard to the speed it is admitted she was travelling, any submission to that effect could not succeed.
Orders
- [38]The appeal against conviction is dismissed.
- [39]The appeal against sentence is dismissed.
- [40]There will be no order as to costs.