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- Unreported Judgment
Prince v Queensland Police Service QDC 91
DISTRICT COURT OF QUEENSLAND
Prince v Queensland Police Service  QDC 91
QUEENSLAND POLICE SERVICE
Magistrates Court at Rockhampton
19 March 2015 ex tempore
19 March 2015
APPEAL – s 222 Justices Act 1886 – where appellant seeks leave under s 223 Justices Act 1886 to adduce fresh or additional evidence – where leave refused.
APPEAL – s 222 Justices Act 1886 – where appellant seeks to lead matters of credit – factors relevant to exercise of judicial discretion – where court will not disturb findings as to credibility.
Justices Act 1886 (Qld), ss 222, 223, 224.
Transport Operations (Road Use Management – Road Rules) Regulations 2009, r 20.
House v The King (1936) 55 CLR 499
R v Lawley  QCA 243
The appellant appeared on his own behalf.
J. Phillips for the respondent
Office of the Director of Public Prosecutions for the respondent
- HIS HONOUR: This is an appeal brought by the appellant against a conviction entered on the 21st of November 2014 following a hearing before Magistrate O'Driscoll. At the time, the defendant was charged with an offence under the Transport Operations (Road Use Management) Act 1995 concerning driving at speed. He was convicted on the 20th of May 2014 at Mount Morgan in the Magistrates Court district of Rockhampton of driving a motor vehicle at a speed over the speed limit, namely 40 kilometres per hour, which applies to the driver of a length of road, namely Central Street, Mount Morgan, where the driver, that is, the appellant, was then driving. A trial was conducted that day. Evidence was called by the prosecution from two police officers. When the defendant appellant was called upon to offer evidence in his own case, he chose not to call evidence, but rather make submissions.
- At the conclusion of the case, having heard the evidence and arguments advanced by both the prosecution and the defence, the learned magistrate, after having informed himself of the appropriate standard and onus of proof and, in particular, informing himself correctly of the need for any defence to be negatived by the prosecution beyond reasonable doubt, proceeded to summarise the evidence that was put before him and ultimately conclude that the evidence that was advanced before him by the two police officers involved essentially was both credible and honest.
- Following he having heard that evidence and having made findings about the credibility of the police officers who gave evidence, he made the following findings of fact. They are these: that at 2.50 pm on the 20th of May 2014 at Central Street, Mount Morgan, the appellant was driving a vehicle and the speed limit applicable at the time was 40 kilometres per hour; that is, it was a school zone, and the time of offence, being 2.50, was between the hours of 2.30 pm and 4 pm. Accordingly, a restricted speed zone was in operation.
- He was satisfied that the relevant police officer recorded the appellant’s vehicle in that zone travelling at 61 kilometres per hour. That was a speed recorded at about 64.4 metres from the point at which the officer was standing with a speed gun, which the learned magistrate accepted was operational at the time and recording accurate speed recordings. Accordingly, he concluded that he was satisfied that the prosecution had proved all the elements of the offence.
- Although no valid defence or lawful excuse had been raised by the defendant, he continued to note that the prosecution had negatived any such defences which were raised, and accordingly found the defendant guilty. I should note that the appellant today has sought to largely rerun the arguments before me which were unsuccessful before the learned magistrate. He has, in addition, sought to place before me additional material and, I infer, sought the Court’s leave pursuant to s 223(2) Justices Act 1886 for leave to adduce fresh or additional evidence beyond that which was before the Court at the original hearing. Such leave is required because, pursuant to s 223(1), an appeal under s 222, which is this style of appeal, is to be by way of rehearing on the evidence, being the original evidence given in the proceeding before the justices or the magistrate.
- Leave is refused for these reasons. The evidence which the appellant seeks to lead –a copy of it has been provided in the papers – includes photographs and a handwritten plan. There is nothing about the material in respect to which leave is now sought which suggests it was not ordinarily available to the appellant at the time of the original hearing, and, in the circumstances, it ought to be refused on that basis alone. In any event, I’m satisfied it adds nothing to the original evidence, and, indeed, if anything, appears to be somewhat confusing with it containing various handwritten notes and other estimations which are the subject of the accused’s expressions of opinion, which matters were not put to the police officers in the course of cross-examination in the trial below and so it would be unfair, I think, in the circumstances to permit any further material to come forward. That said, I’m not satisfied that even if I were to accept that material, it would actually have any material bearing on the outcome of the appeal.
- As I’ve noted, the original proceeding before the learned magistrate involved evidence from two police officers. They gave evidence as to the accuracy and working order of the radar system which was used to detect the appellant’s speed. The appellant put to the various witnesses his version of events similar to that which was put to me today in submissions; in particular, an allegation that there was a vehicle in front of him and that the vehicle was seen to stop, something was seen to be passed from the vehicle to the operating police officer, and further, that a statement was made to the effect that he was the number 1 vehicle at the time that he was subsequently pulled over by police. All those matters were denied by the police in the court below and the denials were accepted by the learned magistrate.
- There were a number of minor errors identified in the proceeding below which related to the administration of the ticketing, that is, an error on the face of the ticket in respect of the speed zone, but those errors were not material. Ultimately, the ticket itself didn’t constitute the formal complaint but constituted an administrative or summary means of disposing of matters. Ultimately, the formal complaint came before the Court by way of a complaint and summons which was dated 30 June 2014, where particulars of the charge which indicate that the appellant was the driver of a vehicle, namely one motor car, drove at a speed over the speed limit, namely 40 kilometres per hour, applying to the driver of a length of road, namely Central Street, Mount Morgan, where the said driver was driving, and it was averred that the motor vehicle was a motor vehicle, etcetera. They were the particulars of the complaint sworn and it was that particular complaint which was addressed in the proceedings below. The irregularities in the ticket itself are not material, and to that end, I accept the learned magistrate’s finding.
- As I’ve noted, this is an appeal pursuant to s 222 of the Justices Act 1886. It proceeds on the evidence given in the proceeding before the learned magistrate, and it is accepted as a matter of law that respect should be afforded to the advantages had by the presiding magistrate who had the advantage of hearing and seeing the witnesses give evidence, particularly when there is, as is the case here, a question of credit to be assessed. Although the powers of the court on such an appeal are broad and provided for in s 224 of the Justices Act 1886, the principle governing when an appellate Court should interfere with the decision of a magistrate are well settled. It is accepted that before doing so:
“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate Court may exercise its own discretion in substitution for his if it has the material for doing so.”
That was an observation of the High Court in House v The King (1936) 55 CLR 499 at 505.
- It was later said in a decision of R v Lawley  QCA 243 at  that:
“It is not a sufficient basis for this Court to intervene that this Court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion.”
It is with those matters that I now turn to consider the actual grounds which were advanced by the appellant. In his first ground identified in his notice of appeal, he complains along these terms:
“The magistrate would not let me get answers to my questions to the police and the police would not answer my questions. Their answer was “I don’t recall” or “I don’t remember” but they had remembered things that did not take place. They could not remember flagging a vehicle past me at a very fast pace.”
- This matter was put by the appellant to police and the police answered the questions. It does not appear from the transcript that the officers refused to answer the appellant’s questions, nor that they were being untruthful. Indeed, the magistrate had to intervene on a number of occasions in the course of cross-examination to assist the appellant in the conduct of his case in order to ensure that he asked questions rather than made statements from the bar table.
- Ultimately, it seems from the transcript that the questions were asked and answered, although it’s plain from the manner in which the matter proceeded from that point that the appellant did not accept those answers. In any event, it’s plain, I think, from the transcript that the appellant was afforded sufficient opportunity to ask questions of the witnesses. He did ask questions. He did put his version of events and it was simply not accepted. In respect of certain detail, it was open for the witnesses to answer by stating they didn’t remember or didn’t recall and such answers would’ve been appropriate if they had, indeed, no such positive recollection of events. It seems, respectfully, that that ground of appeal must fail.
- Implicit in the appellant’s appeal is a second matter which is addressed by the Crown in their submissions, and that was that there was ample evidence before the learned magistrate to the satisfied beyond reasonable doubt of the elements of the offence. In that regard, the matter came back to ultimately a question of credibility. Again, it well settled in these cases that where credibility is the critical issue and the magistrate has made findings based on credibility which then is the critical issue and the magistrate has made findings based on credibility, an appellant cannot succeed unless it can be shown that the magistrate has failed to use or has misused his advantage in seeing the witnesses or has acted on evidence which is inconsistent with the facts incontrovertibly established by the evidence or which was glaringly improbable.
- I’ve already related the reasoning of the magistrate as expressed in the transcript of reasons provided in the appeal. His reasons address, as I’ve noted, the appropriate onus and standard of proof. He has informed himself of those matters. He’s then proceeded to examine the evidence of the two witnesses and noted, in particular, that the defendant did not call or lead other evidence in his own case. He has made findings in respect of the credibility of the witnesses, having had the advantage of seeing the witnesses give evidence at trial. In those circumstances and in the absence of any reason to conclude that his findings of credibility have no basis or foundation in the evidence, and there is none, on my reading of the transcript, nor advanced expressly by the respondent, it is inappropriate to disturb any findings of credibility made by the learned magistrate.
- He having made findings based on the credibility of the witnesses and having established from that evidence all the ingredient facts which make up the elements of the offence, I am satisfied that the learned magistrate has concluded appropriately that the necessary facts to be established were established to the requisite standard. Accordingly, the conviction was properly entered. No reason has been advanced in this appeal why the learned magistrate’s findings should be disturbed and it follows that the appeal should be dismissed.
- In this case, the Crown seeks costs. The usual order would be that the unsuccessful appellant pay the respondent’s costs of and incidental to the appeal to be agreed or, if not agreed, assessed. The only basis advanced against such an order is the appellant’s impecuniosity; however, that is not a relevant consideration in matters of costs. That is a matter for later negotiation between parties. There is no proper basis advanced by the appellant as to why the ordinary order ought not follows and it follows that I will order that the appellant pay the respondent’s costs of and incidental to the appeal to be agreed and, if not agreed, assessed.
- Published Case Name:
Arthur Prince v Queensland Police Service
- Shortened Case Name:
Prince v Queensland Police Service
 QDC 91
19 Mar 2015