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Smith v Coulter QDC 217
DISTRICT COURT OF QUEENSLAND
Smith v Coulter  QDC 217
DOUGLAS JOHN SMITH
MICHAEL ANDREW COULTER
Magistrates Court of Queensland at Southport
DELIVERED EX TEMPORE ON:
20 June 2016
20 June 2016
CRIMINAL LAW - APPEAL AGAINST CONVICTION AND SENTENCE – where the appellant was convicted of speeding – whether a defence of honest and reasonable mistake was available on the evidence
Criminal Code 1899 (Qld) s 24
Justices Act 1886 (Qld) ss 222, 225
Stevenson v Yasso  2 Qd R 15, considered
Crossing v Commissioner of Police  QDC 94, considered
D. Smith representing himself
J.K. Rodriguez for the respondent
D. Smith representing himself.
Commissioner of Police for the respondent
- The appellant appeals from his conviction after a summary trial in the Southport Magistrates Court on 10 December 2015, for the offence of disobeying the speed limit on 14 April 2014. He was found guilty, convicted and fined $500.00 plus $87.20 costs of Court.
- The appellant appealed his conviction by Notice of Appeal filed on 8 January 2016. This was supplemented by a document entitled “the grounds of my appeal” filed on 3 February 2016. The respondent filed submissions on 4 April 2016. In response to a request by me the respondent filed a further outline of submissions by leave on 20 June 2016.
- Those further submissions were directed to the question of whether the Magistrate erred in failing to conclude the prosecution had not negatived a defence pursuant to the provisions of section 24 of the Criminal Code that the appellant had driven the motor vehicle under an honest and reasonable but mistaken belief that he had at all times driven at a speed of no more than 110kms per hour.
The Hearing Below
- The prosecution relied on the evidence of Senior Constable Shulzer that he operated an Ultra Lyte 20/20 radar device in accordance with appropriate operating instructions on 14 April 2004 and recorded the appellant’s motor vehicle as travelling at a speed of 131kms per hour on the Pacific Motorway at Coomera.
- The learned acting Magistrate accepted the evidence of Senior Constable Shulzer. He accepted that there was no visual impediment to Senior Constable Shulzer’s observation of the appellant’s vehicle as it approached him, passing other vehicles, at a speed he estimated to be in the “high 120kms per hour”. He also accepted that Senior Constable Shulzer then targeted the appellant’s vehicle with the device and recorded a speed of 131kms per hour on the device at a distance of 122m from his own location. Despite the appellant’s challenge to Senior Constable Shulzer’s evidence the learned acting Magistrate accepted the evidence of Senior Constable Shulzer.
- At the trial the appellant gave evidence that his vehicle was fitted with two devices, one of which activated a warning at 110kms per hour, and the other at 130kms per hour. He said that these were factory fitted standard devices to his vehicle and that whilst one device had activated, indicating he was travelling at a speed, as recorded by the vehicle’s speedometer, of 110kms per hour, the other device had not been activated, to indicate he was not travelling at a speed, as recorded by the vehicle’s speedometer, of 130kms per hour at any time during his journey from Brisbane to the Gold Coast on 14 April 2016.
- He also gave evidence that he had had the speedometer of his motor vehicle checked on 18 February 2014 by his mechanic. He said that he was present when the test was conducted and indicated that at a speed of 110kms per hour his speedometer wrongly indicated a speed of 116kms per hour (so that he effectively had a leeway for a further 6kms per hour after the warning was activated when the speedometer showed 110kms per hour, assuming the accuracy of this testing). There was similar but lesser differences at lower speeds and correspondingly greater differences at higher speeds. A certificate in relation to that test was admitted into evidence as Exhibit 8.
- The appellant also said in evidence that he had a GoPro device installed in his car. His evidence was that it was set to take still images of the dash console every ten seconds and so was what he called a “silent witness log” of the vehicle’s speed throughout the trip. Full analysis of the 317 images taken on the trip on 14 April 2016 showed that at no time did he travel in excess of 116kms per hour, as shown on the console of his vehicle. This, of course, would equate to 110kms per hour, the speed limit at the relevant section of the highway, having regard to the test results shown in Exhibit 8. He prepared a graph of the vehicle’s speed throughout the journey as shown on the console (see Exhibit 10).
- In my view that evidence raised two questions for consideration by the learned acting Magistrate:
- Did the motor vehicle travel at no more than 110kms per hour during the subject journey, and did it travel at 131kms per hour as Senior Constable Shulzer gave evidence of; and
- If it travelled at excessive speed, did the appellant have an honest and reasonable but mistaken belief that he was travelling only at 110kms per hour, or less, and so had a defence under s 24 of the Criminal Code.
- The learned acting Magistrate dealt with the evidence at the trial in this way:
- He observed that there was no challenge to the accuracy of the Ultra Lyte 20/20 radar device and was satisfied that it was being used in accordance with manufacturer’s specifications and operational guidelines;
- He accepted the evidence of Senior Constable Shulzer that he saw the appellant’s vehicle approaching him and passing other vehicles at a speed he estimated to be in the “high 120kms per hour”;
- He accepted that Senior Constable Shulzer targeted the appellant’s vehicle with the radar device and recorded a speed of 131kms per hour, as shown on the device, at a point 122 metres from his location;
- Despite the appellant’s challenge to Senior Constable Shulzer’s evidence the learned acting Magistrate accepted that the police officer had a clear and uninterrupted view of the appellant’s motor vehicle and that the speed measurement was correct, and was of the appellant’s vehicle, and not of another vehicle as the appellant had suggested.
- He then turned to the appellant’s evidence. He concluded:
- He would disregard the evidence comprised by Exhibit 8 and “anything related to it”. That is, he disregarded the evidence of the test of February 2014. His reason for doing so seems to have been that the mechanic who had conducted the test did not give evidence. I shall return to the reason why the mechanic was not called later, and to the consequences of that.
- He found that the evidence of the readings from the GoPro camera was “unreliable evidence… particularly having regard to the speedo not being tested to the Court’s satisfaction by an expert”.
- The learned acting Magistrate found that the vehicle was in fact being driven by the appellant at 131kms per hour at the relevant time. Despite saying in his judgment that any “lawfully raised excuses raised by the accused must be negatived by the prosecution beyond reasonable doubt… and certainly there has been… a defence raised”, the learned acting Magistrate did not turn his mind to the defence of honest and reasonable mistake of fact under section 24 of the Criminal Code.
- It is important in considering the matter to understand that at no time did the Police prosecutor cross-examine the appellant to suggest that the GoPro pictures were not taken on the day in question. The examination of the appellant is recorded at pp 1-35 to 1-41 of the transcript. It was directed to the question of the accuracy of the police officer’s recording, and not to the GoPro recording.
- At no time did either the learned acting Magistrate or the prosecutor turn their minds to the question of whether or not the appellant honestly and reasonably believed that he was travelling only at 110kms per hour. The judgment was directed to whether or not “you believe that we ought to believe your mathematical equations and your equipment instead of an arresting officer with 15 years’ experience”.
- It is my view that the evidence very clearly established:
- That the appellant honestly believed testing of his car showed that at a speed of 110kms per hour the speedometer of the car would indicate that it was travelling at 116kms per hour, i.e. the speedometer was inaccurate in that it overstated the speed of the vehicles by 6kms per hour, at that speed. The appellant was present during such testing and the test results were admitted into evidence.
- That the appellant consciously ensured his speedometer did not exceed 116kms per hour during the relevant trip, a point borne out by the 317 images taken on the GoPro device. None of the photos show the speedometer even exceeding 116kms per hour equivalent to an actual speed of 110 kms per hour.
- The clear inference, in my view, is that the appellant honestly and reasonably believed the speed of his vehicle did not go over 110kms per hour at any time during the trip.
- In my view, it was necessary for the learned acting Magistrate to have considered a defence under section 24. He clearly did not do so. No doubt, that is explained by the fact that the appellant was self-represented and presented his case on the basis that he did not in fact drive at 131kms per hour. The Police prosecutor cross-examined on that basis. No one in the Court turned their mind to the question of whether or not the appellant honestly and reasonably believed he was travelling only at 110kms per hour, even if it was in fact the case he was driving at 131kms per hour. In my view, the evidence clearly established that he was of that belief, and that, in the circumstances, that belief was reasonable.
- The presiding Magistrate was required to consider all defences raised on the evidence, even if not specifically adverted to by the unrepresented appellant. In my view a defence under section 24 was very clearly raised and was not considered. It ought to have been. In my view, if it had been considered the defence would clearly not have been negatived beyond reasonable doubt. There is, in my opinion, no view of the evidence, as given at trial, inconsistent with the defence.
- An appeal under section 222 of the Justices Act 1886 (Qld) is an appeal by way of rehearing on the evidence before the Magistrate. The Court is required to conduct a real review of the evidence given at the trial and of the learned acting Magistrate’s reasons. In doing so the Court should give due deference and attach a good deal of weight to the views of the learned Magistrate, but it remains for the appellate court to draw its own conclusions on the evidence (see Stevenson v Yasso  2 Qd R 15 at 162, especially at paragraph 36 and see the judgment to that effect of Smith DCJA in Crossing v Commissioner of Police  QDC 94).
- In the latter case, his Honour, dealing with the consequential orders based on findings made on the appeal, referred to section 225 of the Justices Act 1886 (Qld) which provides:
“(1)On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
(2)If the judge sets aside an order, the judge may send the proceedings back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or consideration.
(3)For subsection (1) the judge may exercise any power that could have been exercised by whoever made the order appealed against.”
- The fact that the Police prosecutor did not cross-examine the appellant with a view to showing that he did not honestly and reasonably but mistakenly believe he was travelling only at 110kms per hour is not something that could be replicated on a retrial. The appellant is entitled to the benefit of the evidence as it was given and the way the trial was conducted. In that circumstance it would be inappropriate, in my view, to require him to be retried. This is a case where, even giving due weight to the findings of the learned acting Magistrate about credit, I am entitled to conclude, on the evidence, that the acting learned Magistrate ought have found that the prosecution had not negatived the defence of honest and reasonable mistake of fact.
- In the circumstances it is in my view appropriate that the appeal be allowed and the conviction overturned. I so order.
- Published Case Name:
Smith v Coulter
- Shortened Case Name:
Smith v Coulter
 QDC 217
20 Jun 2016