Gravlev v The Commissioner of Police
[2017] QDC 168
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- Unreported Judgment
- Gravlev v The Commissioner of Police[2017] QDC 168
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Gravlev v The Commissioner of Police[2017] QDC 168
Gravlev v The Commissioner of Police[2017] QDC 168
DISTRICT COURT OF QUEENSLAND
CITATION: | Jens Gravlev v The Commissioner of Police [2017] QDC 168 |
PARTIES: | JENS GRAVLEV (Appellant) v THE COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | D 1/17 |
DIVISION: | Criminal |
PROCEEDING: | Appeal under s 222 Justices Act |
ORIGINATING COURT: | Magistrate Court at Gatton |
DELIVERED ON: | 22 June 2017 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 27 April 2017 |
JUDGE: | Lynch QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – FRESH EVIDENCE – where on summary trial and appeal the appellant was self-represented – where magistrate intervened in conduct of defence case – where magistrate rejected evidence presented by appellant and accepted evidence as to accuracy of measurement by detection device – where magistrate deemed certificates were proof of accuracy of speed recorded by detection device – whether magistrate erred in the approach taken to determining accuracy of detection device – whether evidence sought to be presented by the appellant on appeal was fresh evidence or new or further evidence Legislation Justices Act 1886, s 158, s 158A, s 222, s 223, s 225, s 226 Cases Fox v Percy [2003] 214 CLR 118 R v Spina [2012] QCA 179 Reihana v QCAT Client Services Manager & Ors [2017] QCA 117 Shambayati v Commissioner of Police [2013] QCA 57 |
COUNSEL: | The appellant appeared on his own behalf F. Anoozer for the respondent |
SOLICITORS: | The appellant appeared on his own behalf Director of Public Prosecutions for the respondent |
Appeal
- [1]The appellant, Jens Gravlev, appeared before the Gatton Magistrates Court on 6 December 2016, on complaint for an offence of speeding. The complaint alleged:
(T)hat on the 21st day of July 2015, at Withcott in the Magistrates Courts District of Ipswich in the State of Queensland one Jens Gravlev being the driver of a vehicle namely a car drove at a speed over the speed limit namely 60 kilometres per hour applying to the driver for the length of road namely Warrego Highway Withcott where the said driver was driving and it is averred that the said car is a vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that the said Warrego Highway is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995.
- [2]The appellant was not legally represented. After a trial on that charge, the appellant was convicted and fined a sum of $200. No conviction was recorded. In addition, the appellant was ordered to pay witness costs of $157.50 and filing fees of $90.20.
- [3]The appellant filed a notice of appeal against his conviction on 6 January 2017. The notice lists a number of grounds of appeal which identify the appellant’s real complaint that the learned Magistrate erred in accepting the accuracy of the photographic speed detection device in question. These can conveniently be dealt with as a single ground. In addition the notice contains a ground complaining in effect that the learned Magistrate constrained the appellant from properly testing the prosecution evidence and presenting his defence. This ground is also dealt with separately below. The notice also lists grounds which variously complain about technical issues concerning the operation of the speed detection device. In light of the view I have reached as to the primary ground, it is unnecessary to consider these other grounds.
The evidence
- [4]It was alleged the appellant drove at 69 kph in a 60 kph zone on the Warrego Highway at Withcott at 12.27 pm on 21 July 2015. At that time, a police officer was operating a speed detection camera which recorded the speed of the appellant’s vehicle and photographed it. The appellant was later issued with an infringement notice.
- [5]The appellant gave notice in the prescribed form, pursuant to s 120(7) of the Transport Operations (Road Use Management) Act 1995 (the Act), of his intention to challenge the accuracy of the photographic detection device.
- [6]The prosecution called three witnesses to give evidence and also relied upon certificates under s 120(2) and s 120(2A) of the Act (as to the accuracy of the images relied upon and of the device). Exhibit 1 is a close up certified copy of the photograph taken by the device depicting the registered number of the vehicle in question. Exhibits 2 and 3 are certified copies of the photograph taken by the device which record the date and time the photograph was taken, the speed of the vehicle photographed as being 69 kph, and the serial number of the device. Exhibit 2 is the photograph with the reticle (a red and white circle showing where the device was aimed) visible on the photograph and positioned on the rear number plate of the vehicle. Exhibit 3 is the same photograph but without the reticle.
Bradley John Clark
- [7]Officer Clark is a Senior Sergeant of Police stationed at Toowoomba Road Policing Unit. He said that on 21 July 2015, he proceeded to the Warrego Highway, Withcott to perform speed camera duties. He utilised a TruCam photographic device, serial number 00TC001901. Sen Sgt Clark said at that location he observed the traffic speed was regulated by 60 kph signs. Sen Sgt Clark said he set up the device according to the manufacturer’s specifications and followed a check list of procedures which indicated it was working correctly. The check list was admitted as Exhibit 13. On the reverse side of the check list is a form, completed by Sen Sgt Clark, which records the details of the location he operated the speed camera from and a sketch he drew of his position. The sketch in Exhibit 13 places the police vehicle directly opposite the intersection of Kensington Drive and the Warrego Highway. Sen Sgt Clark said that as per the check list of tests, he measured a distance of 16 metres from his vehicle using a tape measure, then stood at that location and pointed the device at the vehicle; the device indicated a distance of 16 metres.[1]
- [8]Sen Sgt Clark said he commenced monitoring vehicles at 12.10pm and at approximately 12.27pm he saw a dark coloured station wagon pass his position travelling east on the highway. He said as the vehicle passed his location he aimed the TruCam device at the rear number plate of the vehicle, saw a speed reading of 69 kph, and heard the noise of the device indicating it had taken a photograph. He then reviewed the photograph and saw it was of the vehicle he had targeted. Sen Sgt Clark said he continued operating the device at that location until 4.13pm when he ended deployment. He said he then repeated testing of the device which indicated it was still working correctly. He then returned to the police station where he removed the SD card from the device and downloaded the content onto the police computer system.[2]
- [9]In evidence in chief, Sen Sgt Clark said he set up the device within the 60 kph zone “opposite Kensington Drive”.[3]In cross-examination, Sen Sgt Clark confirmed he used the TruCam device to measure the distance from his deployment position to an 80 kph speed sign, located on the highway further to the east, as being 389 metres.[4]At first, Sen Sgt Clark confirmed that his sketch (Exhibit 13), showing he was positioned “right across from Kensington Road”, was correct.[5]The appellant then showed Sen Sgt Clark a Google Earth photograph of the area on which Sen Sgt Clark acknowledged a yellow arrow marked the position directly opposite Kensington Drive.[6]This photograph was admitted as Exhibit 14. Sen Sgt Clark said he was positioned “very close” to where the arrow was marked,[7]and said: “It’s close. Yeah. For the court, where the arrow is, is directly across Kensington. I was sitting right near it, just near the trees there. I basically used the shade of the trees in the afternoon, because it gets hot.”[8]The appellant next showed Sen Sgt Clark a Google Earth map which measured and recorded the distance from the 80 kph sign to a position aligned with Kensington Drive as being 369.66 metres. This document was admitted as Exhibit 16. Sen Sgt Clark then said that the position from which this distance was measured was “not quite” where he was positioned.[9]He said: “And I was actually situated - set up - nearly the trees, which is a little bit back”.[10]Sen Sgt Clark went on to describe his position as follows: “…so I’m sitting around the trees there. Which is basically outside the medical centre. Where I set up, as I said, I utilised the shade from the trees because it gets hot.”[11] Later, officer Clark said his vehicle was positioned about one and a half to two metres from the fog line which ran along the road way.[12]
Sita Evans
- [10]Sita Evans is employed by the Queensland Police Service as a photographic supervisor. She is the supervisor of the section that has responsibility for the validation of data downloaded after deployment of a photographic detection device. Ms Evans said her section checks that all data downloaded appears correct and, if so, authorises the issuing of an infringement notice. She said that in the present case she personally reviewed the data and confirmed that it appeared to be valid in recording the date, time, location and that the tests were performed in accordance with the manufacturer’s specifications.[13]Ms Evans said where a speed infringement is detected, the device takes a single photograph of the vehicle and produces two images; one with the reticle or target identifier, and one without, which enables the number plate to be read.[14]
Rodney Ian James
- [11]Mr James is employed as a senior electronic technician, in charge of the speed camera section of the Queensland Police calibration laboratory at Alderley. He was familiar with the function and operation of the TruCam device from its introduction into use in 2011. He said he is responsible for the maintenance and calibration of these devices. He explained the operation of a TruCam laser photographic detection device as follows:
… A TruCAM is a laser-based device that transmits infrared energy pulses in a very narrow beam. The pulses travel at the speed of light. They are focused into a narrow beam onto a target. These pulses are reflected back to the TruCAM, and obviously travelling at the speed of light, they take a certain length of time to be transmitted, reach the target, and be reflected back. Now, the time – the timing it takes for those pulses to actually reach a target and be returned and computed shows the distance to that particular target. Now, if the target is moving, if it’s – say for example, if it’s travelling towards the TruCAM, each successive pulse takes less time to re – be returned to the receiver. So it’s actually the time in flight of the pulses which determine the speed. Now, if it – conversely if the vehicle or the target is travelling away, each successive pulse takes longer to be returned, and it uses a set of at least 70 pulses for any particular speed measurement. It only takes one pulse to – for it to actually determine the distance. It takes a second pulse to determine whether the vehicle is stationary or moving or which direction, but it uses at least 70 so it forms what’s called “data integrity checking”, so that if the – if the operator has unsteady aim, for example, and moved – can’t hold steady on the tape, it won’t – it’ll disregard a lot of those pulses and simply won’t make a speed measurement so to avoid any sort of erroneous result. So it’s looking for consistency of those 70 pulses being reflected back. If the operator has steady aim on – on the vehicle, then all those pulses satisfy the data integrity checking. It’ll then show – automatically, it will lock the speed of that target after – it takes about .3 of a second for it to do that. If that target speed is above the infringement speed, it then takes the image, puts that into a file, an encrypted file with all the speed data and distance and all the other offence data which goes in as one – one encrypted event file for the offence, and it saves that onto an SD card which is then later downloaded for processing.[15]
- [12]Mr James said that on 12 May 2015, he personally tested the TruCam device with serial number TC001901 and found it was operating correctly and producing results within the manufacturer’s specifications.[16]He produced a report dated 12 May 2015 which he had signed, confirming those results. This report was admitted as part of Exhibit 15 (the remainder of the documents admitted as Exhibit 15 were certificates as to the accuracy of equipment within the laboratory and which were used in the process of testing the TruCam device.). Mr James confirmed that the testing he performed on the TruCam device included: frequency testing (to ensure the timing of the device, upon which all results are based, was accurate); laser speed simulator (which simulates vehicles approaching and leaving the device at different speeds and distances); a scope check (to ensure that the reticle, size of the laser beam, and beam location are all aligned); and a physical distance check (which involved attending a range outside the laboratory and measuring set distances).[17]In respect of this TruCam device, Mr James said it gave exact results for every simulated speed test.[18]In cross-examination, Mr James acknowledged that the only “real live testing” he had performed with this TruCam device was the “outside … fixed target station”.[19]
Appellant’s evidence
- [13]The appellant gave evidence that it was in fact his car that was depicted in the photograph taken by the device operated by Sen Sgt Clark. He said he drove to Toowoomba on the day in question for work purposes. He said it was his invariable practice when driving on the highway to drive under cruise control which he would change according to the speed limit. Mr Gravlev said he also always activated a speed alarm on his GPS device to alert him if he exceeded the speed limit. Mr Gravlev said he did not know his vehicle had been detected on the day in question and therefore had no reason to check his speed at the moment he passed Sen Sgt Clark’s position. However, he was adamant that he could not have been speeding because his alarm would have sounded if he was travelling over 60 kph and it did not do so. Mr Gravlev said there was a difference of one or two kilometres per hour between the speed recorded by his vehicle speedometer and the speed recorded by his GPS system. He said it was his practice to monitor both when he was driving which also acted as a check that both were working accurately. He also said on the day in question his alarm did sound a couple of times after he had crested a hill and he saw he was travelling at one kilometre per hour over the speed limit.[20]
- [14]Mr Gravlev also said he had used Google Earth maps to measure the distance from the 80 kph sign to the position Sen Sgt Clark first described, as being 369.66 metres. Mr Gravlev said he was confident that measurement was accurate to within 10 millimetres. He said he had used that system to measure distances many times, had tested the measurements many times, and found them to be correct. Mr Gravlev referred to the printed map he had shown Sen Sgt Clark which measured the distance; that map was admitted as Exhibit 16.[21]It was suggested to Mr Gravlev that the position he measured from was not that described by Sen Sgt Clark. Mr Gravlev said the position was where Sen Sgt Clark initially described, but that Sen Sgt Clark then changed his description.[22]
Decision of Magistrate
- [15]The learned Magistrate identified the issue raised by the appellant as to the accuracy of the measurement of the distance from where Sen Sgt Clark was located to the 80 kph sign.[23]With reference to Exhibit 14, the map first shown to Sen Sgt Clark by the appellant, her Honour said:
… I understand that the marking that Mr Gravlev has made on the Google Map is where he believes senior sergeant was stationed on the basis of the rough, hand-drawn sketch which appeared on the portable speed camera record of operation completed by the senior sergeant. Now, when asked if the markings placed by Mr Gravlev were accurate in – when he was giving evidence, the senior sergeant stated that it was about right but that he was located to the eastern side of the trees shown in the picture to utilise the shade thrown by those.
I have examined the photograph and whilst there are no accurate calibrations – if I can use that word – on the photograph to, sort of, show how far that would be in comparison with the [indistinct] drive and taking – extrapolating that on the photograph, it would be some 10 to 15 metres to – looking at the photograph, to the left of where Mr Gravlev has indicated where he believed the senior sergeant was. It, indeed, is not one metre or two metres; it’s a much further distance. The second argument – sorry, I should also say that the submission therefore was that the device was inaccurate by 19 metres – with measurements were out by 19 metres and that would then render the subsequent charges void.[24]
- [16]
Of course, the certificates are proof that the device was accurate and, of course, that has been challenged by Mr Gravlev in when he says for this particular – the equipment’s lack of accuracy on this particular charge that is probably related to faults in calibration or use. Now, I also – I note that Mr – and I’ve been through Mr Gravlev’s arguments and I know he has put forward a number of – he was trying to put forward a number of calculations with – mathematical calculations with regard to speed and velocity and distances travelled, but I note that the – these certificates are proof of the accuracy, and, indeed, I also rely on Mr James, who gave actually informative evidence – I’ve learnt a little bit more today than I knew before – and I am satisfied that this TruCAM was accurate on the day.
…
Of course, in all of those circumstances, and taking into account – and I know Mr Gravlev is very – has a very strong belief that he was not going over the speed limit. He’s given evidence that he has a GPS and his GPS recalibrates itself every second, and that it also gives a warning sound if he is going over the speed limit for that particular area, and he always changes it when he’s coming into an area where the speed limit has changed. And I have no reason to doubt that that is his usual practice.
I am, however, bound by the – by the proof of the – put forward by the certificates and the accuracy of the device, which I have found it is accurate, and I would find that the prosecution has proved its case beyond a reasonable doubt and I will find Mr Gravlev guilty on the charge.[26]
Whether errors in approach of Magistrate
- [17]The appellant contends the learned Magistrate was wrong to reject his own evidence of the measurement from Sen Sgt Clark’s position to the 80 kph speed sign and to regard Sen Sgt Clark’s evidence as accurate. In support of that argument the appellant also sought to rely upon further evidence. That further evidence is dealt with below but can be disregarded for the purpose of considering whether the Magistrate erred. The appellant contends that the evidence demonstrates the distance measured by the TruCam device was wrong, there is therefore reason to doubt its accuracy, and his own driving habits show he was not speeding at the relevant time. Accordingly, the appellant contends he should have been found not guilty. The appellant also contends he was unfairly constrained by the learned Magistrate in cross-examining and giving evidence. This aspect is also dealt with below.
- [18]For the respondent, it was submitted the learned Magistrate properly considered the evidence, gave sound reasons for her conclusions, and made no error in her approach. The respondent submitted the appellant’s measurement was based upon a rough sketch rather than evidence of a precise position and was therefore not reliable. The respondent also submitted Sen Sgt Clark’s evidence was that he was not positioned where the appellant measured from. The respondent submitted no reason existed to doubt the accuracy of the measurement given by Sen Sgt Clark. In addition, the respondent submitted the learned Magistrate accepted the other evidence that the device was accurate and was therefore entitled to convict. The respondent submitted that, although the learned Magistrate at times expressed a view she was bound by the certificates to conclude the device was accurate, she also expressed her acceptance of the accuracy of the device. This meant, it was submitted, the learned Magistrate’s finding the device was accurate did not depend solely upon the certificates.
- [19]The learned Magistrate considered whether the appellant’s measurement of the distance from the 80 kph speed sign to where Sen Sgt Clark was positioned should be accepted. Her Honour said the appellant’s belief as to Clark’s position was “on the basis of a rough hand drawn sketch”.[27]That was not correct. In evidence-in-chief and initially also when cross-examined, Sen Sgt Clark’s account was that he was positioned opposite Kensington Drive which is where the appellant measured from. After being shown the map (Exhibit 14), Clark’s description changed, suggesting he was further towards the trees. Arguably, his account changed again when he was shown the measured map (Exhibit 16), and he placed himself even closer to the trees. It was an error to dismiss the appellant’s measurement as resulting only from a belief based upon a rough sketch.
- [20]The learned Magistrate then considered whether Sen Sgt Clark’s measurement was accurate. Her Honour referred to Sen Sgt Clark’s description that he was “to the eastern side of the trees” and by “extrapolating” with reference to Exhibit 14, estimated that to be a distance of 10 to 15 metres from where the appellant had measured. By this process, the learned Magistrate accepted Sen Sgt Clark’s measurement was accurate. In making this estimate, the learned Magistrate remarked there was no “calibration” on the photo Exhibit 14. By contrast, there was a useful aide for measuring distance on Exhibit 16. The measurement on that photo is scaled in five metre sections. Use of that photo to measure the distance from the appellant’s starting point to the point Sen Sgt Clark described shows the learned Magistrate’s estimate to be inaccurate. Using Exhibit 16 shows that the extra distance is less than five metres (not 10 to 15 metres). With reference to this photo, it appears obvious that if the distance measured by Sen Sgt Clark were accurate, he would have been positioned to the west of the trees he said he used for shade. Sen Sgt Clark did not at any time suggest he was positioned to the west of the trees (where he would not have been in their shade). The learned Magistrate’s method of estimation seems less than satisfactory in light of her criticism of the appellant’s measurement because it was based on a rough sketch. The learned Magistrate’s estimate as a basis to accept the evidence of distance given by Sen Sgt Clark is an error.
- [21]The learned Magistrate expressly referred to sections 120(2) and 120(2A) of the Act. Relevantly, section 120 provides as follows:
(2) An image produced by the prosecution purporting to be certified by an official 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.
(2A) A certificate purporting to be signed by an official stating that a stated photographic detection device—
(a) was tested at a stated time and in accordance with—
(i) the specifications of the device’s manufacturer; and
(ii) any further requirements about calibration testing prescribed under a regulation; and
(b) was found to produce accurate results at the time of testing;
is evidence of the matters stated and evidence the device was producing accurate results when so tested and for 1 year after the day of testing.
…
(4) If an image produced under subsection (2) has a marking or writing on the image—
(a) the marking or writing is taken to have been properly made by the photographic detection device; and
(b) the image is also evidence of each thing in relation to the image that the marking or writing is prescribed to mean under a regulation.
- [22]Exhibits 1, 2, and 3 are all copies of the photograph apparently taken by the device operated by Sen Sgt Clark and depict the appellant’s vehicle. Exhibits 2 and 3 also purport to identify the time and date they were taken, as well as recording the speed of the vehicle photographed as 69 kph. These photographs were all certified pursuant to s 120(2). In evidence, Mr James produced a written report, signed by him, and which confirmed that on 12 May 2015 he had tested the TruCam device in question, found it to be producing results within the manufacturer’s specifications, and operating satisfactorily. This was regarded as a certificate pursuant to s 120(2A).
- [23]The learned Magistrate seems to have proceeded upon the basis that the certificates were conclusive proof that the speed recorded by the TruCam device operated by Sen Sgt Clark on 21 July 2015, was accurate. The relevant passages of her Honour’s decision are set out in full above. In the course of those remarks, the learned Magistrate said: “the certificates are proof that the device was accurate” … “these certificates are proof of the accuracy” … “I am, however, bound by the – by the proof of the – put forward by the certificates”. As is clear from the terms of the provisions themselves, certificates produced in accordance with them are evidence of the matters set out in subsections (2), (2A) and (4). They are not conclusive. If they were, there would be no occasion to challenge the accuracy of the device, a course which is expressly permitted pursuant to s 120 (7) and (8).
- [24]In this case the appellant gave notice of his intention to challenge the accuracy of the device as he was required to do. The evidence introduced by the appellant contradicted that of Sen Sgt Clark concerning the distance he measured using the device on 21 July 2015. If there was reason to doubt the accuracy of that measurement, it followed the reliability of the speed recorded by the TruCam device was also in doubt. The certificates were evidence relevant to whether the TruCam device could be found to have been operating accurately. The evidence of Sen Sgt Clark’s tests on 21 July 2015 and Mr James’ tests on 12 May 2015, were also relevant to that issue. In the circumstances however, the existence of the certificates did not add to the conclusions that might be drawn from Mr James’ evidence. That is because Mr James’ testing of the device on 12 May 2015 was itself the basis of the certificate under s 120(2A). Therefore, the learned Magistrate’s statement that she accepted Mr James’ evidence in addition to the certificates as a reason for finding the device accurate, is not valid. It was necessary for the Magistrate to consider all of the relevant evidence to determine whether the TruCam device was shown to have been operating accurately on 21 July 2015. It was an error to regard the certificates as compelling a conclusion that the device was accurate.
Fresh evidence
- [25]On the hearing of the appeal, the appellant sought to introduce evidence of measurements and photographs taken after the hearing. The purpose of this evidence was to demonstrate that the measurement shown in Exhibit 16, of the distance from the 80 kph sign to the position described by Sen Sgt Clark, was accurate; and that the distance measured by Sen Sgt Clark was wrong. Mr Gravlev provided evidence that he had measured the relevant distances at the scene utilising a surveyor’s wheel and produced photographs of his doing so. Mr Gravlev contended that in evidence, Sen Sgt Clark had given a number of different accounts as to his location. The further evidence sought to identify these various positions and show their respective distances from the 80 kph sign.
- [26]Section 223 of the Justices Act 1886 provides:
223 Appeal generally a rehearing on the evidence
- (1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.
- [27]
Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. See Ratten v The Queen; Lawless v The Queen and R v Katsidis; ex parte A-G (Qld). New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence.
Appellate courts recognise, however, that there remains a residual discretion in exceptional cases to receive new or further evidence which is not fresh in the legal sense where to refuse to do so would result in a miscarriage of justice. See Mallard v The Queen; R v Young (No 2); R v Condren; ex parte Attorney-General; R v Main; R v Daley; ex parte A-G (Qld); and R v Katsidis. In determining an appeal which turns on new or further evidence, there are strictly two questions. The first is whether the court should receive the evidence. The second is whether that evidence, if received, when combined with the evidence at trial, requires that the conviction be set aside to avoid a miscarriage of justice. Frequently those two questions can be conveniently dealt with together. (Citations removed.)
- [28]It is clear that the further evidence the appellant seeks to rely upon could have been led at the original hearing. In this case the appellant, who appears in person and who was not legally represented at the original hearing, seeks to rely upon the further evidence as confirming as accurate the evidence he gave at the original hearing, and providing a basis to conclude that the learned Magistrate was wrong to disregard that evidence at the original hearing. In written submissions, the respondent opposed the reception of the further evidence.[29]In oral submissions however, the respondent resiled from that position, asserting that the documents did no more than confirm the evidence contained in Exhibit 16, so that there was “no harm” in the court receiving the evidence. The respondent submitted that, despite the further evidence, the court would conclude the learned Magistrate was correct to reject the appellant’s evidence as to distance.[30]
- [29]Relevantly, the further evidence consists of:
- a statement by the appellant that he personally measured the relevant distances by use of a surveyor’s wheel and that the measurements were in accordance with the Google Earth measurements he produced in evidence at the trial; and
- photographs showing the appellant’s measurement of those distances; and
- photographs showing the locations identified in evidence by Sen Sgt Clark; and
- a Google Earth map of the location and showing the relevant locations identified in the evidence of Sen Sgt Clark and their respective distances from the 80 kph speed sign.
Other documents sought to be introduced by the appellant on the hearing of the appeal included copies of the transcript of some evidence and the learned Magistrate’s decision, a copy of the witness statement of Sen Sgt Clark, correspondence from the Qld Police Service received by the appellant, and an extract from the TruCam device specifications. It is not necessary to have regard to these documents for present purposes.
- [30]I do not accept that the further evidence has no real utility as asserted by the respondent. In my view, the further evidence is compelling. It shows categorically that the distance between the point at which Sen Sgt Clark said he was positioned (to the east of the trees), and the 80 kph sign, was significantly less than 389 metres. This conclusion is consistent with the evidence led at the trial by the appellant. As demonstrated above, the learned Magistrate rejected that evidence for reasons which were not legitimate. In those circumstances, it seems to me appropriate to receive the further evidence because it confirms the true position is as asserted by the appellant; namely, that the learned Magistrate erred in rejecting Mr Gravlev’s measurements and accepting the measurement of Sen Sgt Clark.
- [31]Consistent with the principles confirmed in Spina, I conclude I should receive the further evidence to avoid a miscarriage of justice. Pursuant to s 223 of the Justices Act, I give leave to adduce additional evidence because “special grounds” for doing so have been made out. The consequence is that the appeal should be determined by way of re-hearing on the original evidence and on the new evidence adduced.
Whether appellant constrained in conducting defence
- [32]The appellant also complains that the conduct of the trial was irregular in that he was constrained by the learned Magistrate from testing the prosecution case and presenting his defence. This complaint is not without substance.
- [33]As identified above, the appellant appeared in person and without legal representation at his trial. The learned Magistrate intervened a number of times in the appellant’s attempts to cross examine and present his case, including in the following ways:
- instructing the appellant he could only cross-examine on the statements of the witness;[31]
- instructing the appellant he could not ask leading questions in cross-examination;[32]
- preventing the tender of documents properly admissible;[33]
- indicating the learned Magistrate did not understand mathematical concepts;[34]
- preventing the appellant asking questions regarding the calculation of speed;[35]
- indicating that questions regarding mathematical calculations were personally confusing and not understood by the learned Magistrate;[36]
- admonishing the appellant for asking legitimate questions;[37]
- admonishing the appellant for seeking to ask a question after re-examination;[38]
- limiting the evidence of the appellant so as to prevent his relying upon his distance measurements;[39]
- re-calling the appellant to give evidence because he had been prevented from reliance upon his distance measurements;[40] and
- dismissing submissions made by the appellant because they were not given in evidence.[41]
- [34]Whilst I do not consider the interventions by the learned Magistrate were intended to deny the appellant a fair trial, some of them certainly impacted upon this right. In particular, the appellant was entitled, when cross-examining, to put propositions to witnesses; including mathematical propositions as to the calculation of speed. In effect, the learned Magistrate prevented the appellant from doing so because she did not understand the calculations. In addition, the appellant should not have been prevented from asking leading questions in cross-examination. Also, the learned Magistrate only permitted the appellant to give further evidence after realising he wanted to rely upon documents she had prevented him from tendering in cross-examination, which she also prevented him from referring to in his evidence. The respondent submits that the appellant was not so constrained in the conduct of his case that he was prevented from giving relevant evidence or advancing a legitimate argument. In the end, in light of my conclusion that, upon rehearing, the evidence cannot sustain a finding of guilt, it is not necessary to consider whether the conduct of the case resulted in the trial being unfair. However, in my view, the manner of the conduct of the trial supports receiving the fresh evidence on the appeal.
Consideration upon rehearing
- [35]On this appeal, s 223 of the Justices Act requires a rehearing of the evidence, including the fresh evidence. In consequence, I am required to draw my own inferences and conclusions from the evidence.[42]Upon review of the evidence, the appellant should only succeed if he establishes some legal, factual or discretionary error.[43]
- [36]The detail of the relevant evidence to be considered is set out above. This includes the evidence given at the original hearing, as well as the further evidence concerning the measurements made by the appellant at the scene. The issue is whether the evidence as a whole proves beyond reasonable doubt that, on the 21 July 2015, the TruCam device deployed by Sen Sgt Clark was operating accurately. The evidence of Mr James was that it was accurate when he tested it on 12 May 2015. The evidence of Sen Sgt Clark was that he performed the check list of tests on 21 July 2015 which showed it was operating correctly. In contrast, the evidence of the appellant as to measurements shows that the distance, said by Sen Sgt Clark to have been measured by the device from his position to the 80 kph speed sign, was wrong. In addition, the appellant was adamant he was not exceeding the speed limit.
- [37]Upon my own review of all of the evidence, I am satisfied the distance measured by Sen Sgt Clark was not accurate. I am satisfied that a distance of 389 metres from the 80 kph speed sign would have placed Sen Sgt Clark to the west of the trees he referred to as providing him shade. This is not a trifling or inconsequential error since it means, at best from Sen Sgt Clark’s evidence, that his measurement was wrong by at least 10 metres. The possible explanations for this error include that the device was not working accurately or that Sen Sgt Clark was wrong when he gave evidence as to his location. However, when confronted by the inconsistent measurement, Sen Sgt Clark did not concede any possibility of mistake on his part and continued to assert he was situated to the east of the trees. In light of Sen Sgt Clark maintaining this account, it remains a rational possibility that the device was faulty. As conceded by the respondent on the hearing of the appeal, if a reasonable doubt as to the reliability of Sen Sgt Clark’s measurement exists, it must follow the charge cannot be proved to that standard.[44]
- [38]Upon reviewing the evidence, and for the reasons set out above, it is my view the learned Magistrate erred in rejecting the evidence of the appellant and accepting the evidence of Sen Sgt Clark concerning the measurement to the 80 kph speed sign. Upon my own review, I am not satisfied beyond reasonable doubt that the charge is made out. I find therefore that the decision of the Magistrate of 6 December 2016 should be set aside and instead the appellant should be found not guilty.
Costs
- [39]The appellant applies for costs of the appeal as well as the original hearing. As noted above, the appellant appeared without legal representation at the original hearing as well as on the appeal. The appellant has provided detailed submissions setting out his claim for costs in the total amount of $7,582.69. In large part the costs claimed by the appellant are for lost wages in preparing for, and appearing at, the court hearings. However, included in the claim is an amount of $473.65 for purchase of relevant transcripts of the original hearing.
- [40]Section 158(1) of the Justices Act provides power to order such costs as “seem just and reasonable” upon dismissal of a complaint. Section 158A of that Act provides the matters to be considered in determining whether costs should be ordered upon dismissal of a complaint. Section 225(3) of the Justices Act provides that, on appeal, the court may make any order that could have been made at first instance. Section 226 of the Justices Act provides that, on appeal, the court may make any order as to costs as the judge may think just.
- [41]The issue is whether any order for costs should be made to compensate the appellant for the time and effort he expended in preparing for and appearing at his trial and appeal. Ordinarily, costs ordered after acquittal or successful appeal in summary proceedings are designed to compensate a litigant for fees incurred by reason of engaging legal representation. It is not ordinarily the purpose of an order for costs to compensate a successful litigant for his own time involved in the litigation or to act as a penalty upon the prosecution for pursuing the complaint.[45]
- [42]Having regard to the fact the appellant was not legally represented at the original hearing or on this appeal, and the matters set out in s 158A of the Justices Act, in the circumstances of the present appeal I am inclined to order only that the appellant be awarded the cost of his outlays for purchase of the relevant court transcripts. That is the amount of $473.65.
Orders
- [43]It is ordered that:
- The finding of the Magistrate of 6 December 2016 convicting the appellant is set aside. In lieu it is ordered the appellant is found not guilty of the complaint.
- The respondent pay the appellant the sum of $473.65 by way of costs.
Footnotes
[1]Transcript of proceedings 1-36 line 34 to 1-37 line 7; 1-51 lines 12-22 (6 December 2016).
[2]Transcript of proceedings 1-19 line 20 (6 December 2016).
[3]Transcript of proceedings 1-18 line 21 (6 December 2016).
[4]Transcript of proceedings 1-25 lines 43-47; 1-28 lines 18-24 (6 December 2016).
[5]Transcript of proceedings 1-26 lines 1-2 (6 December 2016).
[6]Transcript of proceedings 1-26 lines 12-13 (6 December 2016).
[7]Transcript of proceedings 1-26 line 10 (6 December 2016).
[8]Transcript of proceedings 1-26 lines 34-39 (6 December 2016).
[9]Transcript of proceedings 1-29 line 33 (6 December 2016).
[10]Transcript of proceedings 1-29 lines 36-37 (6 December 2016).
[11]Transcript of proceedings 1-29 line 44 to 1-30 line 1 (6 December 2016).
[12]Transcript of proceedings 1-41 lines 5-25 (6 December 2016.
[13]Transcript of proceedings 1-52 to 1-54 (6 December 2016.
[14]Transcript of proceedings 1-55 line 39 to 1-56 line 11 (6 December 2016).
[15]Transcript of proceedings 1-58 lines 5-30 (6 December 2016).
[16]Transcript of proceedings 1-57 line 42 to 1-58 line 2 (6 December 2016).
[17]Transcript of proceedings 1-58 line 35 to 1-59 line 35 (6 December 2016).
[18]Transcript of proceedings 1-60 line 38 to 1-61 line 2 (6 December 2016).
[19]Transcript of proceedings 1-62 lines 7-9 (6 December 2016).
[20]Transcript of proceedings 1-69 line 35 to 1-70 line 10; 1-71 line 7 to 1-72 line 26 (6 December 2016).
[21]Transcript of proceedings 1-73 line 13 to 1-76 line 10 (6 December 2016).
[22]Transcript of proceedings 1-76 lines 14-30. (6 December 2016)
[23]Transcript of decision 2 lines 8-14 (6 December 2016).
[24]Transcript of decision 2 lines 19-35 (6 December 2016).
[25]Transcript of decision 3 line 37 to 4 line 12 (6 December 2016).
[26]Transcript of decision 4 line 14 to 5 line 7 (6 December 2016).
[27]Transcript of decision 2 lines 20-21 (6 December 2016).
[28][2012] QCA 179 at [32], [34]; cited with approval in R v EL [2017] QCA 135 at [49].
[29]Outline of submissions on behalf of respondent at [5.4].
[30]Transcript of appeal 1-18 to 1-19; 1-34 lines 4-12 (27 April 2017).
[31]Transcript of proceedings 1-23 line 16 (6 December 2016).
[32]Transcript of proceedings 1-28 lines 35-40 (6 December 2016).
[33]Transcript of proceedings 1-31 line 8 to 1-32 line 20 (6 December 2016).
[34]Transcript of proceedings 1-32 lines 27-31 (6 December 2016).
[35]Transcript of proceedings 1-35 line 17 to 1-36 line 30 (6 December 2016).
[36]Transcript of proceedings 1-39 line 15 to 1-40 line 6 (6 December 2016).
[37]Transcript of proceedings 1-42 line 42 to 1-43 line 30 (6 December 2016).
[38]Transcript of proceedings 1-48 line 46 to 1-50 line 1 (6 December 2016).
[39]Transcript of proceedings 1-70 lines 12-25 (6 December 2016).
[40]Transcript of proceedings 1-73 lines 13-15 (6 December 2016).
[41]Transcript of proceedings 1-77 line 16 to 1-79 line 15 (6 December 2016).
[42]Fox v Percy [2003] 214 CLR 118.
[43]Shambayati v Commissioner of Police [2013] QCA 57; per Margaret Wilson J at [23].
[44]Transcript of appeal 1-20 lines 17-38; 1-22 lines 27-37 (27 April 2017).
[45]Reihana v QCAT Client Services Manager & Ors [2017] QCA 117.