Crossman v Queensland Police Service
[2017] QDC 257
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- Unreported Judgment
- Appeal Determined (QCA)
- Crossman v Queensland Police Service[2017] QDC 257
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Crossman v Queensland Police Service[2017] QDC 257
Crossman v Queensland Police Service[2017] QDC 257
DISTRICT COURT OF QUEENSLAND
CITATION: | Crossman v Queensland Police Service [2017] QDC 257 |
PARTIES: | IAN NORMAN CROSSMAN (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 193/17 |
DIVISION: | Criminal |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Cairns |
DELIVERED ON: | 20 October 2017 |
DELIVERED AT: | Cairns |
HEARING DATE: | 11 August 2017 |
JUDGE: | Harrison DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION AND SENTENCE – appeal pursuant to s 222 Justices Act 1886 – conviction – offence of driving a motor vehicle at a speed in excess of the speed limit of 60km/hour – accuracy of photographic detection device – whether the photographic detection device used produced accurate readings – sentence – fine plus costs – whether penalty imposed was manifestly excessive. Legislation Justices Act 1886 (Qld) s 222 Transport Operations (Road Use Management) Act 1995 (Qld) ss 113A, 120 & 124 Traffic Regulations 1962 (Qld) regs 210C & 210F. Cases Crossman v Queensland Police Service Appeal No. 134 of 2016 Crossman v Queensland Police Service [2017] QCA 112 |
COUNSEL: | Self-represented appellant M Dickson for the respondent |
SOLICITORS: | Self-represented appellant The Office of the Director of Public Prosecutions for the respondent |
- [1]This is an appeal against conviction and sentence pursuant to the provisions of s 222 of the Justices Act 1886.
- [2]On 27 October 2016, the applicant was convicted following a one day trial on 21 October 2016 in the Magistrates Court at Cairns of an offence of driving a motor vehicle at a speed in excess of the speed limit of 60km/hour on Sheridan Street, North Cairns on 29 August 2014.
- [3]It is accepted that matters such as this are heard by way of rehearing on the evidence which was available before the learned magistrate, although this court should have regard to the fact that the magistrate did have the benefit of seeing and hearing the witnesses who gave evidence.
- [4]There were two witnesses called for the prosecution in this case, namely Gregory James Bartlett, a Senior Constable of police who operated what was described in evidence as a TRUCAM photographic detection device at the relevant time and Rodney Ian James, who is a senior technical officer at the Queensland Police Service Calibration Laboratory in Brisbane.
- [5]Senior Constable Bartlett gave evidence of how the TRUCAM device operated, and it is clear that it was a device which came within the definition of “photographic detection device” as set out in s 113A of the Transport Operations (Road Use Management) Act 1995 (“TORUM”).
- [6]Prior to the hearing of the matter the applicant provided a notice pursuant to the provisions of s 120(7) of TORUM, challenging the accuracy of the photographic detection device used on this occasion. This notice is required before a person charged under this Act can challenge the accuracy of the photographic detection device or the image from a photographic detection device or the making in writing made by a photographic detection device on an image.
- [7]In that notice he made the following challenge:
- (a)accuracy of the photographic detection device or the image from the photographic device or a marking or writing made by a photographic detection device, namely:
- (i)the alleged recorded speed at point of capture is excessive;
- (ii)laser technology is not required with a real time sensor, therefore any capture would have occurred further north; and
- (iii)the device does not have an ability to capture through a windscreen, vehicles closer than 60 metres. (See Exhibit 1).
- [8]On the hearing of the matter the applicant did not give or call any evidence, so the only relevant evidence in terms of matters that he did challenge arises in cross-examination by him of both Senior Constable Bartlett and Mr James.
- [9]At the commencement of the hearing, the prosecution tendered a number of documents in accordance with the relevant evidentiary provisions under TORUM. Exhibits 2, 3 and 4 were all photographs produced by the TRUCAM device. They show the motor vehicle in question with the registration number clearly displayed and also contain printed information confirming the date, time, what is referred to as the “site code”, the operator number, the speed limit, the speed travelled by the vehicle, the image number, the distance from the vehicle to the device, when the device was last aligned and the model number and serial number of the device.
- [10]Attached to each of those photographs is a certificate pursuant to the provisions of s 120(2) of TORUM, certifying that the relevant image was properly taken by that particular photographic detection device and that detection device was used at a specified location, namely Sheridan Street (Captain Cook Highway) Cairns North at 13.31 on 29 August 2014.
- [11]Exhibit 5 was a certificate of delegation from the Police Commissioner, delegating his powers under TORUM to any person for the time being appointed to or acting in the office of Inspector Traffic Camera Office or Senior Sergeant Traffic Camera Office.
- [12]Exhibit 6 was a certificate pursuant to provisions of s 120(2A) of TORUM. This is signed by a Senior Sergeant in the Traffic Camera Office, certifying that the particular photographic detection device:
- (a)was tested at 10.30 on 9 January 2014 in accordance with:
- (i)the specifications of the device’s manufacturer;
- (ii)any further requirements about calibration testing prescribed under a regulation; and
- (b)that such photographic detection device was found to be producing accurate results at the time of testing.
- [13]To understand the relevance of this certificate, it is necessary to look at the provisions of regs 210C and 210F of the Traffic Regulations 1962. Regulation 210C sets out what steps need to be taken when such a device is used. Regulation 210F sets out the requirements for the calibration testing of particular photographic detection devices.
- [14]The certificate under s 120(2A) of TORUM (Exhibit 6) is prima facie evidence that the requirements in relation to calibration testing had in fact been complied with.
- [15]Exhibit 7 was a certificate confirming that the relevant photographic detection device was part of the Traffic Camera Coding Manual and was signed by a Senior Sergeant in the Traffic Camera Office.
- [16]Exhibit 8 was effectively the instrument of delegation from the Commissioner to, in this case, the Senior Sergeant Traffic Camera Office to issue the certificate Exhibit 7.
- [17]Exhibit 9 was a certificate from a Senior Sergeant Traffic Camera Office confirming that the original infringement notice was issued in respect of the vehicle shown in Exhibit 2, registered no. VIP-54.
- [18]Exhibit 10 was a further instrument of delegation from the Chief Executive Department of Transport and Main Roads, delegating his powers under the State Penalties Enforcement Act 1999 to a variety of public servants.
- [19]Exhibit 11 was a certificate from one such authorised person confirming that at the relevant time the vehicle was registered in the name of Mark Alan Bignell of 6 Gummow Close Whitfield Queensland.
- [20]Exhibit 12 was a further instrument of delegation from the Chief Executive Department of Transport and Main Roads, delegating his powers under TORUM to a variety of public servants.
- [21]Exhibit 13 was a certificate from a Senior Sergeant Traffic Camera Office certifying that the original infringement notice was served on Bignell, who had provided a statutory declaration nominating the applicant as the driver of the vehicle at the relevant time.
- [22]Exhibit 14 was a further certificate of delegation from the Commissioner of Police, delegating the power to receive on his behalf a statutory declaration in such terms to all staff at the Traffic Camera Office.
- [23]Exhibit 15 was a further certificate from a Senior Sergeant Traffic Camera Office, confirming that the relevant infringement notice was sent by mail to the respondent. Exhibit 16 was an oath of such service and Exhibit 17 was a copy of the infringement notice.
- [24]Exhibit 18 was a document completed by Senior Constable Bartlett, described as a portable speed camera setup checklist and it essentially confirms that the matters set out in reg 210C were complied with.
- [25]As well as providing Exhibit 18, Senior Constable Bartlett also gave evidence as to what happened on the day in question and it is clear that his evidence was not seriously challenged in any way. Effectively, his evidence was that he complied with the matters set out in reg 210C.
- [26]As was apparent from discussions held during legal argument on the appeal, and also, to some extent, from what was said in the initial trial, the applicant has conducted several challenges to the legislation involving various devices used to detect the speed of motor vehicles.
- [27]When he questioned Senior Constable Bartlett at some length, Bartlett made it clear that he operated the device in accordance with the procedures laid down in reg 210C of the Traffic Regulations. It was obvious that the applicant was not familiar with what was contained in those regulations and certainly he did not conduct his cross-examination in such a way that he was able to elicit that there had been any failure to comply with any of the matters set out in reg 210C regarding the proper use and operation of the device. He seemed to react in a way that suggested Senior Constable Bartlett was introducing something that was not in any way relevant when he started referring to what was required under reg 210C.
- [28]The applicant did question Senior Constable Bartlett, and, more extensively, Mr James, about the matters raised in the original notice of challenge (Exhibit 1), but was unable to elicit any information whatsoever which cast any doubt on the accuracy of the device in question and therefore on the images themselves and on the printed information contained on the images. He did not call any evidence himself which had that effect.
- [29]As the learned magistrate said in her reasons, he did not challenge the prosecution evidence that he was driving the vehicle at the time, nor did he challenge in any way the fact that he was exceeding the speed limit. Essentially he argued that the Queensland Police Service was using the TRUCAM devices for purposes for which they were not intended. At the learned magistrate said in her reasons, there was no evidence whatsoever of that.
- [30]He also raised a matter about what was referred to in evidence as “the wrong certificate.” It seems clear that at some stage he was provided by the police with a certificate pursuant to the provisions of s 124(1)(pb) of TORUM, certifying, in effect, that the very device used here was in fact tested on 29 August 2014 in accordance with the appropriate Australian standard as in force on the day of use.
- [31]Although he appeared to question Senior Constable Bartlett about this certificate, which was itself signed by Bartlett, it was never tendered in evidence before the learned magistrate.
- [32]I did however allow it to be tendered as Exhibit 1 on the proceedings before me. It does contain some writing from him which I have ignored as I indicated to him during argument, but it does seem clear that he was given this document which is dated 2 September 2015.
- [33]Both in this appeal and others, the applicant has argued that the legislation, insofar as it relates to speed detection devices, is “unworkable”.
- [34]In the matter of Crossman v Queensland Police Service Appeal No. 134 of 2016, which was heard by me on 15 December 2016, he raised that very argument in relation to s 124(4) of TORUM.
- [35]He raised the same argument before the Court of Appeal on appeal from my decision (see Crossman v Queensland Police Service [2017] QCA 112). The argument was not accepted before me and in paragraph 8 of the Court of Appeal decision, the President made it clear that neither he nor the prosecutor who handled the matter had any difficulty understanding or applying the relevant provisions of s 124(4) of TORUM.
- [36]The applicant’s confusion in that case stemmed from the fact that he previously had, on a number of occasions, provided notices pursuant to s 120(7) of TORUM in cases involving photographic detection devices. The device used in Appeal No. 134 of 2016 was a handheld device which did not provide a camera image, so clearly s 120 did not apply in those circumstances, whereas s 124 did. That seemed to be the source of his confusion on that occasion.
- [37]He now raises the provision of the certificate under s 124(1)(pb) to support his “unworkable” argument.
- [38]It seems clear to me that the certificate issued by Bartlett on 2 September 2015 should never have been issued and it is certainly irrelevant to these proceedings. It was not tendered by or relied upon by the prosecution.
- [39]This is also clear from his cross-examination of Senior Constable Bartlett. Senior Constable Bartlett agreed that the testing of the TRUCAM devices did not involve Australian standards. The certificate which did apply was Exhibit 6, which certified that it was tested in accordance with the specifications of the device’s manufacturer and pursuant to s 120(2A)(b), that was evidence that it was producing accurate results when tested and for one year after the day of testing. The relevant driving occurred within that 12 month period.
- [40]It was unfortunate that Bartlett did provide him with the certificate (Exhibit 1), but clearly it was wrong and was not in any way relevant to the determination of this matter. If that had been the only certificate provided, and if the prosecution had failed to produce Exhibit 6, then that may have been a totally different situation and they would have lost the advantage of the presumption contained in s 120(2A)(b).
- [41]To me the legislation in relation to photographic detection devices was not confusing or unreasonable and his argument in that regard must be dismissed.
- [42]On my rehearing of the matter, I would have reached exactly the same conclusion as the learned magistrate. There was clear evidence from Senior Constable Bartlett that he complied with the relevant requirements in relation to the operation of the machine, in particular the matters set out in reg 210C. There was nothing to challenge the effect of the certificate (Exhibit 6) pursuant to s 120(2A) of TORUM to show that the machine was not producing accurate results at the time of testing.
- [43]None of the matters raised in cross-examination established anything to the effect of what was contained in the original notice of challenge or raise any reasonable doubt in relation to those matters.
- [44]For those reasons, the appeal against conviction is dismissed.
Sentence
- [45]The applicant also argues, in effect, that the penalty in this case is manifestly excessive because the penalty imposed by the magistrate of a fine of $500 plus costs of $86.20 was manifestly excessive because it well exceeded the amount shown in the original infringement notice (Exhibit 17). Had he paid the infringement notice sent to him, the amount would have been $151.
- [46]As I explained to him during the course of argument, the magistrate is not bound by what is contained on the face value of the infringement notices and there may well be cases, depending on the circumstances, where the actual fine exceeds that amount or where it could be less than that amount.
- [47]What was particularly relevant in this case was Exhibit 19, which was his traffic history, which showed a number of previous offences. This shows 12 convictions for exceeding the speed limit over a period of time from 12 November 2003 to 10 July 2014.
- [48]Against that history, it could not possibly be said that the penalty imposed on this occasion was manifestly excessive even though it is well in excess of what he would have been liable for had be paid the infringement notice in the first place.
Orders
- [49]In all of the circumstances, the appeal against conviction and sentence is dismissed.