Rotar v Commissioner of Police
[2018] QDC 209
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Rotar v Commissioner of Police[2018] QDC 209
- Add to List
Rotar v Commissioner of Police[2018] QDC 209
Rotar v Commissioner of Police[2018] QDC 209
DISTRICT COURT OF QUEENSLAND
CITATION: | Rotar v Commissioner of Police [2018] QDC 209 |
PARTIES: | MICKY ROTAR v COMMISSIONER OF POLICE |
FILE NO/S: | D81/16 |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | Magistrates Court, Holland Park |
DELIVERED ON: | 12 November 2018 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 20 April 2017 |
JUDGE: | Horneman-Wren SC, DCJ |
ORDER: |
|
CATCHWORDS: | MAGISTRATES – APPEAL AGAINST CONVICTION – s 222 JUSTICES ACT 1886 – where the appellant was convicted of one charge under s 20 of the Transport Operations (Road Use management – Road Rules) Regulation 2009 – whether the learned Magistrate erred in a finding of fact or at law. |
CASES: | Allesch v Maunz (2000) 203 CLR 172 CDJ v VAJ (1998) 197 CLR 172 Coal v Allied Operations Pty Ltd v Australian Industrial Relations Commision (2000) 203 CLR 194 Crossman v Commissioner of Police [2016] QCA 75 Fox v Percy (2003) 214 CLR 18 |
LEGISLATION: | Justices Act 1886 (Qld) Traffic Regulation 1962 (Qld) Transport Operations (Road Use Management) Act 1995 (Qld) Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) |
COUNSEL: | The appellant appeared in person |
SOLICITORS: | Office of the Director of Public Prosecutions for the respondent |
- [1]On 16 September 2016, following a summary trial conducted on 28 July 2016, the appellant was convicted in the Holland Park Magistrates Court of one charge under s 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009; that on 26 February 2015 at Nathan in Queensland he, being the driver of a vehicle, drove at a speed of 70 kilometres per hour which was over the speed limit which applied for the length of road. He was fined $151.00 and ordered to pay $93.20 costs of court and $150.00 of witness expenses.
- [2]He appeals to this court pursuant to s 222 of the Justices Act 1886. His notice of appeal sets out the following seven grounds:
- (i)denied right to fair hearing by Magistrate Cornack due to apprehended bias in favour complainant [sic];
- (ii)police prosecution obstructed and denied my right to discovery of QPS held material that could have been used in my defence to prove my innocence;
- (iii)PSBA photo interpreter (supervisor) tampered and manipulated evidential photos;
- (iv)laser speed detection device (LTI 20-20 TruCAM TC 001028) was not properly calibrated to relevant Australian standards as specified in the TORUM Act;
- (v)police operator of the laser speed detection device did not judicially and not competently use the device during the deployment on the day and time in question;
- (vi)PSBA calibration administrator admitted during my cross-examination under oath that the laser speed detection device was adversely affected when used and pointed through an engineered IR heat reflective car windscreen;
- (vii)imposed and combined fine plus, (court and state witness) costs and plus offender’s tax is excessive and disproportionate to the alleged offence.
- [3]No submissions were advanced in respect of grounds 1 and 7.
- [4]For the reasons which follow, none of the remaining five grounds are established and the appeal should be dismissed.
The nature of the appeal
- [5]The nature of an appeal under s 222 of the Justices Act, being an appeal by way of rehearing, is that the appellate powers of the court are to be exercised for the correction of error.[1] In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[2] Gleeson CJ, Gaudron and Hayne JJ said:
“Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.”
- [6]
“If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”
- [7]Further on, at [29], their Honours said:
“But in every appeal by way of rehearing a judgment of the appellate court is required both on the facts and the law.”
Ground 2 – Denial of discovery by withholding material.
- [8]This ground relates to the fact that statements of the three witnesses called in the prosecution case were only provided to the appellant at the bar table in the course of the trial at the time at which the first witness was called.
- [9]In her reasons, the learned magistrate expressed that she was “sorry about that” and that “it shouldn’t happen in that way”. Her Honour also expressed her disappointment[4] that, having been informed by the prosecutor, approximately 50 minutes before the commencement of the trial, that he would be calling three witnesses, and that they were available to be spoken to by the appellant[5], the appellant did not ask for their statements at that time. In fact, the appellant did not take up the prosecutor’s invitation to speak with any of the witnesses.
- [10]Having examined the transcript I would agree with the observations made by the learned magistrate, when this issue arose in the course of the hearing, that the appellant seemed able to cross-examine the witnesses quite well and that he knew his material. The witnesses called for the prosecution were: the officer who had operated the photographic detection device on the day, Sergeant Bobberman; a senior technical officer employed in the calibration section of the Queensland Police Traffic Camera Office, Mr Stephen Irvine; and a photographic supervisor employed in the same office, Ms Seta Evans. As will be evident later in these reasons, the appellant’s case was, essentially: that the photographic detection device was not calibrated as required; was operated in a faulty or deficient manner; and that the images produced were defective and had been manipulated. The defendant was able to put his case theory to each relevant witness.
- [11]In any event, the learned magistrate offered the appellant a means to address any prejudice he may have suffered as a consequence. She offered him a further opportunity to make submissions in writing within two weeks of the hearing. The appellant took up that opportunity and filed a 15 page submission. In it, he advanced all, and only, the arguments he has also advanced in his written submissions on this appeal. Both those submissions set out all the matters which reflect his case theory as they were put to each of the prosecution witnesses. Having had the opportunity to advance these submissions both below and on a complete rehearing on this appeal, I do not consider that the appellant has suffered any prejudice from the late provision of the witness statements. Certainly it has not been demonstrated, as ground 2 suggests, that discovery was not provided of material that could have been used in his defence to prove his innocence.
- [12]That is particularly so when one considers the fact that those two witnesses from the traffic camera office were only required to be called because the appellant had, as he was entitled to do, provided notice pursuant to s 120(7)(a) of the Transport Operations (Road Use Management) Act 1995 (TORUM Act) that he intended to dispute the accuracy of, or an image from, a photographic detection device. The appellant must have known the manner in which he intended to dispute those matters. He did that through his cross-examination of those witnesses, having not given or called evidence himself, and through the submissions which he made both orally at the hearing and subsequently in writing.
- [13]I am not persuaded that he suffered any prejudice at all at the trial as a consequence of the late provision of the statements. To the extent that he may have, though, it has been cured on the appeal. He has not identified any aspect of their evidence by which he was surprised or which he might have approached differently at trial if earlier appraised of it.
- [14]In his written submissions below, and those filed on his appeal, he does not identify any factual issue he would have advanced had he had prior notice of their evidence. He has not sought to adduce any additional evidence in that regard. When asked about this on the appeal he identified only that he “could have been much more accurate in regards to asking questions about the glass and the LIDAR and those sort of things and basically, I didn’t know who the witnesses were until they actually stood up on the actual stand, so I basically had to perform on – you know, at that point in time, just basically off the top of my head. So I couldn’t really prepare to actually cross-examine, because I didn’t know who the witnesses were, nor what they were relying on.”
- [15]Three observations can be made. First, knowledge of the identity, per se, of the witness would not really have assisted him. The issue is what was to be said, not by whom it was to be said (unless there was to be some challenge to their expertise, which there has not been).
- [16]Secondly, the matters about which he says he could have been more accurate are matters concerning his own case theory, not matters which emerged from their statements or evidence.
- [17]Thirdly, he did not take up the opportunity when offered before the hearing to appraise himself of their identity, the evidence which they would give, or their capacity to give it.
- [18]There is no substance to ground 2.
Ground 3 – PSBA photo (supervisor) tampered and manipulated evidential photos.
- [19]In her evidence Ms Evans had said that she had enhanced the photograph of the appellant’s car by deliberately lightening part of it so that the number plate of the vehicle could be read, with the consequence that detail of another part of the photograph, the sky area, was lost. Of course, that lost detail is irrelevant for the purposes of the photograph. The appellant put to her that this was a manipulation of the photograph, which the witness did not accept. Ms Evans explained that it was merely an adjustment of the exposure of the photograph.
- [20]The appellant had also asked Ms Evans about the effect of sweeping and panning of the camera which took the photograph. Ms Evans said that in those circumstances the photograph would be blurred. She said that there was no blurring in the image of the appellant’s vehicle[6], so there had been no movement.
- [21]The appellant then put the proposition to Ms Evans that when the photograph had been enhanced in the manner described by her such that it was “basically washed out”, as he put it, any effects of sweeping or panning would be disguised. Ms Evans explained “the cameras are set up for us in order to capture a – a photograph of either the rear or the front of a vehicle travelling upon a piece of road, and – and this photograph does that. So for our purposes, this photograph is good quality”.[7]
- [22]On this evidence, there is no basis to conclude that the photograph was tampered with or manipulated in the sense suggested by the appellant.
- [23]Ground 3 fails.
Ground 4 – laser speed detection device (LTI 20-20 TruCAM TCOO 1028) was not properly calibrated to relevant Australian standards in the TORUM Act.
- [24]This was the appellant’s central issue both at first instance and on appeal. It is, however, based on a misunderstanding of the legislative requirements for calibration, and of the TruCAM test sheet which is Exhibit 12.
- [25]The appellant’s contention is that the relevant Australian Standard, AS4691.1 - 2003 Laser – Based Speed Detection Devices,[8] has not been complied with in the calibration of the TruCAM device used in this instance. He contends that there are three appendices to the standard, A, B and C, which prescribe normative tests. Appendix A sets out a method for testing the accuracy of both target range and speed measurements made with a laser-based speed detection device and the device’s data validation capability using an electronic speed and range simulator. Appendix B sets out the method for determining operational beam width for a laser-based speed detection device. Appendix C sets out a physical method for testing the accuracy of distance measurements made with a laser-based speed detection device.
- [26]The appellant identifies that the tests prescribed in each appendix have not been performed. In particular, he identifies that testing in accordance with Appendix B has not been performed. He contends that the TruCAM test sheet completed in respect of the testing of the device used contained a misrepresentation in that it states “Tests performed in accordance with AS4691.1 and .2 (2003) and approved laboratory procedures SD 4-5”.[9] He contends that this incorrectly represents that each of the tests in appendices A, B and C had been performed whereas they had not been.
- [27]In my view, no such representation is contained in the test sheet. All that the identified statement represents is that the tests which have been performed, which are those identified in the report, have been performed in accordance with the standard.
- [28]The primary issue, however, is that by legislative prescription compliance with the appropriate Australian standard for using the device is not required. Section 112 of the TORUM Act provides:
“112 Use of speed detection devices
- (1)When using a radar speed detection device or laser-based speed detection device, a police officer must comply with—
- (a)the appropriate Australian Standard for using the device, as in force from time to time; or
- (b)if there is no appropriate Australian Standard for using the device in force at the time of the use—the manufacturer’s specifications for the device.
- (2)This section does not apply to a device that is a photographic detection device.”
- [29]Section 113A(1) defines a photographic detection device to be “a device or system that captures an image of a type approved under a regulation such as a photographic detection device”.
- [30]Schedule 10 to the Traffic Regulation 1962 prescribes approved photographic detection devices. Part 5 of Schedule 10 prescribes certain digital speed camera systems, including the LTI speed camera system model LTI 20-20 TruCAM, to be approved photographic detection devices.
- [31]Thus, the appellant’s further contention that the device in question is not a photographic detection device for the purpose of s 112 of the TORUM Act is incorrect. Once that is established, s 112(2) operates to exclude any requirement to comply with the appropriate standard.
- [32]Section 120(2A) also operates so that a certificate purporting to be signed by an official that the stated photographic detection device was tested at a stated time in accordance with the specification of the device’s manufacturer and any further requirements about calibration testing prescribed by regulation, and that it was found to produce accurate results at the time of testing, is evidence of the matters stated, and evidence that the device was producing accurate results when so tested and for a year after the date of testing.
- [33]The relevant certificate was before her Honour as Exhibit 3. The certificate was issued on 5 November 2015 in respect of testing conducted on 20 August 2014. There was no evidence to the contrary. The certificate, therefore, was evidence that on the day of the offence, 26 February 2015, the device was producing accurate results.[10]
- [34]Furthermore, Mr Irvine gave direct evidence of the testing conducted and the results being within manufacturer’s specifications.[11]
- [35]Ground 4 fails.
Ground 5 – The police operator of the laser speed detection device did not judicially and not competently use the device during his deployment on the day and time in question.
- [36]The appellant has a belief that the police officer could not properly operate the device over a three hour period, which followed an eight hour duty shift, holding the camera without the support of a tripod or gimbal, such that he could photograph 379 vehicles at a rate of approximately one vehicle every 28.5 seconds. The appellant put the matters upon which he bases his belief to the officer in cross-examination. The officer said that he was not fatigued, that he had been doing it for years and that he was quite experienced at getting into comfortable positions in which he could hold the device. His evidence on these matters seems entirely plausible. There was no evidentiary basis upon which the appellant’s belief could be established.
- [37]Her Honour was satisfied the device itself was working properly and producing accurate results. In so finding her Honour noted, amongst other things, that the officer operating the device was very experienced and had expressed absolute confidence in the accuracy of his detection work. Her Honour did not err in the finding she made.
- [38]There is no substance to ground 5.
Ground 6 – PSBA administrator admitted during my cross-examination under oath that the laser speed detection device was adversely affected when used and pointed through an engineered IR heat reflective car windscreen.
- [39]Again, there is no substance to this ground.
- [40]The appellant had put to Mr Irvine his theory, based on research material he had read (presumably in preparation for the trial) that heat reflective automotive glass would act or reject or filter around 70 per cent of the infrared light emitted by the device as it passed through the vehicle’s windscreen. The appellant’s theory, which he also advances on the appeal, is that this would degrade the performance and accuracy of the device. Mr Irvine rejected this theory. There was otherwise no evidence in support of the theory before her Honour.
- [41]In evidence in chief Mr Irvine, who has a diploma of electronics and communications and, at the time, had 10 years occupational experience in the field, was asked what effect infrared heat would have on the device. Mr Irvine’s answer was “Nothing whatsoever on accuracy”.
- [42]He was asked “Would there be any reflected from the glass windscreen?”. Mr Irvine answered: “No. The manufacturer actually gave approval for the QPS to use the device through glass such as windscreens of a vehicle”.[12] That was hearsay evidence. However, the appellant chose to cross-examine Mr Irvine about it. He asked whether Mr Irvine had that anywhere in writing which the appellant could see. Mr Irvine answered:
“The Queensland Police would have or you could have requested the manufacturer to be here to answer your questions. In relation to this here, I don’t know what sort of glass is on the vehicles that Queensland Police use. So it really has no relevance. The device – again, that does not change the speed of light. The device uses speed of light to calculate its measurements and the Queensland Police Service has received approval to use the device through the windscreens that we – the QPS use.”
- [43]The appellant said that he found that “very strange” by reference to a chart he had with him. He persisted with his questioning. Mr Irvine interrupted him saying:
“Can I just cut you off for a second? Do you know how the device works? … so it fires a laser with certain data on it at 200 times a second. It is required to receive at least 40 valid readings from a moving object for it to produce a – a speed reading before it will actually activate and take an image. If it doesn’t receive 40 valid readings in a row – so just say if the officer accidently went from one car to another or went from the s – through the windscreen to his dash or whatever or picked up a reflected light from within his car, there would be no image. It would throw it out and pro – and bring up an error on the screen.”[13]
- [44]The appellant persisted still. The following exchange took place:
| “Appellant: | OK. Well, what I am saying to you is that 35 per cent of the actual light that is emitted by the device when the trigger is pulled would – would be – would be cut out. So basically it would be filtered? |
| Officer: | It – it still – – – |
| Appellant: | So therefore – – – ? |
| Officer: | – – – needs to receive valid readings – valid returns to produce a reading. So it doesn’t matter how much is filtered out. It doesn’t matter how – weak it makes the signal. If it doesn’t receive its own signal back, it won’t produce a valid reading.”[14] |
- [45]The appellant persisted still and this further exchange took place:
| “Appellant: | But what I’m – what I’m leading to is that the reflections are also cut out by - by up to 30-35 per cent. So almost 70 per cent of the energy that’s being used is - has been - has been cut. So, therefore, it’s not actually operating to the - to the actual manufacturer’s specifications. It has been filtered? |
| Officer: | Like I said, if it didn’t receive valid readings back valid returns it wouldn’t produce a reading. |
| Appellant: | OK. So your so – so in regards to it being fired through a curved vehicle windscreen you’re saying that there wouldn’t be any scattering of that light also? |
| Officer: | If it’s scattered and not returned, it’s not returning a valid return.“ |
- [46]This evidence was sufficient to dispose of this issue at the trial. In her reasons the learned magistrate said:
“The defendant also argues that firing the TruCAM through the heat reflective windscreen of the police car would impair the laser beam and degrade the accuracy of the device. The defendant is quite passionate about this, but there is no expert testimony to give weight and credence to this argument.”
- [47]The learned magistrate did not err in rejecting the appellant’s theory. On the evidence before her, it had to be rejected. Contrary to the assertion made in this ground of appeal, Mr Irvine did not admit that the device was adversely affected.
- [48]This ground also fails.
Conclusion
- [49]The appellant has failed to establish any of the five grounds of appeal upon which submissions were made. No error in the magistrate’s decision has been demonstrated. Indeed the magistrate’s conviction of the appellant was the only verdict open on the evidence and the relevant law.
- [50]The appeal must be dismissed.
Footnotes
[1]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 [14]; Allesch v Maunz (2000) 203 CLR 172 at 180 [23]; CDJ v VAJ (1998) 197 CLR 172 at 201-202.
[2] Supra at [14].
[3] (2003) 214 CLR 18 at 126-127 [27].
[4] Transcript 28 July 2016 at pp 1-51/5.
[5] Ibid at 1-51/10-15.
[6] Exhibit 1.
[7] Transcript 28 July 2016 at p 1-39/15 to 1-40/30.
[8] Exhibit 16.
[9] Exhibit 12.
[10] These conclusions are consistent with those reached in Crossman v Commissioner of Police [2016] QCA 75.
[11] Transcript 28 July 2016 at p1-8 to 1-10.
[12] Ibid 1-10/20-25.
[13] Ibid 1-13/43 to 1-14/6.
[14] Ibid 1-14/7-15.