Exit Distraction Free Reading Mode
- Unreported Judgment
Crossman v Queensland Police Service QDC 267
DISTRICT COURT OF QUEENSLAND
Crossman v Queensland Police Service  QDC 267
IAN NORMAN CROSSMAN
QUEENSLAND POLICE SERVICE
Magistrates Court at Mossman
17 December 2018
4 April 2018
CRIMINAL LAW – APPEAL AGAINST CONVICTION – where the appellant was convicted of exceeding the speed limit pursuant to the Transport Operations (Road Use Management) Act 1995 (Qld) – where the appellant was fined $600 and ordered to pay costs of $89.90 and a conviction recorded – whether Magistrate exhibited reasonable apprehension of bias – where Magistrate ruled invalid notice of Intention to Challenge or Dispute – whether s 124(1) certificates were inadmissible – whether use of body-worn camera footage was unfair – whether Magistrate refused to allow cross examination of police witness
Justices Act 1886 (Qld) ss 222, 223, 226, 232A
Justices Regulation 2014 (Qld) Sch 2
Transport Operations (Road Use Management) Act 1995 (Qld) ss 20, 124, 124A
Allesch v Maunz (2000) 203 CLR 172
Browne v Dunn (1894) 6 R 67
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Commissioner of Police v Al Shakarji  QCA 319
Crossman v Commissioner of Police  QCA 75
Crossman v Queensland Police Service  QCA 115
Crossman v Queensland Police Service  QCA 112
Crossman v Queensland Police Service  QDC 257
Crossman v Queensland Police Service  QCA 169
Crossman v The Commissioner of Police  QDC 265
Fox v Percy (2003) 214 CLR 118
Gallagher v The Queen (1986) 160 CLR 392
Johnson v Johnson (2000) 201 CLR 488
Morris v R (1987) 163 CLR 454
Pavlovic v Commissioner of Police  QCA 134;  1 Qd R 344
Pershouse v Queensland Police Service  QCA 296
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 McDonald v Queensland Police Service  QCA 255;  2 Qd R 612
Rowe v Kemper  QCA 175;  1 Qd R 247
Schulz v Johnstone  QSC 221
Shambayati v Commissioner of Police  QCA 57
Walker v Davlyn Homes Pty Ltd  QCA 565
White v Commissioner of Police  QCA 121
Whitehorn v The Queen (1983) 152 CLR 657
The appellant appeared on his own behalf
Circumstances of the offending
- The appellant is 68 year old man employed as a driver for a local limousine service.
- At about 7:30am on 20 May 2016 he was detected (by Senior Constable Kendjelic driving a police car fitted with a mobile radar device) driving along Port Douglas Road at 73 kilometres per hour in a 60 kilometre per hour zone.
- The appellant was issued with an Infringement Notice. He elected to go to trial. He purported to give a Notice under s 124(4) of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM Act”). Such a notice must be given if a defendant intends to challenge the accuracy of a speed detection device or vehicle speedometer accuracy indicator or the time at, or way in, which the relevant device was used.
- After a summary trial in the Magistrates Court at Mossman on 5 October 2017, the appellant was convicted of exceeding the speed limit pursuant to s 20 of the TORUM Act.
- He was fined $600 and ordered to pay costs of $89.90. A conviction was recorded.
- The appellant appeals against his conviction, but not the sentence.
- He relies upon multiple grounds of appeal. None of them has any merit. The appeal should be dismissed for the reasons set out below.
Nature of Appeal
- The appeal is pursuant to s 222 of the Justices Act 1886 (Qld) and is by way of rehearing on the record unless the court gives leave to adduce new evidence if it is satisfied there are special grounds for doing so: s 223.
- There must be good reason identified to justify a departure from the application of the rule in s 223(1) that an appeal under s 222 of the Justices Act is "by way of rehearing on the evidence given in the proceedings before the justices".
- In considering whether there are ‘special grounds’ to justify a grant of leave under s 223(2) the following considerations are a useful guide:
- whether the evidence relied on could with reasonable diligence have been produced by the accused at the trial. This consideration reflects the primary importance of the trial in the administration of justice. This consideration is not "a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial.";
- whether the evidence is apparently credible (or at least capable of belief);
- whether the evidence, if believed, might reasonably have lead a tribunal of fact to return a different verdict.
- On such an appeal, it is necessary for this court to conduct a real review of the evidence before it, and make up its own mind about the case, particularly paying due regard to the advantage that the Magistrate had in seeing and hearing the witnesses give evidence, and in being conscious of the atmosphere of the trial generally. In doing so the court ought give due deference and attach a good deal of weight to the Magistrate’s view.
- The onus is on the appellant to show that there was some error in the decision.
- A verdict may be disturbed if the appellant shows that the Magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal. This necessitates my independent examination of the evidence, including credit of witnesses subject to what I said above, to make my own assessment of both the sufficiency and quality of the evidence.
Grounds of appeal
- The appellant appeared on his own behalf before the Magistrate and on appeal.
- He is a serial litigant. He has appeared on his own behalf in several appeals to this court and the Court of Appeal seeking to challenge speeding fines. In his Supplementary Outline (and in oral submissions) he referred to having appeared before eight Magistrates on 53 separate occasions over the last four years.
- His Notice of Appeal raised a single ground of appeal: that the Magistrate exhibited an apprehension of bias in the proceedings.
- The appellant provided a written Outline of Submissions and Supplementary Outline of Submissions. Those documents contained much irrelevant material. As best I could make out, they also raised the following additional grounds of appeal:
- The Magistrate was wrong to admit the s 124 certificates because they were fraudulent or fabricated;
- The Magistrate erred in law in ruling invalid his notice of Intention to Challenge or Dispute;
- The Magistrate refused to permit him to cross examine Senior Constable Kendjelic;
- Senior Constable Kendjelic relied upon a covert body-worn camera recording; and
- There was no recognition of Article 15 of the International Covenant on Civil and Political Rights (ICCPR) in sentencing.
- The appellant’s written Outlines also attached documents which he sought to rely upon in the appeal as new evidence.
The evidence at trial
- At the start of the hearing the Magistrate explained to him, in detail, the trial procedure. He explained, amongst other things, the appellant’s right to cross-examine the prosecution witnesses, the types of questions permitted, the rule in Browne v Dunn, the right to object to inadmissible evidence and questions, the opportunity to make a ‘no case’ submission upon close of the prosecution case, the defence election to give or call evidence, the process followed for defence evidence, character evidence and the making of arguments and submissions at the close of the case.
- Before calling evidence, the Prosecutor made an application challenging the validity of the appellant’s Intention to Challenge or Dispute form purported to be given pursuant to s 124(4) of the TORUM Act (“the Notice”). The Prosecutor tendered the Notice.
- After hearing submissions from both parties, the Magistrate ruled that the Notice was invalid because it failed to comply with s 124(5)(b).
- The Prosecutor tendered (without objection) the following evidentiary certificates pursuant to s 124(1) of the TORUM Act:
- a certificate pursuant to s 124(1)(p) dated 19 October 2016 stating that the vehicle’s speedometer was tested on 2 February 2016 and found to produce accurate results at the time of testing, signed by an officer with the title Officer in Charge of a Police Station at or above the rank of Sergeant;
- a certificate pursuant to s 124(1)(pa) dated 7 October 2016 stating that the relevant radar speed detection device was tested on 26 June 2015 and found to produce accurate results at the time of testing, signed by an officer with the title Officer in Charge of a Police Station at or above the rank of Sergeant;
- an instrument of delegation dated 6 May 2015 from the Commissioner of Police appointing an Officer in Charge of a Police Station at or above the rank of Sergeant as his delegate for the purposes of issuing a certificate pursuant to s 124(1)(p) and (pa).
- a certificate pursuant to s 124(1)(pb) dated 21 September 2016 stating that the relevant radar speed detection device was used by Senior Constable Kendjelic at 7:39am on 20 May 2016 in accordance with the manufacturer’s specifications, signed by Senior Constable Kendjelic.
- The prosecution called one witness: Senior Constable Kendjelic. He gave evidence and was cross-examined by the appellant.
- The appellant gave evidence on his own behalf and was cross-examined.
- Their evidence is summarised below.
The police officer
- Senior Constable Kendjelic gave evidence in chief of the checks he performed on the device, a Decatur Genesis II mobile radar, at the start of his shift. He was trained to use and test the device. He checked the seal, the calibration date, turned on the device to check the display and circuits and also conducted a tuning forks test. He recorded no issues with the calibration date or the device itself. He gave evidence about how he set up and used the device fitted to his vehicle. He said he was travelling towards Port Douglas on the morning of 20 May 2016 when the appellant was travelling towards him. His visual observation was that the vehicle was approaching him and it appeared to be speeding. He activated the mobile radar and the display indicated a speed of 73 kilometres per hour. His visual observation was confirmed with the target window of the mobile radar and he ‘locked’ the speed of 73 kilometres per hour. He then activated police lights and did a U-turn to intercept the appellant’s vehicle. He got out of the car, activated his body worn camera and spoke with the appellant. The video recording of the body worn camera was tendered. He gave evidence of the speed limit on the road where the appellant was travelling 73 kilometres per hour. Finally, the police officer gave an explanation, in simple terms, of how the mobile radar device worked and evidence excluding the possibility of an inaccurate reading in the present case.
- The appellant cross examined Senior Constable Kendjelic about optional features for the mobile radar device which were not fitted to the particular device used in this case, and about the way the appellant came to be detected by the device. The police officer confirmed the mobile unit number and that that device was assigned to one vehicle. He said he was satisfied that surrounding signs in the area did not give an incorrect reading. The police officer rejected the suggestion that perhaps the speed on the display was a carryover speed from another vehicle, saying that he had not ‘locked’ another vehicle before the appellant.
- The appellant sought to play a video recording (created by the appellant after the event) in an attempt to prove that it was impossible to travel at 73 kilometres per hour in that area of the Port Douglas Road. The Prosecutor objected to its admission on the basis the court was not informed whether the appellant was qualified to make such assertions. After playing the recording, the Magistrate concluded, in the absence of any evidence from a suitably qualified expert, that it was “completely unhelpful” and inadmissible.
- The appellant gave evidence that he found it impossible to have travelled at a speed of 73 kilometres per hour in that area. He said he had driven on that road many times. The appellant tendered a letter of reference from his employer and sought to play a second video recording. Before doing so, the appellant asked that the Senior Constable be excused from the courtroom as he felt uncomfortable given it concerned his colleagues. The learned Magistrate allowed the Senior Constable to remain in the courtroom and the appellant did not then play the video recording.
- In cross-examination, the Prosecutor suggested to the appellant that in the body worn camera footage the appellant had admitted to not looking at the speedometer. The appellant replied that he was going around the corner. He gave evidence that to be travelling at that speed you would require a different engine. The appellant asserted that he was travelling at less than 60 kilometres per hour. The appellant conceded that he did not take issue with the police officer’s credibility. He said perhaps the police officer had made a mistake and that the speed was from a previous detection. Finally, in referring to the video the appellant played, the appellant was cross examined about whether he had qualifications in physics or science or testing. The appellant said he had international patents and a Bachelor of Environmental Science. No supporting documents were tendered.
The Magistrate’s decision
- The Magistrate delivered his decision immediately following the trial and convicted the appellant. His reasons comprised seven pages which included the appellant’s submissions on sentence. He did not repeat all of the evidence but noted he had considered the whole of the evidence presented. He said that the issue was whether or not at the time alleged the appellant was, contrary to s 20 of the TORUM Act, driving at a speed over the speed limit.
- He summarised the police officer’s evidence recounting the sequence of events. He said that the evidence against the appellant was overwhelming. He referred to the certificates which had been tendered by the prosecution pursuant to section 124:
“… that evidence of those certificates, which were allowed in subsequent to the argument about the relevancy or admissibility of the notice, which was not allowed in, are themselves evidence of the things stated in them. That evidence which coupled with the evidence of the senior constable, which I accept as being an accurate portrayal of – of what he did and what – what happened on the day, and in the absence of there being any evidence put forward that would rebut any of the evidence put forward by the Prosecution, I must be satisfied beyond reasonable doubt that the Prosecution has established all of the elements of the charge. I therefore find the defendant guilty as charged.”
- The Magistrate sentenced the appellant immediately following his reasons. He took into account the fact that the appellant was convicted after a trial, thereby losing the benefit of a plea. He noted that the maximum penalty was a fine of $5,046 and that the court had a discretion to disqualify the appellant from holding or obtaining a driver’s licence.
- The appellant made submissions on sentence, referring to a letter from his employer. The Magistrate referred to the appellant’s traffic history, which was not challenged. The appellant had 12 previous convictions for speeding.
- The Magistrate requested the appellant make submissions on the impact that a disqualification may have. The appellant submitted that “it is my livelihood”, that passengers request him all the time and he was incredibly busy from people requiring him to deliver. The appellant submitted he had not received a speeding fine since 2014 and that he had been a driver for 14 years. The appellant confirmed that he was capable of paying a fine.
- The Magistrate stated that “Having been found guilty of the charge, you are convicted and fined – and taking into account your submissions and your traffic history and pointing out, in fact, that you have not had a ticket since 2014 but nevertheless having conducted a trial in circumstances, which I think was ill-informed and – or ill-advised, you are convicted and fined $600 and ordered to pay costs of $89.90. A conviction is recorded. I refer the fine to SPER for you which means you can pay it off by instalment.” His Honour made no order disqualifying the appellant from holding or obtaining a driver’s licence.
Apprehension of bias ground
- The appellant was experienced in court proceedings. Nonetheless, because the appellant was a litigant in person, the Magistrate was careful to explain in detail the trial process to him and afforded him procedural fairness.
- The test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
- In his Supplementary Outline the appellant submitted that “the conduct of the entire hearing was hamstrung by Magistrate Braes’ deliberate, debilitating, dogma directed towards the defendant.”
- I invited the appellant to identify all of the passages of the transcript of the proceeding and the decision that he relied upon in support of this ground. He identified 33 comments made during the course of the hearing and 19 in the decision, which were highlighted in his Supplementary Outline. I have considered each of those passages.
- The appellant particularly relied upon the following exchange:
“BENCH: You have made a number of comments and statements today against the police as to their performance and what they do, which has not endeared yourself to the Court, saying that they do nothing but collect fines as - - -
DEFENDANT: No, the - - -
BENCH: - - - opposed to maintaining road safety. So you as a professional driver – I understand that is what your role is – would be more equipped being somewhat humble and saying that you are very sorry that you were speeding on this occasion and that you will not do it again because your livelihood depends on it as opposed to trying to place the responsibility on police officers going around doing their jobs. Now, I am contemplating how long or if and how long to disqualify you for.”
- That exchange must be considered in its context. It occurred after conviction and during sentence.
- The appellant did not identify how what was said might have led the Magistrate to decide the case other than on its legal and factual merits, nor did he articulate a logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
- I have considered all of the other passages relied upon by the appellant. They are consistent with the Magistrate attempting, quite properly, to confine the hearing to relevant issues for determination. When considered both individually and collectively, in my view they would not give rise to a reasonable apprehension in the mind of a fair-minded lay observer that the Magistrate would not bring an impartial and unprejudiced mind to the resolution of the questions he is required to decide.
- This ground of appeal must fail.
The invalidity of the s 124 Notice ground
- Part 8, Proceedings and Evidence, s 124(1) of TORUM is headed “Facilitation of proof” and states, relevantly:
“(p) a certificate purporting to be signed by the chief executive, the commissioner or a superintendent stating a … speedometer has been tested and found to produce accurate results at the time of testing is evidence the … speedometer was producing accurate results when so tested and for 6 months after the day of testing;
(pa) a certificate purporting to be signed by the commissioner and stating a particular stated … radar speed detection device—
- was tested at a stated time in accordance with—
- the appropriate Australian Standard for testing the device, as in force on the day of testing; or
- if there is no appropriate Australian Standard for testing the device in force on the day of testing—the manufacturer’s specifications; and
- was found to produce accurate results at the time of testing;
is evidence that the device was producing accurate results when so tested and for 1 year after the day of testing;
(pb) a certificate purporting to be signed by a police officer stating a particular stated laser-based speed detection device or radar speed detection device was used by the officer at a stated time in accordance with—
- the appropriate Australian Standard for using the device, as in force on the day of use; or
- if there is no appropriate Australian Standard for using the device in force on the day of use—the manufacturer’s specifications;
is evidence of the matters stated;”.
- The certificates tendered by the Prosecutor were in accordance with these subsections.
- Subsections 124(4) and (5) of the TORUM Act provide, relevantly:
“(4) A defendant who intends to challenge—
- (a)the accuracy of a speed detection device or vehicle speedometer accuracy indicator for which a certificate is given under subsection (1); or
- (b)the time at, or way in, which the relevant device was used;
at the hearing and determination of a charge against the defendant under this Act must give written notice of the challenge to the prosecution.
- The notice must be in the approved form and must—
- be signed by the defendant; and
- (b)state the grounds on which the defendant intends to rely to challenge a matter mentioned in subsection (4)(a) or (b); and
- be given at least 14 days before the day fixed for the hearing.” [emphasis added]
- The requirement in s 124(5) does not prevent a person raising a ground at the hearing to challenge the evidence if the person did not know the ground before the hearing and as far as the ground was able to be found out by the person, the person took all reasonable steps to find out the ground before the hearing: s 124A(2). If a person raises a ground at the hearing that was not stated in a written notice, the court may adjourn the hearing to the time, and on the terms as to costs, the court considers appropriate: s 124A(3). But subsection (3) does not limit the powers of the court.
- At the start of the hearing, the prosecution tendered the Notice completed and signed by the appellant and dated 10 September 2017.
- Sections A (Traffic Control Device or Sign) and B (Camera Detected Offences) were struck through as inapplicable. The appellant completed Section C (Non-Camera Detected Offences), which refers to a challenge under s 124(4)(a) or (b).
- Under the heading “I hereby notify that I intend to challenge or dispute” the appellant ticked all of the following boxes:
- “the accuracy of a radar or laser speed detection device; OR”
- “the accuracy of a vehicle speedometer accuracy indicator; OR”
- “the time at, or way in which the radar or laser speed detection device was used.”
- Under the heading “My grounds for this challenge or dispute are:” the appellant wrote:
- “Certificates – not signed by a “testing officer” ”;
- “Covert recording of evidence – no “warrent” [sic] provided from court”;
- “No vidio [sic] footage (responder ie. dash cam) with audio of “real time” capture”;
- “No GPS position of capture.”
- The Prosecutor conceded that the Notice was signed by the appellant and given within the prescribed time.
- The Prosecutor applied for a ruling that the Notice was invalid on the basis that the grounds identified did not challenge a matter in s 124(4)(a) or (b): that is, the accuracy of a speed detection device for which a certificate is given or the time at, or way in, which the relevant device was used. He relied on Pershouse v Queensland Police Service  QCA 296 at  –  as authority for the submission that a notice under s 124(4) of the TORUM Act will be invalid if the grounds relied on in the Notice fail to challenge the accuracy of the device, the speedometer of the police vehicle or the use of the radar device. Ordinarily if there is a challenge to the accuracy of a device, the prosecution calls expert evidence about that. In this case, the Prosecutor said he did not intend to do so because he contended that the Notice was invalid.
- The Magistrate asked the appellant questions about the Notice. The appellant made it clear that he was not relying upon the first two boxes he had ticked but only the third box, ie. the time at, or way in, which the device was used. He said “I’m not questioning the accuracy of the device, it’s electronic make-up or anything like that, it’s the physical way the device was used [that] is the basis of my case.” The appellant also abandoned the handwritten ground relating to the certificates not being signed by a testing officer.
- Before the Magistrate, the appellant conceded that his only ground of challenge was “the time at, or way in which the radar or laser speed detection device was used.”
- On appeal, the appellant complained that he was taken by surprise by the prosecution’s application that the Notice was invalid, and that the application was unfair. However the Prosecutor informed the Magistrate on the morning of the hearing that he had signalled his intention to make the application and given the appellant a copy of the Notice and the decision in Pershouse. The Magistrate gave the appellant an opportunity to respond to the challenge to the validity of the Notice. He invited the appellant to identify what grounds he relied upon. The appellant made certain concessions. The appellant did not raise at the hearing before the Magistrate any new or additional ground of challenge not included in his Notice, pursuant to s 124A. The appellant did not seek an adjournment to address the challenge to the Notice. The Magistrate ruled that the Notice was invalid, and gave reasons.
- Notwithstanding the ruling, the Magistrate then permitted the appellant to cross examine Senior Constable Kendjelic about the way in which the device was used and to put his case to him. As result, there was no unfairness to the appellant.
- On appeal the appellant again confirmed that he was not challenging the technical aspects of the device. He repeated that the only ticked box in issue was the one relating to the way in which the device was used.
- Returning then to each of the handwritten grounds in the Notice:
- the “certificates not signed by a testing officer” ground seeks to challenge the validity of the s 124(1) certificates;
- the “covert recording of evidence” ground seeks to challenge the admissibility of the police body worn camera recording;
- the “no video footage (responder, ie. dash cam)” and “no GPS position of capture” grounds are both arguments that the police should have used a separate and additional device (a “responder”) but did not.
- Plainly, the grounds stated by the appellant in the Notice challenge neither the accuracy of the device actually used in this case nor the time at, or way in, which the device was used at the relevant time.
- The Notice failed to comply with s 124(5). It was therefore not a valid notice for the purposes of s 124(4). The Magistrate was correct to rule the Notice invalid.
- For completeness, I note that the appellant sought to rely upon an extract of a Notice of Intention to Challenge or Dispute relied upon by him in an earlier proceeding and referred to by the Court of Appeal, both of which documents were attached to his Supplementary Outline of Submissions. The grounds referred to in that Notice were different, the Notice related to a different device and there was no challenge to the validity of the Notice in that proceeding. Those documents were irrelevant to a determination of the issues in this appeal. They did not satisfy the requirement for ‘special grounds’ to justify a grant of leave under s 223(2) to admit new evidence.
- This ground of appeal must fail.
The certificates were inadmissible ground
- The appellant relied upon a number of grounds to submit that the certificates were inadmissible or “fraudulent”.
- First, that the certificates were not signed by a “testing officer” from the laboratory. There was no statutory requirement that these certificates be signed by such a person. I am satisfied that each of the certificates was validly signed in accordance with the applicable statutory provision and the instrument of delegation.
- Second, that the statement in the certificates that “there being no appropriate Australian Standard for testing the device in force on the day of testing” is incorrect. There was no evidence whatsoever before the Magistrate or on appeal to support this submission. The statement in the certificate was prima facie evidence of that fact. The Magistrate was entitled to proceed on the basis of the certificate.
- On appeal, the appellant sought to rely upon various documents attached to his Outline to argue that there was an Australian Standard for calibration of speed measuring radar equipment in force at the relevant time. Those documents included what appeared to be an extract printed from the National Association of Testing Authorities (NATA) website (the date and applicability of which was unclear), the appellant’s handwritten notes of a conversation with someone at NATA, an extract from a transcript in an unrelated Magistrates Court proceeding and an incomplete and redacted copy of a statutory declaration in an unrelated proceeding. All of those documents were irrelevant and inadmissible. They did not satisfy the requirement for ‘special grounds’ to justify a grant of leave under s 223(2) to admit new evidence. Even if those documents were admitted, they do not establish that the statement in the certificate about the standard was incorrect.
- Third, that the certificates were a “complete fabrication” because the serial number on the device was used in another police car. There was no evidence whatsoever to support this submission. The certificate from Senior Constable Kendjelic was prima facie evidence of the fact that the device with that serial number was used by him at the relevant time and date. In cross examination, Senior Constable Kendjelic was asked whether the device could be swapped from vehicle to vehicle. He said that the device stayed in the vehicle, and was permanently assigned to the vehicle.
- Fourth, that the certificates had no official date stamp. It is unclear what is meant by this or how it is relevant. There is no statutory requirement for such a stamp. In any case, each of the certificates was signed and dated.
- None of the grounds raised to challenge the certificates has any merit. The certificates are prima facie evidence of the facts stated in them. There was no evidence rebutting those facts.
- The Magistrate did not err in admitting into evidence the certificates and instrument of delegation.
- This ground of appeal must fail.
The refusal to allow cross examination ground
- The appellant complains that the Magistrate refused to allow cross examination of the police witness and had “unfounded confidence in the road safety life saving capacity of the Queensland Road Policing Command”.
- As to the first part of that submission, there was only one police witness: Senior Constable Kendjelic. The appellant did in fact cross examine Senior Constable Kendjelic. His body worn camera footage was played. During the cross examination the appellant produced a video he had made after the event and sought to tender it. After some discussion the Magistrate permitted the appellant to play the video. After watching it, the Magistrate said that that in his view there was no basis for its admission. He said it was primarily a stationary video of somebody sitting in a car making a commentary based on a number of suppositions about location, distance and speed. He said he could not see how it was relevant or admissible. He heard further submissions from both parties on its admissibility. The Prosecutor argued that the video was inadmissible because the appellant was seeking to give expert evidence when he was not qualified to do so and had not established the reference points that formed the basis for the expression of the opinion. The Magistrate ruled the appellant’s video inadmissible. He then asked the appellant it he had any further questions for the police officer.
- The appellant’s argument seems to be that the Magistrate wrongly refused to admit his video, and as a result he was not permitted to cross examine the police officer on it. In my view, the Magistrate was correct in rejecting the tender of the video, for the reasons outlined above.
- The thrust of the second part of the submission seems to relate to an exchange during the appellant’s evidence. The appellant gave evidence that “there’s an enormous amount of pressure on – on the road policing command, which is – all they do is collect fines. They do nothing else. They do not keep the peace. They do not need to have covert – covert recording devices on them for any other purpose than giving evidence in court.” The appellant disagreed with the Magistrate’s suggestions that the police might enforce the law or save lives.
- The appellant also submitted that the Magistrate erred in accepting the evidence of Senior Constable Kendjelic that the speed produced by the mobile radar device was attributable to the appellant’s vehicle because that finding was unsupported by the evidence. In finding the offence proved, the Magistrate relied upon the certificates and the evidence of Senior Constable Kendjelic, including about how he used the device. He found the officer’s version of events to be an accurate portrayal of what happened on the day. The appellant conceded in his cross examination that he did not seek to challenge Senior Constable Kendjelic’s credibility. There was no evidence which challenged in any material way the evidence in the certificates or given by the Senior Constable.
- This ground of appeal must fail.
The covert recording of evidence ground
- The appellant submits that Senior Constable Kendjelic should not have activated his body worn camera and recorded his conversation with the appellant and that this was unfair.
- The body-worn camera recording was tendered without objection at the trial. No ground for objecting to its tender was identified on appeal other than that it was “covert”.
- The appellant made the same argument, which was considered and rejected, in an earlier appeal to this court and in his appeal from that decision, which was also dismissed. The Court of Appeal said:
“Harrison DCJ, who dismissed the appeal, found that the fact that the applicant did not know that his words were being recorded did not render the recording inadmissible. That is, of course, true. His Honour also considered whether the admission of the recording had been in any way unfair. He held that the use of the recording was not unfair. On the contrary, in reliance on the decision of Atkinson J in Schulz v Johnstone  QSC 221, his Honour held that by ensuring the accuracy of evidence of a relevant conversation, the recording was of assistance to the Court in disposing of an issue concerning what had been said. His Honour found that the parts of the recording that had been excised had been properly excised as either irrelevant or prejudicial to the applicant (as the applicant actually admitted to his Honour).”
- In Schulz Atkinson J, acknowledging that a person may object to the admission of such a recording on proper grounds, said:
“I should here interpolate that electronic taping of conversations by police officers is not to be discouraged. It is entirely appropriate for police officers to be very cautious about having conversations in situations such as that without tape recording them. The effect of not tape recording such conversations is to lead to disputes about what was said. If a conversation is electronically recorded and there is no malfunction in the tape, it has the very fortunate effect that both the police officers and the members of the public who speak to police officers are protected by the certain knowledge that any Court that hears that conversation will know precisely and accurately what was said during the electronically recorded conversation.”
- It follows that this ground of appeal must fail.
No recognition of Article 15 ICCPR in sentencing ground
- Article 15 provides, relevantly:
- No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. [emphasis added]
- The appellant relied upon this Article to argue that the fine imposed of $600 is manifestly excessive because it exceeds the amount of the original infringement notice (which was $235).
- This is an appeal against conviction only. The appellant does not appeal against his sentence. Therefore this ground is irrelevant.
- However for completeness, I note that the appellant raised the same argument in another appeal to this court. Judge Harrison rejected that argument, saying:
“ 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.
 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.
 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.”
- I would respectfully adopt the same analysis here. The appellant’s traffic history showed 12 convictions for speeding between 2003 and 2014 and he had received a demerit points warning letter in 2015. The Magistrate observed that he had elected to conduct a trial in circumstances that were ill informed or ill advised. I agree with that observation.
- It could not be said that the fine imposed of $600 was excessive, particularly in circumstances where the Magistrate exercised his discretion not to impose a period of disqualification.
- I am satisfied that the Magistrate acted reasonably and that there was a logical and rational connection between the facts found and the Magistrate’s conclusions.
- There was evidence from the police officer about the testing and use of the mobile radar device. There was nothing to challenge the effect of the matters stated in the certificates. None of the matters raised in cross examination amounted to an effective challenge to the contents of the certificates or raised any doubt in relation to those matters.
- The appellant has failed to establish some legal, factual or discretionary error by the Magistrate.
- On my own assessment of the sufficiency and quality of the evidence, I would have reached the same conclusion as the Magistrate.
- The appeal against conviction is dismissed.
- Pursuant to s 226 of the Justices Act 1886 (Qld) the court may on appeal make such order as to costs as the court may think just.
- The respondent seeks an order that the appellant pay its scale costs of the appeal, calculated in accordance with s 232A(1) of the Justices Act 1886 (Qld) and Schedule 2, Part 1(4) and Part 2(1) of the Justices Regulation 2014 (Qld) in the sum of $1,800.
- The appellant did not make any submissions with respect to costs. I will give him an opportunity to do so if he wishes.
- The appellant is to file and serve any written submissions with respect to costs (not exceeding 3 pages in length) within 14 business days of the date of this decision.
- Costs will be determined on the papers.
Pavlovic v Commissioner of Police  QCA 134;  1 Qd R 344 at , , -
Gallagher v The Queen (1986) 160 CLR 392 at 395, 396 cited with approval and applied in Pavlovic ibid
Gallagher at 395
Fox v Percy (2003) 214 CLR 118 at  – ; Rowe v Kemper  QCA 175;  1 Qd R 247 at  – ; Commissioner of Police v Al Shakarji  QCA 319 at ; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at , ; McDonald v Queensland Police Service  QCA 255;  2 Qd R 612 at .
White v Commissioner of Police  QCA 121, -
Allesch v Maunz (2000) 203 CLR 172 at ; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at ; Walker v Davlyn Homes Pty Ltd  QCA 565 at ; Shambayati v Commissioner of Police  QCA 57 at ; White at ; McDonald at .
Whitehorn v The Queen (1983) 152 CLR 657, 687.
Morris v R (1987) 163 CLR 454, 463-4, 466, 473, 477-9
E.g. Crossman v Queensland Police Service  QCA 169 (17/270) 30 July 2018 (delivered ex tempore); Crossman v Queensland Police Service  QCA 112; Crossman v Queensland Police Service  QDC 257 (17/193) Harrison DCJ 20 October 2017; Crossman v Commissioner of Police  QCA 075 (15/279) 1 April 2016; Crossman v The Commissioner of Police  QDC 265 (15/85) Morzone QC DCJ 29 October 2015; Crossman v Queensland Police Service  QCA 115 (15/29) 25 June 2015 (delivered ex tempore).
TS of Hearing 5 October 2017; 1-3 lines 5 – 47, 1-4 lines 1 – 30.
TS of Hearing 5 October 2017; 1-11 lines 30 – 47, 1-12 lines 1 – 12.
TS of Hearing 5 October 2017; 1-13; lines 5 – 20.
TS of Hearing 5 October 2017; 1-13 lines 5 – 20.
TS of Hearing 5 October 2017; 1-16 lines 5 – 45.
TS of Hearing 5 October 2017; 1-26 lines 1 – 5.
TS of Hearing 5 October 2017; 1-27 lines 30 – 35.
TS of Hearing 5 October 2017; 1-31; lines 1 – 20.
TS of Decision 5 October 2017; page 3 lines 26 – 34.
TS of Decision 5 October 2017; page 3 lines 45 – 47; page 4 lines 1 – 7.
TS of Decision 5 October 2017; page 6 lines 41 – 46; page 7 lines 1 – 2.
Johnson v Johnson (2000) 201 CLR 488 at 
TS of Decision 5 October 2017; page 5 lines 22 – 33.
Johnson v Johnson (2000) 201 CLR 488 at 
TS of Hearing 5 October 2017; 1-6 lines 15 – 46, 1-7, 1-10.
TS of Hearing 5 October 2017; 1-5 lines 12 – 18.
TS of Hearing 5 October 2017; 1-11 lines 30 – 47, 1-12 lines 1 – 12.
Crossman v Commissioner of Police  QCA 75
TS of Hearing 5 October 2017; 1-20 lines 30 – 24.
TS of Hearing 5 October 2017; 1-26 lines 8 – 12.
Crossman v QPS  QCA 112 at 
Schulz v Johnstone  QSC 221 at p 5
Crossman v Queensland Police Service  QDC 257
- Published Case Name:
Ian Norman Crossman v Queensland Police Service
- Shortened Case Name:
Crossman v Queensland Police Service
 QDC 267
17 Dec 2018