Forrest v Commissioner of Police
[2018] QDC 47
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
- Forrest v Commissioner of Police[2018] QDC 47
- Add to List
Forrest v Commissioner of Police[2018] QDC 47
Forrest v Commissioner of Police[2018] QDC 47
DISTRICT COURT OF QUEENSLAND
CITATION: | Forrest v Commissioner of Police [2018] QDC 47 |
PARTIES: | GORDON JOHN FORREST (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | D3725/2015 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 28 March 2018 |
DELIVERED AT: | District Court at Brisbane |
HEARING DATE: | 24 November 2017 |
JUDGE: | Richards DCJ |
ORDER: | Appeal allowed. Verdicts of acquittal entered |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – GENERALLY – where the appellant was convicted in the Magistrates Court for motor vehicle offences – where there were procedural errors in relation to the evidence – whether the case was proven beyond a reasonable doubt – whether the appeal should be allowed. |
COUNSEL: | The appellant appeared for himself |
SOLICITORS: | The appellant appeared for himself |
- [1]The appellant was charged with two traffic offences:
“Charge 1: that on the 26th day of June 2014 at Everton Park in the central division of the Brisbane Magistrates Court District in the State of Queensland he being the driver of a vehicle namely a car drove at a speed over the speed limit namely 60kms per hour applying to the driver for the length of road namely Old Northern Road, Everton Park where the said driver was driving;
Charge 2: that on the 26th day of June 2014 at Everton Park in the central division of the Brisbane Magistrates Court District in the State of Queensland he being the driver of a vehicle namely a car on a road namely Old Northern Road, Everton Park failed to drive with sufficient distance behind a vehicle namely a motorbike travelling in front of the said driver to stop safely to avoid a collision with that vehicle.”
- [2]The matter went to trial on 27 August 2015 and the appellant was convicted of both offences. He appealed that decision to the District Court of Queensland and the appeal was dismissed on 11 December 2016. He appealed that decision and the appeal was allowed in the Court of Appeal on 15 June 2017 and the matter was sent for re-hearing in the District Court. I heard the matter again on 24 November 2017.
- [3]The appellant has appealed on 10 grounds:
“1. The charges laid against me were fabricated;
- I did not commit and I am not guilty of either offence;
- The verdict cannot be supported having regard to all of the evidence;
- There have been errors in rulings and findings;
- There was irregularity in the impartiality and conduct of the trial;
- There has been a miscarriage of justice;
- I was unable to submit much of my prepared evidence to the court and evidence I wished entered into court records for consideration and referral was not accepted;
- As such, much evidence which I wish to present remains fresh evidence includes actual sworn legal testimony signed by the witness and attested to and which shows this witness is being untruthful when compared to his verbal testimony at trial;
- The presiding Magistrate allowed her patience and judgment and findings to be influenced by my medical condition and made adverse comments about my case and how I was coping during proceedings which were not helpful to me or helpful in determining the truth and allowing the truth to come out and all the evidence to be submitted and entered into court record and thus heard. The judge then also as a consequence of this made incorrect conclusions and summations and findings.
- There was audio and video evidence presented which was apparently recorded by the traffic officer ‘after’ my traffic stop which was not given to me in the audio and video provided with ‘transcript’ in my ‘brief of evidence’ and this unseen and unheard ‘audio and video’ evidence did not have a ‘transcript’. I required to listen to it, hear clearly and read and which I would ask the Court of Appeal to also to provide me.”
- [4]The appeal grounds are a little repetitive. This is unsurprising given that the appellant was representing himself. They can be summarised as follows: firstly that the verdict could not be supported having regard to all of the evidence, secondly, that the Magistrate erred in finding the police officer to be a credible witness and in preferring the evidence of the police officer over the evidence of the appellant, thirdly, there were procedural errors made by the Magistrate which resulted in an unfair trial and the Magistrate was biased and finally, that the appellant was not given a full brief of evidence in that part of the video evidence was not transcribed.
- [5]I have thoroughly reviewed the evidence. Unfortunately it seems that the exhibits that were tendered in the Magistrates Court hearing have been misplaced and are no longer available however, with the consent of the appellant, I have been provided with a copy of the video evidence. The transcript of the video is with the file so I have been able to watch and read the video evidence. The maps that were tendered on behalf of the prosecution are no longer available. I have however, made some use of the maps that appear to have been tendered for identification in the hearing by the applicant which shows the various intersections the subject of the contest.
- [6]I propose to deal with the matter under four headings:
1) whether the bench were biased against the appellant;
2) whether the correct procedure was followed during the trial;
3) whether there were correct findings in relation to credibility; and
4) whether the case was proved beyond reasonable doubt
Bias
- [7]The appellant represented himself at the hearing before the Magistrate. At the beginning of the hearing the Magistrate outlined some basic matters of procedure that the appellant needed to observe and explained his duty in cross-examination to put his case. The Magistrate indicated that if he needed help, if he had any questions, he could ask them. The appellant indicated that he had some anxiety, but otherwise he was ready to proceed. The appellant himself, indicated that the explanation given at the start of the case was clear.[1]
- [8]During cross-examination the appellant attempted to tender the statement of the police officer into evidence. The Magistrate explained that she didn’t have a copy of the statement and that she didn’t need a copy of the statement, but that he could ask questions of the police officer about it. There was other evidence that the appellant sought to tender and he was told that it was not relevant. He did cross-examine on various maps that he produced, they were marked for identification, but then not tendered into evidence. At times the appellant was pulled up by a magistrate for not allowing a witness to answer or talking over the top of the witness. However, that was always done in my view within the bounds of the judicial discretion. The issue of bias is dealt with Elsafty Enterprises Proprietary Limited & Anor v Gold Coast City Council [2011] QCA 84. The test is stated by White JA at 59 of the judgment as follows:
“There was no disagreement about the principles to be applied when one party alleges that a judicial decision is vitiated by the appearance of bias on the part of the pronouncing judicial officer. The test to be applied in Australia:
‘… 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.’”
- [9]In my view although the Magistrate may have at times seemed a little frustrated with the appellant’s inability to understand some of her instructions, there is nothing that would lead a fair minded person to doubt her impartiality.
Procedural irregularities
- [10]Whilst the Magistrate could not be said to have been biased against the appellant it is important in cases where an appellant is self-represented that there be careful observation of natural justice principles and an awareness of the prosecuting authority having an advantage over the person representing themselves. In my view there are a number of matters that indicate a procedural error in this case.
- [11]The complaints that were laid against the appellant were that on 26 June 2014 at Everton Park he (a) drove over the speed limit of 60kms per hour on Old Northern Road, Everton Park and (b) he drove too closely behind a motorbike. The prosecution at the beginning of the case applied to have the second charge amended to read motor car instead of motorbike and this was done before he pleaded to the charges. He was not asked if he had any objection to that amendment but given that the initial ticket was following too closely behind a motor vehicle and he had been told by the police officer initially that he was following another vehicle too closely, it is unlikely that any objection to that amendment would have been successful. However, during cross-examination, the complaint in relation to charge 2 was amended from Everton Park initially to McDowall[2]and then later to Albany Creek[3]. At no stage did the Magistrate ask the appellant if he had any objection to the complaint being amended. The locality of this second charge was of some significance in the case because it was suggested to the police officer that in his evidence-in-chief he indicated noticing the incident at a different place to that in his statement (near the Jinker Track at Albany Creek).[4]Given that the appellant’s case was that his cutting into other lanes took place at a different spot to that suggested by the police officer, the location of the alleged incident was important. The appellant should have been asked whether he had any objections to the amendment of the complaint.
- [12]Further, in relation to this charge the police officer who was a traffic officer and had been in traffic branch for the previous eight years was allowed during evidence to give expert evidence for which he was not qualified: [5]
“The onus is on a driver of a vehicle on the road to travel at a safe enough distance so that if for any reason the vehicle in front of it stops, that they can safely stop without hitting that vehicle. The normal standard reaction to time is about – is roughly 1.2 seconds and travelling at 70kms an hour, you are travelling at approximately 18 metres per second so lot of people can use up you nearly their reaction time if they are travelling that close and a lot of times in my experience on the road. Its pure luck there aren’t more accidents with people following too closely.”
- [13]The evidence of the standard reaction time given by the police officers was clearly evidence that was beyond his expertise and should not have been allowed to been given in a trial with an unrepresented defendant. This evidence was relied on in the Magistrate’s decision as proof that the appellant was following too closely to the car in front. The Magistrate decided:[6]
“The officer’s evidence that at 70kms per hour a car would be travelling at 18 metres per second is accepted by the court. It’s not challenged, in any event, and given that the normal reaction time is 1.2 seconds, there would need to be six to seven car lengths between vehicles to satisfy a safe distance and avoid a collision.”
- [14]It was of course well within the Magistrates discretion to find that following within the distance of one car length was too close nonetheless but that was not the basis upon which she reached the decision. The evidence of the standard reaction time should not have been received from the police officer.
- [15]The Magistrate also admitted into evidence for identification over objection from the prosecution a hand written note referencing vehicle positions and the google maps with the separate speed signs of various speeds between South Pine Road and Dargie Street along the length of Old Northern Road. She did however say that she took those documents into account. In my view the Google map should have been admitted during Mr Forrest’s evidence but nothing turns on that irregularity.
- [16]Mr Forrest objected to the fact that he was not allowed to tender the police officer’s statement. Certainly in some circumstances the statement could have been tendered but of course it was not an admissible document absent a denial by the officer of its contents. In any event the appellant did cross-examine the police officer about the statement and about inconsistencies that he perceived within the statement so nothing turns on his objection that he was not allowed to tender the document.
Credibility of police officer
- [17]In her decision the magistrate found that the police officer gave credible and consistent evidence. She said he was not successfully challenged under cross-examination and he remained consistent. She was satisfied with his explanation about his written statement differing from his actual evidence.
- [18]In relation to the police officer’s credibility it should be remembered that the police officer gave evidence on 27 August 2015. This event took place on 26 June 2014. He was on his own evidence a police motorcycle rider and he spent in excess of 80 per cent of his rostered shift time observing traffic. He said that it would be feasible that he could write 80 to 100 tickets per month[7]and he did not commit his recollection to a written statement until 28 June 2015. He did say however that he had a good memory of the event because it was a memorable incident. He did activate his video-camera for a portion of the contact and at the end of the video after the appellant had driven away he orally put his recollection of events on the video. He therefore had a contemporaneous note of the events on his body camera.
- [19]The officer was observing the appellant’s vehicle whilst he was directly behind the vehicle but three cars away. He said he had a clear line of sight. However, it is difficult to be certain, in my view, of the accuracy of the estimation from that distance when one is placed directly behind. Moreover, the police officer’s estimates did change from his initial audio recollection to his evidence-in-chief. He indicated in his evidence that the first time he saw the vehicle it was approximately a car length behind the vehicle in front. He said that the car in front was initially a station wagon and he crossed to the left hand lane and was following at a close distance again and then went back behind the first car and again was at a close distance that is within one car length. However his initial note was that he was less than two car lengths behind a white four wheel drive. He then moved into the right hand lane, accelerated, caught up to a silver Jaguar about one car length behind that then back into the right hand lane and again was within two car lengths of that vehicle in an 80km per hour zone. In addition in his evidence he indicated that he said in his statement that this occurred at the Jinker Track intersection with Old Northern Road but in his evidence-in-chief had talked about it happening at Keong Road. Given the lapse in time between the incident, the written statement and his evidence in court, these differences were matters that in my view affected his credibility.
- [20]Similarly, in relation to the speeding charge, he indicated that he kept the appellant under observation as they went down a slight decline past Keong Road. The appellant was travelling at approximately 66kms an hour. The officer said he was monitoring the speed. The defendant slowed down at Flockton Street as another vehicle was turning left. While that was happening he moved past the defendant’s vehicle and then he heard a vehicle accelerating behind him and could see the appellant coming up behind him so he increased his speed to match the speed of the vehicle and saw that it was 71kph. At that stage he pulled him over and ticketed him. The appellant maintains that he was not speeding and that the officer has invented the charge to harass him.
- [21]Again, there are inconsistences between this evidence and that in his audio statement. Immediately after the event he records:
“He was doing about 64 to 65 then we came over the last hill past Flockton Street. He had been slowed by a vehicle turning left into Flockton Street. I turned, I was in right hand lane, went past him as I was coming down the hill, I was sitting on 60, he’s gone straight past me, I caught up behind him. Saw 70 displayed on the ballinger of the bike.”
This is inconsistent with his evidence but also inconsistent with the video which was tendered. In the video recording it seems that the car did not pass him. The video shows that very soon after the intersection with Flockton Street there is a 60km an hour road sign. The appellant does not go past the motorbike at any stage. There are cars in front of the motor bike and the bike does seem to be closing on them so there is some supportive evidence that he was speeding up but that seems to have very quickly dropped as the other vehicles then move away from the bike. It is hard to determine at what stage the police officer decided that the appellant was doing 70kms per hour in a 60 zone.
- [22]These matters in my view show that there were difficulties with the credibility of the police officer. The appellant gave sworn evidence that he was not speeding and not following too closely. There were inconsistencies in his evidence as well but it remains as contrary evidence to that of the police officer and of course, the onus of proof beyond reasonable doubt remained at all times with the crown. In those circumstances, the credibility of the police officer was vital and given the lapse of time, the busy schedule of the police officer, and the discrepancies in his evidence, there were credibility problems.
Finding that the case was proved beyond reasonable doubt
- [23]Given the discrepancies with the evidence of the police officer, in my view the crown case was not proven beyond a reasonable doubt. I stress that this is not a matter where I would consider the police officer to have been dishonest. It is simply a matter where there are inconsistencies in the evidence which makes his evidence unreliable. In those circumstances the benefit of the doubt must go to the accused and he is therefore is entitled to an acquittal. In all the circumstances in my view it is appropriate that the appeal be allowed and the convictions quashed.