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Leahy v Commissioner of Police[2019] QDC 147

Leahy v Commissioner of Police[2019] QDC 147

DISTRICT COURT OF QUEENSLAND

CITATION:

Leahy v Commissioner of Police [2019] QDC 147

PARTIES:

BRIAN FRANCIS LEAHY

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

2020/18

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Gladstone

DELIVERED ON:

20 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

24 January 2019 and 19 July 2019

JUDGE:

Farr SC DCJ

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – where the appellant was convicted after a summary trial in Gladstone Magistrates Court of a charge disobeying the speed limit – where the appellant now appeals against conviction pursuant to s 222 of the Justices Act 1886 – whether the learned magistrate erred in failing to dismiss the complaint – whether the learned magistrate erred by accepting evidentiary certificates into evidence – whether the learned magistrate erred by relying on speed detection device – whether the learned magistrate erred by not playing all recorded evidence.

COUNSEL:

The appellant was self-represented on 24 January 2019

K N Hales for the respondent

SOLICITORS:

Seth Solicitors for the appellant on 19 July 2019

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    On 1 May 2018, the appellant was convicted after a summary trial in the Gladstone Magistrates Court of a charge disobeying the speed limit.[1]  He was fined $650.00 and ordered to pay $89.90 in court costs. 
  1. [2]
    He now appeals against that conviction pursuant to s 222 of the Justices Act 1886

Grounds of appeal

  1. [3]
    The appellant has attached 14 grounds of appeal to his application.
  1. [4]
    Ground 1 reads:

“The learned magistrate erred in finding that there was a case to answer and dismissing the complaint.” 

  1. [5]
    I assume that the appellant was trying to convey in the second half of that ground that the learned magistrate erred by failing to dismiss the complaint.
  1. [6]
    I note though that the appellant did not make a no case submission at the end of the prosecution case. I infer that the following 13 grounds were the particulars of why it is asserted that the magistrate erred in failing to dismiss the charge. I will proceed on that basis, because otherwise, there would be no basis for ground 1 to be considered.
  1. [7]
    The respondent has accurately summarised the appellant’s other 13 grounds of appeal into four categories:
  • Grounds 6, 7, 9 and 10:  the learned magistrate erred by accepting into evidence the evidentiary certificates tendered by the police prosecutor; 
  • Grounds 3, 4, 11 and 14:  the speed detection device could not be relied upon as it was not tested by the police officer who used it; 
  • Grounds 2, 5, 8 and 12:  considering the potential inaccuracy of the ballinger digital speedometer, the speed detection device produced an inaccurate reading; and
  • Ground 13:  the video and audio recordings, exhibits 1A and 1B, should have been played in their entirety. 

Law regarding appeals

  1. [8]
    Section 222(1) of the Justices Act provides the appellant’s right of appeal to the District Court.  Section 223(1) provides that such an appeal is by way of rehearing on the original evidence on the record, although the court may give leave to adduce, fresh, additional or substituted (new) evidence if the court is satisfied there are special grounds for giving leave.[2]  Section 225 of the Act empowers a judge to confirm, set aside or vary an appealed order, or make any other order considered just. 
  1. [9]
    In Stevenson v Yasso [2006] QCA 40 at [36], McMurdo P observed that the District Court judge in his appellate jurisdiction “was required to make his own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view”. 
  1. [10]
    In Mbuzi v Torcetti [2008] QCA 231 at [17], Fraser JA relevantly observed that “the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions”
  1. [11]
    In McDonald v Queensland Police Service [2017] QCA 255 at [47], Bowskill J, with whom Fraser and Philippides JJA agreed said: 

“It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.  Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” 

  1. [12]
    In Bode v Commissioner of Police [2018] QCA 186 at [42], McMurdo JA restated the task of a court conducting an appeal by way of rehearing to be as is described by the High Court in Robinson Helicopter Company Inc v McDermott[3] as follows: 

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a real review of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law.  If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.” 

Factual overview of the offence subject to appeal

  1. [13]
    On 9 September 2016, Senior Constables Baxter and Street were driving north on the Bruce Highway near Iveragh. At about 8.45am, Senior Constable Baxter detected the appellant, who was riding a motorcycle, travelling above the speed limit towards them.[4]  He noted on the ballinger digital speedometer attached to the police vehicle that the police vehicle was travelling at 95km/h.[5]  As the appellant’s motorcycle approached, Senior Constable Baxter activated a speed detection device, Decatur mobile radar device, fitted, with serial number 2225.  According to that speed detection device, the appellant’s motorcycle was travelling at 124km/h,[6] which was above the speed limit of 100km/h.  It was also noted that the radar speed detection device recorded the police vehicle as travelling at 95km/h.  Consequently, the police vehicle’s emergency lights were activated and the police vehicle turned around and stopped the appellant.  He denied speeding.  A conversation took place between police officers and the appellant which was recorded.[7]  The appellant was subsequently issued with an infringement notice. 

History of matter

  1. [14]
    On 12 February 2018, the matter was given a summary trial listing. At the mention, Magistrate Ho informed the appellant that he was required to provide notice if he was contesting the accuracy of any speed detection device or vehicle speedometer accuracy indicator. The appellant confirmed that he was contesting the accuracy of any device.[8] 
  1. [15]
    On 1 May 2018, the summary trial proceeded before Magistrate Benson. Senior Constable Baxter gave evidence that the radar detection device identified that the appellant was travelling at 124km/h. A recording from the police vehicle’s dashboard camera of the appellant speeding was tendered.[9]  A s 95 Evidence Act 1977 certificate accompanied those recordings.[10] 
  1. [16]
    The police prosecutor tendered a document, “Radar Speed Detection Device – Used”, to confirm that the radar speed detection device with serial number 24225 was used by Senior Constable Baxter.[11]  In discussion with the appellant, the learned magistrate informed him that the document was tendered pursuant to Transport Operations (Road Use Management) Act 1995 (the Act) s 124(1)(pb) and not s 124(1)(pa).  As such, the document did not require the Commissioner’s delegation.[12]  The learned magistrate accepted that document over the appellant’s objection. 
  1. [17]
    Shortly after that, the police prosecutor tendered “Radar Speed Detection Device – Test” document to establish that the radar speed detection device used by Senior Constable Baxter provided accurate results. The document was signed by Senior Constable Baxter’s officer in charge, Sergeant Martin Arnold. Again, the appellant objected.[13]  He argued that it was inadmissible as it was not accompanied with an instrument of delegation.  The learned magistrate overruled the objection and allowed the document to be tendered.[14] 
  1. [18]
    Later in the hearing, the police prosecutor tendered an Instrument of Delegation from the Commissioner.[15]  The appellant informed the court that the instrument wasn’t disclosed to him 14 days prior to the hearing.  The police prosecutor conceded that the instrument should have been given to the appellant before the hearing.  Nevertheless, the prosecutor stated that the instrument should be accepted by the court given the appellant had not previously indicated that he was challenging the accuracy of the speed detection device.[16]  The learned magistrate accepted the instrument as an exhibit.[17] 
  1. [19]
    The prosecutor also sought to tender “Certificate Ballinger Digital Speedometer” which related to the digital ballinger speedometer. That device recorded the speed of the police vehicle. The appellant objected to the document as it was not covered by an instrument of delegation. Further, the certificate noted that the device was tested outside the requisite period.[18]  As a result of the objection, the police prosecutor withdrew the tender and the magistrate did not receive the document into evidence.[19] 
  1. [20]
    The respondent submitted that in cross-examination of Senior Constable Baxter, the appellant challenged the accuracy of the speed detection device, by seeking to establish that Senior Constable Baxter did not test the speed detection device. The learned magistrate informed the appellant that he had not provided the requisite notice to challenge the accuracy of a detection device or vehicle accuracy indictor. In reply, the appellant stated that the accuracy of the machine was not in question. He submitted that it was a requirement that the police officer who tested the machine in the morning must be the same officer who operated the machine during the shift.[20] 
  1. [21]
    The learned magistrate permitted the appellant to cross-examine Senior Constable Baxter on his knowledge of the law regarding the identity of the person who should test speed detection devices. Senior Constable Baxter was not aware of any legislation or police guidelines which required him to personally test the speed detection device before using it. He confirmed that he did not test the device.[21] 
  1. [22]
    Senior Constable Street gave evidence that, before and at the end of the patrol, he tested the radar detection device that was used by Senior Constable Baxter.[22]  Senior Constable Street confirmed that Senior Constable Baxter was present for the test.  Like his partner, Senior Constable Street was not aware of any requirement mandating that only the officer who tested the device could use it.[23] 
  1. [23]
    There is a police procedure that officers should record details of the operation of speed detection devices. The recorded details should include date, time, location and applicable results of field testing of the particular device. The field testing should occur at the start and end of the shift.[24] 
  1. [24]
    The evidence of both officers was that before their shift started on the day in question Senior Constable Street tested the device in the presence of Senior Constable Baxter. Senior Constable Street commented that it was standard practice for the first operator, the driver, to test the device at the start of the shift.
  1. [25]
    The appellant has submitted however that the policy requires that the person who operates the device in the field is to be the same person who tested it at the start of the shift. He further submits that as that did not occur here, the learned magistrate erred in accepting that the relevant legislation or policy had been complied with and subsequently erred in placing any reliance on the information the device produced.
  1. [26]
    The appellant argues that the Manufacturer’s Specifications and the Queensland Police Speed Detection Policy (Chapter 6) make it clear that the “operator” of the speed detection device must be the same person who tested that device earlier that shift. I can find no support for such a contention. The specifications and policy in question refer to the operator. They do not specify that the operator at the start of testing must be the same operator at the time of incident. The word “operator” clearly means the person operating the device at that time – whether it be at the time of testing or at the time of operation. The term merely refers to a person authorised to operate such a device. There is no challenge in this matter to either officer being so authorised.
  1. [27]
    The appellant’s submissions on this point attempt to place an unnaturally restrictive interpretation and are rejected. The learned magistrate correctly concluded that there was no requirement that Officer Baxter had to be the operator who tested the equipment to enable the relevant certificate to have its proper evidential effect.
  1. [28]
    After the prosecution closed its case, the appellant elected not to present evidence. When invited to make submissions on the charge, the appellant argued that he could not be convicted because:
  • The certificates tendered were invalid;
  • Tests of the radar detection device should have been performed by the officer operating the machine; and
  • Although not established by any evidence or authority, the ballinger digital speedometer affected the accuracy of the radar detection device. 

Admissibility of certificate

  1. [29]
    A Radar Speed Detection Device – Used certificate identifies that an officer used a particular speed radar device. Here, exhibit 3, pursuant to s 124(1)(pb) of the Act, purported to the fact that Senior Constable Baxter used the radar speed detection device, with serial number 24225 on 9 September at 8.45am in accordance with the manufacturer’s specifications.[25] 
  1. [30]
    The other certificate, Radar Speed Detection Device – Test, demonstrates that a particular speed detection device had been tested and was producing accurate results. Pursuant to s 124(1)(pa) of the Transport Operations (Road Use Management) Act, the certificate was required to be signed by the Commissioner.  The Commissioner can delegate his powers.[26]  There is a requirement to prove the delegation by admissible evidence.[27]  The court is required to take judicial notice of the Commissioner’s signature on a document made for court proceedings.[28] 
  1. [31]
    The police prosecutor provided an instrument of delegation, No. 24.15, that delegated the Commissioner’s powers to issue certificates in accordance with s 124(1)(pa) of the Act. It delegated authority to officers in charge of police stations or of road policing units of or above the rank of sergeant.  Here, the Instrument of Delegation, exhibit 5, authorised Sergeant Martin Arnold to issue the Radar Speed Detection Device – Test certificate. 
  1. [32]
    At trial, the appellant argued that the Instrument of Delegation should have been disclosed 14 days before the hearing. He relied upon s 590AI(2) of the Criminal Code in that regard.  That section relevantly states: 

“(2)  The prosecution must give the accused person the written notice or copy—

  1. (a)
    for a committal proceeding or prescribed summary trial—at least 14 days before the date set by the court for the commencement of the hearing of evidence; …” 
  1. [33]
    The written notice referred to in subsection (2) is that which is defined in subsection (1).
  1. [34]
    However, that section is not relevant to a trial for the offence of disobeying a speed limit as it is not a prescribed summary trial.[29]  Notwithstanding that, the prosecutor at the court below erroneously conceded that the instrument of delegation should have been disclosed to the appellant 14 days prior to the commencement of the hearing.   The learned magistrate examined the issue  of the late disclosure and was satisfied that in the circumstances, the late disclosure of the instrument of delegation was not unfair nor did it create a prejudice for the appellant.  I can see no error in her Honour’s reasoning in that regard. 
  1. [35]
    Exhibit 4, showed that the speed detection device, with serial number 24225, was tested on 3 February 2016, which was within a year of it being used by Senior Constable Baxter. It was tested in accordance with the manufacturer’s specifications and found to produce accurate results at the time of testing.
  1. [36]
    The appellant has also raised objection to the admissibility of exhibit 4 because the document nominated the certifying officer’s name and rank as Sergeant Martin James whereas in fact his name was Martin James Arnold. The prosecutor at the court below drew this error to the learned magistrate’s attention and sought leave to write Sergeant Arnold’s surname at the bottom of the document under Sergeant Arnold’s signature. Such leave was granted. The appellant submits that the prosecutor had no authority to make such an amendment. He submits that the proper course of action should have been for the matter to be stood down and for Sergeant Arnold to be called to rectify the mistake. In his submission the appellant states that for this reason the certificate was not admissible and should not have been admitted into evidence nor relied upon. The appellant further submits that if that submission is accepted, then the document Radar Speed Detection Device – Used would be rendered worthless.
  1. [37]
    The difficulty for the appellant though is that the error is clearly of a clerical nature and relates to a particular that is of no relevance to the issues in contest. The document correctly identified the rank of the officer who signed the form as well as the unit to which he was attached, the serial number of the radar speed detection device and the location, time and date of the testing procedure. Furthermore it contained the signature of the police officer concerned and his two christian names. I note that the appellant was self-represented at the trial, but he raised no objection to the proposed amendment of the document, and the amendment did no more than correctly state the officer’s full name. No unfair prejudice arose to the appellant as a consequence of this clerical error and the effect of the document remained unchanged. The appellant’s legal representative produced no authorities to support his submission and I am satisfied that the amendment was not unlawful.

Instrument of delegation

  1. [38]
    At the resumed hearing of this appeal on 19 July 2019, the appellant’s legal representative submitted that three issues arose in relation to the Instrument of Delegation: exhibit 5.
  1. The defendant was entitled to receive it 14 days in advance of the hearing;
  1. That the “Radar Speed Detection Device – Used” Certificate does not refer to the delegation and therefore there is no correlation between the two documents; and
  1. That the admission of the Instrument of Delegation into evidence did not comply with ss 116 or 105 of the Evidence Act 1977
  1. [39]
    I have already dealt with the first of those issues.
  1. [40]
    As to the third issue, the appellant’s submission has merit. Section 116 of the Evidence Act requires that before a court may admit a copy of a document there must be proof, to the satisfaction of the court, that the copy was taken or made from the original document and that such copy was produced by means of a photographic or other machine which produces a facsimile copy of the document.  In this matter, the only information placed before the court regarding the document (which is a copy) was from the prosecutor at the Bar table when he said: 

“I do have that allegation – delegation.  I can certainly tender that to the court not to appease the defendant, if he wishes.  I seek to tender a Queensland Police instrument of delegation, delegation number 25 of ‘14’ under the Police Service Administration Act, delegation of statutory powers.  It’s a copy signed by the Commissioner of Police on 6 May 2015, by Commissioner Stewart”.[30] 

  1. [41]
    Notwithstanding the appellant’s objections, the document was received as exhibit 5.
  1. [42]
    As is obvious from the above passage, the learned magistrate had no information before her to the effect that the tendered copy was taken or made from the original document or how it was produced. That failure to comply with s 116, as well as the fact that no certificate pursuant to s 105 accompanied the tender of the document, rendered the document inadmissible, and accordingly, no reliance can be placed upon it.[31]
  1. [43]
    The natural consequence of that conclusion is that no reliance can be placed on exhibit 4, the Radar Speed Detection Device – Test.  It follows, that the accuracy of the radar speed detection device as at the date of the alleged offending conduct could not be established by way of these certificates. 
  1. [44]
    That is not the end of the issue though.

Ballinger digital speedometer

  1. [45]
    When representing himself before this court, the appellant submitted that the Ballinger digital speedometer affected the radar speed detection device. No evidence was provided to support that contention. At the resumed hearing however, it was conceded that the two speed detection devices within the police vehicle operated independently of each other.
  1. [46]
    This independence of operation of each device is significant. Each device informed Senior Constable Baxter that the police vehicle was travelling at 95km/h at about the time it passed the appellant’s motorcycle.

Conclusion

  1. [47]
    The fact that the Ballinger Digital Speedometer and the Radar Speed Detection Device operated independently of each other yet both registered the speed of the police vehicle at the relevant time as 95km/h renders the likelihood that either device was inaccurate as almost negligible. It strains credulity to suggest that both devices were operating inaccurately to exactly the same degree.
  1. [48]
    When that is considered together with the observations of the two police officers, both of whom were very experienced road policing officers, that the appellant’s motorcycle was travelling in excess of the 100km/h speed limit, the overwhelming conclusion is that the detected speed of the appellant’s motorcycle of 124km/h is accurate. I note also that there were no other vehicles travelling in the direction of the police vehicle at the time, hence there was no chance of the speed device monitoring the speed of a different vehicle.
  1. [49]
    Furthermore, the appellant did not give evidence. Hence there was no evidence before the court disputing the police officer’s evidence other than the appellant’s roadside denials.
  1. [50]
    That combination of features well and truly allows for the conclusion that the prosecution have established beyond reasonable doubt that the appellant’s motorcycle was travelling at 124km/h.

Video and audio recordings

  1. [51]
    Notwithstanding my conclusion above I should briefly refer to the remaining arguments presented to this court by the appellant. He submits that the learned magistrate erred in not having the entirety of the recordings, exhibits 1A and 1B, played. He was unable however, to identify what evidence was not played to the court. The majority of the recording relates to a discussion regarding the validity of the appellant’s driver license. That issue of course was irrelevant to the proceedings and was therefore inadmissible.
  1. [52]
    There was no merit to this ground of appeal.

Order

  1. [53]
    The appeal against conviction is dismissed.
  1. [54]
    I will hear the parties as to costs.

Footnotes

[1]Transport Operations (Road Use Management – Road Rules) Regulation 2009 r 20. 

[2]Justices Act 1886 (Qld) s 223(2). 

[3][2016] HCA 222. 

[4]Transcript of summary trial on 1 May 2018, p 4 l 41 – p 5 l 33. 

[5]Transcript of summary trial on 1 May 2018, p 5 ll 42 and 43. 

[6]Transcript of summary trial on 1 May 2018, p 4 ll 33 and 34 and p 5 ll 32-41. 

[7]Exhibit 1A and 1B. 

[8]Transcript of mention on 12 February 2018, p 3 ll 5-23 and p 5 ll 17-24. 

[9]Exhibit 1A and 1B – file name: FILE 160909-083552. 

[10]Evidence Act 1997; exhibit 2. 

[11]Exhibit 3. 

[12]Transcript of summary trial on 1 May 2018, p 13 l 16 – p 18 l 19. 

[13]Transcript of summary trial on 1 May 2018, p 18 l 25 – p 20 l 4. 

[14]Exhibit 4. 

[15]Transcript of summary trial on 1 May 2018, p 29 ll 10-18. 

[16]Transcript of summary trial on 1 May 2018, p 43 ll 7-30. 

[17]Exhibit 5. 

[18]Transcript of summary trial on 1 May 2018, p 20 l 10 – p 23 l 18. 

[19]Transcript of summary trial on 1 May 2018, p 23 ll 20-35. 

[20]Transcript of summary trial on 1 May 2018, p 41 ll 17-47. 

[21]Transcript of summary trial on 1 May 2018, p 39 ll 8-13. 

[22]Transcript of summary trial on 1 May 2018, p 46 ll 38-41. 

[23]Transcript of summary trial on 1 May 2018, p 49 ll 12-45. 

[24]Queensland Police Service Traffic Manual, ch 6 Speed Detection, 6.3.5 Record of Speed Detection Device Operation. 

[25]Transcript of summary trial on 1 May 2018, p 33 ll 20-24. 

[26]Police Service Administration Act s 4.10. 

[27]Dixon v LeKich [2010] QCA 213. 

[28]Police Service Administration Act s 4.12.

[29]Criminal Code 1899 s 590AD.

[30]Transcript of summary trial on 1 May 2018, p 1-29 ll 13-23. 

[31]See McCollon v Kovarik [2013] QDC 111; Van den Horn v Ellis [2010] QDC 451; Lebich v Dixson [2009] QDC 111 at [21] and [38]; Amies v Dixson [2009] QDC 110; Bevacqua v Wykes [2009] QDC 137 at [20]. 

Close

Editorial Notes

  • Published Case Name:

    Leahy v Commissioner of Police

  • Shortened Case Name:

    Leahy v Commissioner of Police

  • MNC:

    [2019] QDC 147

  • Court:

    QDC

  • Judge(s):

    Farr DCJ

  • Date:

    20 Aug 2019

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMagistrates Court (No Citation)01 May 2018Defendant convicted of one charge of disobeying the speed limit in contravention of Transport Operations (Road Use Management – Road Rules) Regulation 2009 r 20.
Primary Judgment[2019] QDC 14720 Aug 2019Appeal against conviction pursuant to s 222 of the Justices Act 1886 (Qld) dismissed: Farr SC DCJ.
Notice of Appeal FiledFile Number: CA 248/1920 Sep 2019-
Appeal Discontinued (QCA)File Number: CA248/1919 Mar 2020Appeal abandoned.

Appeal Status

Appeal Discontinued (QCA)

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