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Hartwig v Commissioner of Police[2021] QDC 56

Hartwig v Commissioner of Police[2021] QDC 56

DISTRICT COURT OF QUEENSLAND

CITATION:

Hartwig v Commissioner of Police [2021] QDC 56

PARTIES:

BLAKE PHILLIP HARTWIG

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

D103/2019

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Caloundra

DELIVERED ON:

9 April 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

11 October 2019

JUDGE:

Long SC, DCJ

ORDER:

  1. (1)
    The appeal is dismissed.
  2. (2)
    The orders of the Magistrate on 15 July 2019 are confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE OF MAGISTRATE – where the appellant was convicted and fined in the Magistrates Court for exceeding the speed limit – where the speed of the appellant’s vehicle was measured by a photographic detection device – where the appellant sought the disclosure of “manufacturer manuals” so as to be able to challenge the accuracy of the photographic detection device – where the appellant failed to serve a notice of challenge on the prosecution pursuant to sections 120(7) and (8) of the Transport Operations (Road Use Management) Act 1995 – the effect of statutory requirements as to challenge of the accuracy of a photographic detection device and certain other matters – whether the appellant was subjected to procedural unfairness in the Magistrates Court

LEGISLATION:

Criminal Code 1899, s 590AB

Justices Act 1886, ss 83A(5)(aa), 222, 223

Police Service Administration Act 1990, s 4.10

State Penalties Enforcement Act 1999, s 157(2), Schedule 2 

State Penalties Enforcement Regulation 2014, s 5

Traffic Regulation 1962, ss 210F, 212

Transport Operations (Road Use Management) Act 1995, ss 60, 114, 116, 118, 120, 124, 124A

Transport Operations (Road Use Management Road Rules) Regulation 2009, s 20

CASES:

Commissioner of Police v Al Shakarji [2013] QCA 319

Day v Grice [2011] QCA 178

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy (2003) 214 CLR 118

McDonald v Queensland Police Service [2018] 2 Qd R 612

Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181

Momcilovic v R (2011) 245 CLR 1

Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313

R v Doyle [2018] QCA 303

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679

Teelow v Commissioner of Police [2009] QCA 84

Tierney v Commissioner of Police [2011] QCA 327

White v Commissioner of Police [2014] QCA 121

COUNSEL:

Appellant self-represented

KA Milbourne for the respondent

SOLICITORS:

Appellant self-represented

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    On 16 July 2019, the appellant lodged a notice of appeal in respect of orders made by a Magistrate at Caloundra on 15 July 2019, in convicting him of an offence pursuant to s 20 of the Transport Operations (Road Use Management Road Rules) Regulation 2009 (“TORUM Road Rules Regulation”). More particularly, an offence that on 28 September 2018, on the Bruce Highway at Glasshouse Mountains, he drove a car at a speed over the 110 kph speed limit.
  2. [2]
    To this charge, the appellant had pleaded not guilty and as may be discerned from the transcription of proceedings and the Magistrate’s reasons for the orders made on 15 July 2019, the prosecution of this offence was entirely premised upon the tendering of various certificates in support of the contention that the defendant had at the relevant time and place driven his car at a speed of 123 kph, as measured by a photographic detection device. In particular, the following certificates were tendered and admitted:
  1. (a)
    Exhibit 1 is a photograph or image, certified on 18 June 2019 by a person stated to be an authorised delegate of the Commissioner of the Queensland Police Service,[1] pursuant to s 120(2) of the Transport Operations (Road Use Management) Act 1995 (“TORUM”) which provides:

“(2)An image produced by the prosecution purporting to be certified by an official stating that the image was properly taken by a photographic detection device at a specified location and time is evidence of the following matters—

  1. (a)
    the image was taken at the specified location and time;
  1. (b)
    the accuracy of the image;
  1. (c)
    the things depicted in the image;
  1. (d)
    any requirements prescribed by a regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times.”

The certification accompanying this image is that:

“This image was properly taken by a photographic detection device Redflex speed camera system model S 103 serial number CCS4387; and

The photographic detection device was used at a specified location namely Bruce Highway, Glass House Mountains at 20:29 and on 28 September 2018.

  1. (b)
    Exhibit 2 is a certificate provided by the same stated authorised delegate of the Commissioner, certifying that the photographic detection device;

“Redflex speed camera system model S 103 serial number CCS4387 was:

  1. (a)
    tested at 11.00 on the 7th day of March 2018 in accordance with -
  1. (i)
    the specification of the device’s manufacturer; and
  1. (ii)
    any further requirements about calibration testing prescribed under a regulation; and
  1. (b)
    that such photographic detection device was found to be producing accurate results at the time of testing.”

That certificate was provided under s 120(2A) of the TORUM which provided:

“(2A)A certificate purporting to be signed by an official stating that a stated photographic detection device—

  1. (a)
    was tested at a stated time and in accordance with—
  1. (i)
    the specifications of the device’s manufacturer; and
  1. (ii)
    any further requirements about calibration testing prescribed under a regulation; and
  1. (b)
    was found to produce accurate results at the time of testing;

is evidence of the matters stated and evidence the device was producing accurate results when so tested and for 1 year after the day of testing.”

  1. (c)
    Exhibit 3 is a document which includes an image which is certified on 17 June 2019, by the same stated delegate of the Commissioner, as follows:

“I certify that under Traffic Regulation 1962, part 22, Camera-detected offences, Division 2 Evidentiary matters s 212, this document for camera site code number 500011 is a copy of a part of the traffic camera manual.”

This certificate is noted to be given pursuant to s 60(4) of the TORUM, which simply provided that “a regulation may provide for evidence of other matters to be provided by a certificate”. And s 212 of the Traffic Regulation 1962 was then as follows:

“Traffic Camera Coding Manual

  1. (1)
    A court must presume a document purporting to be the Traffic Camera Coding Manual is the Traffic Camera Coding Manual, until the contrary is proved.
  1. (2)
    In a proceeding, a certificate purporting to be signed by the commissioner stating a document is a copy of a part of the Traffic Camera Coding Manual is evidence of that fact.”[2]

The effect appears to be to confirm the designation of the lane nearer to the location of the camera as lane 1.

  1. (d)
    Exhibit 5 is a certificate of a person described as “Prosecution Officer, Department of Transport and Main Roads” and stated to be an:

“… exercise of power delegated to that person ‘by the Chief Executive of the Department of Transport and Main Road under s 37 of the Transport Planning and Coordination Act 1994, and under s 103 of the Public Service Act 2008, to issue certificates under s 60 and s 124 of the Transport Operations (Road Use Management) Act 1995 on behalf of the Chief Executive.”

The certification is that:

“The register of vehicles kept by the Chief Executive pursuant to the provisions of Regulation 18(1) of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 contained the following information:

‘On the TWENTY EIGHTH day of SEPTEMBER 2018, there was a certificate of registration in force in respect of a vehicle namely a 1998 HOLDEN COMMODORE SEDAN, vehicle identification number (VIN) 6H8VTK69HXL406844, registration number 866FCB in the name of BLAKE PHILLIP HARTWIG of Unit 1, 11 Quandong Street, Ashgrove, Queensland 4060.’”

  1. (e)
    Exhibits 4, 6 and 7 are respectively certificates under the hand of a person described as “Principal Adviser (Prosecutions) Road Safety Camera Office”. Each certificate is dated 17 June 2019 and states the named office holder to be:

“A duly authorised delegate of the Chief Executive of the Department of Transport and Main Roads under section 37 of the Transport Planning and Coordination Act 1994.”

Exhibit 4 states:

“I certify that Infringement Notice number 2066473860 for the offence of Exceeding The Speed Limit involved vehicle bearing registration number 866FCB.”

Exhibit 6 states:

“I certify that Infringement Notice number 2066473860 was sent by mail to Blake Phillip Hartwig at the address U1 11 Quandong Street Ashgrove QLD 4060 on the day 9th October 2018 For the offence of Exceeding The Speed Limit.”

Exhibit 7 states:

“I certify that Blake Phillip Hartwig having been served with an Infringement Notice number 2066473860 for Exceeding The Speed Limit has not given the Commissioner notification by way of Statutory Declaration within 28 days from the Infringement Notice issue date in compliance with Section 114 of the Transport Operations (Road Use Management) Act 1995.”

The last three certificates were stated to be, respectively, given pursuant to ss 157(2)(f), (a) and (j) of the State Penalties Enforcement Act 1999, which relevantly provided that:

“(1)This section applies to a proceeding under this or another Act.

  1. (2)
    A certificate purporting to be signed by or for an administering authority and stating any of the following matters is evidence of the matter:
  1. (a)
    a stated infringement notice was served in a stated way on a stated person at a stated address on a stated day for a stated infringement notice offence;

….

  1. (f)
    an offence stated in an infringement notice involved a stated vehicle or animal;

….

  1. (j)
    a stated person has or has not given the administering authority an illegal user declaration, known or unknown user declaration or sold vehicle declaration for an offence stated in an infringement notice.”

The following appears as a definition in Schedule 2 of the State Penalties Enforcement Act 1999:

administering authority, for an infringement notice or infringement notice offence, means the entity prescribed under a regulation as the administering authority for the notice or offence.”

And having regard to s 5 of the State Penalties Enforcement Regulation 2014, it would appear that these certificates were given on the basis that the named chief executive was that of the department in which the law providing for this infringement notice offence was administered.

  1. [3]
    There was no objection taken to the admission of those certificates and the only witness to give evidence at the trial, was the appellant. Effectively, the appellant first made an unclear complaint as to not being associated with the Ashgrove address “since May” (in an unstated year), amongst reference to other complaints that he had about other prosecutions of him.[3] Secondly and after the Magistrate dealt with an objection taken to such evidence, identifying that the appellant’s evidence should be directed to “the question of whether he was the driver of the vehicle on X date, on the Bruce Highway and exceeding the speed limit”,[4] the appellant then gave the following evidence, in answer to questions from the Magistrate:

“Stick to the question of ---? --- well, the – alright.

--- of – and – and as I said to you before, it’s very, very, very, very technical, alright? So --- ? --- the reason I was putting that in there is just to paint the picture – the overall picture ---

Alright? --- and the fact that I applied for evidence, all the evidence, not just the evidence that suits the prosecution to give me. I applied for a copy of the owner manuals and I keep getting refused them, and it’s these owner manuals – I mean, if you’re driving a piece of equipment, or if you’re using something, then you need to know its faults. You need to know what can go wrong with it, and so I’m saying that the whole pretence for the accusations being against – made against me doesn’t seem to be allowed to be brought into question when that’s – that’s the main thing that’s relevant.

It does but there are very, very --- ? --- but I ---

--- very very technical rules about how to do that? --- I’m legally – If I’m being charged as a result of the pretence of some piece of speed recording equipment, I legally have the right to have a look at these manuals, because it could be that they stated there’s X, Y, Z that could go wrong, that would prove my innocence. So the fact that the prosecution is only putting forward the evidence that they see as relevant to their case looks a little bit impartial – no, partial. Partial.

The word you actually mean is partial? --- that’s right. The reason I said impartial is because the word is written out on your sidewalk out there. I figured you guys might actually stick to it, but maybe I’m wrong.

All right. All right. Anything else you want to say? --- No. that’s it.”[5]

The Magistrate then asked if there was cross-examination by the prosecutor and that consisted entirely of the following:

“Mr Hartwig, you agree that the onus is on you to lodge a notice of challenge to the court ---? --- No, I do not.

--- in relation to seeking manuals --- ? ---  No, I do not.

--- and operation of the devices you’re – you’re querying? ---  No I do not.”[6]

  1. [4]
    In his submissions to the Magistrate, the appellant correctly contended that the onus was on the prosecution to prove him guilty beyond reasonable doubt and otherwise reiterated his contentions that he did not live at the Ashgrove address and that as he had repeatedly asked for a copy of the “speed recording equipment owner manuals” so as to be able to properly defend himself, he contended that:

“I don’t have the manufacturer manuals to, which could suggest there was X,Y,Z that could have gone wrong, which leaves probable doubt, or plausible, possible. It means that I might not have committed the crime that I’m accused of.”[7]

  1. [5]
    It may be noted that the Magistrate pressed the prosecutor in the course of submissions as to the asserted absence of provision of the requested manuals on the basis of an understanding of the argument being:

“If I can’t see the manual then I can’t see what basis I might have to challenge.”[8]

 The prosecutor’s responses were to suggest that there had been no such application or request “as far as the prosecution is aware” and to reiterate the absence of notification of challenge to the accuracy of the certificates, with reliance in that regard on Day v Grice.[9]

  1. [6]
    Relevantly, the presiding Magistrate found that:

“Now, the combined effect of the Transport Operations (Road Use Management) Act and the State Penalties Enforcement Act is that the task of proving beyond reasonable doubt that a person committed a speeding offence – that is, the proof by the prosecution is made much, much easier. And that’s as a result of a decision of Parliament to create – or pass that legislation. If a defendant, that is a person in Mr Hartwig’s position, either neglects to or chooses not to give a notice of challenge to the prosecution at least 14 days before the hearing, then in the absence of any other evidence that might indirectly challenge the accuracy of the device, there will be no basis to reject that evidence and the charge will be proved.

In this case there is no other apparent evidence that might indirectly challenge the accuracy of the device that might be of assistance to Mr Hartwig.[10]

Now, Mr Hartwig gave evidence on oath today and his evidence was that he had requested several times that he be given a copy of what he called variously the owner’s manual or the manufacturers manual for the device used by the police, that is, the camera detection device. And that he received no reply to his requests. Effectively, I understand his argument to be that if he can’t see the manual then he can’t determine whether he should give the challenge notice and therefore couldn’t prepare his defence. He complains that the manual – and I take it what he refers to is the manual about how to operate the device and also that describes how it functions – yes – he complains that the manual was not included in the brief.

Now, there is logic in that, however, it does norm – not normally form part of such a brief. And it was his job in the preparation of his defence to work out how to get his hands on it legally, that is for example, by a summons or subpoena to the relevant body or possible non-party or party to the proceedings. His failure to do that and to – and then, on top of that to give any notice is, in the absence of some other evidence – as I’ve already referred to – or argument about the quality of the prosecution – and that is convincing argument about the quality of the prosecution, fatal to his defence.[11]

Turning now to the prosecution case, I am satisfied that exhibit 1 is evidence that on the 28th of September 2018 a vehicle which was registration number 866 FCB was in the left-hand lane of the Bruce Highway, Glass House Mountains travelling at 123 kilometres per hour in a zone where the limit was 110 kilometres per hour at approximately 8:30pm - I think it’s 20 hours 29 minutes and some seconds. And that was as – the vehicle with that registration vehicle with that registration number passed the camera. I’m satisfied as a result of exhibit 2 that a photographic detection device – that is, speed camera, was producing accurate results at the time of the testing. Exhibit 3 tells me that the vehicle was travelling north bound where the limit was 110 kilometres per hour and that there were two lanes. An infringement notice was issued for a vehicle 866 FCB but I’m unaware of the date it was issued or the date of the offence from exhibit 4. And the number of the notice was 2066473860.

Exhibit 5 is evidence that on the 28th of September, the date of the offence, the vehicle – the subject of the infringement notice 866 FCB was registered in the name of Mr Hartwig at an address of 1/11 Quandong Street, Ashgrove and that this was in the records of Queensland transport. Exhibit 6 is evidence that the infringement notice was sent to that address by mail addressed to the defendant, Mr Hartwig, at unit 1, 11 Quandong Street Ashgrove, on the 9th of October 2018. Exhibit 7 is evidence that Mr Hartwig did not nominate any other person as the driver on that occasion so he is deemed, by virtue of the relevant section of the State Penalties Enforcement Act, to be the driver – or to have been the driver on 28th of September. That is – in fact, all that the prosecution is required to do, in this case, to establish all of the elements of the offence beyond reasonable doubt.

No evidence has been led by the defendant, Mr Hartwig, to creating me – and I’m the tribunal of fact – a doubt as to his guilt of the offence charged and accordingly I find the defendant guilty.[12]

Having so found the appellant guilty and in accordance with the submission made by the prosecutor, the Magistrate then imposed a fine in the traffic infringement amount of $261 and ordered the appellant to pay the costs of the summons, in the amount $99.40. He was allowed two months to pay.

The appeal

  1. [7]
    As was recognised in McDonald v Queensland Police Service,[13] and, in the absence of any successful application to adduce “new evidence” (as is the case here), the appeal is conducted by way of rehearing on the record of the proceedings below.[14] In such an appeal, this Court is required to conduct a review of the record of the hearing and ultimately correct any legal, factual or discretionary error of the Court below, determined on the basis of that review and this Court’s own conclusions.[15] Necessarily, regard must be had to the issues raised by the grounds of appeal.[16]
  2. [8]
    In the notice of appeal, the appellant’s grounds are stated as follows:

“That I was unfairly tried on partial or selective evidence. I requested a copy of the manufacturer manuals be included in the brief of evidence at the initial mention. I needed these manuals to prove reasonable doubt, so that I could then lodge an intention to challenge or dispute, to the prosecution. Despite my repeated attempts to relay this in court I was denied justice. Seeing as the whole premise for which the accusations against me are based on the recording of a speed recording device, access to these manuals I would have thought would be fundamental to understand the possible faults or things that could go wrong with the device.

I’m seeking that I be granted access to these manuals which are fundamental in proving my innocence and that if I’m not to be granted access that the judgment be set aside on the premise that I was found guilty on partial or insufficient evidence. I thank you for taking all these submissions into account, when making a decision.”

  1. [9]
    The appellant’s outline of argument in support of the notice of appeal is brief and effectively repeats his complaints about being denied access to the manuals which he had sought, as being “fundamental to me proving my innocence and being granted natural justice”. Further, it may be noted that the record for this appeal hearing included a transcription of a mention of this matter in the Magistrates Court, on 28 May 2019. Relevantly, that was to, respectively, confirm that after then pleading not guilty to the charge, the appellant:
    1. (a)
      did request that he be supplied the brief of evidence, “as well as a copy of the manufacturer manuals of the speed recording equipment”;[17] and
    2. (b)
      was advised by the Magistrate:
  1. (i)
    after he proffered that:

“It does say in the brief of evidence that you’re entitled to all of the relevant evidence, not just the evidence deemed relevant by the prosecution”;

to:

“Wait and see what you get and then see if you are happy with it.”[18] ; and

  1. (ii)
    upon adjournment for hearing on 15 July 2020, to seek legal      advice in respect of the “highly, highly technical” nature of the applicable legislation and that he would find that there are no witnesses for him to cross examine:

“Unless you’ve given certain notice and you need to give – you need to take very good advice because if you lose, you can be hit with the costs of experts being brought up …”[19]

  1. [10]
    For the respondent and in addition to pointing to the advices given by the Magistrate on 28 May 2019, reference is made to acknowledgement given by the defendant, on 15 July 2019, that he had received the brief of evidence[20] and had legal advice in relation to that brief and the conduct of the hearing.[21] Attention is drawn to the absence of any notice of challenge pursuant to s 120(7) and (8) of the TORUM.[22] Reliance is then placed on the decision in Day v Grice,[23] as to the effect of that situation, with the ultimate submission being that:

“9.7 In Day v Grice [2011] QCA 178, the appellant had been charged with disobey speed limit which had been detected by a radar device. The relevant provisions relating to facilitation of proof and the requirements for notice to challenge for detection involving radar devices are contained in section 124 of the Act. The appellant in that case had filed a notice to challenge. Section 124A provides for, where a person has given a written notice, certain circumstances where additional grounds might be raised. The court held:

"The combined effect of s 124A(2), 124(4) and 124(5) is that a challenge of the kind identified in section 124(4) can only be raised by notice given in accordance with s 124, or in the circumstances identified in s 124A(2)."[24]

"... the notice given by the respondent under s 124(4) and 124(5) did not notify an intention to challenge the accuracy of the radar device. Accordingly, no basis has been identified for not accepting the accuracy of the reading of the device."[25]

9.8 It is submitted that section 120 provides an equivalent requirement for notice to challenge to section 124, and similarly no basis had been identified for not accepting the accuracy of the photographic detection device.

9.9 The obtaining of the manufacturer manual would go to the issue of whether the photographic detection device was found to be producing accurate results at the time of testing. The appellant did not give written notice of challenge to the prosecution as required under section 120(7)(a) of the Act that he sought to challenge the accuracy of the photographic detection device. Therefore, the certificate pursuant to section 120(2A) of the Act is evidence that the photographic detection device:

9.9.1was tested on 7 March 2018 and in accordance with –

9.9.1.1the specifications of the device’s manufacturer; and

9.9.1.2any further requirements about calibration testing prescribed under a regulation; and

9.9.2was found to produce accurate results at the time of testing.

9.10 As the appellant did not provide a notice to challenge the accuracy of the photographic detection device, the certificate established that the photographic detection device produced accurate results.

9.11 The evidence at trial therefore established that:

9.11.1 a 1998 Holden Commodore Sedan registration 866FCB registered to the appellant;[26]

9.11.2 was travelling at 123 km/h;[27]

9.11.3 in a 110 km/area;[28] and

9.11.4 the appellant was the driver of the vehicle,[29]

9.12 It is submitted that the learned Magistrate correctly found that there had been no evidence to dispute the accuracy of the detection device, and that, in the absence of any such challenge, the elements of the offence were satisfied.”

It is further submitted that having regard to the advices given to the appellant and his obligation to give the notices, “the appellant was afforded procedural fairness” and that his “failure to pursue obtaining the manufacturer manual has not established that there was any error in the proceedings”.

Discussion

  1. [11]
    In the first instance, it may be observed that nothing appears to turn on the appellant’s complaint as to the Ashgrove address. As was the effect of the certification in Exhibits 5 and 6, that was the address linked to the registration of the vehicle registered with the number 866 FCB, in the name of the appellant and to which the infringement notice consequential to the photographic detection device image certified by Exhibit 1, was sent. The point of this for the prosecution case, was, as also certified by Exhibit 7, to demonstrate not just that the appellant was the registered owner of the vehicle but that in the absence of any response by him pursuant to s 114 of the TORUM, he is deemed to have committed any prescribed offence which is established as having occurred in respect of the operation of that vehicle, at the relevant time and place. Relevantly, s 114 provides:

“114 Offences detected by photographic detection device

  1. (1)
    If a prescribed offence happens and the offence is detected by a photographic detection device, a person is taken to have committed the offence if the person was the person in charge of the vehicle that was involved in the offence at the time the offence happened even though the actual offender may have been someone else.
  2. (2)
    If the actual offender is someone else, subsection (1) does not affect the liability of the actual offender but the person in charge and the actual offender can not both be punished for the offence.
  3. (3)
    It is a defence to a camera-detected offence, other than an unregistered or uninsured offence, for a person to prove that—
  1. (a)
    the person was not the driver of the vehicle at the time the offence happened; and
  2. (b)
    the person—
  1. (i)
    has notified the commissioner or chief executive of the name and address of the person in charge of the vehicle at the time the offence happened; or
  2. (ii)
    has notified the commissioner or chief executive that the person did not know and could not, with reasonable diligence, have ascertained the name and address of the person in charge of the vehicle at the time the offence happened.

….

  1. (4)
    A defence under subsection (3) or (3A) is available only if the person notifies the commissioner or chief executive about the matters in subsections (3) and (6), or subsection (3A), in a statutory declaration given within the required time.
  1. (5)
    The required time is 28 days after whichever of the following is first given to the person—
  1. (a)
    a written notice from the commissioner or chief executive alleging a camera-detected offence;
  2. (b)
    an infringement notice under the State Penalties Enforcement Act 1999.
  1. (6)
    For subsection (3)(b)(ii) a person must prove that—
  1. (a)
    at the time the offence happened, the person—
  1. (i)
    exercised reasonable control over the vehicle’s use; and
  2. (ii)
    had in place a reasonable way of finding out the name and address of the person in charge of the vehicle at any given time having regard to—
    1. (A)
      the number of drivers; and
    1. (B)
      the amount and frequency of use; and
    1. (C)
      whether the vehicle was driven for business or private use; and
  1. (b)
    after the offence happened, the person made proper search and enquiry to ascertain the name and address of the person in charge of the vehicle at the time the offence happened.

….

  1. (8)
    Nothing in this section stops a person notifying the commissioner or chief executive, in a statutory declaration, that the person was the driver of the vehicle involved in a camera-detected offence.
  1. [12]
    It may be noted that in these proceedings, no suggestion has emerged from the appellant that he was not or may not have been, the driver of the vehicle, at the relevant time and place. Further, any such suggestion would not appear to sit consistently with his focus upon obtaining the manufacturer’s manual and the prospect of error in the image and more particularly, the details recorded in Exhibit 1.
  2. [13]
    Further and as may be noted from the terms of s 114(5)(a) of the TORUM, the requirement as to notification may extend beyond the circumstances of the issuance of an infringement notice and no submissions were made and there is no need to consider whether the complaint and summons and, more particularly, the accompanying notice given pursuant to s 116 of the TORUM, which sets out s 114, 118 and 120 of that Act, would constitute such written notice.
  3. [14]
    From a general perspective, it is not difficult to understand the appellant’s interest in having access to the manuals in respect of the operation of the photographic detection device.  For instance and whilst it might be difficult to expect that the outcome here, in terms of any finding that the speed limit had been exceeded, might be affected by knowledge of any margin for error in the recorded speed recording, that might be of more importance for a more marginal reading.  However, another issue which might arise in the circumstances as presented here by reference to Exhibit 1, is the accuracy of the attribution of the reading to the vehicle identified as being that of the appellant, rather than the one also displayed in the image, as being near the appellant’s car but in the adjacent lane on the two lane carriageway.
  4. [15]
    Further and where appropriate, it may be that such material could be regarded as disclosable in accordance with the general obligation as to prosecution disclosure, as statutorily recognised in s 590AB of the Criminal Code.[30]  And which obligation might be the subject of application in the Magistrates Court, in proceedings of this kind, pursuant to s 83A(5)(aa) of the Justices Act 1886.[31]
  5. [16]
    However, the point which arises here and which might be critical to any understanding of any such prosecutorial disclosure obligation, is that the legislature has specifically placed a disclosure obligation on defendants such as the appellant.  This was the central, if not sole, point which was sought to be made by the prosecutor in the proceedings below and particularly in reliance upon the decision in Day v Grice[32]. And the submission of the respondent in this Court repeats such reliance and, more particularly, the absence of any “evidence to dispute the accuracy of the detection device”.
  6. [17]
    Although the decision in Day v Grice was concerned with the effect of analogous certification in respect of a speed reading obtained by operation of a radar speed detection device, particularly pursuant to s 124(1) (pa) to (pc) of the TORUM, it may be noted that:
    1. (a)
      similarly to the provisions of s 120, as engaged here, each of those relevant provisions provided that an appropriate certificate “is evidence of” the specified fact, including, where appropriate, the accuracy of the result or speed measured by use of the device; see: s 124(1)(pa);
    2. (b)
      similarly to the requirements of s 120(7) and (8), there are requirements set out in ss 124(4) and (5), for a defendant to give written notice of any challenge to the accuracy of any certified use of a speed detection device, including by statement of the grounds intended to be relied upon to challenge such a matter; and
    3. (c)
      reference was also made to s 124A, as to allowance for a person giving such a notice, to potentially raise additional grounds, in specified circumstances. 

It is in that context of similarity of the respective provisions that the prosecution reliance is upon the following conclusion stated to be the effect of the provisions considered in Day v Grice:

“The combined effect of s 124A(2), s 124(4) and s 124(5) is that a challenge of the kind identified in s 124(4) can only be raised by notice given in accordance with s 124, or in the circumstances identified in s 124A(2).”[33]

  1. [18]
    Particularly when it is noted that s 124A includes reference to the requirement in s 120(7), it may be accepted that this conclusion is also applicable to the operation of s 120(7) and (8).  Relevantly, to this matter, s 124A provided as follows:

“124A Additional ground of challenge not stated in written notice required under particular provisions

  1. (1)
    This section applies to a hearing in relation to which a person has given a written notice under section 80(27), 119(1), 120(7) or 124(4).
  2. (2)
    The requirement mentioned in section 80(27)(c), 119(2), 120(8) or 124(5) to state in the written notice the grounds on which the person intends to challenge the evidence mentioned in that subsection does not prevent the person from raising a ground at the hearing to challenge the evidence if—
  1. (a)
    the person did not know the ground before the hearing; and
  2. (b)
    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.
  1. (3)
    If a person raises a ground at the hearing that was not stated in a written notice under section 80(27), 119(1), 120(7) or 124(4), the court may adjourn the hearing to the time, and on the terms as to costs, the court considers appropriate.
  2. (4)
    Subsection (3) does not limit the powers of the court.”[34]
  1. [19]
    Returning to the submissions of the respondent here, it should be noted that it is not the effect of absence of a notice given pursuant to s 120(7) which gives evidential effect to the certificates. Rather that is the effect of them pursuant to, respectively, ss 120(2), (2A) and (4), and that remains the position even if a notice is given and more particularly, some evidence is adduced disputing that effect of any certificate.
  2. [20]
    However, it is also to be noted that the following was observed as to the circumstances in Day v Grice:

“[47] The ultimate issue in the proceedings before the Magistrate was whether it was shown beyond reasonable doubt that the respondent had exceeded the speed limit. A subsidiary issue was whether the evidence from Senior Constable Cremasco of the reading from the radar device was evidence of the respondent’s speed at the time of the alleged offence. That depended upon the acceptance of the evidence of Senior Constable Cremasco in relation to his use of the radar device on that occasion; and a conclusion about the reliability of the reading obtained from the radar device.”[35]

As distinguishable from the current circumstances, those observations were, in part, referable to certification pursuant to s 124(1)(pb) of the TORUM and as to the use of a speed detection device “by the officer at a stated time in accordance with –

  1. (i)
    the appropriate Australian Standard for using the device, as in force on the day of use; or
  2. (ii)
    if there is no appropriate Australian Standard for using the device in force on the day of use – the manufacturer’s specifications.”
  1. [21]
    In the present circumstances and having regard to what may be understood to be the static nature of the device and the absence of human operation of it to produce the results upon which reliance is placed, there is no provision equivalent to s 124(1)(pb), in s 120 of the TORUM and therefore no scope for challenge in respect of the manner of operation of the device. Although, it may be noted that s 120(2A) does relate to certification as to a process of testing of the device:

“…. in accordance with—

  1. (i)
    the specifications of the device’s manufacturer; and
  1. (ii)
    any further requirements about calibration testing prescribed under a regulation”.[36]
  1. [22]
    Another matter to note is that like the position expressed under ss 124(1)(pa), (pb) and (pc), the position engaged by the certificate issued pursuant to s 120(2A) of the TORUM, is that it is “evidence of the matters stated”, rather than as might be contrasted with some other provisions in s 124 of the TORUM (such as ss 124(1)(e), (g), (j), (k), (l), (n) and (s)), not stated to have any effect that “in the absence of evidence in rebuttal thereof shall be conclusive evidence of such matter or matters”. Accordingly and unlike such provisions which have an effect of placing a persuasive burden upon a defendant,[37] the critical certificates here are simply given statutory effect as evidence in aid of the prosecution burden of proof, to establish the commission of the offence beyond reasonable doubt. 
  2. [23]
    However, a question which inevitably arises in the absence of some evidence to actually contradict the certified facts, is whether there is any practical utility in any attempt to simply expose some prospect of there being error in respect of what has otherwise been certified.  That is particularly because of the effect of s 120(2A) of the TORUM,[38] which is not just as to the stated facts as to the testing of the device, but also “evidence the device was producing accurate results when so tested and for 1 year after the day of testing.” And particularly bearing in mind that what is ultimately sought to be proven is the reading in excess of the relevant speed limit, it is notable that s 120(7) and (8)  provide as follows:

“(7) A defendant who intends, at the hearing of a charge against the defendant under this Act, to challenge—

  1. (a)
    the accuracy of a photographic detection device; or
  2. (b)
    the image from a photographic detection device; or
  3. (c)
    a marking or writing made by a photographic detection device on an image; or
  4. (d)
    a matter mentioned in section 120A(4)(a),(b) or (c); 

must give written notice of the challenge to the prosecution.

  1. (8)
    The notice must be in the approved form and must—
  1. (a)
    be signed by the defendant; and
  2. (b)
    state the grounds on which the defendant intends to rely to challenge a matter mentioned in subsection (7)(a), (b) or (c) or section 120A(4)(a),(b) or (c); and
  3. (c)
    be given at least 14 days before the day fixed for the hearing.”

Whilst it can be noted that an issue as to “the accuracy of a photographic detection device” as referred to in s 120(7)(a), may extend to the accuracy of the testing conducted on the device, consistently with the requirements of 120(7) and particularly (8)(b) to “state the grounds on which the defendant intends to rely to challenge a matter mentioned in subsections (7)(a), (b) or (c) …” and in the context of s 124A, the expectation must necessarily be as to the identification of a ground in the nature of some positive assertion as to the inaccuracy of the results of the relevantly certified operation of the device. This may be seen to flow from the reality that in the absence of any such notified ground, the prosecution are entitled to rely upon the effect of the certificates and as was the effect of that approach here, there will be no opportunity for cross examination of any prosecution witness and no apparent scope for any relevant defence evidence.

  1. [24]
    Accordingly, it may be seen that an approach which simply seeks to establish the theoretical possibility, or prospect, of error in the results, which are otherwise appropriately certified and deemed by statute, to be evidence of those facts, cannot avail a defendant to create any reasonable doubt as to the facts which are given such statutory effect.  An appropriate analogy is with what has been observed in respect of the need to exclude any reasonable or rational hypothesis consistent with innocence, in the application of the requirement for a proof beyond reasonable doubt in respect of any substantial reliance on circumstantial evidence.  That is, in order to be such a reasonable or rational hypothesis, there must be something beyond “mere conjecture” or possibility and it “must be based upon evidence”.[39] 
  2. [25]
    The overall effect is therefore to require that there be some acceptable evidence in contradiction of the statutory effect of the certificate and such as to, at least, allow for a reasonable doubt as to the evidential effect of the certificate as to what has actually occurred. That is a position which is not to be equated with those contrasted provisions which shift the onus of proof of the issue to the defendant. In this respect, the onus of proof remains on the prosecution but and whilst that potentially leaves open an assessment as to the weight to be given to the certified facts, in any given case, it could not be expected that the statutory effect of the certified facts and particularly as to the accuracy of the results obtained from the use of the a photographic detection device, may not be given weight or acted upon, in absence of some acceptable conflicting or contradictory evidence.[40]
  3. [26]
    Further, this is not to be regarded as any illusory position for a defendant.  Much will depend upon the quality of any such conflicting or contradictory evidence, including any objective support for it, as might, conceivably for instance, come from evidence of some other reliable recording of the speed of the vehicle at the relevant time and place or perhaps, some relevant limitation as to the ability of the vehicle to achieve any particular speed or as to the vehicle not being in any position to have been operated at the relevant time and place.
  4. [27]
    Moreover and in the first instance, there is the disclosure obligation provided in ss 120(7) and (8), which may be seen as not just informing the approach of the prosecution to a particular case but also as to any disclosure obligation arising pursuant to s 590AB of the Criminal Code.   Whilst and as may be noted by reference to s 124A(3) of the TORUM, an appropriate remedy for any failure of such disclosure by a defendant, may be an adjournment to enable that to occur, at no stage of this matter has any such issue arisen.  Rather, the proceedings below are characterised by the absence of any suggestion of a position that there has been any actual error in the certified material, as to what was recorded at 20:29:37 on 28 September 2018, as opposed to contentions that the appellant was not afforded procedural fairness because of the denial of disclosure of the manufacturer manuals and therefore his ability to identify potential inaccuracy in the operation of the recording device.[41]

Conclusions

  1. [28]
    For the reasons which have been given, such an approach would have been of no avail to the appellant.  He has not been subjected to any procedural unfairness and as the magistrate correctly recognised, on the evidence which was placed before that Court, it was only appropriate to find the appellant guilty of the charged offence.
  2. [29]
    Therefore, the appropriate further conclusion is that appeal be dismissed, with an order that the orders of the Magistrate on 15 July 2019, are confirmed.

Footnotes

[1]  Such delegation is stated to have been given under s 4.10 of the Police Service Administration Act 1990 (“PSAA”) and it may be noted that pursuant to s 4.10(4), it is provided that proof of such delegation is not required in a proceeding unless the defendant gives the entity responsible for prosecuting the proceeding a notice of intention to challenge the delegation at least 10 business days before the hearing date.

[2]  It appears neither easy nor necessary to discern what may be the effect of the “Traffic Camera Coding Manual”.

[3]  T1-10.38 – 1-11.4.

[4]  T1-11.38-43.

[5]  T1-12.28 – 1-13.9.

[6]  T1-13.20-25.

[7]  T1-14.20-24.

[8]  T1-17. 33-35.

[9]  [2011] QCA 178.

[10]  D2.10 – 21.

[11]  D2.34 – 3-3.

[12]  D3.16-43.

[13]  [2018] 2 Qd R 612 at [47]. 

[14]Justices Act 1886, s 223. 

[15]  See also: Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313, at [33]-[34], Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679, at 686-7, Fox v Percy (2003) 214 CLR 118, at [25], Teelow v Commissioner of Police [2009] QCA 84, at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327, at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181, at [10], Commissioner of Police v Al Shakarji [2013] QCA 319, White v Commissioner of Police [2014] QCA 121. 

[16]Justices Act 1886, s 222(8)(a) and see: Forrest v Commissioner of Police [2017] QCA 132. 

[17]  T 28/5/20 1-3.17-18 and 1-3.10-21.

[18]  T 28/5/20 1-3.40-44.

[19]  T 28/5/20 1-5.12-15.

[20]  T1-2.23.

[21]  T1-3.9-16.

[22]  As placed on the record by the prosecutor: see T1-3.26-27.

[23]  [2011] QCA 178.

[24]  Reference is made to Day v Grice [2011] QCA 178 at [45].

[25]  Reference is made to Supra at [48].

[26]  Reference is made to Exhibit 5.

[27]  Reference is made to Exhibit 1.

[28]  Reference is made to Exhibit 3.

[29]  Reference is made to Exhibit 7; as the appellant had not provided notification in compliance with section 113 of the Act that anyone else was driving the vehicle at the time.

[30]  Assuming, as would appear likely, that such manuals are in the “possession of the prosecution”, within the meaning of s 590AE.

[31]  Although, it must be recognised that apart from the general obligation of disclosure in s 590AB, there is no other provision mandating any particular prosecution disclosure obligation.  This is because and despite the definition of “relevant proceeding” in s 590AD, in reference to the related definition of “prescribed summary trial”, allowing for extension to “a summary trial of… a charge for an offence prescribed under a regulation for this definition”, there has been no such prescription for any trial of a summary offence.

[32]  [2011] QCA 178.

[33]  [2011] QCA 178 at [45].

[34]  S 124A Transport Operations (Road Use Management) Act 1995.

[35]  [2011] QCA 178 at [47].

[36]  It would appear that the relevant requirements prescribed under regulation, were those found in s 210F of the Traffic Regulation 1962.

[37]  It may be noted that such a result also follows expressly from the provisions of ss 114(3)-(6); see: paragraph [11], above.

[38]        See paragraph [2(b)], above.

[39]  See: R v Doyle [2018] QCA 303 at [29] and [35] – [41].

[40]  Cf: Momcilovic v R (2011) 245 CLR 1 at [665].

[41]  Necessarily, the conclusions which have been expressed as to this statutory scheme, are in respect of the relevant provisions as they existed in respect of the prosecution of this matter. Although those provisions, relevantly, remain in the same terms, it is necessary to note that there have been other provisions added as ss 123A to 123W.

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Editorial Notes

  • Published Case Name:

    Hartwig v Commissioner of Police

  • Shortened Case Name:

    Hartwig v Commissioner of Police

  • MNC:

    [2021] QDC 56

  • Court:

    QDC

  • Judge(s):

    Long SC, DCJ

  • Date:

    09 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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