O'Connor v Commissioner of Police
[2021] QDC 86
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- O'Connor v Commissioner of Police[2021] QDC 86
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O'Connor v Commissioner of Police[2021] QDC 86
O'Connor v Commissioner of Police[2021] QDC 86
DISTRICT COURT OF QUEENSLAND
CITATION: | O'Connor v Commissioner of Police [2021] QDC 86 |
PARTIES: | BRENDAN PAUL O'CONNOR (Appellant) v THE COMMISSIONER OF POLICE (Respondent) |
FILE NO: | 2 of 2021 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 Justices Act 1866 |
ORIGINATING COURT: | Magistrates Court at Townsville |
DELIVERED ON: | 26 May 2021 |
DELIVERED AT: | Townsville |
HEARING DATE: | 14 May 2021 |
JUDGE: | Coker DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – TRANSPORT OPERATIONS (ROAD USE MANAGEMENT) ACT – APPEAL AGAINST CONVICTION – ADMISSION OF EVIDENCE – APPLICATION TO ADDUCE FRESH EVIDENCE – Where at summary trial and appeal the Appellant was self-represented – where the Appellant did not adduce evidence at the summary trial – where the Appellant put the prosecution to proof at the summary trial – where certificates were tendered pursuant to s.120 TRANSPORT OPERATIONS (ROAD USE MANAGEMENT) ACT relating to the information contained in the images obtained – where challenges were made as to calibration of the photo detection device and the accuracy of the information – where technical evidence was called to confirm the accuracy of the equipment – whether the Magistrate erred in the assessment of the evidence and in the conviction of the Appellant – whether leave should be granted to adduce further evidence. |
LEGISLATION: | Justices Act 1886, s 222, s 223, s 225 State Penalties Enforcement Act 1999, s 157 Traffic Regulation Act 1962, schedule 14 Part 2 Transport Operations (Road Use Management) Act 1995, Schedule 4, s 120, s 123 |
CASES: | Gravlev v The Commissioner of Police [2017] QDC 168 Powell v Chief Executive Officer of Customs [2012] QCA 338 |
COUNSEL: | Self-represented appellant C. Hoyer for the respondent |
SOLICITORS: | Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The Appellant here is Paul Brendan O'Connor. He appeared on his own behalf before the Townsville Magistrates Court on 2 November 2020, in answer to a complaint that he drove at a speed greater than the speed limit of 60kph. The complaint alleged:
“…that on the 9th day of January 2020, at Aitkenvale in the Magistrates Court District of Townsville in the State of Queensland one Paul Brendan O'Connor being the driver of a vehicle namely a car drove at a speed over the speed limit namely 60 kilometres per hour applying to the driver for the length of road namely Nathan Street Aitkenvale where the said driver was driving and it is averred that the said car is a vehicle defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that said Nathan Street is a road defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995.”
- [2]Further particular were also provided as follows:
“Time about 0220 hours. Registration number QLD 345BUZ. Speed 68 kilometres per hour. At the intersection with Bergin Road. Photographic Detection Device Infirngement Notice Number 2084346682 issued 20/01/2020 previously forwarded. Noticce under Section 116(1) Transport Operations (Road Use Management) Act 1995 accompanies this summons.”
- [3]Following the hearing the learned Magistrate, Magistrate Taylor, reserved his decision, indicating that he would, “notify the parties when the decision is ready”. That decision was handed down on the 15th December 2020 with Magistrate Taylor concluding his reasons as follows:
“On consideration of the whole of the evidence, I am satisfied that the prosecution has proved all of the essential elements of the offence beyond a reasonable doubt. Accordingly, I find the defendant guilty of the complaint made against him of disobeying the speed limit on the 9th of January 2020. So, on consideration of the evidence, I am satisfied the prosecution’s proved all of the essential elements of the offence beyond a reasonable doubt… and I find the defendant guilty of that charge.”
- [4]Two days later, following discussion between the Appellant and the Prosecutor, no application was made by the prosecution for costs and the Magistrate then formally convicted the Appellant and fined him $354. That fine was referred to SPER for registration.
- [5]On the 11th January 2021, the Appellant filed a Notice of Appeal, noting the grounds of appeal as follows:
“1. The Prosecution did not prove the suspect vehicle had committed the alleged offence, of disobeying the speed limit, as they did not prove it aligned with 2 (two) adjudication markers, at a separation and differential of 8 metre as alleged and as required by law; pursuant to Schedule 14 Part 2 Traffic Regulation Act 1962 and hence the verdict of the Court should have been not guilty.
2. The Magistrate is wrong to disregard Justice Lynch in Gravlev v the Commission of Police and hence is wrong in case law, as reliable markers and accuracy of measurement from marker to marker are not ‘trifling’ or ‘inconsequential’ and rote certificate based on statutory evidential provisions to the contrary, are not conclusive proofs: principles and practicalities central to Justice Lynch’s decision in Gravlev.
3. The inaccuracy/lack of clarity of the Redflex Systems imagery is self-evident from the Prosecutions images A and B of Exhibit 1 presented at the Trial: the degree of inconclusiveness such, as to render the images inadmissible.”
- [6]The grounds of appeal can conveniently be grouped as one real complaint, that was to the effect that the learned Magistrate erred in accepting the accuracy of the photographic speed detection device. The Appellant explains more fully in his Notice of Appeal the basis upon which he says there is an inaccuracy such that the certification provided should not be accepted. At page 2 of the Notice of Appeal, the Appellant details the argument as follows:
“In this matter, the location of the two adjudication markers, whilst fuzzy, is not disputed, nor is the distance separating them at 8 m …in Gravlev the 80kph sign was not in dispute but the location of the second marker and hence the distance separating the east or west of the ‘trees’ and ‘shade’ and Officer Clark was; hence the speed as alleged was in doubt and decided in the Appellant’s favour by [Judge] Lynch.
In this proceeding there is no doubt about the location of the suspect vehicle in relation to the second adjudication marker, hence the standard of proof required to confirm a separation of 8 metres between the two images of the suspect vehicle, has not been met.
I seek leave for admission of my blow-ups of Exhibit 1 from Trial to be admitted as Attachment A….In addition, [Judge] Lynch permitted admission of ‘rough sketches’ by Gravlev; I seek leave for the schematic endorsed as Attachment B to be new evidence to be admitted…I seek leave to admit Ms Singh for the prosecution legitimising and explaining the existence and purpose of ‘adjudication markers’ in her email of 22 September 2020 as Attachment C.
As the blow-up A shows, the leading wheel of the vehicle is approx. 1200mm short of the first adjudication marker (based on calibrating multiples of 230mm and 530mm) and [b]y measuring the position of the 4th induction sensor line on the roadway as 1200mm [distance] from the continuous traverse white stop line…it follows, for the case to be proved for the Prosecution the second image must show the suspect vehicle approx. 1200mm shy of the second marker as outlined by Ms Singh in Attachment C establishing a clear 8m of separation and it does not.
To proof’s end the linear equation; (S 120 A (3) the ACT) applies
D X 3.6 =SPEED 8M X 3.6A/F= 70+KPH… ALLOW 2KPH (tolerance)= 68KPH
T .41 SEC
(3.6 a factor of 3600 (number of seconds in an hour) (1 km x 3.6-1 hr = 60kph)).
If the suspected offending vehicle is shy of lining up with the adjudication markers as a differential of more or less than 8m than e.g.:
- 7 metres differential-adjusted speed 59 kph (plus or minus 2kph allowed)
- 9 metres differential = adjusted speed 77 kph
We have a problem….Contradiction of the citation.
In Gravlev His Honour Lynch stated: ‘Line 23…the learned Magistrate seems to have proceeded on the basis that the certificates were conclusive proof that the speed recorded…by the devices…was accurate…they are not conclusive...if they were…no occasion…to challenge…as expressly permitted’.
The Magistrate wrongly interpreted Gravelev, failing to comprehend that accuracy of measurement, estimation of distance and speed and comprehension of it, by the Court, including the Bench, are essential elements of proof and the Prosecution’s reliance on statutory evidential prescriptions and certification adduced, is far from compelling.
Line 24 bottom…‘was an error to regard the certificates as compelling a conclusion that the device was accurate’
Line 37…10 metres in contest over 389 metres…is not a ‘trifling’ or ‘inconsequential error’ …the margin being far more critical over 8 metres and .41 seconds, in the proceeding.
Neither witness cited qualifications in adaptive optics or related fields, whilst claiming or inferring expertise to expertly interpret the flawed images, which may serve to explain, why they got it wrong.
Alternatively they compromise expertise with hostility and denied the Court the assistance it needed.
The Magistrate wrongly afforded probative value to this misleading evidence.
Evidence given of discharge or recalibration required by statute, is not proof of the system operating to the required standard. Its ‘value’…to promote the Mssrs Irwin and Morton had acquitted statutory duty. The prospect and claim of the system lawfully producing false results, while it was for 12 months for its next statutory review, is a nonsense, hence it appears it must be constantly monitored, most likely by reference to the placement of vehicle images opposite the adjudication markers as each suspected offence is presented. It is self-evidence if the system is working properly and the offence proven, as both images, then clearly place the suspect vehicle directly opposite each adjudication marker, as predicted.
The Magistrate wrongly gave weight to recalibration testimony inconsiderate of the significance of the adjudication markers being the silent contrary witness-in chief in this proceeding and by dismissing Gravlev.
The Prosecution did not prove the number plate details (from the imagery of Exhibit 1) of the offending vehicle…(in the event that the primary issue of the Offence is sustained) rather relying on the evidentiary provisions detail in s 120(2)(b)…the Act and the ‘improbability’ or ‘unlikelihood’ of the vehicle not being registered as they claimed, ignoring that the standard of proof was not based on probability, compromising the Magistrate to the same position in the process, having selected the nearest available number plate from a short list of uninterested applicants registered with Qld Transport, as the most likely match.
The Magistrate effectively transmuted the burden of proof onto the defence, to discredit the accuracy of imagery/distance/measurements etc, when no such reverse onus provisions apply in the relevant statutes etc, to these proceedings.
His Honour Walker wrongly appeared to hold the view, that because I declined to be a witness in my defence, I had failed to comply with a legitimate reverse onus of proof, to prove that the vehicle had not travelled 8 metres in .41 seconds indeed had travelled but 7 metres, as implied by s 120(2A)(7) of the Act and therefore the allegations of the Prosecution’s so umbrellaed are proven, by default.”
- [7]The Respondent’s case is detailed comprehensively in the outline of submissions filed 26 February 2021. Quite simply, the Respondent submits that each of the three grounds of appeal are flawed and must fail such that the appeal should be dismissed both in respect of conviction and sentence and further that there should be an order for the Appellant to pay the Respondent’s costs fixed in the sum of $1800.
- [8]The starting point regarding an appeal such as this is s 222 of the Justices Act. The right to appeal is a creature of statute with the nature of the appeal right dependant on the construction of the statute concerned. S. 223 of the Justices Act prescribes how an appeal of this nature is to be conducted noting that it is by way of a rehearing on the original evidence given in the proceedings before the Magistrate and if leave is given to adduce further evidence then also upon that new evidence as adduced. S. 223 of the Justices Act is in these terms:
223 Appeal generally a rehearing on the evidence
(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
(2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
(3) If the court gives leave under subsection (2), the appeal is—
(a) by way of rehearing on the original evidence; and
(b) on the new evidence adduced.
- [9]A rehearing on the original evidence is achieved by conducting a review of the records of the proceedings in the Court below, rather than by a fresh hearing. However, as noted in Fox v Percy (2003) 214 CLR 118 at 25:
“The appellate court is obliged to make its own assessment of the evidence and form its own conclusions upon the issue of the applicant’s guilt, having due regard to the findings and conclusions of the Magistrate.
- [10]Similarly in Stevenson v Yasso [2006] 2 Qd Reports 150, the Supreme Court noted that in doing so:
“The Appellate Court should give due deference and attach a good deal of weight to the views of the Learned Magistrate, but it remains for the Appellate Court to draw its own conclusions.”
- [11]The principles governing when an appellate court may interfere with the Magistrate’s decision are well established and were explained in House v R (1936) 55 CLR 499:
‘It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellant court may exercise its own discretion in substitution for his if it has the materials for doing so.’”
- [12]S. 225 of the Justices Act sets out the powers of the Court upon an appeal being heard. S. 225 is as follows:
225 Powers of judge on hearing appeal
(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
(2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
(3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
(4) An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.
- [13]To determine whether leave should be granted to adduce further evidence there must be a proper basis for that to be allowed. Henry J in Powell v Chief Executive Officer of Customs [2012] QCA 338 noted as follows regarding the grounds for allowing fresh evidence to be adduced at paragraphs 38-39:
“[38] Special grounds were required for leave to be given to adduce additional evidence. The learned District Court judge was guided by three considerations described by Gibbs J in Gallagher v The Queenas being relevant to a determination of whether a miscarriage of justice has occurred because evidence now available was not led at trial, namely:
1. whether the evidence relied on could, with reasonable diligence, have been produced by the accused at the trial;
2. whether the evidence is apparently credible or at least capable of belief;
3. whether the evidence if believed might reasonably have led a tribunal of fact to return a different verdict.
[39] His Honour found it unnecessary to make any final determination on the issue of credibility attaching to the second consideration. As to the first consideration, he found that the evidence could readily and even without reasonable diligence have been produced at trial. That conclusion is unassailable. If the evidence is true then it was necessarily within the knowledge of the applicant at the time of trial. It could easily have been adduced by the applicant giving the evidence but the applicant elected not to do so.”
- [14]It is therefore apparent that before the rehearing of the evidence it must be determined whether the further evidence sought to be relied upon by the Appellant should be allowed to be relied upon. The Appellant in his outline of argument attaches a number of documents ‘A’ to ‘I’ which he clearly seeks to rely upon as part of and supporting of his argument on appeal. It should also be noted that in his ‘Rejoinder to Outline of Arguments by the Respondent’ he also attaches a document entitled, ‘Road/Sensor Condition Evaluation’. That document is not specifically referred to in the Rejoinder but appears clearly to be the attachment referred to in the Appellant’s Attachment ‘D’ as the calibration test sheet. Should that not be correct, for reasons which I shall come to, any reliance upon that document is of no consequence.
- [15]The first of the considerations therefore is whether any of the attachments sought to be relied upon by the Appellant, could with reasonable diligence, have been produced at trial. Clearly the Attachment ‘A’ and ‘B’, the blow-up of the first photograph of the vehicle and the schematic taken from that blow-up were able to be identified and produced well before the trial.
- [16]Similarly attachment ‘C’, the email from Tara Singh to the Appellant of 22 September 2020 existed and was able to be produced well prior to the hearing. Attachment ‘D’ a further email from Ms Singh of 12 January 2021 certainly came into existence subsequent to the hearing but simply appears to answer a query directed to her by the Appellant regarding the term, ‘adjudication marker’, which she responds to. This is by no means evidence of anything and though the Appellant seeks to place some reliance upon it, it carries no evidential weight at all.
- [17]Attachments ‘F’/’G’ and ‘H’ are extracts from the Traffic Regulations 1962 and the Transport Operations (Road Use Management) Act 1995 and are clearly legislation. They are able to be relied upon by the Court but are not in any way, evidence themselves. Similarly extracts from the case of Jens Gravlev v The Commissioner of Police [2017] QDC 168, Attachment ‘F’, are exactly that, extracts and are not evidence.
- [18]The Attachment ‘I’ is an unsigned statement under the hand of Stephen Irvine. It is unsworn and does not constitute any part of the evidence nor could it be sought to be relied upon by either the prosecution or defence.
- [19]Accordingly, it appears that the application to rely upon further evidence falls at the first hurdle, the consideration of whether with reasonable diligence the Appellant could have produced the evidence at trial. I am satisfied clearly that that is the case here and intend specifically to refuse the application to adduce further evidence, though for the purposes of completeness would note that even if I were to have found differently in respect of that first consideration I would not have been satisfied as to the evidence being credible or at least capable of belief such that it might have led the learned Magistrate to return a different verdict.
- [20]I say that particularly in the sense that Attachments ‘A’ and ‘B’ are simply documents produced by the Appellant without any expertise proven or basis upon which they could be found to be accurate. Gratuitous statements as to the failure of the prosecution to provide a site survey map or that the Appellant’s measurements were taken ‘dodging the traffic’ and that he is a ‘retired builder’ of themselves prove nothing. Such statements as made by the Appellant are not credible or capable of belief though I would accept that the Appellant himself is genuine in his belief as to their accuracy.
- [21]In the circumstances therefore, the rehearing is to be conducted upon the original evidence presented before the Magistrate. The trial was conducted on the 2nd November 2020 and I have available the transcript of the trial on that day. The Appellant’s car was detected travelling at a speed of 68kph, 8kph over the speed limit. It was detected by a photographic detection and the relevant legislation, the Transport Operations (Road Use Management) Act 1975 hereinafter referred to as TORUM, provides that the photographic device may be linked to an information technology system that then issues an infringement notice. That process was followed here with the infringement notice issuing on 20 January 2020.
- [22]S. 114 of TORUM is relevant here as it provides the statutory basis upon which the offending is alleged to relate to the Appellant. S.114 in in these terms:
114 Offences detected by photographic detection device
(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) 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) It is a defence to a camera-detected offence, other than an unregistered or uninsured offence, for a person to prove that—
(a) the person was not the driver of the vehicle at the time the offence happened; and
(b) the person—
(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
(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.
(3A) It is a defence to an unregistered or uninsured offence for a person to prove that—
(a) when the offence happened, the vehicle—
(i) was stolen or illegally taken; or
(ii) had been sold or otherwise disposed of; and
(b) if the vehicle was stolen or illegally taken—the person has notified the chief executive of that fact and either—
(i) the name and address of the person who stole or took the vehicle; or
(ii) that the person did not know and could not, with reasonable diligence, have ascertained the name and address of the person who stole or took the vehicle; and
(c) if the vehicle had been sold or otherwise disposed of—the person has notified the chief executive of that fact and of the following information—
(i) the name and address of the person to whom the vehicle was sold or disposed of;
(ii) the date and, if relevant, time of the sale or disposal.
(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), within the required time—
(a) in a statutory declaration; or
(b) in an online declaration.
(5) The required time is 28 days after whichever of the following is first given to the person—
(a) a written notice from the commissioner or chief executive alleging a camera-detected offence;
(b) an infringement notice under the State Penalties Enforcement Act 1999.
(6) For subsection (3)(b)(ii) a person must prove that—
(a) at the time the offence happened, the person—
(i) exercised reasonable control over the vehicle’s use; and
(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—
(A) the number of drivers; and
(B) the amount and frequency of use; and
(C) whether the vehicle was driven for business or private use; and
(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.
(7) Subsection (6) does not apply if the person is able to prove that at the time the offence happened the vehicle—
(a) was stolen or illegally taken; or
(b) had already been sold or otherwise disposed of.
(8) Nothing in this section stops a person notifying the commissioner or chief executive that the person was the driver of the vehicle involved in a camera-detected offence—
(a) in a statutory declaration; or
(b) in an online declaration.
(9) A notification purporting to have been given for a body corporate by a director, manager or secretary of the body corporate is to be taken to have been given by the body corporate.
(10) In this section—
online declaration means a declaration made using the online declaration system.
online declaration system means an electronic system established by the chief executive for giving notifications under this section that is designed to—
(a) be accessed by an individual through the individual’s customer account on the department’s website; and
(b) send a notification of matters entered into the system by the individual to the commissioner or chief executive; and
(c) allow a record of the sent notification to be downloaded or printed by the individual.
photographic detection device includes a photographic detection device that is linked to an information technology system described in section 113A(2).
- [23]It should be noted that subsections (3) – (9) detail various defences that can be relied upon including that the Appellant was not the driver of the vehicle at the time of the offence. No such notice was given by the Appellant though there was notice given in the prescribed form pursuant to the provisions of s. 120(7) of TORUM. S.120 of TORUM is significant in the determination of this matter as it sets out the evidentiary provisions that apply as well as the provisions with regard to any challenge as to the accuracy of the photographic detection device. S.120 of TORUM is in these terms:
120 Evidentiary provisions
(1) This section applies to a proceeding for an offence involving a motor vehicle under this or another Act.
(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—
(a) the image was taken at the specified location and time;
(b) the accuracy of the image;
(c) the things depicted in the image;
(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.
(2A) A certificate purporting to be signed by an official stating that a stated photographic detection device—
(a) was tested at a stated time and in accordance with—
(i) the specifications of the device’s manufacturer; and
(ii) any further requirements about calibration testing prescribed under a regulation; and
(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.
(3) If an image produced under subsection (2) is one in a series of images also produced under subsection (2)—
(a) the image may be numbered; and
(b) the time it was taken may be identified by reference to another image in the series.
(4) If an image produced under subsection (2) has a marking or writing on the image—
(a) the marking or writing is taken to have been properly made by the photographic detection device; and
(b) the image is also evidence of each thing in relation to the image that the marking or writing is prescribed to mean under a regulation.
(6) Evidence of the condition of the photographic detection device is not required unless evidence that the device was not in proper condition has been given.
(7) A defendant who intends, at the hearing of a charge against the defendant under this Act, to challenge—
(a) the accuracy of a photographic detection device; or
(b) the image from a photographic detection device; or
(c) a marking or writing made by a photographic detection device on an image; or
(ca) either of the following matters—
(i) whether a motor vehicle was carrying a placard load (within the meaning under section 84A) in a tunnel;
(ii) whether a placard load prohibited sign (within the meaning under section 84A) at or before the entrance to a tunnel was clearly visible to a person entering the tunnel; or
(d) a matter mentioned in section 120A(4)(a),(b) or (c) or 120B(5)(a), (b), (c), (d) or (e);
must give written notice of the challenge to the prosecution.
(8) The notice must be in the approved form and must—
(a) be signed by the defendant; and
(b) state the grounds on which the defendant intends to rely to challenge a matter mentioned in subsection (7)(a), (b), (c) or (ca) or a provision mentioned in subsection (7)(d); and
(c) be given at least 14 days before the day fixed for the hearing.
(9) In this section—
official—
(a) generally—means the commissioner or the chief executive; and
(b) in a proceeding for an offence against section 84A(1)—includes a person having responsibility for testing or checking the operation of a photographic detection device used in the detection of offences against section 84A(1).
on, an image, includes adjacent to or associated with the image.
- [24]With those matters in mind I note the evidence as it fell. The prosecutor noted at the commencement that the Appellant had given notice of his intention to challenge the accuracy of the photographic detection devices. Acting Sergeant Madsen said:
“Thank you, your Honour. There’ll be two witnesses called. Your Honour will note [indistinct] notice of intention to challenge has been signed by the defendant. He’s ticked the section saying a – that’s in dispute, but a traffic-controlled device was functioning without defect. Part B requires some specification of those – the matters at issue and ticked as being:
‘Accuracy of the photographic detection device, the image from the photo detection device, marking or writing made by a photographic detection device and accuracy of the shortest practical distance between the two points on the road.’
They have all be ticked. The defendant has effectively challenged the accuracy of the device and the accuracy of that device to detect speed and make that photograph.”
- [25]Thereafter the prosecution indicated an intention to call two witnesses, Blake Moreton, a technical officer employed by the Queensland Police Service Road Policing Command and Stephen Irvine, a senior technical officer at the road safety command office. Prior to calling those witnesses, the prosecution tendered various certificates, able to be tendered pursuant to the TORUM Act and Regulations as well as pursuant to the State Penalties Enforcement Act 1999. These exhibits were as follows:
Exhibit | Document | Statutory Provision | Transcript reference |
1 | Three (3) Certificates of Image Taken by an Approved Photographic Device (with images attached), certified by Nigel G Smith, dated 6 August 2020 | Section 120(2) of the Act | 1-6, 7, 8 |
2 | Certificate of Photographic Detection Device – Test, certified by Nigel G Smith, dated 13 August 2020 | Section 120(2A) of the Act | 1-9, 10 |
3 | Certificate of Camera Site Number of the Traffic Camera Coding Manual (the location certificate), certified by Nigel G Smith, dated 24 March 2020 | Section 123C(3) of the Act; Regulation 212 Traffic Regulation 1962 | 1-10 |
4 | Certificate of Service of Infringement Notice – Exceeding the Speed Limit, certified by Katie Watkinson, dated 20 August 2020 | Section 157(2)(f) Statement Penalties Enforcement Act 1999 | 1-10 |
5 | Certificate of No Declaration Given – Exceeding the Speed Limit, certified by Katie Watkinson, dated 13 August 2020 | Section 157(2)(j) Statement Penalties Enforcement Act 1999 | 1-11 |
6 | Certificate of Vehicle Identification – Exceeding the Speed Limited, certified by Katie Watkinson, dated 12 August 2020 | Section 157(2)(j) Statement Penalties Enforcement Act 1999 | 1-11 |
7A | Certificate of Registration, certified by Alanna Rose Tiley, dated 7 August 2020 | Section 123C(3) of the Act | 1-12 |
7B | Affidavit of Allana Rose Tiley, sworn on 7 August 2020 |
| 1-12 |
- [26]The relevance of Exhibits 1, 2, 3 and 6 was to provide evidence of the time, date and place of the offence as well as the recorded speed of the vehicle. Additionally, they confirmed the prior testing of the photographic detection device and its accuracy as well as confirming the speed limit at the point of detection and the registration of the vehicle in the name of the Appellant.
- [27]Interestingly, the Appellant when the tendering process was commenced indicated that he did not challenge the certificates. At p. 1-9 lines 27 – 44 the following is noted in the transcript:
A/SGT MADSEN: It is a certificate stating the date that the device was tested and the accuracy on that date under the Transport Road Use Management Act 1995 section 122A. I’ll tender that certificate, your Honour. Authority to tender the certificate is found under section 120 of the Act.
BENCH: Thank you.
A/SGT MADSEN: Now, that is part of the challenge of the defendant as well, but the process involved does require the certificate to be tendered nonetheless.
DEFENDANT: Your Honour, may I – sorry to interrupt – I’ve written to the prosecutor on the 25th October and indicated that I have no intention of challenging the certificates.
- [28]Following the tender then of Exhibits 1 – 7 the prosecution noted as follows:
A/SGT MADSEN: Now effectively, your Honour, without a challenge, all of the certificates that the prosecution have tendered would effectively prove each and every element of the case through the deeming provisions, of course, and what is said in the certificates. That’s the time, the date, place, the speed and ownership or the deeming provision which goes to the saying that the defendant – just wait until I’ve finished. Yeah. The deeming provision that says the motor vehicle, effectively, 345 BUZ, is the defendant’s motor vehicle. He hasn’t replied within a certain time, and as a result of that, he’s deemed to be the - - -
HIS HONOUR: The driver, yes.
A/SGT MADSEN: - - - driver of the motor vehicle, so that’s how those would ordinarily, or how the legislation would ordinarily, work. As I said, a challenge has been put in place by the defendant. Now, I do note that he’s saying that he’s not contesting certain issues.
BENCH: Yes.
A/SGT MADSEN: But the challenge is on record, so the prosecutor, or the prosecution, will call the witnesses. The first witness to be called is a Mr Blake Moreton.
…
- [29]Mr Moreton gave evidence that on 3 July 2019 he personally calibrated the device located at the intersection. All required tests were performed, and the device passed all comparisons that were required.
- [30]Some cross-examination occurred after the witnesses evidence in chief, including an enquiry as to whether the witness had qualifications in ‘adaptive optics’. The witness said that he did not but that enquiry in no way altered the quality of his evidence with regard to the calibration of the photographic detection device.
- [31]Next called was Stephen Irvine. Mr Irvine gave evidence that he was familiar with the device located at the intersection and that the speed limit on that section of the road is 60 kilometres per hour. He also said that there is an official speed limit sign located 300 metres prior to the intersection, that there is a road safety camera advisory sign located 500 metres prior to the intersection and that the intersection is controlled by traffic lights.
- [32]Mr Irvine gave evidence that he attended the intersection on 3 July 2019 in company with Mr Moreton and conducted a site inspection. That inspection was conducted in accordance with the manufacturer’s guidelines for the device. He said that the result of the testing was that the device was producing accurate results and operating in accordance with the manufacturer’s requirement and specifications.
- [33]Mr Irvine said that he had reviewed the deployment of the device on 9 January 2020 (being the date of the offence) and he found that the device had conducted a self-test at midnight and had operated correctly throughout the day.
- [34]Mr Irvine also gave evidence about the “loop based” operating system used by the device. He said:
Okay, can you advise the court in relation to the operation of that Rediflex system, in relation to what is called the ‘loop-based’ system?---Okay. So in Queensland, we operated two types of systems. One is a loop-based system, which is – which utilises in-road induction sensors to detect a vehicle, and the other one is radar based. Uses radar to detect the vehicles. This particular system is a loop-based system so there’s two loops in each lane which is – which is set out at a known distance.
Yes?---And the system detects the vehicle as it passes over the loops and it calculates the speed of the vehicle, using distance over time. So knows the distance between the loops - - -
Yes?--- - - - and then calculates the speed of the vehicle.
So over the two points and then does the automatic calculation - - -?---Yes. It does - - -
- - - distance over time, yes?---It does it – it actually does it twice - - -
Yes?--- - - - and it correlates - - -
Okay?--- - - - and its readings and, yes, so.
So then – yes.
A/SGT MADSEN: Okay. And when a incident package is created, how may images are produced?---Produces a image – two images; one at or prior to the stop bar and then the second image it captures at the adjudication markings. So the adjudication markers are used to identify gross error in the speed reading. So the systems calculates how long it would take the vehicle to travel the distance to the adjudication markers and then captures a second images after that elapsed time and – for instance, if the vehicle, the target vehicle, did not make it to those adjudication markers, then we would know that it was an erroneous reading, not correct.
And you reviewed the images with respect to the matter before the court today?---I did, yes.
Yes. And your viewing of those images showed, to your recollection, what?---It was night time, like 2 am in the morning, I think. A jeep wagon at the stop bar – I can’t recall which lane, I’m sorry, lane two possibly. But I recall that the image – the detection was a valid detection. The target vehicle was captured at or prior to the stop bar in the first image and in the second image at the adjudication markers. There were no other vehicles or anything else that could have influence detection.
- [35]Following on from this evidence the witness confirmed that he was satisfied that the photo detection device was set up in accordance with the regulations and that the photo detection device was operating correctly. He also confirmed that there was not, nor could there have been, any manipulation of the photographs. His evidence in that regard was as follows:
So you’re satisfied that the detection device was operating correctly?---Yes.
Was calculating speed correctly?---Yes.
And the photographic side of the detection device was taking photographs accurately as well?---Yes.
And there’s nothing to suggest that any of those photographs have been manipulated - - -?---No, no absolutely - - -
- - - or nothing has been done – they haven’t been moved, touched or anything like that?---Yes. So the – the incident packages are encrypted so it’s like a cookie. When you bake a cookie, you try and remove the flour. It doesn’t – it’s not a cookie any more. Same with the incident package. If you try and manipulate and change it, it just becomes corrupted and you can’t use it.
It can’t be used?---That’s right.
So that’s a – that’s a failsafe - - -?---That’s correct.
- - - against any type of interference - - -?---Yes.
- - - with the actual image?---And not only that, it sits on an evidence server, which is a read only server as well. So it’s a - - -
It’s a read only file?---Yes. It’s double - - -
Excellent?--- - - - protected.
- [36]Mr Irvine was cross-examined by the Appellant. In particular he was asked about the contents of his unsworn statement of 7 October 2020 and its accuracy noting as he put it a ‘typographical error’. Other questions were also asked of Mr Irvine about his evidence as to the positions of various signs and he was challenged as to the accuracy of his estimates of distance. The Appellant put to him that one statement regarding an official speed limit sign approximately 300 metres prior to the intersection was ‘palpably false’. The witness responded quite properly saying:
“I don’t know the exact distance but there is an official speed limit sign prior to the intersection”.
- [37]He was then questioned about matters relating to calibration of the device but was adamant that the photographic detection device had been calibrated correctly. Finally Mr Irvine was cross-examined about the position of the adjudication markers and the role of adjudicators. The exchange was significant because it revealed in my assessment two specific matters. The first related to the Appellant’s attitude to the evidence of the witness, “he didn’t trust him’ and secondly his determination to consider only his measurements and assessment of vehicles positions and placements and to disregard any other position. The exchange was as follows:
DEFENDANT: We might as well, because I’ll ask him the same question I asked previously?---Thanks your Honour.
Perhaps a couple of questions before I get onto that though. I just put a brief proposition, Mr Irvine. If we go down to a [indistinct] card of all the [indistinct] measured down to one hundredth of a second. Yet, he only had a clock that measures seconds, not fractions of seconds. And yet we come up on this data block with a .41 of a second. Now, surely what a small person hiding in a bloody pool box with a stopwatch by the side of the road, how does this system calculate the time elapsed between these adjudication markers?‑‑‑So as I state earlier, it measures your speed, verifies your speed, and then I calculates how long it will take you to travel the predetermined distance interval to the adjudication markers and then captures a second image after that elapsed time. That elapsed time it shows there is actually truncated. There’s a lot more decimal places in that in the metadata. But it’s for gross – it’s for gross error.
Well, we’re really interested in that, Mr Irvine, because that’s not before the court?‑‑‑It’s for gross error.
Quite frankly, at the moment, I don’t trust you in dealing with these other statements?‑‑‑doesn’t – doesn’t matter. It’s for gross error anyway.
So what triggers the analysis? Do you visually say, well, I can see that his front wheel’s there on that photograph and I could see that his front wheel’s there on that photograph. I could see that his front wheel’s there, or does the machine measure it?‑‑‑No. It’s a visual thing for the adjudicators when they’re checking the images before the tickets get sent out.
So let me put this question to you, Mr Irvine: how have you adjudicated when, in fact, I believe this is suppose to be a self-adjudicating silent witness system. How have you adjudicated that in the second image, that is, the blurry one, the front wheel is in a relative position to the adjudication marker as it was to an adjudication marker in the first image that I can’t see?‑‑‑Well, you can see it. It’s – I can see it. It’s right at the stop bar.
Well, you know where it is?‑‑‑Doesn’t matter. Well ‑ ‑ ‑
It’s not right at the stop bar at all?‑‑‑But it does ‑ ‑ ‑
I went down and had a look at it?‑‑‑But it does ‑ ‑ ‑
It’s 400 millimetres in from of it.
A/SGT MADSEN: Again, your Honour, this is ‑ ‑ ‑?‑‑‑It’s ‑ ‑ ‑
BENCH: That’s already established by ‑ ‑ ‑
A/SGT MADSEN: This is just ‑ ‑ ‑
BENCH: I think. But, yes.
DEFENDANT: This is the deeming nonsense that we got to put up ‑ ‑ ‑
A/SGT MADSEN: This is argumentative, not questioning. The issue is it’s just ‑ ‑ ‑
DEFENDANT: No, I don’t – I think ‑ ‑ ‑
A/SGT MADSEN: ‑ ‑ ‑ argument [indistinct] actual question – there has to be a question.
DEFENDANT: What you’re saying, if I could paraphrase you answer, Mr Irvine, is that you had to look at these vague photos and you decided that it travels about eight metres?‑‑‑No, I can see the adjudication markers.
Well, I’ll leave it up to his Honour ‑ ‑ ‑?‑‑‑And as I said, it’s ‑ ‑ ‑
‑ ‑ ‑ whether he can see them?‑‑‑As I said, it’s ‑ ‑ ‑
Thank you. That’s all I’ve got?‑‑‑ ‑ ‑ ‑ for gross error.
- [38]That concluded the prosecution case at which time the Appellant indicated that he was not giving or calling evidence but would make a closing statement. The learned Magistrate then went to great lengths to assist the Appellant explaining that there may be issues that arise if evidence were not called. The Magistrate said:
BENCH: Yes, but you – but just before you make that decision, can I just explain to you that if you don’t give evidence – I say this to all self-represented matters like this – if you don’t give evidence, then it leaves things open about any evidence in – there’s no evidence there for me to consider contrary to what you have heard.
So if you make submissions, for example, about the veracity or the accuracy of any evidence given, I have to have something factual to be able to consider. You can’t jump up from the bar table in your submissions and say, well, for example, “There’s no speed sign there. There’s no road safety sign where they say it was.” You can say that in submissions, obviously, but I don’t have any evidence about it before me and what weight I put on that’s another matter. But can I just give you that note, that warning, that if you don’t give any evidence there and also without any other evidence, then there’s no evidence to challenge what was said by any of the prosecution witnesses.
So what I might do, I might adjourn for – what’s the time – till, just say, 11 o’clock, okay, just for a few minutes. You can give a thought to whether you need to give evidence or not, or if you’re absolutely adamant you don’t need to, you want to move straight to submissions, we can proceed. But it’s my general conduct – I’d adjourn now, and just give you a few minutes to think about what you want to do.
- [39]Thereafter addresses followed and the learned Magistrate then reserved his decision. His reasons were presented on 15 December 2020 and whilst I obviously proceed on the basis of my own findings as to the evidence, I note the comprehensive nature of his reasons and the further examination of the evidence and the arguments of both the Appellant and the prosecution.
- [40]I have as I am required, considered the evidence afresh and have read the closing addresses, first by the prosecutor and then by the Appellant. I should also note specifically that I have read the Appellant’s address to the learned Magistrate in respect of the decision of Judge Lynch QC of this court in Jens Gravlev v Commissioner of Police [2017] QDC 168 as well as the reading of the decision itself.
- [41]The Appellant contends that the prosecution has failed to prove its case. He contends that to be so upon the basis that his interpretation of the photographs are accurate as are his schematics and that there is therefore a reasonable doubt. Upon my own assessment of evidence realising and accepting that I did not have the advantage of the learned Magistrate in observing the witnesses I have no such doubt and am satisfied that the prosecution have proved the case beyond reasonable doubt.
- [42]The certificates themselves are evidence of what they purport to record but are not conclusive. As Lynch QC DCJ said in Gravlev, “If they were, there would be no occasion to challenge the accuracy of the device, a course which is expressly permitted pursuant to s. 120(7) and (8)”.
- [43]However, in that case there was evidence which could properly be relied upon to challenge the accuracy of the detection device. That is not the case here. Lynch QC DCJ noted at paragraph 25 of Gravlev the circumstances that arose so as to allow the introduction of fresh evidence. He said:
[25] On the hearing of the appeal, the appellant sought to introduce evidence of measurements and photographs taken after the hearing. The purpose of this evidence was to demonstrate that the measurement shown in Exhibit 16, of the distance from the 80 kph sign to the position described by Sen Sgt Clark, was accurate; and that the distance measured by Sen Sgt Clark was wrong. Mr Gravlev provided evidence that he had measured the relevant distances at the scene utilising a surveyor’s wheel and produced photographs of his doing so. Mr Gravlev contended that in evidence, Sen Sgt Clark had given a number of different accounts as to his location. The further evidence sought to identify these various positions and show their respective distances from the 80 kph sign.
- [44]There was uncertainty as to distances in Gravlev. There is no such uncertainty in this case. The certificates admitted provide certainty, supported by the evidence of the witnesses Moreton and Irvine. The Appellant challenged them, suggesting inaccuracies in the operation and calibration of the equipment but that is all speculation on his part and proves nothing. I am satisfied, as I note was the learned Magistrate at first instance, of the prosecution evidence in respect of:
- the accuracy of the photo detection device;
- the use to be properly made of the image produced by the device;
- that the photo detection device was calibrated correctly and operating correctly; and
- that the evidence of the witnesses Moreton and Irvine supported these findings and that those witnesses were giving evidence that should properly be accepted.
- [45]Additionally and perhaps most compelling of all was the fact that whilst the Appellant challenge the evidence of Messrs Moreton and Irvine, they did not alter their positions and the Appellant offered no evidence on these points.
- [46]Insofar as the second ground of appeal is concerned, that the learned Magistrate was wrong to not accept or distinguish the findings and argument in Gravlev, I am absolutely satisfied that they were not only open to the learned Magistrate but were correct. My finding also was that Gravlev was distinguishable also from this case in respect of the type of device used to record speed, in Gravlev a hand held device requiring the operator to measure distances and then to calibrate the device whilst in this case the calibration was done professionally and adjudication markers and the distance between them was accurately recorded.
- [47]Additionally, there was actual evidence introduced by the Appellant in Gravelev which was apparently credible or at least capable of belief. Such was not the situation here and the ground of appeal must fail.
- [48]The third ground of appeal relates to what the Appellant describes as inaccuracy/lack of clarity of the Redflex system’s imagery but having viewed the images myself, I am satisfied as to the matters arising from those images. As such this ground also must fail and with that finding the appeal in respect of conviction should be dismissed.
- [49]As this appeal relates to sentence I would note that there is no submission by the Appellant in respect of the penalty imposed but for completeness I would find that the penalty is in no respect excessive, let alone manifestly excessive.
- [50]Accordingly, the appeal is dismissed. Noting as I do that costs are sought by the respondent and submissions are made in respect of such costs but there is no submission by the Appellant, I will reserve any decision as to costs for 15 days from the date of delivery of these reasons with liberty to the Appellant to file any written submissions as to the question of costs within 14 days.