Rowley v Commissioner of Police [2017] QDC 88

Justices Act 1886 (Qld), ss 222, 223, 225

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, cited

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, cited

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, cited

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, cited

Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, cited

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, cited

Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390, cited

MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, cited

MBL v JP [2011] QCA 220, cited

Mbuzi v Torcetti [2008] QCA 231, cited

R v Bartzis [2012] QCA 225, cited

R v Mrzljak [2004] QCA 420; [2005] 1 Qd R 308, cited

R v Nilson [1971] VicRp 105; [1971] VR 853, cited

R v Phillips [2009] QCA 57; [2009] 2 Qd R 263, cited

R v Szabo [2000] QCA 194; [2001] 2 Qd R 214, cited

R v White [2003] VSCA 174; (2003) 7 VR 442, cited

R v Wilson [2008] QCA 349, followed

Shambayati v Commissioner of Police [2013] QCA 57, cited

Slaveski v R (On the Application of the Prothonotary of the Supreme Court of Victoria) [2012] VSCA 48; (2012) 40 VR 1, cited

Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161, cited

Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, cited

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, cited

[1] On 6 June 2016, the appellant was convicted after a summary trial of disobeying the speed limit in contravention of s 20 of the Transport Operations (Road Use Management - Road Rules) Regulation 2009. He was fined the ticket amount of $151 and a further $90.20 as the court summons cost.

[2] The appellant represented himself both at trial and in this appeal.

[3] On 28 June 2015 the appellant's car was detected driving at 90 kilometres per hour through the Legacy Way Tunnel at Paddington, where the applicable speed limit for that section of road was 80 kilometres per hour. He was issued with an infringement notice by mail. The appellant did not dispute that he was the driver, the applicable speed limit or the speed that was detected.

[4] The appellant contended at his trial that, despite having exceeded the speed limit on the relevant stretch of road, he honestly and reasonably but mistakenly believed he was travelling at less than 80 kilometres per hour, so that he was not criminally responsible: see Criminal Code (Qld) s 24 ('the Code'). He prepared a 'Defence of the Defendant' form with attachments including emails and photographs. The defendant filed the form and attachments with the court prior to the hearing, however the magistrate said that he would not read it in case there was any material that was prejudicial or inadmissible.

[5] The appellant claimed that he had his GPS speedometer, referred to as a 'Garmin speedometer', in his line of sight at all times, and that it froze when he entered the tunnel with 72 kilometres per hour displayed. The appellant claimed that he used this device so that he did not need to wear his glasses, as the numbers displayed on the Garmin are larger and clearer than those on his vehicle's in-built speedometer. The Garmin speedometer did not give an audible indication that satellite connection had been lost, which the appellant claimed would normally happen. As a result, he said that he was, at the time, of the belief that he was not driving in excess of the speed limit and only realised the device was frozen after several minutes had elapsed inside the tunnel.

[6] In dismissing the appellant's mistake of fact defence, the magistrate acted upon the appellant's response to a question in cross-examination concerning whether the appellant relied on the Garmin audio announcements, that he "might have been distracted by ... how gun-barrel straight [the tunnel] is": T 1-44 L 31-32. The magistrate found that "Therefore he could not have been looking at all times at the Garmin in order to monitor his speed", and if he had been observing the Garmin then he would have immediately recognised the problem. The magistrate held that the appellant ought to have checked the Garmin more regularly while accelerating. Consequently, his belief that he was not driving in excess of the speed limit was unreasonable, though it was accepted to have been honest.

[7] The appellant appeals his conviction under to s 222 of the Justices Act 1886 ("the Act"). An appeal under s 222 of the Act is generally by way of rehearing, though the court may allow a party to adduce fresh, additional or substituted evidence if it is satisfied there are special grounds to do so: see s 223 of the Act.

[8] An appeal by way of rehearing requires the court to afford respect to the decision of the magistrate and keep in mind any advantages the magistrate had in viewing first-hand the witness or witnesses give evidence. Nevertheless, this court is required to conduct a genuine review of the proceedings below and of the magistrate's reasons, to weigh the conflicting evidence and to draw its own conclusions: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 126-127 and Mbuzi v Torcetti [2008] QCA 231 at [17]. In such an appeal "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error": Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 180; see also Shambayati v Commissioner of Police [2013] QCA 57 at [23].

[9] Section 225 of the Act provides:

"(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.

[10] The appellant's notice of appeal contained the grounds, firstly that the "Decision not based on any evidence presented by the police prosecutor [sic]", and secondly that the "Decision is not based on any evidence examined or cross examined or mentioned anywhere in the police brief of evidence [sic]". In his outline of submissions, the appellant also submitted the magistrate erred in the application of s 24 of the Code.

[11] The appellant's arguments were distilled at the hearing of this appeal to four contentions:

1. The magistrate made a finding that the appellant was distracted, for which there was no evidence.

2. The magistrate wrongly found the appellant's belief was not reasonable.

3. The magistrate failed to remain impartial and unbiased.

[12] The appellant was given leave to add a ground of appeal that his trial was procedurally unfair.

[13] The appellant contends that the magistrate erred in law as there was no basis for the finding that the appellant was distracted at the time of the offence. A court that decides a question of fact where no evidence exists to support that finding makes an error of law: see Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390 at 418. However, in response to a question regarding his reliance on the Garmin speedometer's audio alerts, the appellant did comment under cross-examination that he "might have been distracted": T 1-44 L 31. Though small, this statement during the appellant's affirmed evidence provided a basis for the magistrate's finding that the appellant might have been distracted, even taking into account that the appellant later stated that he was not distracted. As such, it cannot be said that there was no evidence at all to support the finding. This ground of appeal has not been made out.

[14] The appellant contends that the magistrate was wrong to find that his belief that he was travelling below the speed limit was not reasonable. This contention rested upon two bases: first, that the magistrate misapplied the test under s 24 of the Code, and secondly that the magistrate's conclusion as to reasonableness is inconsistent with the decision in R v Wilson [2008] QCA 349.

[15] The appellant submitted that s 24 of the Code is ambiguous as to how and from whose perspective reasonableness is to be determined. However, relying on Wilson, he submitted that his (the accused's) belief is of central relevance, meaning the question for determination is whether the appellant himself considered his belief to be reasonable. Reasonableness was not otherwise for the magistrate to decide.

[16] The test set out in Wilson is that to satisfy the defence of mistake of fact under s 24 of the Code, the accused's belief must be subjectively honest and objectively reasonable. However, an accused may hold an honest and reasonable but mistaken belief even though some other ordinary, reasonable person would not have been so mistaken. It is the particular accused's belief which is of central relevance: see Wilson at [20], [38]-[41]. The grounds upon which the accused's mistaken belief is based and the circumstances as perceived by the particular accused are key considerations in this inquiry: see R v Mrzljak [2004] QCA 420; [2005] 1 Qd R 308 at 331-332.

[17] The appellant is correct to the extent that it is his mistaken belief which is of central relevance. However, the reasonableness of that belief is to be determined by the decision-maker, in this case the presiding magistrate. The magistrate was obliged to assess the appellant's mistaken belief within the context of the circumstances as perceived by the appellant. However, the appellant's impression of the reasonableness of his own belief cannot logically be part of that consideration, let alone a decisive factor.

[18] The magistrate, in his reasons, accounted for the appellant's unfamiliarity with the tunnel and his perceptions of it, his experience with how the Garmin speedometer had worked on previous occasions and his reasons for using the Garmin speedometer as he did: see T 3 L 18-40. The magistrate correctly referred to the relevant cases and the test as prescribed in the standard benchbook direction: see T 2 L 45 - T 3 L 17. There is nothing to suggest that the test under s 24 of the Code was misapplied. This ground of appeal has not been made out.

[19] The basis of the appellant's contention that the magistrate was biased is an allegation that the magistrate, or some person connected to him, and the prosecutor, or some person from their office, colluded by having some pre-hearing communications and discussion about the evidence the appellant sought to put before the court. The appellant relies on certain exchanges during his trial to found his assertion.

[20] The appellant's 'Defence of the Defendant' document, which had been on the court file, was first mentioned at the outset of the hearing. The following exchange occurred:

"BENCH: Now, you would appreciate I haven't seen this file before today and I'm just looking at it and, on the file - and I haven't read this in full other than the first page - it says that it's your defence ---

BENCH: --- filed under the Uniform Civil Procedure Rules. So I don't know why you've done that.

BENCH: I'm going to take it off the file and place it in an envelope of some description and it may become relevant to other things. So you - you're not required to disclose your defence because these are quasi-criminal proceedings. So I mean you won't be able to refer to any - I see there's some attachments there; there's some emails, etcetera, there but did you receive a copy of the brief of evidence?

BENCH: And is everything there that should be there from what you think?

DEFENDANT: In my defence, I have stated at paragraph 1 that I have received and accept as being correct a complete copy of the police brief of evidence and claim ---

BENCH: Okay. Well you would appreciate then for the reasons I've already given, you're not required to ---

BENCH: --- disclose your defence which I haven't read.

BENCH: So - because there may be some things in there that may prejudice things - certain things. I don't know.

BENCH: There may not be, but I'm simply not going to read it ---

[21] A further exchange occurring later in the hearing proceeded as follows:

"BENCH: And of course, you can call evidence to support your hypothesis - your defence. Are you calling any other evidence?

DEFENDANT: I'm calling all of the evidence in this.

BENCH: Well, I'm - like I say, I haven't read that. You'll have to ---

DEFENDANT: No. Well, I can repeat it in the witness box.

BENCH: And it has to be admissible; it has to be admissible evidence. I don't know what's in there. Like I say, I haven't read it. I repeat: and I haven't read it, I've put it in an envelope because there may be prejudicial material.

BENCH: But if there's authors of other documents, etcetera - authors of emails, you mentioned emails before - I don't whether they would be admissible. It depends on whether the prosecution has any objection to it ---": see T 1-9 L 19-36.

[22] The appellant contends that the magistrate's reference to his 'Defence of the Defendant' document potentially containing prejudicial material or inadmissible evidence is evidence of pre-trial communication between the bench and the prosecution, otherwise, in the appellant's submission, the magistrate could not have known if there was any such material or evidence therein. He further argues that the magistrate's statement, "authors of emails, you mentioned emails before" (T 1-9 L 34-35), supports this, as the appellant had not previously mentioned emails.

[23] It is important to note that the appellant did not raise any objection to the magistrate hearing the matter or ask him to recuse himself on the basis of bias. There is no evidence that there was any actual communication or collusion between the magistrate, or any chambers staff, and the prosecution services in the way the appellant contends. Such a serious allegation would require cogent evidence before this court would be prepared to find actual bias.

[24] The appellant nevertheless perceived such bias or impartiality in the words of the magistrate. Perceived bias or partiality may be the cause of a miscarriage of justice. When determining whether a miscarriage of justice has occurred, Justice Thomas stated in R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 at 226 that:

"wide as the powers of a court of criminal appeal are, they do not under Australian legislation empower a court to set aside a verdict upon a speculative or intuitive basis. ... A question of degree arises in determining the point at which appearances are sufficiently important to have the same destructive effect as the reality. In the area of apparent bias the courts have formulated a test based on the mind of the party or of a fair-minded and informed member of the public."

[25] His Honour later noted that while concerns about suspected or perceived impropriety of decision-makers are distinct from those concerning similar conduct by counsel or jurors, some analogy could be drawn between these classes of case: see Szabo at 228. The test employing the fair-minded and informed member of the public applies in cases of juror bias (see Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 53) and the conduct of a judge's associate (see R v Phillips [2009] QCA 57; [2009] 2 Qd R 263 at 268), as well as the conduct of counsel in Szabo. This is mirrored by the test to be applied to the conduct of judges as described by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344, where Chief Justice Gleeson, and Justices McHugh, Gummow and Hayne said:

"a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide."

Here, 'might' refers to real (not remote) possibilities, not probabilities: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 492; and Slaveski v R (On the Application of the Prothonotary of the Supreme Court of Victoria) [2012] VSCA 48; (2012) 40 VR 1 at 26.

[26] It must be recognised that the "fair-minded lay observer" does not make snap judgements, and is not complacent nor unduly suspicious or sensitive: see Johnson at 494, 509. Where a judicial officer's impartiality is called into question under this test, it should be considered that the fair-minded observer would have regard to the judicial officer's training, tradition, experience and oath or affirmation, which equips them to decide factual contests solely on the material put in evidence and matters of which judicial notice is taken: see Johnson at 493.

[27] The requirements of the test from Ebner are threefold. The process was explained by Chief Justice Gleeson, and Justices McHugh, Gummow and Hayne at 345:

"First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding a case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."

While only referring to two steps, the third was identified in Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at 155 by Justice Gageler as the consideration of the reasonableness of any possible apprehension caused by an identified interest or other factor. This test was characterised in Isbester at 146 by Justices Kiefel, Bell, Keane and Nettle as presenting a largely factual question, albeit one to be considered in the particular legal, statutory and factual context. It must be kept in mind that when applying this test, there is no requirement to conclude how a judge would actually approach the matter. The court must merely to consider whether there is a possibility the judge would not decide the case on its legal and factual merits: see Ebner at 345.

[28] Having reviewed the entirety of the transcript of proceedings below, I am not satisfied such an observer would hold the relevant suspicion or apprehension. The magistrate was concerned to ensure the appellant did not, in the 'Defence of the Defendant' document, unnecessarily disclose his defence, or admit irrelevant or prejudicial material. He did not display any knowledge as to the substance of the documents contained therein, beyond what had been gleaned by having skimmed the contents. Instead, the magistrate was clearly concerned to avoid prejudicing his own mind as decision-maker and was taking a reasonable precaution against this. Contrary to the appellant's submissions, flagging his concerns as to what could have been improper disclosure, or prejudicial or inadmissible material does nothing to suggest that the magistrate had had any improper communication with the prosecuting authorities. Further, while it is true that the appellant had not mentioned emails, the magistrate had made clear he had, when looking at the 'Defence of the Defendant' document, noticed that it contained emails. This is easily seen as a mistaken misattribution to the appellant of a statement, as opposed to an indication of some collusion between the bench and the prosecution. This contention, then, fails at the first hurdle of the Ebner test as there is no matter suggesting the magistrate decided the case other than on its legal and factual merits. A fair-minded and informed member of the public could not reasonably suspect that any such collusion occurred and that the magistrate would not remain impartial and open-minded. This claim of bias has not been made out.

Procedural Fairness and Exclusion from Tendering Evidence

[29] The contention that the appellant's trial was procedurally unfair is based upon two matters. First, that the appellant was excluded by the magistrate from tendering documentary evidence which he had intended to place before the court. Secondly, that the magistrate's conclusion that the appellant's belief was not reasonable was based upon the finding that he was distracted from looking at the Garmin device, and the magistrate failed to raise this issue with the parties. The crux of these two matters is the requirement of procedural fairness that the proceeding must be fair and a "party to court proceedings be afforded the opportunity to present a case": MBL v JP [2011] QCA 220 at [22] per Boddice J, with whom Fraser JA and P McMurdo J agreed.

[30] The appellant was told a number of times by the magistrate that he would not read the documents in the appellant's 'Defence of the Defendant' document because there may have been prejudicial material or inadmissible evidence within, and because the appellant was not obliged to disclose his defence before the close of the prosecution case: see T 1-3 L 12 - T 1-4 L 6; T 1-9 L 19-38. The appellant submits that because of these and other statements he was excluded from tendering all the evidence he had intended to. There is nothing to suggest that the magistrate was refusing to receive any evidence from the appellant. The question that remains is whether the appellant believed he was unable to give the evidence.

[31] The appellant may have been given the initial impression that he was barred from leading documentary evidence, as prior to the commencement of the prosecution's case, the magistrate had stated in relation to material in the 'Defence of the Defendant' document that "I'm not going to read it": T 1-3 L 23. However, in reviewing the entirety of the transcript, this impression cannot have reasonably endured. The magistrate later informed the appellant that he was able to lead evidence, provided it was admissible, with the magistrate adding that he did not know if anything in the 'Defence of the Defendant' document was or was not admissible: T 1-9 L 19-36. Even if the appellant had the impression that the magistrate's concern about inadmissible evidence was indicating that his 'Defence of the Defendant' documents were inadmissible, this must have been dispelled during the appellant's evidence-in-chief when he tendered two of the four sets of documents from his 'Defence of the Defendant', which became exhibits 13 and 14 in the trial: see T 1-26 L 29; T 1-30 L 4; and T 1-37 L 46. Despite successfully tendering two exhibits, no attempt was made by the appellant to lead any of the other documents. No unfairness arises from this.

[32] The appellant further contends that the magistrate was wrong to rely on the finding that the appellant may have been distracted from looking at his Garmin speedometer device without having raised it as a live issue with the parties. The finding was based on the appellant's statement in cross-examination in answer to a question concerning the Garmin device's audio announcements; that he "might have been distracted by ... how gun-barrel straight [the tunnel] is": T 1-44 L 31-32. The appellant complains that he was denied the opportunity to address the basis of the magistrate's final judgement.

[33] Trial judges and magistrates are bound to ensure that accused persons are afforded fair trials. They are thus duty bound to ensure an accused has such information and advice as is necessary to facilitate a fair trial, and the categories of matters which may require such advice and information are not limited: see MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 at 524, 534. In any proceeding with a self-represented party, the scope and level of assistance which must be rendered will vary depending on the particular accused and the nature of the case, however it does not extend to advice or direction on how the defence case should be conducted: see Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 302, 370; R v Bartzis [2012] QCA 225 at [37]; R v White [2003] VSCA 174; (2003) 7 VR 442 at 454; and Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at 130. The judge or magistrate must not sacrifice the reality and appearance of judicial neutrality or grant an advantage to the self-represented party, the ultimate 'touchstones' being fairness and balance: see Tomasevic at 130.

[34] In the recent High Court decision in Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161, Justice Gordon (with whom Chief Justice French and Justices Kiefel, Bell and Gageler agreed) discussed the principles of procedural fairness in relation to affording an accused a fair trial. Her Honour stated at 172-173:

"An accused is entitled to a fair trial in accordance with law. An accused's right to a fair trial in accordance with law is ensured, and informed, by "rules of law and of practice designed to regulate the course of the trial". As stated by Mason CJ and McHugh J in Dietrich v The Queen:

"There has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, in the ordinary course of the criminal appellate process, an appellate court is generally called upon to determine, as here, whether something that was done or said in the course of the trial, or less usually before trial, resulted in the accused being deprived of a fair trial and led to a miscarriage of justice." (Footnote omitted.)

One of the requirements of a fair trial is that the accused be accorded procedural fairness. In R v Wise Ormiston JA (with whom Brooking and Chernov JJA agreed) explained one part of procedural fairness in these terms:

"It is an elementary rule, whether in relation to civil or criminal proceedings, that a judge shall not determine any question without affording counsel for each party an opportunity to see and comment upon any material relevant to the issue before the court which is available to the judge and known not to be available to counsel." (Emphasis added.)

There are two related aspects of this rule. First, information relevant to issues before the court which is available to the judge and known not to be available to counsel must be disclosed to counsel. The second aspect is that the accused and the prosecution must be afforded an opportunity to make submissions which bear upon questions about the future conduct of the trial." (Footnotes omitted and underlining added).

It is the second aspect that is engaged in this case, because the appellant did not appreciate the significance of the issue and was not afforded the opportunity to make submissions which could have affected the matter central to the critical finding in the case. The appellant's lack of understanding is demonstrated in an exchange between the appellant and the magistrate following the decision, where the appellant protested that there was no evidence he was distracted and that he did not take his eyes off the Garmin speedometer device. Further, the appellant's statement about distraction was in answer to a question about audio cues from the Garmin device. So, while there may have been evidence of distraction, the issue of what that evidence meant and how it should be used was not raised or addressed at all. Instead, the evidence was used to found a conclusion that the appellant may not have been looking at the Garmin speedometer. Had he been afforded an opportunity, the appellant could have made submissions as to why the magistrate should have accepted his evidence that he was not distracted from looking at the Garmin speedometer, explained the context in which the impugned statement was made and the meaning intended, or applied to re-open his case to give further evidence in relation to the issue.

[35] The finding that the appellant may have been distracted at the relevant time was the foundation for the final decision that the appellant's mistake was honest but not reasonable, and the evidence supporting that finding was brief and equivocal. The prosecutor had not pursued the matter further in cross-examination and neither party had addressed it in their closing arguments. In the context of this case, it is relevant to appreciate that self-represented persons are typically at a disadvantage in adversarial proceedings, due among other reasons to a lack of legal training and experience, as well as the ability to dispassionately assess their case: see Dietrich at 301-2, 344-5, 367-9; Tomasevic at 116; and R v Nilson [1971] VicRp 105; [1971] VR 853 at 864. As he was unrepresented, the appellant lacked the ability to appreciate the relevance of the distraction point and its potential significance to the magistrate's final decision. So, while the appellant should have been aware of the evidence, he was not given an opportunity to comment and make submissions on it. It was conceded by the respondent that there is a 'sense of unfairness' in the approach of the magistrate below.

[36] Whether a trial is procedurally fair depends entirely on the specific circumstances present in any case. In all the circumstances of this particular case, I am persuaded that the magistrate should have brought the distraction point to the parties' attention and invited them to put any submissions they wished to make on the matter, once it became clear following closing addresses that neither side had touched upon the subject and may not have been cognisant of it. The appellant should have been given the opportunity to make the forensic decision as to whether to address the matter and comment on the evidence. In flagging this issue as well, the magistrate would not have given the appellant an advantage he would not have otherwise had, as the prosecution would have equally been able to submit on the matter. The appellant has therefore suffered unfairness in his trial and as a result there has been a miscarriage of justice.

[37] The appellant has established that his trial was unfair and the appeal is allowed.

4. Remit the matter to the Magistrates Court at Brisbane and direct that the new trial be heard by a different magistrate.