Tompkins v Honeyman [2009] QCA 217

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] McMURDO P: As Jones J explains in his reasons for judgment, the applicant has not demonstrated that her application for leave to appeal should be granted. It follows that it must be refused.

[3]

[2] FRASER JA: I respectfully agree with the thorough analysis of the issues in this application in the reasons of Jones J. I agree that the application should be dismissed.

[4]

[3] JONES J: The applicant seeks leave pursuant to s 118 of District Court of Queensland Act 1967 (Qld) to appeal against the decision of the District Court dismissing her appeal against orders made on 16 February 2007 by the Magistrates Court at Tully. In the Magistrates Court, she was found to be guilty of driving a motor vehicle in excess of the speed limit for a particular section of the Bruce Highway and was fined $100 and ordered to pay $65.40 costs of court. No conviction was recorded.

[5]

[4] The applicant appealed against the finding to the District Court at Cairns on the single ground that she did not receive a fair trial in the Magistrates Court.

[6]

[5] The prosecution case against the applicant was quite simple. The complainant/respondent is a police officer who was performing traffic duties at a point on the Bruce Highway some 300 metres south of the bridge over Banyan Creek. At a point north of the bridge, the speed limit changes to 60 km/h for southbound traffic which by that time has gone through a transition section reducing the speed from 100 km/h to 80 km/h.

[7]

[6] The respondent gave evidence that she observed the vehicle driven by the appellant as it crossed the bridge and she pointed a speed measuring device known as a LIDAR at the appellant's vehicle. The LIDAR gave a reading of 72 km/h and this caused the officer to stop the vehicle and issue an infringement notice to the driver, the applicant. The applicant's son, Glen Tompkins, was a passenger in the vehicle at that time.

[8]

[7] The applicant did not pay the infringement notice penalty with the result that a summons was issued and the trial proceeded.

[9]

[8] At trial, the prosecution relied upon the evidence of the respondent who identified both the vehicle at which she aimed the LIDAR device and the applicant as the driver of the vehicle. The prosecution also relied upon the statutory presumptions provided by paragraphs (pd) and (pe) of s 124(1) of the Transport Operations (Road Use Management) Act 1995 (Qld) (hereinafter "the Act"). This evidence, by way of certificates,[1] certified as to the accuracy of the LIDAR device and that it was, at the relevant time operated in accordance with the Australian Standard 4691.2.

[10]

[9] In her defence, the applicant intended to challenge the accuracy and reliability of the LIDAR device but as she had not given to the prosecution the prior notice of that intention, as required by s 124(4) of the Act, she was precluded from doing so. Left with the evidentiary effect of those certificates, the only issue which the presiding Magistrate had to then decide was whether the police officer correctly identified the applicant's vehicle as the one on to which the LIDAR device had locked.

[11]

[10] The hearing was complicated by the fact that the applicant suffers from a serious hearing impairment in the form of sensori-neural deafness, more marked on the left side than the right. She requires behind-the-ear hearing aids on each side but despite using these hearing aids, she has considerable difficulty in hearing conversations, often misinterprets what is said to her and has a concern that she often gives incorrect answers because of these problems.[2] Optimal communication conditions for her is when there is little or no background noise and when one-on-one communication occurs at a distance of less than three metres from a person facing her to assist with lip-reading.[3] The applicant's affliction is of late onset and she does not have long experience of lip-reading which, in any event, is not particularly reliable.[4] The applicant is unable to communicate by sign language. Any facility available to the court to assist the hearing impaired did not help in her situation. In a social context, the applicant manages by having a family member repeat directly to her what another speaker has said. Despite this affliction, the applicant has chosen to represent herself, both at the primary hearing and on each of the subsequent appeals.

[12]

[11] The difficulty occasioned by the applicant's impairment called for a consideration by the Magistrate whether to allow the applicant to give her evidence by telephone link. In the upshot, this was allowed with the applicant being assisted by her son to repeat directly to her any words which she did not herself hear or understand. In this regard on the live issue - whether the LIDAR device in fact recorded the speed of the applicant's vehicle - the following exchange occurred:-

[13]

DEFENDANT: Constable, does the LIDAR device have any way of distinguishing between sizes and shapes of vehicle that it has acquired a reading on? - Basically it sends out a laser beam and that reflects off the vehicle itself and that's how it gets the reading.

[14]

MR TOMPKINS: It sends out - actually sends out a beam and it reflects off the vehicle.

[15]

DEFENDANT: But it can't distinguish between sizes and shapes? - No, it's not based on the size and shape. It's just which car I point it at.

[16]

Okay. You were a very long way away from us and it was night-time. Can you tell this court that you are certain it was my vehicle you got the alleged reading on? - Yes, because the red dot was on your vehicle.

[17]

Constable, are you aware of the plus and minus facilities on this particular LIDAR device? - As in directional?

[18]

MR TOMPKINS: As in directional, she said. The one that says either going south or north?

[19]

WITNESS: Yes. So if you're going away from me it'll be negative; if you're coming towards me it'll be positive.

[20]

DEFENDANT: Constable, I put it to you that you have deliberately left out on the infringement notice, once again you - as you're required under proper police traffic procedure, what the reading was, plus or minus. Do you agree with that? - No.

[21]

DEFENDANT: Constable, plus or minus means that the traffic is coming towards you or away from you. Seeing it was night-time, I had just been passed by a large semi and was in the act of pulling over to the side of the road because there was another semi trailer coming at us, remembering that this incident was on a bend with overhanging trees, overhead power lines and all these vehicles would have been obstructing your view, I put it to you that you have no way of stating with certainty what vehicle you got a reading on. Is that not correct, constable? -- No, that's incorrect, you weren't on a bend when I locked onto your vehicle and there was nothing obstructing my view of you." [5]

[22]

[12] The applicant neither gave evidence nor called any witnesses. She did, however, tender the infringement notice, (ex 3) given to her at the time of her interception and she tendered medical reports (ex 4) which described her hearing impairment of which the Magistrates Court had already been made aware. As a result there was no direct challenge to Constable Honeyman's evidence which, together with the finding that the LIDAR device was properly used, formed the basis for the learned Magistrate finding that the prosecution case had been proven beyond reasonable doubt.

[23]

[13] In the Notice of Appeal to the District Court pursuant to s 222 of the Justices Act 1886 (Qld), only one ground was raised namely -

[24]

"Unfair hearing because of hearing disability discrimination. Unable to defend myself properly - as I could not hear questions and answers of the phone linkup, and no time was given to explain what had been said. The phone link-up should not have proceeded as my hearing disability had been made aware of to the Court."

[25]

[14] The applicant filed an outline of argument on 17 April 2007 which raised a number of other issues which were repeated and enlarged in a revised outline of argument filed on 30 October 2007. The revised outline is the one on which the applicant sought to rely.[6] Even though no formal application was made to amend the grounds of appeal, the appeal was conducted on the basis of the issues raised in the applicant's revised outline.

[26]

[15] At the hearing of the appeal, the learned primary Judge allowed the applicant to be represented by a Mr Osgood who initially sought to assist in the capacity of a McKenzie friend. In an extended role, Mr Osgood was allowed (over the respondent's objection) to adopt the role of advocate on the basis that the plaintiff lacked the ability to communicate orally with the judge. Thereafter, Mr Osgood made submissions and responded to arguments without any direct communication with the applicant.

[27]

[16] Neither the applicant nor Mr Osgood sought any formal leave to adduce fresh evidence on the appeal. Despite the respondent's objection to the reception of fresh evidence, and her counsel's referral to the decision of the Court of Appeal in Pavlovic v Commissioner of Police,[7] Mr Osgood was allowed to refer to material set out in affidavits filed by the applicant and to base his wide ranging submissions on such evidence. Thus, it can be seen that the applicant was given far more latitude in the making of arguments on appeal than would ordinarily be allowed to a legal representative in such circumstances.

[28]

[17] The case which the appellant wished to advance and which the learned primary Judge resolved to hear relying on the provisions of s 223 of the Justices Act was detailed in his reasons for judgment at paragraphs [11] and [12] as follows:-

[29]

"[11] Much of what is contained in the affidavits is argumentative, irrelevant and inadmissible as evidence in relation to the offence charged. However, there are some matters which clarify the point which the appellant made at trial and would have been relevant and admissible as evidence at the trial. In the affidavit of the appellant filed 31 October 2007 she sets out the following:-

[30]

"22. I was accompanied by my adult son Glen Tompkins at the time who was sitting in the passenger seat in the left hand front of the vehicle.

[31]

The weather at this night time was dark and dry.
I recall approaching the 80 kph sign on the northern side of the bridge over Banyan Creek which is on the northern side of the Tully intersection, where a 4WD vehicle had slowed immediately in front of me to turn at the Mission Beach turn off.
I was travelling slower than 70 kph at that moment and a semi trailer overtook me from behind in a southerly direction at a considerably faster speed.
The overtaking truck mass and its speed created a violent disturbance to the stability of my vehicle to the extent where I had to change down to second gear to gain control, where immediately another truck with a similar disposition passed in the opposite direction and again caused a considerable unsteadiness in my vehicle.
While I was recovering my vehicle and composure from the shock of both passings, the tail of the second truck had passed out of view as I exited the Banyan Creek bridge at the southern end.
Immediately my attention was drawn to some lights in the far distance. There appeared to be two (2) long blurry red lights waving up and down on the same said of the road as myself but at a considerable distance.

[32]

I was still in second (2nd) gear after coming off the bridge and I decided to stay in that gear to give me time to ascertain what the meaning of the flashing lights was as I approached at a slow pace.
At this time it was not clear because of the dark and lack of identifying features, who was operating the flashing lights, or for what purpose. There were no signs or indications that were familiar at all and the circumstances appeared unusual.
The lights continued to move from side to side and as I got close they appeared to indicate for my vehicle to move to the left hand side of the road by moving together as if pointing to the side of the road.

[33]

When I stopped my vehicle the person who had been operating the lights was in front of me and the lights appeared to be put out of my sight and as the person walked around to my side of the vehicle, I saw a woman dressed in what appeared to be a police uniform with a cap on over her hair which appeared to be short or tied back."

[34]

[12] Mr Osgood's lengthy affidavit filed 8 November 2007 points to the fact that the distance between the southern edge of the Banyan Creek bridge and the position where Constable Honeyman stood with her LIDAR gun was 270 metres."

[35]

[18] His Honour concluded that all of the evidence on which the applicant sought to rely was available or potentially available at the hearing. He concluded also (correctly in my view) that it would not have assisted the applicant's defence. In the end result his Honour found that "no special grounds have been demonstrated to give the appellant leave to adduce the fresh, additional or substituted evidence".[8] His Honour also reviewed the evidence relied upon by the prosecution and found that the charge had been made out and that there was no miscarriage of justice concluding as follows:-

[36]

"I am not at all satisfied that the appellant was so disadvantaged by the circumstances as to give rise to any miscarriage of justice. In many instances Mr Tompkins repeated the witness' evidence to the appellant. There is no suggestion that she was at anytime prevented from asking Mr Tompkins to repeat or relay to her anything that had been said, if she did not hear it."[9]

[37]

"The appellant and her son had the course of the trial explained to them. It was explained to them that they could evidence. They came prepared with documents which they wanted to tender into evidence and did so. It was explained to the appellant (correctly so) that there was no obligation on her part to give evidence. On the face of the transcript the appellant was expressly offered the opportunity to give evidence and she expressly declined. I reject any claim by the appellant that she did not understand that she could give evidence if she wanted to. In my view her Honour may well have fallen into error had she taken the matter any further. It was important, as her Honour obviously realised, that the appellant not be given the impression that she had any obligation to give evidence. It would therefore have been quite wrong for her Honour to offer any words of encouragement to the appellant to give oral evidence. In my respectful view her Honour appropriately struck the fine balance between explaining to the appellant that she had a right to give evidence but also explaining to her that she was under no obligation to give evidence. In my view no miscarriage of justice has resulted. Further, no special grounds have been demonstrated to give the appellant leave to adduce the fresh, additional or substituted evidence."[10]

[38]

[19] The applicant applies for leave on the following grounds:-

[39]

(b) The justice in the District Court appeal mistook the facts.

[40]

(c) The justice in the District Court appeal gave consideration to irrelevant matters.

[41]

(d) The justice gave insufficient weight to relevant matters.

[42]

[20] The effects of the applicant's hearing impairment were evident on the hearing of this application when she again sought to be represented by Mr Osgood in a capacity which went beyond the limits of either interpreter or a McKenzie friend. The parties agreed that in lieu of the applicant making oral submissions that her submissions could be made in writing. As a consequence the issues on behalf of the applicant are identified in two submissions filed respectively on 31 October 2008 and 29 June 2009. The respondent relies upon a single submission filed on 6 November 2008 which attacks the grounds of the application and the submissions as being "too vague to attract a detailed response" and containing material "which sets out detailed, but misconceived, argument."

[43]

[21] The applicant's submissions are obviously drafted without the benefit of professional legal assistance. Regrettably, they do suffer from a lack of understanding of the issues relevant to an application of this kind. Rather the submissions seek to advance a case, elements of which were not raised at the trial and for which there is no evidence given at the trial. The submissions do so without addressing any specific error in the reasoning of the learned primary Judge.

[44]

[22] From the appellant's first submission, she raises the following issues:-

[45]

(i) The reference by the learned primary judge to a failure to amend the notice of appeal was in error because the particular grounds were raised in a revised outline of argument. The content of the revised outline of argument repeated and amplified the briefly stated grounds of the original application. Relevantly, the first three headings of the revised outline are as follows:-

[46]

Rev 2.1 Denial of Natural Justice and Procedural Fairness

[47]

Rev 2.2 The Magistrate failed to establish a competent jurisdiction within which to conduct a judicial proceeding.

[48]

Rev 2.3 The magistrate failed to allow the appellant to effectively appear and defend her case."[11]

[49]

[23] Each of the above issues in the revised outline were, in fact, considered by the learned primary Judge. The first of these was whether the applicant was given a fair trial, having regard to the principle of natural justice and procedural fairness. His Honour found that she was, for the reason extracted in paragraph [16] above. There is nothing in either of the two written submissions relied on for this application which demonstrates error in his Honour's reasoning. The prosecution case, which the applicant had to meet, was a simple one. She was certainly disadvantaged by her own lack of knowledge of the law and of procedure but that was a position of her own choosing, and one which the court had a limited capacity to correct. The applicant's submission on this issue is couched in these terms:-

[50]

**"**Further to this, the events in the Magistrates Court during those proceedings were best described more as a summary execution, as a planned and executed ambush with the perpetrators relying wholly on the vulnerability of an elderly, disabled defendant, and the unlearned and inappropriately skilled members of my family whom the court and the Queensland Police Service coerced and misled to sabotage and waylay any possible chance of fair and natural justice or an appropriate remedy. It was not a court."

[51]

[24] Obviously, this Court will not respond to unsubstantiated assertions of this kind. Not only because of the scandalous content but also because of the obvious disregard of the learned Magistrate's concerns for the applicant's disability and the steps taken to lessen the effects of it.

[52]

[25] Putting to one side the ineffectiveness of such a submission, it is clear that the learned primary Judge was made aware of the extent of the applicant's disability. He responded to that by making concessions to the applicant beyond what would ordinarily be expected. He received evidence given at the trial and, as well, considered evidence that might have been given had the applicant been better advised. He also considered the instructions given by the Magistrate during the course of the trial. He made findings on these issues as set out in paragraph [16] above.

[53]

[26] The issue that confronted the Magistrate at trial and the learned primary Judge on appeal, is whether the applicant had a fair trial. The right of an accused person to receive a fair trial according to law, is a fundamental element of our criminal justice system. The right is manifested in rules of law and of practice designed to regulate the course of the trial: Dietrich v The Queen.[12] In his reasons in that case Brennan J said:-

[54]

"The procedure of the criminal courts is designed to produce as fair a trial as practicable in the circumstances of each case ... But the rhetoric that a trial must be fair before a conviction can properly be recorded is true only to the extent that unfairness leads to a miscarriage of justice. The legal question then is not whether the trial has been unfair according to community values but whether it is unfair in the sense that it has not taken place according to law. A miscarriage of justice may consist in a failure to adopt a lawful procedure which would have ensured fairness to an accused person or would have eliminated unfairness to him, but it cannot consist in failing to adopt a procedure which the court has no power to adopt."[13]

[55]

"A trial is not necessarily unfair because it is less than perfect, but it is unfair if it involves a risk of the accused being improperly convicted. If the only trial that can be had is one that involves a risk of that kind, there can be no trial at all."[14]

[56]

[27] The issue which fell to be determined by the Magistrate was a simple one. The fact that the applicant, by choosing to represent herself, did not fully appreciate the issue, does not of itself mean that the trial was not fair. The point of major concern on the appeal is whether the applicant was aware of the allegations made against her and of the evidence by which the allegations were to be sustained.

[57]

[28] A review of the transcript of the proceedings, shows that the finding of the learned primary Judge that the applicant was given every opportunity to defend the charge and that she came to the court prepared to do so is plainly correct. The applicant was disadvantaged by her impaired hearing, but that fact does not of itself constitute procedural unfairness. It appears that the applicant did not forewarn the court that she would have difficulty communicating with the court or with witnesses. Ultimately, the means by which the evidence was to be communicated to her was as effective as could be arranged being the method used in her family context - the repetition by a family member of any words which she failed to fully comprehend. It is often the case that courtrooms do not provide ideal acoustic arrangements for the hearing impaired. However, the difference between having a witness give evidence in person and the hearing of the witness's words over a speaker phone would be slight when, in either case, the process of communication using a family member was available.

[58]

[29] Further to that, the case whilst involving only a minor issue, did have some technical evidentiary features which rendered the applicant at a disadvantage more by not having legal representation than by her hearing impairment. Whilst it was not directly argued that there was a miscarriage in the exercise of the Magistrate's discretion to take evidence by telephone link, I am satisfied in the circumstances that there was no error in the Magistrate so doing having regard to the arrangements put in place.

[59]

[30] The remaining headings in the revised outline of argument in the District Court Appeal were -

[60]

"Rev 2.4 "Investigators and decision makers must act without bias in all procedures connected with the making of a decision".

[61]

Rev 2.5 The Evidence Rule: The Magistrate based her decision on circumstances placed before the proceedings that were irrelevant and after the specific relevant circumstances had occurred.

[62]

Rev 2.6 Failed to produce a Fair and Accurate Report

[63]

[31] There is no substance in any of these grounds but I shall deal with each in turn. There was no factual basis identified for the allegation of bias raised against the Magistrate or the investigator. The question of relevant evidence has already been dealt with above. The only irrelevant evidence introduced before the Magistrate was that adduced by the applicant. Both the Magistrate at trial and the learned primary Judge on appeal gave detailed and appropriate reasons for their respective decisions.

[64]

[32] The reference to judicial notice in Rev 2.7 is meaningless. To the extent that the reference to discrimination in Rev 2.8 relates to allegations in paragraph 4.4 of the applicant's first Outline, they are simply not relevant to a determination of whether the applicant has received a fair trial.

[65]

[33] The suggestion (first raised in the submissions of October 2008) that the certificates relied upon by the prosecution were forged was not supported by any evidence and as such is a scandalous suggestion and thus is to be ignored.

[66]

[34] The applicant, having been given the opportunity to make written submissions in lieu of an oral presentation, has obliged by presenting arguments which misconceive what is in issue on this application and by incorrectly contending that certain elements of the offence of speeding have not been proven. I shall deal with each of the submissions in turn.

[67]

[35] As to paragraph 9.1, the application of s 20 of Transport Operations (Road Use Management - Road Rules) Regulation 1999 (Qld) does not require proof of a specific measured length of roadway but simply the identification of the section of the road to which the particular speed limit applies. The application of provisions of the Acts Interpretation Act 1954 to that particular regulation is misconceived. The evidence of the 60 km/h speed limit on the section of roadway on which the applicant was travelling was unchallenged at the trial.

[68]

[36] As to paragraphs 9.2, 9.3, 9.4, 9.5 and 9.6, the respondent gave evidence that she had in fact used the LIDAR device at the relevant time and it was not suggested to her at trial that she had not done so. Rather, the applicant's cross-examination questioned the respondent's failure to record in the infringement notice the relevant distance and questioned the effective distance over which the device could be used.[15] The accurate operation of the LIDAR device was determined by statutory presumption. There was no relevance in the many factual assertions and comments sought to be made as submissions as to the efficacy and accuracy of the device. There is no requirement on the part of a police officer to form a suspicion of speed before activating such a device or to form any estimate of distance. The applicant's reference to George v Rockett[16] is misconceived.

[69]

[37] To the extent that the applicant seeks to rely upon the content of affidavits of support for some of the assertions raised in these paragraphs, no leave has been given to adduce any such evidence on this application, nor on the appeal below. There, the learned primary Judge expressly found that no special grounds had been demonstrated for the admission of "fresh, additional or substituted evidence".[17] The learned primary Judge was plainly correct in reaching that conclusion on the material before him. No additional grounds had been raised on this application to suggest a different course.

[70]

[38] The granting of leave to appeal in these circumstances is required by s 118(3) of the District Court of Queensland Act 1967. Fundamental to the granting of such leave is the identification of some error in the decision sought to be appealed. For the reasons stated above, the applicant has not shown any such error.

[71]

[4] Equal Treatment Benchbook at paras 11.3.6 and 11.5.1.

[72]

[7] [2006] QCA 134, particularly at [9] et seq.

[73]

[12] [1992] HCA 57; (1992) 177 CLR 292.

[74]

[16] [1990] HCA 26; (1990) 170 CLR 104.

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