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[2014] QCA 121
General information, not legal advice.
Court of Appeal (Qld)
2014-05-27
Muir and Morrison JJA and Atkinson J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: White v Commissioner of Police [2014] QCA 121
PARTIES: WHITE, Colin (applicant) v COMMISSIONER OF POLICE (respondent)
FILE NO/S: CA No 1 of 2014 / DC No 133 of 2013
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT: District Court at Maroochydore
DELIVERED ON: 27 May 2014
DELIVERED AT: Brisbane
HEARING DATE: 13 May 2014
JUDGES: Muir and Morrison JJA and Atkinson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: 1. The application for leave to appeal is refused. / 2. The applicant pay the respondent’s costs of and incidental to the application.
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant was convicted in the Magistrates Court of disobeying a speed limit and sentenced accordingly – where the applicant’s appeal to the District Court pursuant to s 222 of the Justice Act 1886 (Qld) was dismissed and costs were awarded against him – where the applicant seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where leave will only be granted where an appeal is necessary to correct a substantial injustice to the applicant or there is a reasonable argument that there is an error to be corrected – whether leave to appeal should be granted / District Court of Queensland Act 1967 (Qld), s 118(3), s 118(8) / Justices Act 1886 (Qld), s 222, s 223 / Commissioner of Police v Al Shakarji [2013] QCA 319, considered / Gobus v Queensland Police Service [2013] QCA 172, cited / Pickering v McArthur [2005] QCA 294, cited / Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited / Shambayati v Commissioner of Police [2013] QCA 57, cited / Tsigounis v Medical Board of Queensland [2006] QCA 295, cited
COUNSEL: The applicant appeared on his own behalf / D C Boyle for the respondent
SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent
MUIR JA: I agree with the reasons of Morrison JA and with his proposed orders.
MORRISON JA: This is an application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) (“District Court Act”).
The applicant was convicted, on 26 August 2013, of speeding on Bli Bli Road on 15 February 2012. The conviction followed a two day trial in the Magistrates Court.
The applicant appealed against the conviction pursuant to s 222 of the Justices Act 1886 (Qld). That appeal was dismissed on 6 December 2013.
Leave to appeal
An appeal under s****223 of the Justices Act
The appeal brought by the applicant to the District Court under s 222 of the Justices**Act was an appeal by way of rehearing, as provided for in s 223 of that Act. On such an appeal the District Court judge was required to make his own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.2
An appeal to this Court from the decision of the District Court sitting on an appeal under s 222 of the Justices Act is not an appeal by way of rehearing. Section 118 of the District Court Act applies to such an appeal, but subsection (8) provides that an appeal by way of rehearing applies to an appeal from the District Court in its original jurisdiction, as opposed to its appellate jurisdiction.3
There is therefore considerable difference between the nature of the appeal that was available to the applicant from the Magistrates’ Court to the District Court and that which he seeks to bring from the District Court to this Court. In the appeal to the District Court, s 223 of the Justices**Act provides for a rehearing on the evidence given at trial, and any new evidence adduced by leave. That is a rehearing, in the technical sense consisting of a review of the record of the proceedings below, rather than a completely fresh hearing. To succeed on such an appeal an appellant must establish some legal, factual or discretionary error.4 By contrast, an appeal to this Court from the District Court seeking to review the decision of the District Court in its appellate jurisdiction, may only be made with leave of this Court, and is not an appeal by way of hearing, but a strict appeal where error of law must be demonstrated.5
Proceedings in the Magistrates’ Court
The evidence presented in the Magistrates’ Court came from two police officers who operated a speed detection site on the day that the applicant was issued with an infringement notice. Evidence was given by the relevant police officer that he was an authorised officer to use the LIDAR device6 used in speed detection, and that he was qualified to do so. His evidence was that he conducted tests on the device, in accordance with the relevant standards, before it was used that day, and found that it was working appropriately. He tested it again at the end of the day, when it was again found to be producing accurate results.
The police officer’s evidence was that he noticed the applicant’s vehicle which appeared to be exceeding the speed limit. He targeted the vehicle by putting the aiming dot of the LIDAR device on the number plate area of the vehicle, and activated the device. It recorded a speed of 94 kilometres per hour. The speed limit in the area was 60 kilometres per hour.
The ensuing conversation between the police officer and the applicant was recorded, and the recording and a transcript were tendered in evidence. The applicant challenged the speed, saying that he understood the speed limit was 80 kilometres per hour7 and he was sure he was not speeding. Although the police officer was prepared to exercise a discretion and write the infringement notice at 90 kilometres per hour, thereby reducing the penalty, the applicant argued with him and said that he would challenge the matter in court. As a consequence the police officer issued the infringement notice at the detected speed of 94 kilometres per hour.
The police officer gave evidence that when he targeted the applicant’s vehicle and operated the device, there were no other vehicles in his line of sight. Photographs were tendered depicting the roadway, although they were taken some time later.
Notwithstanding extensive cross-examination by the applicant, who represented himself, the police officer maintained his evidence. In particular he rebutted suggestions that the device was operated in a way that would produce a doubtful reading, that some other vehicle had been targeted, and that the police officers were using someone else’s speed to falsely issue infringement notices to various motorists including the applicant.
The second police officer also gave evidence, confirming that of the first officer. His evidence was that there were no other vehicles in front of the applicant’s vehicle when the LIDAR device was operated.
The applicant gave evidence, denying that he had driven at the speed alleged and suggesting that his vehicle had limited capability and therefore it was unlikely he was speeding. Importantly he did not suggest that there was any vehicle between himself and the police. He said that he had not driven that road many times, and could not recall noting the speed signs.
Proceedings in the District Court
“All are overcome, when one considers his Honour’s conclusions on credibility and reliability. Having reviewed the evidence carefully, I can find no basis to criticise those findings. On all the evidence before him, his Honour was entitled to make the factual findings that he did. If the [appellant’s] contentions to the effect that a fact finder must be “one hundred (100) percent” sure of a fact before accepting it then, of course, no one would ever be convicted.”8
Grounds for the application to this Court
“The notice of appeal and outline filed 13 September 2013 are again infected by the misunderstandings and ignorance of the law and legal system by many lay people.”10
(a) the magistrate and the primary judge ignored “basic fundamental law”, which was identified as being: “although verbal evidence has been submitted against me, no actual proof has been submitted to support the allegation brought against myself …”;
(b) a subset of this ground was that the police officers’ oral evidence did not constitute proof that the reading obtained on the device was from the applicant’s vehicle;
(c) in February 2012 the applicant had corresponded with the Police Commissioner, the Minister for Police and the Attorney-General, “duly giving them opportunity to produce proof that the speed reading shown to me on the 15th of February 2012 was obtained from detecting my vehicle…”;
(d) the correspondence in response to that in (c) above did not supply “proof”;
(e) further that correspondence did not advise the applicant of disciplinary action being taken against the police officers “in regard to the dangerous and illegal manner in which they set up their detection site”;
(f) the magistrate accepted the word of the police officer “despite the fact that [the officer] could not prove the reading was obtained from detecting my vehicle”; the explanation of that ground was that the police officer had made an error in his recollection of how many speed limit signs there were which, the applicant contended, proved the lack of attention to detail by the police officer “as the Police are required to maintain at 100% level of accuracy, nothing less”;
(g) the police officer was guilty of unethical operational behaviour because he did not sign and date a witness statement;12
(h) that the reading on the LIDAR device was one obtained from detecting a different vehicle, and “possibly another vehicle sometime earlier in the day, possibly a vehicle travelling in the opposite direction, possible even the yellow Police vehicle as the Police Officers tested the LIDAR roadside while setting up their static detection site”; in this connection it was said that “Neither Police Officer offered or tendered any proof to the Court to discredit my allegation of them having retained or not having retained the reading from sometime prior”;
(i) the applicant was denied the right to question the police officer about his evidence that an error message would be given by the LIDAR apparatus if it was moved when being used;
(j) that it was not possible to verify the distance to the applicant’s vehicle as indicated by the LIDAR apparatus, namely 215.2 metres, and that both police officers had fabricated that evidence “to cover the fact that they had retained the 94 kilometre per hour reading from sometime prior to my arrival at the detection site”;
(k) that the police officer gave evidence that he had located his red dot from the LIDAR apparatus “on the number plate area of my vehicle”, but was unsure under cross-examination of the exact location of the number plate on the applicant’s vehicle; this was said to constitute “actual proof … that he did not direct the red dot of the Lidar upon my vehicle nor did he obtain the Lidar reading from my vehicle”; and
(l) that the credibility of the police officers was affected by the fact that when they parked their police vehicle to set up the detection site, it “clearly obstructed the safe flow of east bound traffic”, by being parked too close to a turning lane on the roadway, and thus constituting unlawful parking of a police vehicle.
Discussion
All of the so called grounds advanced by the applicant are infected by his fundamental misunderstanding of what might constitute “proof” in a court proceeding. That misunderstanding was evident in his oral submissions to this Court, quite apart from what is contained in the grounds for the application. It is the same misunderstanding that was demonstrated by the applicant before the magistrate and before the learned primary judge. On the applicant’s understanding, oral evidence cannot, even if accepted, constitute proof. The learned primary judge tried in vain to correct that misconception. This Court attempted to correct that misunderstanding, to no avail as the applicant resisted, becoming querulous and obstinate in his stance.
At no point could the applicant seem to comprehend that the essential difficulty he confronted was that the magistrate rejected his evidence, and accepted that of the police officers. There can be little doubt that the advantage which the magistrate had, namely that of seeing the witnesses in the witness box tested under cross-examination, was of great benefit in making an assessment of credit.
Further, the applicant could not seem to comprehend that the evidence given by the police officers included that the LIDAR device was operating as it should, it was the applicant’s vehicle which had been targeted, there were no other vehicles on the road at the time, and the speed revealed by the apparatus was that of the applicant and not of some other vehicle at some other time. All of that evidence was accepted by the magistrate, and no error in that process was detected by the learned primary judge.
What is said above disposes of the points set out in subparagraphs (a)-(d), (f)-(h) and (j) of [19] above.
Further, in the hearing before this Court, the applicant was not able to grasp that in order to succeed on his application he had to demonstrate that some error had been made by the learned primary judge. Instead he embarked upon a regurgitation of points made before the magistrate. Many of them are reflected in the summary of the grounds of the application above.
There is no substance in the point raised in subparagraph [19](f), namely that because the police officer corrected his evidence as to how many speed limit signs there were, that meant his credibility was under issue. Having read the transcript it is apparent that the police officer quite correctly identified a slip in his memory. He did so openly and without hesitation. One would normally consider that such a matter would aid his credibility rather than detract from it.
The extremity of the position advanced by the applicant can be seen in his submission13 that the speed recorded on the device could not only have come from another vehicle, but even the police vehicle itself. The evidence of both police officers was that they visually identified the applicant’s vehicle as probably being in excess of the speed limit, after which the LIDAR device was directed at the applicant’s vehicle. Both police officers said there were no other vehicles in the vicinity. That evidence was accepted by the magistrate, and no error in that process was detected by the learned primary judge.
Conclusion
The application must be refused. I would propose the following orders:
The application for leave to appeal is refused.
The applicant pay the respondent’s costs of and incidental to the application.
ATKINSON J: I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.
Shambayati v Commissioner of Police [2013] QCA 57, at [19]; Pickering v McArthur [2005] QCA 294, at [3]; Commissioner of Police v Al Shakarji [2013] QCA 319, at [4]. ↩
Rowe v Kemper [2008] QCA 175, at [3]; Al Shakarji at [7]. ↩
Al Shakarji at [8]; Tsigounis v Medical Board of Queensland [2006] QCA 295; Gobus v Queensland Police Service [2013] QCA 172. ↩
Al Shakarji at [65] per Margaret WilsonJ; Teelow v Commissioner of Police [2009] QCA 84, at [3]-[4]. ↩
Gobus v Queensland Police Service [2013] QCA 172, at [3]-[5] per Fraser JA; Al Shakarji at [75] per North J. ↩
A form of laser detection. ↩
It was not, it was 60 kilometres per hour. ↩
AB358; Reasons of the District Court at [37]. ↩
AB404-408. ↩
AB358; Reasons of the District Court at [34]. ↩
All are summarised even though many were really included as a basis to explain the arguments for others.
White
Commissioner of Police [2014] QCA 121
The magistrate reviewed the evidence in detail, and accepted the evidence of the police officers in preference to that of the applicant. He found this evidence credible and reliable, and that the applicant’s evidence was not. He specifically rejected the allegations that the police officers had colluded to attribute a false speed to the applicant.
There is no substance in the ground14 relating to error messages when the LIDAR device is moved when being used. The evidence of the police officer was that it was not moved when being used, and recorded the applicant’s speed. Likewise there is nothing in the complaint about being denied the right to question the police officer. The learned primary judge reviewed in detail that part of the trial where the issue was whether the applicant had given the requisite notice under s 124(4) of the Transport Operations (Road Use Management) Act 1995 (Qld), so that he could challenge the accuracy of the LIDAR device.15 That revealed that the applicant decided to proceed on the basis that he would not challenge the accuracy of the device. That was the finding made by the magistrate, and no error in it was detected by the learned primary judge. No argument was advanced before this Court as to why the learned primary judge was not correct.
There is nothing in the point16 concerning establishing the distance of 215.2 metres to the applicant’s vehicle. That was the distance recorded on the LIDAR device. To go further would be to challenge the accuracy of the machine, which the applicant had elected not to do.
There is nothing in the ground17 relating to the police officer’s targeting of the number plate area of the applicant’s vehicle. The police officer gave evidence that he targeted the number plate area and received a signal from a reflective surface, which was on the applicant’s vehicle. The applicant’s point seemed to be that because the number plate on his vehicle was slightly to the right hand side, rather than in the centre of the front of his car, that meant that the police officer’s evidence could not be accepted. The police officer’s evidence-in-chief was that he put the aiming dot of the LIDAR device “on the number plate area” of the applicant’s vehicle.18 He was cross-examined as to “the location of the number plate on the vehicle I was driving on that day”.19 The police officer, responded, referring to the fact that he had said “number plate area of the vehicle”. When asked where the number plate area of the applicant’s vehicle was, he responded “normally where the number plate is in the centre … of the vehicle as it travels towards me”.20 That was then clarified in response to a question by the magistrate, when the police officer said that he targeted the centre of the applicant’s vehicle, being “the centre of – where a number plate normally is situated on the front of a vehicle is where I target the vehicle … The front grill, in the … middle of the car … front of the car”.21 Once the evidence of the police officer was accepted generally, that exchange could not possibly give rise to an adverse finding of credit.
The applicant’s assertion22 that the place where the police vehicle was parked either unsafe or unlawful, is completely irrelevant to the issues concerning his conviction for speeding.
Nothing has been demonstrated which would suggest that there was any error on the part of the learned primary judge.
Which was not tendered as his evidence. Instead reliance was placed on his oral evidence. ↩
Paragraph [19](h) above. ↩
Paragraph [19](i) above. ↩
AB 359-360; Reasons of the District Court at [38]-[47]. ↩
Paragraph [19](j) above. ↩
Paragraph [19](k) above. ↩
AB41. ↩
AB79. ↩
AB 79. ↩
AB79. ↩
Paragraph [19](l) above. ↩