Bennie v Stothard
[2013] QDC 285
•11 October 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
Bennie v Stothard [2013] QDC 285
PARTIES:
KATHERINE MARGARET BENNIE
(appellant)
v
WILLIAM JOHN STOTHARD(respondent)
FILE NO:
D54/2013
DIVISION:
Appellate jurisdiction
PROCEEDING:
Appeal against conviction
ORIGINATING COURT:
Magistrates Court at Ipswich
DELIVERED ON:
11 October 2013
DELIVERED AT:
Ipswich
HEARING DATE:
10 October 2013
JUDGE:
Bradley DCJ
ORDER:
The appeal is dismissed.
Orders of Magistrate confirmed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – appellant convicted of disobeying the speed limit – whether the Magistrate erred in preferring the evidence of the police officer operating the mobile radar device over that of the appellant – whether the police officer was mistaken in the location that the speeding offence occurred – whether the appellant was still in the higher speed limit zone at the time the radar reading was taken.
CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where the appellant was given evidence relied upon on the morning of the original trial – where the Magistrate gave the appellant the opportunity to adjourn the trial – where the appellant declined that opportunity – whether the appellant was disadvantaged or prejudiced by this late disclosure.
Justices Act 1886 (Qld) ss 222, 223
Police Service Administration Act 1990 (Qld) s 4.10
Transport Operations (Road Use Management) Act 1995 (Qld) s 124
COUNSEL:
The appellant appeared on her own behalf
C. Cook for the respondentSOLICITORS:
The appellant appeared on her own behalf
Office of the Director of Public Prosecutions for the respondent
CONDUCTED VIA TELEPHONE CONFERENCE
HER HONOUR: Ms Bennie, can you hear me okay?
APPELLANT: Yes, your Honour.
HER HONOUR: Okay, thank you. And we have Mr Cook here too.
MR COOK: Thank you, your Honour.
HER HONOUR: Now, this is my decision in Ms Bennie’s appeal against Senior Constable William John Stothard. Now, Ms Bennie, I intend to dismiss your appeal and I'm also not going to make an order that – varying the magistrate’s decision to simply convict you of speeding in an 80 kilometre zone rather than a 70 kilometre zone. Now, I'm going to read into the record my reasons for the decision. That may take about 10 minutes or so, are you able to stay on the line that length of time?
APPELLANT: Yes, your Honour.
HER HONOUR: Okay. On the 8th of May 2013, the appellant was convicted in the Magistrates Court, Ipswich, of a charge that on the 22nd of July 2012 while driving in the Ipswich Boonah Road at Purga, she exceeded the speed limit of 70 kilometres per hour. The appellant’s vehicle was alleged to have been travelling at 102 kilometres per hour. The appellant appeals against that conviction and represented herself both in the trial and in this appeal. The appellant complained firstly that the magistrate allowed the prosecution to tender into evidence various certificates and instruments of delegation pursuant to section 124 (1) of the Transport Operations (Road Use Management) Act and section 4.10 of the Police Service Administration Act.
Those certificates had not been disclosed to the appellant prior to the day of hearing. Certainly, as was acknowledged by both the prosecuting police officer and the magistrate, those documents should have been disclosed to the appellant prior to the trial. However, the magistrate heard argument on that point and considered the appellant’s objections to their admission. The magistrate gave the appellant the opportunity to have the hearing adjourned to allow her to seek advice about the documents. The appellant declined that opportunity. The appellant has not been able to point to any way in which she was disadvantaged or prejudiced by the late disclosure of the documents and I'm satisfied that they were properly admitted.
However, when I looked closely at the certificates in question at the hearing of this appeal yesterday, it was evident that the certificate which purported to be evidence pursuant to section 124 (1)(pa) of the Transport Operations Road Use Management Act, of the accuracy of the radar speed detection device, or mobile radar, on which the speed of the appellant’s vehicle was recorded, was not in fact evidence of such accuracy at the time of the offence. The certificate stated the device had been tested
for accuracy on the 16th of March 2013 and as the certificate can only be evidence that the device was producing accurate results for the year after the day of testing, it could not therefore be evidence of the device producing accurate results on the 22nd of July 2012, the day of the offence.
As it seemed clear, the date on the certificate was a typographical error, (the certificate was purportedly signed on the 1st of March 2013), I gave the respondent until this morning to produce another certificate. That was able to be done and there is therefore now evidence that as at the date of the offence the mobile radar was producing accurate results.
The appellant’s other grounds of appeal essentially relate to the magistrate’s decision to convict her on the basis of the evidence of Senior Constable Stothard. The appellant argues that that decision was unreasonable in the circumstances and, in particular, that the magistrate should not have preferred the evidence of the police officer who operated the mobile radar over the evidence of the appellant.
The two witnesses at the trial were Senior Constable William Stothard of the Ipswich Traffic Branch and the appellant. The facts are that at approximately 7.45 am the appellant was driving north along Ipswich Boonah Road towards Ipswich and Senior Constable Stothard was in a marked police vehicle travelling south along Ipswich Boonah Road towards Boonah. He noticed the appellant travelling towards him. His evidence was that her vehicle was the only vehicle on the road in front of him. Senior Constable Stothard’s evidence was that he observed the appellant’s vehicle had passed an old service station which is where he knew the speed limit had changed to a lower speed limit from a hundred kilometres per hour.
Senior Constable Stothard activated the mobile radar in his vehicle and targeted it on the appellant’s vehicle. The target speed of the appellant’s vehicle was 102 kilometres per hour and Senior Constable Stothard heard a solid, clear Doppler tone. He locked the speed on the display of the mobile radar and continued to monitor the speed of the vehicle as it drove towards him, and it maintained the speed of 102 kilometres per hour until he was past the vehicle. Senior Constable Stothard conducted a u-turn when he deemed it safe to do so and eventually intercepted the appellant’s vehicle.
Senior Constable Stothard issued a ticket for driving 102 kilometres per hour in an 80 kilometre an hour zone and the appellant was fined the sum of $200 on the ticket. Upon completion of the interception, however, Senior Constable Stothard continued south along the Ipswich Boonah Road and realised that he had mistakenly believed the portion of the road on which he observed the appellant speeding was an 80 kilometre an hour zone, when in actual fact the speed limit was 70 kilometres per hour. Senior Constable Stothard realised he’d made a mistake as to the speed limit but did not correct it because it was in the appellant’s favour. The appellant disputed the ticket in a written submission to the officer in charge of the Ipswich Traffic Branch.
At that stage the mistake regarding the speed limit at the relevant point on the road was realised and the superintendent of Ipswich Traffic Branch later reissued the traffic infringement notice for the speed of 102 kilometres per hour in a speed zone of 70 kilometres per hour. That attracted a fine of $330.
Senior Constable Stothard took photographs of the road at the relevant point and a CD of his conversation with the appellant at the time of the interception of her vehicle and a DVD of a later drive-through of the relevant stretch of road carried out by Senior Constable Stothard were all tendered in evidence in the trial. I have respectively listened to and watched both of those discs and referred to the photographs.
In his evidence, Senior Constable Stothard referred to the photographs and said that he first detected the appellant’s vehicle, and I'm quoting here from page 1-14 of the transcript at about line 27. He said, “The defendant was the north side of the old service station. Now, I say that because I know the speed zone changed there. I have used – I’ve been on that road before and I know there’s been zone change there. The other consideration I had at the time that reminds me of exactly where I was you can’t see in this photo, is there’s a short section of Armco. Now, the Armco was relevant in my mind because in some circumstances the Armco can affect the radar. So I had to make a consideration of the Armco. The Armco was short, there was a solid, clear tone on the Doppler, and there was only one vehicle in front of me so I disregarded the Armco. So that’s how I am certain where I was on the road.”
The police officer explained that Armco was a metal safety barrier to prevent vehicles driving off the road into a culvert. He then went on to say, “And then, as I said earlier, there’s a crest here. I didn’t activate my lights at the time because initially, if the defendant had slowed the vehicle down while the radar was still going, I could see how fast she was going. If she slowed down I wouldn’t have bothered intercepting her. The other reason I hadn’t put my lights on was because I had to crest the hill. If there was too many cars on the other side of the crest and it wasn’t safe to do a u-turn again, I wouldn’t have bothered trying to intercept the defendant. It would’ve been too dangerous. So I crested the hill, which is here, saw that it was safe, put my lights on, did the u-turn, then intercepted her.”
He was asked if the defendant’s vehicle was north of the service station and he replied, “Yes. I could see the defendant’s vehicle was here, I could see the service station to her left as I'm looking at it. So clearly she’d gone past the sign.” He confirmed in evidence the sign he was talking about was a 70 kilometre per hour road sign.
The appellant’s evidence was that she drove the road “all the time” and is very familiar with the changes in the speed limit on the relevant stretch of road. Although she doesn’t dispute that she was driving at 102 kilometres per hour when targeted by the mobile radar, she does dispute that she had entered the 70 kilometre per hour zone at that time.
It was her evidence that she began to have doubts about where her vehicle was at the time its speed was recorded whilst waiting for Senior Constable Stothard to write out the ticket. And later that day she went back to the scene and satisfied herself that she was still in the 100 kilometre per hour zone when the police vehicle passed her.
In cross-examination, the appellant explained, and this is at page 1-31 of the transcript at about line 17 – she said, “I knew I was coming from 100 and I thought that I might’ve already passed the change of zone before but I know I was definitely before the” – the transcript says fuel but that seems to be incorrect – “…before the zone, before the crest of the hill”.
She was asked the question, “Okay, if you’re unsure about this zone – that you know at the time you were unsure about what zone you were in, how can you be so sure, going back, how can you be so sure about where you say the police car passed you?”, answer, “I went back that same day and I remembered how I drove it several times, or maybe three – three times so I could get photos. I remember that the car – the police car, sort of, came upon me and that’s because as it came over the crest of the hill there were a couple of cars in front of it. If it were on the other side I’d have a clear view down the hill and be able to see his car at quite a distance from, you know, behind the other one – cars, I believe. As I was approaching, he was behind me, he was behind those other cars so he came up on me, that was one thing.”
“Then I drove it a couple of times, and I thought, okay, now I know I definitely saw him turn around because that’s what made me worry. Like, at first you sort of think, oh, better slow down, then when he turns around you think, mmm, now I'm a bit worried, okay. I was worried enough to slow down knowing I was coming into town.” Question: “You were worried by the police passing you?”, answer, “Well, if I’d passed him back, you know, a few kilometres back I wouldn’t be worried because I’d know 100 percent sure it was 100”. Question, “Right”, answer, “But so leading up to that change, that 70 sign at the fuel station, I was worried that I’d already passed a 70 zone.”
Question, “Okay”, answer “Sign that I hadn’t seen, but I hadn’t passed the 70 sign. So when I went back and did the re-enactment I could see that at, you know, up to the crest of the hill I could see a car. I could see Siddans Road – someone in Siddans Road turning around. Over the crest of the hill, I couldn’t. So if I was over the crest of the hill, then what my whole memory of it would be, like, he – basically what he was saying, that he got me over the crest of hill is completely inconsistent with what I remember. So it was those two things that gave me confidence.” She was asked, “Look, I put it to you that you were unsure where you were, that you can’t be sure that you were in that 100 zone. That’s what I put to you.” Answer, “I know where I was on the road. At the time I wasn’t aware of the speed zone”.
The narrow issue in dispute therefore was whether the appellant’s vehicle was within the 70 kilometre per hour zone when Senior Constable Stothard took the recording of the speed on the mobile radar.
At the trial the appellant referred to a Google map of the road, which she had marked with the relevant speed zones, and where she believed her vehicle’s speed was recorded. That was not tendered at the trial, however I allowed the appellant to tender it as evidence in this appeal. Pursuant to section 223 of the Justices Act, this appeal is by way of re-hearing on the evidence before the magistrate, and the additional items of documentary evidence tendered in this appeal.
In assessing the testimony of the two witnesses the magistrate heard from, I must bear in mind the advantage the magistrate had in seeing and hearing the witnesses give their evidence, but I must review the evidence, and make my own determination on the issue in dispute.
The appellant argues that in the circumstances her version of the event was more plausible than that of Senior Constable Stothard. She points out that Senior Constable Stothard was mistaken about the speed limit initially, despite driving past three signs indicating that the speed limit was reduced to 70 kilometres per hour, prior to intercepting her vehicle. The appellant points out that Senior Constable Stothard’s evidence is uncorroborated by any other evidence on the issue of where the mobile radar device was used in relation to her vehicle. It was the appellant’s evidence that she observed, presumably through her rear-vision mirror, the police vehicle turn around in Siddans Road. It is clear, particularly from the evidence of the DVD of the police officer’s later drive through, that if that was where the police vehicle turned around in order to follow and intercept the appellant’s vehicle, then if it could be seen by the appellant, the appellant’s vehicle must have been within the 100 kilometre per hour speed zone. This is because there is a crest in the road at about where the 70 kilometre per hour speed zone commences.
The magistrate nevertheless rejected the appellant’s version of the event finding that she had reconstructed what had occurred after the event. The magistrate did not find the appellant to be dishonest, but was convinced that she was mistaken. The appellant complains that her good character was not taken into account by the magistrate. Apart from the appellant’s assertion that she is a person of good character, no other evidence was placed before the magistrate in that regard. Certainly, though, there was no reason for the magistrate to consider the appellant to be anything other than of good character, and her honesty was not in issue. Honest people can, of course, be mistaken.
The appellant also raised the Queensland Police Service traffic manual provisions, which state that speed detection devices should not be utilised within 300 metres of a road sign indicating a decrease in the speed limit. On the evidence it seems most probable that the mobile radar on this occasion was utilised within 300 metres of the 70 kilometre per hour speed sign. Indeed, Senior Constable Stothard made a guess that the appellant’s vehicle was only 50 metres past the 70 kilometre per hour speed sign when he recorded its speed. Nevertheless, as the magistrate found, such guidelines do not have the force of law, and cannot afford the appellant a defence to the charge. The fact that the appellant was well within 300 metres of the sign was, of course, a factor an officer in command should consider with respect to fairness to the motoring public when considering the issue of a traffic offence notice.
There are a number of factors which support a finding that the evidence of Senior Constable Stothard with respect to where the appellant’s vehicle was when its speed was recorded should be accepted over that of the appellant. Firstly, he is an experienced police officer who had been, at the time of the trial, in the traffic branch for six years. Secondly, he was aware that the speed limit reduced in the area of the road he was driving on, and that drew his attention to the appellant’s vehicle. Thirdly, his explanation as to how and where he activated the mobile radar is both detailed and plausible. His reference to the metal Armco guardrail is of particular importance. That guardrail is evident in the DVD of the drive through on the road, and is clearly some distance after the 70 kilometre per hour speed sign facing the appellant. Fourthly, Senior Constable Stothard’s evidence was not that he turned around at Siddans Road, rather, simply, that he turned around as soon as it was safe to do so after he had crested the hill. This may well account for the appellant’s ability to see the police vehicle turn around after she had entered the 70 kilometre per hour speed zone.
It was therefore open to the magistrate to find Senior Constable Stothard’s evidence more reliable than that of the appellant, and his findings should not be interfered with. The magistrate found that it would be unfair to convict the appellant of the more serious offence of travelling at 102 kilometres per hour in a 70 kilometre per hour zone, rather than travelling at that speed in an 80 kilometre per hour zone, which was the allegation in the ticket issued by Senior Constable Stothard on the day of the offence. The magistrate therefore convicted the appellant of the less serious offence.
The respondent in this appeal contends that the magistrate was in error in this regard, and that a conviction for the more serious offence should be substituted. In the circumstances of this case, particularly in view of the fact that the appellant was most likely detected well within the 300 metres of the speed sign, I will not interfere with the magistrate’s decision. The appeal therefore is dismissed, and the decision of the magistrate confirmed. Now, is there anything further that you want to say, Ms Bennie?
APPELLANT: Just that there was a couple of mistakes in the outline from the respondent that you read out, so I don’t know if that matters at all, but probably not.
HER HONOUR: Well, just tell me what they were and I’ll consider whether ‑ ‑ ‑
APPELLANT: The initial – the ticket initially was the $333 and the second ticket was for $466.
HER HONOUR: Oh, I see. Okay.
APPELLANT: And you also just happened to say that I was – at some point you said I was doing a hundred – that I got the ticket for doing 120 in a – an 80 zone, but obviously you meant 102.
HER HONOUR: Yeah ‑ ‑ ‑
APPELLANT: I was just taking notes. Sorry.
HER HONOUR: No. That’s all right. No. I’ll correct that when the transcript comes through.
APPELLANT: Okay.
HER HONOUR: Yeah. Well, as it stands then, the fine that you are facing is the one the magistrate imposed, which I think – was that 200?
APPELLANT: Yeah.
HER HONOUR: Yeah. Okay. All right. Okay. Well, thank you.
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