Brahmbhatt v Tasmania Police
[2024] TASSC 57
•30 October 2024
[2024] TASSC 57
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Brahmbhatt v Tasmania Police [2024] TASSC 57 |
| PARTIES: | BRAHMBHATT, Parth Yogeshkumar |
| v | |
| TASMANIA POLICE | |
| FILE NO: | 2369/2023 |
| DELIVERED ON: | 30 October 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 23 October 2024 |
| JUDGMENT OF: | Marshall AJ |
| CATCHWORDS: |
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Multiple grounds rely on
irrelevant legislation – Appellant received fair trial – Magistrate finding reasonably open on evidence.
Aust Dig Magistrates [1349]
Cases:
Hutchison v Horan [2021] TASSC 36
Shi v Wilkie [2021] TASFC 1
Legislation:
Commonwealth Constitution s 109, s 105, Chapter 3
Currency Act 1965 (Cth)
Human Rights and Equal Opportunity Act 1986
Imperial Application Act 1980 (Vic)
Monetary Penalties Enforcement Act 2005 (Tas) s14A(1)
National Measurement Act 1960 (Cth)
Road Rules 2019 (Tas) r 20, r 21(1)
REPRESENTATION:
Counsel:
Applicant: In person Respondent: W Wu
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2024] TASSC 57 |
| Number of paragraphs: | 43 |
Serial No 57/2024 File No 2369/2023
PARTH YOGESHKUMAR BRAHMBHATT v TASMANIA POLICE
REASONS FOR JUDGMENT
(AS REVISED FROM THE TRANSCRIPT)
MARSHALL AJ 30 October 2024
1 On 23 October 2024, the Court heard the application referred to in these reasons, and at the conclusion of the hearing, after a short break, the Court re-convened and announced its order that the application to review the decision of the magistrate is dismissed. In addition, the Court gave some ex- tempore reasons for judgment and indicated at the time that they would be revised after reading the transcript. These are those reasons.
2 The applicant, Mr Brahmbhatt, has applied to review the order of a magistrate in a proceeding in which the applicant was found guilty of an offence contrary to r 20 and r 21(1) of the Road Rules 2019 (Tasmania).
3 The Road Rules 2019, r 20, provides that:
"A driver must not drive at a speed over the speed limit applying to the driver for the
length of road where the driver was driving.
Penalty: Fine not exceeding 20 penalty units."
4 Regulation 21(1) states that:
"The speed limit applying to a driver for a length of road to which a speed limit applies
is the number of kilometres per hour indicated by the number on the sign."
5 His Honour, the magistrate, heard the charge against the applicant on 16 August 2023. He found the applicant guilty as charged and recorded a conviction against him and sentenced him to a fine of $181, as well as three demerit points on his driver's licence. Court costs of $275.90 were also ordered against the applicant.
6 Particulars of the charge, as amended, were that on 28 August 2022:
"being the driver of a vehicle … on a length of road to which a speed limit of 50 km/h … applied, as indicated by a speed limit sign, namely Arthur Street at Perth in Tasmania and you drove at a speed over the limit indicated by that sign, namely 72 km/h…".
7 The charge against the applicant was heard on 16 August 2023. The applicant had earlier entered a not guilty plea, which was maintained at the hearing.
8 At about 3.30pm on Sunday, 28 August 2022 the applicant was driving a motor vehicle in Arthur Street, Perth. The speed limit for the portion of the road that the applicant was driving on was 50 km/h, as signed. The applicant was recorded by a police speed detection device contained in a police vehicle, as travelling at 72 km/h. The speed detection device was in the vehicle in which Constable Summers was then operating. When Constable Summers observed the applicant's vehicle and believed it to be travelling over the speed limit, he had already activated the speed detection device. At the time, there was no vehicle between the applicant's vehicle and Constable Summers' vehicle. Shortly afterwards, Constable Summers intercepted the applicant's vehicle.
2 No 57/2024
9 Constable Summers gave evidence that the applicant admitted to him that he was travelling at 72 km/h, but the applicant thought that the speed limit was 60 km/h per hour, relying on the navigation system in his vehicle.
10 The police also called evidence from Mr Benjamin Trott, a testing officer with Enex Traffic Systems. He tests a range of devices, including the device used by Constable Summers. He tests speed measuring devices on behalf of Tasmania Police. Enex is accredited by the National Association of Testing Authorities.
11 The applicant denied that he admitted to Constable Summers that he was speeding. He said that he was driving according to his navigation system. He claimed that he was driving under the 50 km/h speed limit. Under cross-examination he claimed that he did not know what the speed limit was when he was stopped by Constable Summers. He did not recall seeing a 50 km/h speed sign at the time.
12 In his decision, the magistrate was satisfied that the device which detected the applicant's vehicle had been certified within the previous 12 months, according to regulations that required its certification if it met appropriate standards. He was, therefore, satisfied that the device was an accurate device for the purpose of measuring the speed of vehicles.
13 The magistrate rejected the evidence of the applicant, that he was travelling under 50 km/h. He described the evidence of the applicant as "not candid" but "confused and artfully given". However, the magistrate said that the crucial evidence was the detection of the applicant's vehicle by the detecting device at 72 km/h in a 50 km/h zone.
14 The question for the Court to determine on the hearing of an order to review is whether, on the evidence, the magistrate might, as a reasonable person, have come to the conclusion that he did. See Shi v Wilkie [2021] TASFC 1 at [21], and Hutchison v Horan [2021] TASSC 36 at [5].
15 There were originally ten grounds of review relied upon by the applicant. Although the applicant later amended his grounds for review, many of his original grounds for review, or concepts based on them, were agitated by him in his oral submissions to the Court. I now deal with the original grounds and then will come to deal with the grounds as amended. For the reasons set out below, none of them have any merit.
16 Ground one is irrelevant to the decision of the magistrate. It asserts that Constable Summers was unable to issue an infringement notice without requiring the person the subject of the infringement, to give their name, address and date of birth to him. Section 14A(1) of the Monetary Penalties Enforcement Act 2005 (Tas) says that a person in the constable's position "may" require a person to provide details of name, address and date of birth, but the section is expressed in a way that does not compel a person in Constable Summer's position to do so. In any event, it is irrelevant as to whether or not the applicant was speeding, doing 72 km/h per hour in a 50 km/h zone in breach of the road rules.
17 Ground two raises the National Measurement Act 1960 (Cth). That legislation has absolutely nothing to do with this proceeding. It is a Commonwealth Act, which bears no relevance to legislation or regulations in Tasmania regarding the regulation of roadways by limiting excessive speed.
18 Ground three makes an argument regarding the Currency Act 1965 (Cth). That legislation has no relevance to this proceeding, and it is not supported by any cogent written or oral submissions made by the applicant to make it relevant.
19 Ground four raises s 109 of the Commonwealth Constitution without identifying the relevant alleged inconsistency between any particular Tasmanian law and Commonwealth legislation. It is a ground without merit.
3 No 57/2024
20 Ground five raises s 105 of the Commonwealth Constitution, which prohibits a State from being involved in producing legal tender. The relevance of this ground to anything to do with what occurred before the magistrate is entirely illusionary.
21 Ground six alleges the applicant was not given a hearing in accordance with Chapter 3 of the Constitution. Again, that has nothing to do with the charge against the applicant. Chapter 3 of the Commonwealth Constitution deals with federal judicial power. The magistrate was not exercising federal judicial power. No federal court had jurisdiction to deal with the matter which was before the magistrate.
22 Ground seven queried the accuracy of the speed detection device in Constable Summers' car. The magistrate was entitled to accept the evidence of Mr Trott that the device was accurate. Nothing put to Mr Trott by the applicant showed any doubt regarding the accuracy of the device.
23 Ground eight referred to the Imperial Application Act 1980, which is an Act of the Victorian Parliament and has absolutely nothing to do with this proceeding. It is a ground which is completely devoid of merit.
24 Ground nine refers to the International Covenant on Civil and Political Rights, which the applicant claims to have been brought into effect by the Human Rights and Equal Opportunity Act 1986 (Cth). That Covenant and that federal legislation each have nothing to do with State of Tasmania traffic rules. That ground is unarguable.
25 Ground ten of the grounds of review alleges that the magistrate failed to inform the applicant which licence held by him would receive the demerits points, as he held an international licence and a local licence. The lack of specification had no impact on the decision of the magistrate to find the applicant guilty as charged. The licence affected is any licence that the applicant uses to enable him to drive a motor vehicle in Tasmania.
26 Grounds 11 to 13 allege that the applicant was denied a fair trial. Having read the transcript of the hearing of the matter before the magistrate, I see no basis for this submission. The applicant was not restricted in his cross-examination of police witnesses and gave evidence himself. He was only restrained in his submissions from going into matters that were totally irrelevant, such as s 109 of the Constitution.
27 In his amended notice of review, dated 27 March 2024, the applicant referred to 13 further grounds. Ground one was that the magistrate erred by not taking into consideration that the applicant was not informed about a supplementary affidavit made by the police. This is not a proper ground of review. All the evidence relied on by Constable Summers was available to the applicant. The applicant cross-examined the police officer on that evidence. If he wanted to seek further time to consider a supplementary affidavit, it was open to him to seek a request. The magistrate did not err by taking into consideration that the affidavit was only supplied on the day of hearing.
28 The second amended notice of review ground, that the magistrate erred by not taking appropriate steps to avoid abuse of process caused by the police prosecution on the day of the hearing, in particular in relation to non-disclosure of information. That ground will be dealt with further in these reasons immediately at the conclusion of dealing with ground 13, at par [40].
29 Amended ground three was that the magistrate erred in law by informing the applicant during cross-examination of the first witness, that that was his opportunity to ask questions. The applicant noted that it was open to him to seek to recall witnesses. This is beside the point. At no stage did the applicant apply for such a recall.
4 No 57/2024
30 Amended ground four is that the magistrate erred by relieving the second witness before the matter was finalised when the first witness was not relieved until the Court was adjourned. This ground is misplaced. Whether or not the magistrate formally relieved a witness has nothing to do with his ultimate decision.
31 In amended ground five, the magistrate is alleged to have erred by not asking the police officer about his date of birth, whereas the applicant was asked to give his date of birth whilst giving evidence. Again, this ground defies rational analysis and has nothing to do with whether the decision of the magistrate was unreasonable.
32 Amended ground six is that the magistrate erred by precluding, or not taking into consideration, an important argument raised in submission by the applicant. There is no basis for this ground. The magistrate heard what the applicant said and made his ruling and found the charge proved beyond reasonable doubt on overwhelming evidence of a properly functioning speed detection device, which detected the applicant to be speeding.
33 Amended ground seven is that the magistrate erred by not taking into consideration that the affidavit made by the police officer was not accurate in facts. Again, this is not a proper ground of review. It does not disclose an error of law.
34 Amended ground eight alleges that the magistrate erred by accepting the evidence of the police officer, Constable Summers, while it was open to the magistrate to find that the police officer was not accurate in his evidence. The magistrate had the evidence of Mr Trott about the accuracy of the relevant device and decided the matter accordingly.
35 Amended ground nine is that the magistrate erred by being satisfied beyond reasonable doubt on the police officer's evidence. That police officer's evidence is a matter of fact that was open to the magistrate to accept, and he did.
36 Amended ground ten is that the magistrate erred by being satisfied beyond reasonable doubt that the test performed by the police officer to confirm the accuracy of the device was a valid test. Again, this ground is misplaced. The magistrate had evidence before him of the accuracy of the device and was able to be satisfied beyond reasonable doubt that it was accurate.
37 Amended ground 11 is that the magistrate erred by not giving the applicant a fair trial. This ground is repetitive of matters raised in the original grounds of review. For the reasons set out there, this ground is dismissed.
38 Amended ground 12 is that the magistrate should have refused to allow the criminal prosecution to proceed because it would constitute an abuse of process. There is no basis for it whatsoever. It was not developed orally at the hearing in any coherent way.
39 The final amended ground, ground 13, is that the magistrate erred by not taking into consideration that there has been a miscarriage of justice and conviction without a fair trial. This ground repeats new ground 11 and, essentially, all the matters raised in the original grounds of review.
40 The applicant raised an issue about the lack of disclosure by the police prior to the hearing. The appeal book, at pages 12 and following, shows that the applicant received a summons, an affidavit of Constable Summers and certification regarding the accuracy of the speed device relevant to the proceeding. There is no merit in the submission that disclosure was inadequate. The applicant made no complaint before the magistrate about any lack of disclosure by the police. He made no application for an adjournment to cross-examine Mr Trott on a future occasion after having more time to consider his expert evidence.
5 No 57/2024
41 The applicant, at the conclusion of his submissions, alleged that the magistrate was actually biased. That submission was not developed at any length and there is no foundation for it whatsoever.
42 On the evidence before the magistrate, he, as a reasonable person, was entitled to come to the conclusion that he did regarding the charge being found proven. The hearing was conducted fairly. There was evidence that the detection device was not faulty or inaccurate. The applicant was recorded by it as travelling at 72 km/h in a 50 km/h zone. None of the original or amended grounds of review contained any basis for reviewing the decision of the magistrate.
43 The application to review the decision of the magistrate is dismissed.
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