Callil v Commissioner of Police

[2020] QCA 63

[2020] QCA 63

COURT OF APPEAL

MORRISON JA
McMURDO JA
BODDICE J

CA No 224 of 2019
DC No 2677 of 2018

CALLIL, Peter Ronald  Applicant

v

COMMISSIONER OF POLICE  Respondent

BRISBANE

MONDAY, 6 APRIL 2020

JUDGMENT

McMURDO JA:  On 7 November 2018, the applicant was driving home from work when he was stopped by a police motorcyclist.  The policeman said to him that his radar device had recorded the applicant at a speed of 73 kilometres per hour.  The speed limit at this place was 60 kilometres per hour.  The applicant said to the police officer that he thought he was travelling “a bit over 60, maybe …”, but not at that speed.  The police officer said that he would exercise his discretion to reduce the fine, so that it would be for an offence of driving no more than 12 kilometres per hour above the limit.  But the applicant disputed that he should be fined at all, and, some months later, he was tried in the Magistrates Court where he was convicted and fined $500.
He appealed his conviction to the District Court, under s 222 of the Justices Act 1886 (Qld). The case was heard by Judge Ryrie, who delivered a detailed ex tempore judgment dismissing his appeal. Perhaps because the applicant was without legal representation, he did not obtain the printed version of her Honour’s reasons for some months later, which explains his delay in applying for this Court for leave to appeal against that judgment. He filed an application for an extension of time and for leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld).

His proposed appeal raises only questions of fact. That does not mean that he cannot be granted leave to appeal under s 118, for such an appeal need not involve a question of law, as this Court held in McDonald v Queensland Police Service [2018] 2 Qd R 612 at 626 [39]. But as was also confirmed in that case, a factual finding may only be reviewed on an appeal to this Court under s 118 if there is no evidence to support it, or it is shown to be unreasonable, in the sense described in Hocking v Bell (1945) 71 CLR 430 in relation to findings of fact by a jury.

At the applicant’s trial in the Magistrates Court, the prosecution called evidence from the policeman and tendered a disk showing footage taken by the policeman’s body-camera, two still images produced from that footage, two Google Street View images of the relevant place and three documents in the form of certificates as to the accuracy of the radar device.  The evidence of the policeman, if accepted, proved the offence.

The applicant gave evidence, disputing that he was travelling at any speed approximating 73 kilometres per hour.  He also testified that after he was stopped by the policeman, he suggested, and the policeman agreed, that there be some test of the speedometer of the applicant’s car, that this test was performed and that it confirmed the accuracy of the speedometer, to which the applicant claimed to have seen at the critical point.  The policeman denied that any such test occurred.

The applicant also testified that there was another car, in front of the policeman, when he was said to have been recording the applicant’s speed.  The policeman denied that he had been recording the speed of another vehicle.  This point was not a promising one for the applicant, at least once he accepted, in his evidence, that the vehicle travelling in front of the policeman would have been travelling at a speed of about 48 kilometres per hour.

The applicant maintained, and appears to continue to maintain, an argument that the evidence against him was fabricated.  That was rejected by her Honour who, after a thorough review of the evidence in this short trial, reached her own conclusion that the prosecution had proved its case.

Unlike that for the District Court, the task for this Court, if leave to appeal were granted, would not be to decide whether, in its view, the applicant was guilty.  It would be to decide whether the decision of the District Court should be reviewed on the basis that there was no evidence to support her Honour’s conclusion, or that the conclusion is shown to be unreasonable.  There is no arguable basis for this Court to reach such a decision.

I would extend time for applying for leave to appeal until 30 August 2019, which was the day on which the application for leave was filed.  I would further order that the application for leave to appeal be refused.

MORRISON JA:  I agree.

BODDICE J:  I agree.

MORRISON JA:  The orders of the Court are as follows:

1. Extend time for applying for leave to appeal until 30 August 2019.

2. The application for leave to appeal be refused.