Codianni v Queensland Police Service
[2014] QDC 29
•Ex tempore 7 February 2014
DISTRICT COURT OF QUEENSLAND
CITATION: | Codianni v Queensland Police Service [2014] QDC 29 |
PARTIES: | JOSEPH CODIANNI (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 290/2013 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court in Maryborough |
DELIVERED ON: | Ex tempore 7 February 2014 |
DELIVERED AT: | Southport |
HEARING DATE: | 7 February 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. Appellant’s time extended for the filing of the notice of appeal 2. Appeal dismissed |
CATCHWORDS: | APPEAL AND NEW TRIAL - Speed Camera conviction - where the Appellant was alleged to be travelling in his car at 92 kilometres per hour in a 60 kilometre per hour zone - where the Appellant applied for an adjournment of his matter before the learned Magistrate - where the learned Magistrate refused adjournment - whether the learned Magistrate made any error in exercising his discretion to refuse the adjournment - whether learned Magistrate made any error on the hearing of the charge against the Appellant Legislation Australian Constitution Justices Act 1886 (Qld) s 223(1) Transport Operations (Road Use Management) Act 1995 (Qld) s 124(4) Cases Allesch v Maunz (2000) 203 CLR 172 Forge v Australian Securities Investment Commission (2006) 228 CLR 45 House v R (1936) 55 CLR 499 |
COUNSEL: | Mr J Codianni for the Appellant (self-represented) No appearances by counsel on behalf of the Respondent |
SOLICITORS: | Mr J Codianni for the Appellant (self-represented) Ms NL Lima of the Office of the Director of Public Prosecutions Queensland for the Respondent |
HIS HONOUR: Joseph Codianni was convicted on the 25th of July 2013 before the learned Magistrate at Maryborough of having, on the 23rd of December 2012, disobeyed the speed limit on Mayne Street, Tiaro. The learned Magistrate proceeded to hear the matter before conviction by way of summary hearing. When he convicted Mr Codianni he recorded a conviction and fined him $450 and ordered him to pay $81.10 costs of Court, in default 11 days imprisonment and allow 28 days to pay. Mr Codianni has told me today on the hearing of his appeal that he has done community service in response to the Magistrate’s order. Mr Codianni’s notice of appeal says that his grounds of appeal are that his elderly mother and 21 year old son were both ill and he did not have enough time to professionally prepare for the case to be heard.
Further, he applied for an adjournment in writing and then in person, but was refused by Magistrate Smith. Thirdly, he did not get time to call the expert witness to back up his case and, fourthly, the Magistrate insisted that they proceed with the case, even though Mr Codianni was not ready to defend the matter. Regarding those grounds of appeal, the issue of adjourning the case came before the learned Magistrate during the hearing. At page 1-22 of the transcript it was raised that Mr Codianni’s barrister had not given him the correct advice with respect to defending the matter, then the learned Magistrate deals with the appearances that Mr Codianni had before the Court before it was set down for hearing. None of this is denied by Mr Codianni, even on the hearing before me today.
Mr Codianni’s concern, though, is that he was not given an adjournment, however the learned Magistrate concluded that Mr Codianni had had ample time to prepare his case and be in a position to defend the case. Today, on the hearing of the appeal, Mr Codianni again says that he was ill-prepared and was unable to conduct his defence. He referred again to his mother and to his son and their conditions and that even the cost of obtaining legal representation was prohibitive. In Allesch v Maunz (2000) 203 CLR 172 at page 180 the majority of the High Court said:
For present purposes, the critical difference between an appeal by way of re-hearing and a hearing de novo is that in the former case the powers of the appellate court are exercisable only where the appellate can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas in the latter case those powers may be exercised, regardless of error.
The appeal before me is an appeal by way of re-hearing, section 223, subsection (1) of the Justices Act 1886.[1] In House v R (1936) 55 CLR 499 at pages 504 and 505 the High Court said that where a discretion is involved:
It is not enough that the judges composing the appellate court consider that if they’d been in the position of the primary judge they would’ve taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allow extraneous or irrelevant matters to guide or effect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
[1] Justices Act 1886 (Qld).
Mr Codianni has today reiterated what he had said previously to the learned Magistrate. In my opinion, what Mr Codianni has said to me this morning does not persuade me that the learned Magistrate made any error in exercising his discretion to refuse the adjournment on the hearing of this charge on the 25th of July 2013. As the learned Magistrate said, and it is the evidence before me, Mr Codianni had a number of appearances before the Court and was aware of the proceedings and had ample time to prepare himself. It is my opinion that what Mr Codianni has said to me today from the bar table is that his personal circumstances did not permit him to defend the matter.
Unfortunately, sometimes when you want to defend a matter your personal circumstances do affect how you can do that, however that does not, in my opinion, justify setting aside the learned Magistrates decision. I do not accept these personal circumstances that Mr Codianni has referred to are sufficient to allow this appeal on the grounds that Mr Codianni has set out in his notice of appeal. However, his notice of appeal also refers to documents and there is an annexure A to his notice of appeal. Basically this refers to his submission that Mr Codianni objects to the Magistrates decision, as it has not been made in a Court that conforms to chapter 3 of the Commonwealth of Australia Constitution Act 1900 (UK)[2] as was upheld by the High Court ruling Forge v ASIC.[3]
[2] Australian Constitution.
[3] Forge v Australian Securities Investment Commission (2006) 228 CLR 45.
Having read this document I do not accept that it is a basis for setting aside the learned Magistrate’s decision. I should also mention that Mr Codianni’s notice of appeal is three days out of time, however there is no objection by the Respondent to my hearing the appeal. Clearly, it is a short period of delay – three days – and, therefore, it has been properly conceded that the Respondent would not suffer any unfairness if the application for extension of time is granted. To the extent I have to, I extend the time for the filing of the notice of appeal. On the hearing of Mr Codianni’s appeal this morning he again seemed to want to re-litigate what had happened before the learned Magistrate, that is, his principal argument seemed to be that the police officer who was operating the radar device could not have targeted his vehicle and this is borne out because there was another vehicle, a blue vehicle, that was in front of Mr Codianni’s vehicle.
The speed alleged that Mr Codianni’s vehicle was travelling at was 92 kilometres per hour in a 60 kilometre per hour zone. Mr Codianni, as I understood him, said that if this blue vehicle was accepted, as it was by the police officer, to have pulled up in front of Mr Codianni’s vehicle by 15 to 20 metres in front, then the police officer may have, of course, targeted the blue vehicle and not have targeted Mr Codianni’s vehicle. This argument, though, was agitated before the learned Magistrate, even though, I should point out, that Mr Codianni had not, for the purposes of the hearing before the learned Magistrate, given notice of challenge pursuant to section 124, subsection (4) of the Transport Operations (Road Use Management) Act 1995,[4] that is, that subsection provides:
A defendant who intends to challenge -
(a) the accuracy of a speed detection device or vehicle speedometer accuracy indicator for which a certificate is given under subsection (1); or
(b) the time at, or way in, which the relevant device was used;at the hearing and determination of a charge against the defendant under this Act must give written notice of the challenge to the prosecution.
[4] Transport Operations (Road Use Management) Act 1995 (Qld).
As I said, even though no notice was given as required by the Act,[5] Mr Codianni did cross-examine the police officer, Senior Constable Coleman. Senior Constable Coleman, at page 1-34, said that he recalls the vehicle being ahead of him – of Mr Codianni. He said it wasn’t directly in front of him:
It was passing my position prior to you even coming into view. It was, I estimate, travelling at the speed limit and I observed your vehicle going rapidly on the rear of that vehicle, hence when I pulled you over it was pulled over in front of you as well and I recall a conversation where I’ve said that to you.
[5] Ibid.
Regarding the argument of how the blue vehicle could be in front only 15 to 20 metres of Mr Codianni’s vehicle, if Senior Constable Coleman’s evidence was correct, the learned Magistrate dealt with that and said in his decision at page 3, line 10:
I do accept that Senior Constable Coleman directed the laser to the numberplate area of the silver Mitsubishi Pajero wagon bearing 816 KVV and that a speed of 92 kilometres per hour was shown on the recorded laser device. I accept that a second reading was made in an endeavour to find out if the vehicle’s slowing and, again, the digital display showed 92 kilometres per hour at a distance of 139.1 metres from the point at which Senior Constable Coleman was located. I accept that the vehicle driven by Mr Codianni was stopped and that the blue vehicle that had passed earlier also stopped, at the vehicle of Mr Codianni had caught up to that vehicle after passing the location of the intersection of Hopper Street and Mayne Street, Tiaro on that day.
Therefore, in my opinion, the learned Magistrate was alive to the argument that Mr Codianni wanted to raise regarding the blue vehicle and the inference that if it was travelling in front of Mr Codianni’s vehicle, then there could not have been any chance that Mr Codianni was travelling at the speed it was alleged he was travelling at or that he was targeted by Senior Constable Coleman at the distances that he claimed.
The learned Magistrate rejected this argument and accepted, obviously, in my opinion, that if Mr Codianni was travelling at an excessive speed he could, by the time he was pulled up, have caught up to the blue vehicle that was travelling at the speed limit. The learned Magistrate also, when dealing with the witnesses, said he had no hesitation whatsoever when he compared the testimony of the properly operated laser speed detection device against the testimony given by Mr Codianni, which he found was totally unreliable. I have looked at the evidence and it seems to me that what Mr Codianni wants to raise in argument on this appeal are matters that have already been canvassed before the learned Magistrate, that when considering the evidence of Senior Constable Coleman it was evidence available of the speed that Mr Codianni’s vehicle was travelling at, that it was in breach of the speed limit and that he was able to target the vehicle and targeted Mr Codianni’s vehicle twice and recorded the speed of 92 kilometres per hour in the 60 kilometre per hour zone.
The presence of the blue vehicle, I consider, having considered all the evidence, including Mr Codianni’s evidence, has no relevance to the accuracy of Senior Constable Coleman’s evidence. His evidence is also supported by the two certificates that were not challenged on the hearing of the appeal. If further evidence were to be given in addition to what has already been put before the learned Magistrate, I must be satisfied there are special grounds for giving leave for the new evidence. What must be said about what Mr Codianni has said to me this morning is that much of what he has said, if not all of it, has been agitated before the learned Magistrate.
To the extent that it could be new evidence, and in this respect I refer to his request for the police manual, there’s no evidence before me that it would alter anything in this case as presented before the learned Magistrate. What Mr Codianni wants to raise is not on oath. He has said this from the bar table. He, when given the opportunity to deal with the matter before the learned Magistrate, had not given notice challenging as required by the Act and, therefore, I am not satisfied that anything he has said here today amounts to special grounds for giving him leave to adduce further evidence if it was even in a form that could be received by me. Therefore, I have come to the view that Mr Codianni’s appeal should be dismissed and I dismiss the appeal.
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