Dreger v Tepper
[2014] VSC 6
•29 January 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICAL REVIEW AND APPEALS LIST
S CI 2012 03980
Between:
| HARALD EDMUND DREGER | Plaintiff |
| and | |
| MARK JASON TEPPER | First Defendant |
| and | |
| COUNTY COURT OF VICTORIA | Second Defendant |
---
JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 & 22 August 2013 | |
DATE OF JUDGMENT: | 29 January 2014 | |
CASE MAY BE CITED AS: | Dreger v Tepper & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 006 | |
---
JUDICAL REVIEW – Finding by County Court judge, on appeal from Magistrates’ Court, that plaintiff guilty of driving car in excess of speed limit – Application for certiorari in respect of judge’s decision – Grounds for relief claiming failure of police officer to comply with Australian Standards for operating the prescribed speed detector, absence of evidence, apprehended bias and a denial of procedural fairness – Grounds not made out – Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | Ms F Dalziel | Office of Public Prosecutions |
| For the Second Defendant | Submitting appearance | Victorian Government Solicitor |
HIS HONOUR:
Introduction
On 8 November 2010, Senior Constable Mark Jason Tepper issued Harald Edmund Dreger with an infringement notice for driving his car in excess of the applicable speed limit on Romsey Road between Woodend and Romsey. The prescribed speed detector in S/C Tepper’s patrol car indicated that Mr Dreger’s car was travelling at 119 kilometres per hour (“kph”). The applicable speed limit was 100 kph. When intercepted, Mr Dreger told S/C Tepper he did not think he was speeding.
On 12 September 2011, Mr Dreger, representing himself, disputed the charge in the Magistrates’ Court at Kyneton. The magistrate found the charge proved.
Mr Dreger appealed to the County Court. The matter was heard by a judge sitting at Bendigo on 16 May 2012. Mr Dreger represented himself, again. S/C Tepper and Mr Dreger both gave sworn evidence. The judge found the charge proved and gave reasons for his decision.
By way of originating motion in this Court, Mr Dreger sought certiorari of the judge’s decision to find the charge proved. Again, Mr Dreger represented himself. Ms Dalziel appeared for the first defendant. Solicitors for the second defendant filed a submitting appearance.[1]
[1]In accordance with R v Australian Broadcasting Tribunal; ex parte Hardiman & Ors (1980) 144 CLR 13 at 35-36.
Mr Dreger’s grounds for relief comprise claims of failure by S/C Tepper to comply with Australian Standards for operating the prescribed speed detector, an absence of evidence, apprehended bias and a denial of procedural fairness.
In my opinion, the grounds are not made out and the application must be refused.
Proceedings and evidence before the judge and his findings
Introduction
Before turning to the submissions of the parties and the reasons for my decision, I shall summarize the proceedings and the evidence before the County Court and set out the judge’s reasons for his decision.
I had the benefit not only of reading a transcript of the proceedings before the County Court,[2] but also of listening to and viewing a recording of those proceedings.[3]
[2]The transcript was Exhibit JMcL-2 to the affidavit (sworn 10 January 2013) of Justine McLeod, Senior Solicitor with the Office of Public Prosecutions.
[3]The recording became Exhibit A on the application.
After hearing a brief summary of what occurred in the Magistrates’ Court, the judge set aside the orders of that court and took Mr Dreger’s plea of not guilty. Counsel for the prosecution then called S/C Tepper.[4]
S/C Tepper – Evidence-in-chief[5]
[4]At the time of the hearing in the County Court, S/C Tepper had become a Leading Senior Constable. For convenience, I shall continue to refer to him as S/C Tepper.
[5]Exhibit JMcL-2 at T 1-7.
In examination-in-chief, S/C Tepper said that, on 8 November 2010, he was patrolling Romsey Road between Woodend and Romsey. At about 3:21 p.m., when driving west on that road, he saw Mr Dreger’s Toyota Corolla travelling towards him. He estimated the car was exceeding the speed limit, which at that point of the highway was 100 kph. He could hear a clear tone from the Doppler audio on the speed detector, which, in his opinion, indicated no interference. The speed shown by the device was 119 kph. The patrol car’s speed was 97 kph. He locked the car on the remote control and locked in the speed on the moving mode radar, so as to prevent it from detecting any other speeds.
The speed detector was a Kustom Silver Eagle (No. MR205). S/C Tepper produced a certificate stating that on 1 June 2010 the device was tested, operating and sealed in accordance with the Road Safety (General) Regulations 2009 (Vic) (“the regulations”). He was authorized to operate such a device. He said it was operated in accordance with the regulations. The antenna had been set facing towards oncoming vehicles. Mr Dreger’s car was in his field of vision at the time of detection. Further, the device was tested earlier that day and indicated the required reading (i.e. “888”).
After detecting the speed, S/C Tepper did a u-turn and intercepted Mr Dreger’s car. When told by S/C Tepper he had been detected driving at 119 kph, Mr Dreger said he did not think he was speeding. When shown the reading on the speed detector, Mr Dreger asked whether it had a date and time on it. S/C Tepper advised it did not. He explained to Mr Dreger, however, that the device is cleared each time he resumes patrol.
S/C Tepper – Cross-examination[6]
[6]Exhibit JMcL-2 at T 7-20.
In cross-examination, S/C Tepper said he had spent two days of training in the operation of speed detectors in 1996, which was when he became authorized to use such devices. He had not been retrained or further authorized since. He could not recall whether the materials used in the course included the Australian Standards.
At the point of detection, Mr Dreger’s car was negotiating a fairly substantial sweeping right-hand bend with an Armco railing and a sign to the left. S/C Tepper agreed that Armco railing and signs can interfere with the operation of a speed detector. He said that the Doppler audio tone would make a “buzzing staticy tone” if there were any such interference, but there was no such sound on this occasion.
S/C Tepper had heard of the “differential effect”, but could not recall what it meant. Mr Dreger then read from the Australian Standard for Radar Speed Detection (AS 2898.1-2003) at paragraph 1.5.9, which defines the differential effect as “[t]he effect which can occur with a mobile radar when the patrol vehicle is negotiating certain adverse road conditions such as a bend or a cutting, causing false patrol speed to be measured and thereby resulting in measured speed of the target vehicle being overstated”.
S/C Tepper agreed that the bend in the road could affect the accuracy of the reading, but went on to say that he believed that would understate the speed. He called this the “cosine angle”. He disagreed with Mr Dreger’s suggestion that, because of the curve in the road, his patrol car could not have been pointing directly at Mr Dreger’s car.
S/C Tepper said he had heard of the term “shadowing”, which he thought referred to “receiving a signal back from a vehicle that’s too close [instead of] the vehicle that’s coming towards you”. There was no vehicle travelling in front of him at the relevant time.
In addition to checking the device reading for “888” at the start of his shift, he conducted a tuning fork test. He did not recall testing the device on any other occasion that day. He also checked the alignment of the antenna.
S/C Tepper – Re-examination[7]
[7]Exhibit JMcL-2 at T 20-21.
In re-examination, S/C Tepper said he was “one hundred per cent satisfied that there was no interference caused to the radar device”.
Counsel closed the prosecution case. Mr Dreger indicated he wished to give evidence.
Mr Dreger – Examination-in-chief[8]
[8]Exhibit JMcL-2 at T 21-24.
In examination-in-chief, Mr Dreger said he had driven on the road regularly when working as an electrical inspector, and knows it well. He now works as an electrical teacher.
He was travelling at 100 kph immediately before being intercepted. He last checked his speed as he came into the sweeping bend. He did so because he knows the bend and considered that, in his old car, he could not take it safely at any higher speed.
He had two speed measuring devices in his car. One was a GPS device set at 100 kph. The other was a speed measuring alarm, which he had set at 110 kph when on the freeway but which he had reset to 100 kph as soon as he came off the freeway and onto the Woodend Road. The evidence continued:[9]
[9]Exhibit JMcL-2 at T 23-24.
Mr Dreger: So both of those devices I remember were set at 100. Neither of them operated. It’s the reason I sit here today… I sit here today because I’m sure in my heart that I was not speeding, otherwise I wouldn’t be here today. I also remember looking at my speedo as I entered the bend.
His Honour: I’ve heard that before.
Mr Dreger: I’m sure you have. But all I can do is tell you from the box what I know to be true … I’m sure you’ve heard many things.
His Honour: Yes, thanks, Mr Dreger.
Mr Dreger – Cross-examination[10]
[10]Exhibit JMcL-2 at T 24-27.
In cross-examination, Mr Dreger said that he “could probably go a lot harder” than 100 kph around the bend in his car, “but not safely”.
He said he has never had his GPS device or his speed alarm checked for accuracy.
He agreed that, when he spoke to S/C Tepper at the scene, he did not tell him that he had speed devices in his own car. When asked why, he said that, at the age of 60, he has “come to the realization and understanding that there’s probably no point in arguing with a police officer”. Rather, “I’ll either take what he says on face value and pay the fine if I believed I committed an offence or be quiet and argue the issue in court, and that’s the approach I have taken”.
He said he issued a notice to produce information on the speed testing equipment but the information had not been produced. However, he did not press the matter any further before the judge (nor did he press that matter in this Court).
Further evidence of S/C Tepper after leave granted to reopen prosecution case[11]
[11]Exhibit JMcL-2 at T 27-33.
Following Mr Dreger’s evidence, the judge indicated he did not really explore with S/C Tepper the effect an Armco railing may have on the reading. He asked Mr Dreger whether he wanted to explore that issue. Mr Dreger said, “I do.” The prosecutor then applied to reopen his case for that purpose, which application the judge granted.
When answering questions from the judge, S/C Tepper reiterated that, if there were interference from an object such as an Armco railing, the Doppler audio tone “will just be a staticy tone which will indicate to me that the device is picking up interference”. He said there was nothing on the roadway, including the barrier and the sign at the intersection, that could cause the device to over read the speed. There was nothing else, such as a vehicle travelling at a higher speed behind Mr Dreger’s car, that might lead the device to over read the speed. He also said that the device is calibrated to an accuracy of “plus or minus two [kph]”.
In further cross-examination by Mr Dreger, S/C Tepper accepted there was a “squelch button” on the device and that it could affect the static if adjusted too high or too low, but said that he does not adjust it.
In answer to further questions from the judge, S/C Tepper said that the fact there was a reading and no static indicated the radar was fixed on a moving target. He said, depending on the speed of the police car and if it were faced straight at an Armco railing (as it might be at a T-intersection), there could be a “double-bounce reading”, but that was not this case. Further, if there were a car behind Mr Dreger’s, he would have some doubt as to which vehicle the device was detecting, but there was no such other car in this case.
S/C Tepper agreed with Mr Dreger that the device can only be used as evidence when it is properly operated.
Mr Dreger then asserted that, while S/C Tepper made assertions about the radar device, he had not been retrained since 1996. The judge pointed out that Mr Dreger had already been through that issue and that the only reason he allowed the witness to be recalled was on a different topic. Mr Dreger then read from an Australian Standard to the following effect: “The operator shall ensure that the radar beam is not being reflected away from the direction … in which it is being aimed by stationary objects as this may lead to incorrect target identification”. (The relevant Australian Standard was not tendered before the judge but it was placed before me.) He then submitted that, if there is incorrect target identification, “then we can’t be sure that the reading with regard to my vehicle was accurate in the first place”. He went on to submit that “we can’t be sure that the radar system was operated correctly in this matter”. The judge indicated he followed that and Mr Dreger then said, “That’s all.” The judge then excused the witness and went off the bench.
The judge’s findings and reasons
After a brief adjournment, the judge returned to the bench and said the following:[12]
[12]Exhibit JMcL-2 at T 34.
Despite the cogent evidence given by Mr Dreger as to his belief that he was travelling at no greater than 100 kilometres per hour when intercepted by Senior Constable Tepper, I am satisfied to the requisite standard that in fact at the relevant time the speed measuring device was being operated in accordance with the regulations and with the Australian Standards, and that at the time it was operated it accurately detected Mr Dreger’s vehicle travelling at 119 kilometres per hour.
I am, however, satisfied on the available evidence that the speed measuring device may read plus or minus two kilometres per hour, and in the circumstances I’m satisfied that – I could only be satisfied that the speed Mr Dreger was travelling at was 117 kilometres an hour.
Whilst it’s clear that there are possible causes or possible issues that may cause the speed measuring device to not record a vehicle travelling – the vehicle speed accurately, and in this particular instance the presence of the barrier and the sign at the intersection of the Woodend-Romsey Road and the road intersecti[ng] it, I’m satisfied on the basis of Senior Constable Tepper’s evidence that because of the audio readout, the Doppler readout, did not indicate to him that the speed measuring device was bouncing off a static obstacle that at the relevant time it accurately recorded the speed that Mr Dreger’s vehicle was travelling at. Accordingly, I find the charge proven.
The judge then asked the prosecutor whether there was “anything known”. After that issue was dealt with, his Honour asked Mr Dreger whether there was anything he wished to say about penalty. Mr Dreger replied, “Penalty or your judgment?” The judge said, “No, penalty.” Discussion was then had about financial circumstances. His Honour then imposed a fine of $250, with conviction, as the magistrate had done.
Grounds 2 & 3: Compliance with Australian Standards; Absence of evidence
I now turn to the grounds for relief. It is convenient to deal with Grounds 2 and 3 together.
Mr Dreger’s submissions on Grounds 2 & 3
Ground 2: In the originating motion, Ground 2 alleges that it was “determined under oath … that the officer had infringed the requirements of the [Australian] Standard”; that the judge “conceded that, although there were some inconsistencies and questions regarding the actual operation of the equipment with regard to the Standards by the officer, he was still satisfied that the plaintiff was guilty of the offence”; and that “[t]his again left the plaintiff with the concern that his ‘alleged guilt’ was not predominantly being determined by the facts or the evidence alone”. Mr Dreger’s oral submissions were to a similar effect. In essence, his complaint was that S/C Tepper’s own evidence showed that he had not used the radar equipment in accordance with the Australian Standards and that the judge was in error to fail to come to that conclusion.
Ground 3: In the originating motion, Ground 3 alleges that “the prosecution presented no other evidence … other than the verbal testimony of the police officer … in the assertion that the plaintiff had indeed committed said offence” and “[y]et the plaintiff gave verbal testimony … clearly and passionately refuting the relevant and salient facts in this matter”. This appears to be a complaint by Mr Dreger that S/C Tepper’s evidence alone was insufficient to sustain a finding of guilt, that his own evidence had to be preferred and/or that his own evidence at least had to create a reasonable doubt in the mind of the judge. At one point during his oral submissions, Mr Dreger conceded that the judge’s decision was open to him and was not manifestly unreasonable. However, as his submissions developed, I took Mr Dreger to be submitting that the judge was compelled to find him not guilty on the evidence.
Ms Dalziel’s submissions on Grounds 2 & 3
Ground 2: In her written submissions on Ground 2, Ms Dalziel pointed out (correctly) that the statement attributed to the judge does not appear in the recording of his Honour’s reasons for decision. Rather, the submission continued, his Honour “found that the device was being used in accordance with regulations and the Australian Standards … and … he accepted the informant’s evidence that the clear Doppler sound emitted from the device meant that there was no interference”. Ms Dalziel further submitted that, “[h]aving made those findings, it was open to the judge to find the charge proved, and his doing so cannot found an allegation of bias”.[13]
[13]First Defendant’s Submissions at [9]-[11].
Ground 3: Ms Dalziel submitted that, in so far as the complaint in Ground 3 was that the judge should have preferred Mr Dreger’s evidence, it does not raise a proper ground for relief.[14] I took her to submit, in the alternative, that, in any event, on the evidence the judge was not compelled to dismiss the charge and indeed, as she had submitted under cover of Ground 2, it was open to find the charge proved.
[14]First Defendant’s Submissions at [12]-[13].
Conclusions on Grounds 2 & 3
In so far as these two grounds complain that the judge should have concluded that the device was not operated in accordance with the Australian Standard, that his Honour should have rejected (or had a reasonable doubt about) S/C Tepper’s evidence relevant to this topic and/or that he should have accepted (or failed to exclude the reasonable possibility of the accuracy of) Mr Dreger’s evidence that he was not speeding, the errors alleged appear to be errors within jurisdiction and therefore not amenable to judicial review on the basis of jurisdictional error. Alternatively, if the complaints were to be classified as errors of law on the face of the record, the difficulty for Mr Dreger would be that the record might not include the evidence.[15] However, as Cavanough J did in Rees v County Court & Ors [2011] VSC 67, I am prepared to assume in favour of the plaintiff, without deciding, that it would be jurisdictional error for the County Court, in an appeal from the Magistrates’ Court in a criminal matter, to make a finding of guilt that was unsupported by any probative evidence or that was illogical or irrational. Similarly and alternatively, I am prepared to assume in favour of the plaintiff, without deciding, that the complaints amount to errors of law on the face of the record and that I may have recourse to the evidence before the judge in considering these grounds.
[15]See, e.g., Flaherty v DPP [2003] VSC 234 at [18] (Osborn J).
Having considered all of the evidence and the judge’s reasons, I am of the view that these grounds must be rejected. There are several reasons. First, Ground 2 misconceives the judge’s reasons as finding that there were “some inconsistencies and questions regarding the actual operation of the equipment with regard to the Standards by the officer” when in fact the reasons show that his Honour was merely accepting, consistently S/C Tepper’s own evidence, that there may be cases where obstacles such as Armco railings can interfere with the accuracy of the device but that this was not such a case. Secondly, in respect of both grounds, whilst legitimate questions were raised by Mr Dreger as to whether the device had been operated in accordance with regulations and the Australian Standards, the judge was entitled to accept S/C Tepper’s evidence that the device had been so used and conclude that the device accurately recorded the car’s speed. Thirdly, it was also open to the judge to accept (or to fail to reject beyond reasonable doubt) that Mr Dreger believed he was not speeding and yet still be satisfied beyond reasonable doubt by the other evidence that that belief was mistaken. Fourthly, there is no defence of honest and reasonable mistake of fact to the charge of speeding.[16] Accordingly, such a belief could not avail Mr Dreger.
[16]See, e.g., Kearon v Grant [1991] 1 VR 321 at 323 (per Brooking J, with whom Kaye and Murphy JJ agreed).
Much of Mr Dreger’s argument on these two grounds, and also to an extent on Ground 4 (see below), was premised on the (mistaken) belief that, generally, it is insufficient for a prosecution on a criminal charge to succeed on one person’s word against another’s. As I sought to explain to Mr Dreger during the hearing, whilst it may be surprising to many, in most instances, the law allows a trier or fact to find a person guilty not just of driving offences but also of even very serious criminal charges where the case turns solely on competing versions from a prosecution witness and an accused.
Further, the complaints under these grounds, as argued, were the types of complaint more amenable to an appeal from the County Court to the Court of Appeal following conviction at trial[17] or perhaps an appeal on a question of law from the Magistrates’ Court to this Court,[18] neither of which is available to Mr Dreger. However, even if such rights of appeal were available, the grounds would still fail, as I can detect no error in the way the judge approached his consideration of the evidence or the matters in issue, and the conclusions he reached were open to him on the evidence.
[17]See s 274 of the Criminal Procedure Act 2009 (Vic).
[18]See s 272 of the Criminal Procedure Act 2009 (Vic).
Finally, in so far as Ground 2 includes a complaint of apprehended bias, I reject that complaint for the reasons to be given for rejecting Ground 1, to which I now turn.
Ground 1: Apprehended bias
The impugned remark
As indicated above, the following exchange occurred during Mr Dreger’s evidence: [19]
[19]Exhibit JMcL-2 at T 23-24.
Mr Dreger: So both of those devices I remember were set at 100. Neither of them operated. It’s the reason I sit here today… I sit here today because I’m sure in my heart that I was not speeding, otherwise I wouldn’t be here today. I also remember looking at my speedo as I entered the bend.
His Honour: I’ve heard that before.
Mr Dreger: I’m sure you have. But all I can do is tell you from the box what I know to be true … I’m sure you’ve heard many things.
His Honour: Yes, thanks, Mr Dreger.
Mr Dreger’s submissions on Ground 1
Ground 1 complains that the judge’s response, “I’ve heard that before”, particularly when coupled with “an accompanying smile from the prosecutor”, left him “with the decided impression that an impartial process was questionable at that time”. In other words, his complaint is one of apprehended bias. In support of this ground, Mr Dreger urged me to watch and listen to the recording of the hearing, which I did in open court.
Ms Dalziel’s submissions on Ground 1
Ms Dalziel submitted there were several reasons why I should not be satisfied that the judge’s remark demonstrated apprehended bias or that the remark could otherwise be regarded as material to the case. First, the remark was merely a comment, acknowledged by Mr Dreger as likely, that the judge had heard similar evidence in the past. Secondly, far from rejecting Mr Dreger, the judge described as “cogent” his evidence that he believed he was not speeding. Thirdly, Ms Dalziel argued, the credibility of Mr Dreger was not determinative in any event, as there is no defence of honest and reasonable mistake of fact to the charge of speeding.[20] The judge could accept (or fail to reject) Mr Dreger’s evidence as to his belief but still find the charge proved by accepting beyond reasonable doubt S/C Tepper’s evidence as to the proper use of the device and finding that Mr Dreger’s belief, whilst honestly held, was mistaken.[21]
[20]See, e.g., Kearon v Grant [1991] 1 VR 321 at 323 (per Brooking J, with whom Kaye and Murphy JJ agreed).
[21]First Defendant’s Submissions at [4]-[8].
Conclusion on Ground 1
Mr Dreger and Ms Dalziel each referred me to Ebner v Official Trustee (2000) 205 CLR 337 at 350[33], where Gleeson CJ, McHugh, Gummow and Hayne JJ said that the test to be applied in cases of alleged apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide”.
I am not satisfied that the judge’s remark demonstrates apprehended bias. His Honour, who is experienced in criminal matters, did no more than make an observation which had the effect of testing the witness’s evidence, which he was perfectly entitled to do. Mr Dreger responded, and the judge moved on. Nothing in his Honour’s demeanour indicated any lack of impartiality. Further, whilst conclusions about witnesses (including an accused person) usually will be, and should be, reserved until all the evidence is in, it is understandable that any trier of fact, whether they be judge, magistrate, tribunal member or juror, might form a preliminary view – and, sometimes, might even make a remark whether or not a view has been formed – as the evidence is given. To reach such a preliminary view or to make such a remark does not necessarily indicate pre-judgment or any form of bias.
In any event, everything the judge did both before and after the impugned remark demonstrates that he had in no way pre-judged the matter or formed a fixed view, that he was astute to ensure that Mr Dreger was given a fair hearing and that he was thoroughly impartial and judicial in his manner. First, before the remark, his Honour asked questions of S/C Tepper pertinent to whether the speed detection device was operated correctly. Secondly, after the remark, his Honour invited the recall of S/C Tepper in order to give Mr Dreger a further opportunity to cross-examine on the operation of device. Thirdly, as Ms Dalziel submitted, the judge’s reasons for his decision actually indicate he accepted Mr Dreger’s evidence that he believed he was not speeding. It is hard to imagine that a judge who was sceptical of a witness’s claim, was other than impartial or who had pre-judged him in any way would make such a finding in his favour.
In those circumstances, no fair-minded lay observer might reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the questions he was required to decide.
Accordingly, Ground 1 is rejected.
Ground 4: Procedural fairness
Mr Dreger’s submissions on Ground 4
Ground 4 is a complaint that Mr Dreger was denied procedural fairness in that he was effectively denied the opportunity of putting submissions to the judge at the conclusion of the evidence and before his decision. In the ground as pleaded in the originating motion, Mr Dreger complains inter alia that, at the conclusion of the evidence, he was deprived the opportunity of making various submissions, including that:
a) there were inconsistencies in the evidence of S/C Tepper;
b) the prosecution case rested simply on “verbal allegations from the police officer … which had been clearly disputed by [his own evidence]” and “under Australian law, the allegation of an individual without any further evidence against another individual shall not be sufficient itself … to convict a person of a crime …”;
c) “the burden of proof of guilt rested on the prosecution with a presumption of innocence being [his] right until proven otherwise by suitable and sufficient proof of evidence”; and
d) instruments such as the Bill of Rights, Magna Carta, the Victorian and Commonwealth Constitutions, the Criminal Code (Cth), the Crimes Act and what was described as “the International Covenant on Human and Civil Rights” reinforced the importance of the foregoing concepts.
Ms Dalziel’s submissions on Ground 4
Ms Dalziel submitted that there was no denial of procedural fairness. First, when regard is had to the cross-examination of S/C Tepper, discussion during the case, the points Mr Dreger raised at the conclusion of S/C Tepper’s evidence and the judge’s reasons, it is apparent that the judge was aware of precisely what matters were in issue, including the criticism of S/C Tepper’s evidence. Secondly, Mr Dreger did make submissions on the facts in issue, particularly at the conclusion of S/C Tepper’s evidence. Thirdly, the judge then indicated he followed those submissions, after which Mr Dreger said, “That’s all.” Fourthly, after the judge returned to the bench, Mr Dreger did not seek to make any further submissions. Fifthly, s 74 of the Criminal Procedure Act 2009 (Vic) confers a discretion on the Magistrates’ Court during a hearing of a criminal charge – and therefore on a judge in the County Court on appeal from the Magistrates’ Court – to grant leave, if appropriate to do so, to an accused to address the court for the purpose of summing up the evidence, but there is no right to make submissions on the evidence.[22] Sixthly, the evidence was in short compass. Seventhly, for the reasons put under Grounds 1, 2 and 3, Mr Dreger’s credibility as to his belief was not in issue. Eighthly, since there is no principle of law that a person cannot be found guilty of a driving offence on the evidence of one witness alone, such a submission would have been futile. Ninthly, the judge, as an experienced criminal lawyer, needed no assistance with basal principles such as the burden of proof and the presumption of innocence. Finally, the submission on instruments such as the Bill of Rights could not have assisted Mr Dreger.[23]
[22]Contrast the right, pursuant to s 235 of the Criminal Procedure Act 2009 (Vic), of an accused on trial on indictment to address a jury on the evidence.
[23]First Defendant’s Submissions at [14]-[22].
Conclusion on Ground 4
I accept Ms Dalziel’s submissions. Mr Dreger did make submissions on the evidence. It is plain that the judge was aware of and considered the matters put in issue. The proposed submissions of law would have been either unnecessary or futile. There was no denial of procedural fairness. Ground 4 is rejected.
Conclusion
Since none of the grounds for relief has been made out, the application for certiorari must fail. Accordingly, I dismiss Mr Dreger’s application.
0
4
0