Friedrichs v Police

Case [2007] SASC 6

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

FRIEDRICHS v POLICE

[2007] SASC 6

Judgment of The Honourable Justice Gray

19 January 2007

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS

Appeal against conviction of driving a vehicle at a speed over the speed limit - appellant was unrepresented at trial - consideration of the nature of the appeal process - consideration of the duty of a Magistrate conducting a trial with a self-represented litigant - consideration of procedural fairness issues arising at trial - Held: appeal allowed and the conviction set aside.

Australian Road Rules Rule 20; Supreme Court Rules 1987 (SA) r96C, r3.04(d); Magistrates Court Act 1991 (SA) s 42; Criminal Law Consolidation Act 1935 (SA) s 288A(1), referred to.
Police v Warren [2000] SASC 285; Fox v Percy (2003) 214 CLR 118; James v Williams (2003) 228 LSJS 232; R v White; R v Piggin (2003) 7 VR 442; McPherson v The Queen (1981) 147 CLR 512; R v Gidley [1984] 3 NSWLR 168; Cooling v Steele (1971) 2 SASR 249; Moore-McQuillan v Police (1998) 196 LSJS 488; Hittmann v Police (1999) 202 LSJS 132; Gould v Police [2005] SASC 297; Pezos v Police [2005] SASC 500; Antoun v The Queen (2006) 224 ALR 51; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Stead v State Government Insurance Commission (1986) 161 CLR 141; Jones v National Coal Board [1957] 2 QB 55; R v Calides (1983) 34 SASR 355, considered.

FRIEDRICHS v POLICE
[2007] SASC 6

Magistrates Appeal

GRAY J:

  1. This appeal raises important issues concerning procedural fairness arising in the trial of an unrepresented defendant.  I am satisfied that there is a risk of a miscarriage of justice.  I have reached the conclusion that the appeal should be allowed and the conviction set aside. 

  2. The defendant and appellant was charged on complaint that, on 13 November 2005, he drove a vehicle at a speed over the speed limit, contrary to rule 20 of the Australian Road Rules.  By operation of rule 21(1), the speed limit was 70 kilometres per hour, as indicated by a speed limit sign applying to the stretch of road on which the defendant drove.  The alleged speed of the appellant was 90 kilometres per hour.  The defendant pleaded not guilty and the matter proceeded to trial on 11 May 2006 in the Magistrates Court sitting at Christies Beach.  The defendant was unrepresented.

    The Prosecution Case

  3. The prosecution case was that two police officers, Constables Carlier and Ford, were in a stationary police vehicle on Cecilia Road, Christie Downs.  An early-model blue Datsun drove past them, travelling east on Flaxmill Road at what they considered to be a high speed.  The officers drove on to Flaxmill Road, caught up to the Datsun and conducted a “follow and time” – a process where…

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Friedrichs v Police [2007] SASC 6
Case
[2007] SASC 6
Decision Date

CaseChat Overview and Summary

In Friedrichs v Police, the appellant was convicted of driving a vehicle at a speed over the speed limit. The appellant was unrepresented at trial and appealed against the conviction. The court was required to decide whether the appeal process was conducted fairly, whether the Magistrate had a duty to ensure procedural fairness when dealing with a self-represented litigant, and whether any procedural unfairness impacted the outcome of the trial. The court found that the appeal process was not conducted fairly due to several procedural errors made by the Magistrate. The Magistrate incorrectly reversed the onus of proof, failed to understand the defence case, and did not appreciate the relevance of the defence calculations to the police officers' credibility. The court concluded that the procedural unfairness impacted the outcome of the trial and allowed the appeal, setting aside the conviction.

The court considered the duty of the Magistrate to ensure procedural fairness when dealing with a self-represented litigant. The court found that the Magistrate had a duty to ensure that the appellant had a fair opportunity to present their case and that any procedural errors made by the Magistrate could potentially impact the outcome of the trial. The court found that the procedural errors made by the Magistrate in this case had the potential to impact the outcome of the trial and therefore warranted the setting aside of the conviction. The court concluded that the procedural unfairness impacted the outcome of the trial and allowed the appeal, setting aside the conviction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

A further issue raised during the course of the appeal related to a section in the Magistrate’s reasons that appeared to reverse the onus of proof. The Magistrate observed:In those circumstances, I commence the assessment on the basis that it is for the defendant to provide evidence to the contrary of the assertion of the accuracy of the speedometer and the evidence of the two police officers is of them both observing the figure 90 kilometres per hour on the speedometer. I do not think that the defendant by his theories concerning rate of acceleration, distance travelled and the like has established the necessary affirmative evidence to the contrary.…It is not for this court to come to any conclusions whether based upon mathematics, personal experience with vehicles or otherwise, as to whether the speed of the police vehicle could have been accelerated sufficiently rapidly or to a higher level to enable the police vehicle to catch up with that of the defendant allegedly being driven at 90 kilometres per hour. It is for the defendant to demonstrate that the theory he has apparently derived from information he has been [sic] casts doubt in relation to the police force members’ evidence.[Emphasis added] It appears from this statement that the Magistrate incorrectly reversed the onus of proof. He may have confused a presumption in favour of the accuracy of a police speedometer with the question of police observations during a “follow and time”. The prosecution bore the onus of proving not only the elements of the offence beyond reasonable doubt but also of excluding any reasonable hypothesis consistent with innocence. The appellant did not bear any burden of proof. Counsel for the Crown accepted that the above statement appeared on its face to reverse the onus of proof. However, counsel submitted that the statement must be considered in its context. Counsel contended that in the preceding paragraph the Magistrate had given himself a Calides[23] direction where he observed:I note that the three component test in the well known Queen v Calides authority is of course open to this court and if the court cannot decide where the truth lies the benefit of the doubt must be given to the defendant. In no sense does the defendant have to prove anything. It is a question fundamentally whether this court accepts the evidence of the police officers or entertains doubt concerning the cogency thereof and in particular, as to the speed they say they observed on the police speedometer and of course, as a necessary corollary whether there was in fact a following and timing over the stated distance of 600 metres or thereabouts.It was the Crown’s contention that this passage demonstrated that the Magistrate correctly directed himself as to the burden of proof and that the impugned passage must therefore be read in the context of the preceding paragraph. [23] R v Calides (1983) 34 SASR 355. Counsel for the Crown submitted that in the preceding paragraph the Magistrate correctly identified the issue in the case as being the accuracy of the speedometer and its reporting, as it was those two matters that established the offence. It was counsel’s submission therefore, that the Magistrate was correct that, in order to be satisfied that the offence had been established, it was not incumbent on the Magistrate to make a thorough examination of the events leading up to the follow and time.

Decision

Reasons for decision

Later in his reasons, the Magistrate then went on to conclude: The defendant says merely that his calculations (he is an engineer) establish to his satisfaction that the police vehicle could not have achieved the necessary speed over the distance and I am conscious also of the fact that the police officer made reference to 422 metres distance between where the vehicle commenced its pursuit in Cecilia Road and point one. Of course, if I accept the evidence of Constable Ford then as opposed to a ten metres starting grace distance to be covered in Cecila Road we go back an additional 90 metres. This, I suppose, makes the calculation that much more favourable on the assessment of that evidence but to do that requires that the evidence of the police officers be weighed on a knife edge so to speak, and that is not the function of the court. I am not about to undertake an exploration based upon Newton’s laws of motion, or any other physics theory or theory of mathematics, beyond what is so notorious concerning velocity and distance and time that this court can say it is within general knowledge. I am not going to do calculations.Beyond saying that I have made an equivalence scale of speeds varying between 60 and 150 kilometres per hour, which could be done by anyone, and likewise established that if a vehicle can achieve over 400 metres from a standing start that distance in 16.1 seconds, the average speed of that vehicle must be close to 90 kilometres per hour, what use is that information? It is not to be applied by this court in some special way for the purpose of arriving at a conclusion.[emphasis added] These passages demonstrate that the Magistrate failed to understand the defence case properly, failed to understand the significance of the calculations proffered, and failed to understand the relevance of the challenge to the police officers’ credibility. It is unclear whether the Magistrate accepted and acted on the acceleration rates, whether he treated Constable Carlier as having assented to the acceleration rates as being indicative of those of the police vehicle or whether he declined to act on the information. At any event, the Magistrate failed to appreciate the point that the defence calculations were directly relevant to credibility and needed to be properly assessed for there to be a fair trial.Conclusion on Procedural Fairness Counsel for the Crown accepted that there were a number of deficiencies in the approach of the Magistrate. Counsel conceded that the Magistrate’s statement on the issue of bias was arguably insufficient, that the Magistrate misdirected the appellant in informing him that he could not call witnesses without first giving evidence himself, and that the second photograph should have been received. However, counsel for the Crown submitted that, despite these deficiencies, the question was whether the appellant has been denied a fair trial and that the appeal should therefore be allowed. The issue of when an appeal court should set aside a judgment based on a denial of procedural fairness was discussed by the High Court in Stead v State Government Insurance Commission.[20] The Court observed:[21]The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v National Coal Board,[22] in these terms:“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge…No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference…[W]hen the [appeal court] is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.[20] Stead v State Government Insurance Commission (1986) 161 CLR 141.[21] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146 (Mason, Wilson, Brennan, Deane, Dawson JJ).[22] Jones v National Coal Board [1957] 2 QB 55 at 67.

Ratio Decidendi

Legal Principle Established

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