Haskett v Bowman

[2007] QDC 190

DISTRICT COURT OF QUEENSLAND

CITATION:	Haskett v Bowman [2007] QDC 190
PARTIES:	JONATHON DAVID HASKETT
Appellant
v GARY DENNIS BOWMAN
Respondent
FILE NO/S:	Appeal No BD4770 of 2005
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING  COURT:	District Court, Brisbane
DELIVERED ON:	24 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2007
JUDGE:	Forde DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	JUSTICES ACT – Appeal – Speeding Fine – questions of credibility – reasons – mistake of fact – apprehended bias – discretion to grant adjournment.
Justices Act 1886 (Qld) s222, s223, s225
Coghlan v Cumberland [1898] 1 Ch 704 at 705 - Considered
Di Natale and Another v Kelly [2006] NSWCCA 201 Considered
Expectation Pty Ltd v PRD Realty and another (2004) 209 ALR 568 - Followed
Fox v Percy(2003) 214 CLR 118 - Followed
Gianoutsos v Glykis [2006] NSWCCA 137 Considered
House v The King (1936) 55 CLR 499 - Followed
Jamal Charara v The Queen [2006] NSWCCA 244 Considered
Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The
“Palitana”) (1924) 20 LI L Rep 140 at 152 - Considered
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(1999) 73 ALJR 306 - Followed
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 - Considered
COUNSEL:	Mr A. MacAdam for the appellant Ms S. Cupina for the respondent
SOLICITORS:	Direct brief (Mr A. McAdam) for the appellant DPP for the respondent

1. This is an appeal against the decision of the learned Magistrate at Caboolture given on 4 November 2005, whereby he found the appellant guilty of exceeding the speed limit of 110 kilometres per hour by travelling at a speed of 130 kilometres per hour. The appellant was fined the sum of $150 and ordered to pay costs of $152. The appellant was allowed three months to pay in default four days imprisonment. A conviction was not recorded. The hearing took place over a period of one day and the defendant called witnesses who were examined-in-chief and cross-examined. An extension of time was granted in which to appeal and the parties have provided written submissions.[1]

   [1] Exhibit 1 is the appellant’s submissions and Exhibit 2 is the respondent’s submissions

Grounds of Appeal

1. There are some 12 grounds of appeal listed in this matter. By way of summary, the appellant’s arguments are that the vehicle he was driving was not properly identified and further, that having heard the defence witnesses the learned Magistrate ought to have had a reasonable doubt about the prosecution case. There is the further allegation that the learned Magistrate showed bias against the defendant and further, that the learned Magistrate ought to have been satisfied that a s 24 defence had been raised. In relation to the question of bias, counsel for the appellant did not have the benefit of the transcript and so at the hearing was unable to provide any extensive list out of the transcript for references. In that event, it has been necessary to look at the totality of the transcript in order to form an opinion as to whether the bias ground has been established. It is convenient to divide the grounds into categories as there is some overlapping.

Approach on Appeal

1. An application was originally heard by His Honour Judge McGill DCJ SC on 12/06/2007 for a rehearing de novo of this matter in the District Court. That application was not granted.

2. An appeal under the provisions of Section 222 and 223 of the Justices Act 1886 (Qld) from the Magistrates Court to the District Court is by way of right for an aggrieved complainant or defendant.[2] Whilst there are some restrictions imposed on that right,[3] none are applicable in this instance.

   [2] S222(1) Justice Act 1886 (Qld)

   [3] S222(2) Justice Act 1886 (Qld)

3. Section 223 of the Justice Act 1886 (Qld) states:

   223 Appeal generally a rehearing on the evidence

   (1) An appeal under section 222 is by way of rehearing on the evidence
   (original evidence) given in the proceeding before the justices.

   (2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.

   (3) If the court gives leave under subsection (2), the appeal is –

   (a) by way of rehearing on the original evidence; and
   (b) on the new evidence adduced.

4. A District Court Judge is therefore restricted by the aforementioned provisions of the Justices Act to rehear the case on original evidence, unless special grounds exist to allow fresh or new evidence to be adduced. There is now a provision to permit a District Court to remit the matter for a rehearing by a Magistrate.[4] Accordingly the approach that a District Court should take is that an appeal under section 222 be treated as a rehearing on the record as opposed to a hearing de novo.[5] In this case no fresh or new evidence was sought to be led by the appellant nor did the appellant seek to call any witnesses.

   [4] S225(2) Justices Act 1886 (Qld)

   [5] In NSW an appeal to the District Court is restricted by virtue of s 18 of the Crimes (Local Courts Appeal

5. Difficulties arise when an appeal under this section relies on findings of credit made by the Magistrate at first instance. Attempting to determine such an issue on appeal by reference to the trial transcript alone can be problematic. For a helpful analysis as to a manner of dealing with credit issues see Expectation Pty Ltd v PRD Realty and another[6] where the Full Court of the Federal Court stated:

   Appellate judges have long given, as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible for an appellate court. On the other hand, for almost as long, appellate judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses: Fox v Percy at CLR 128 – 129 [30]; ALR 209-10. In any event, it is appropriate to have some doubt about the ability of judges, or anyone else, to tell the truth from falsehood accurately on the basis of the appearance of witnesses. Such considerations should encourage trial judges and appellate judges to limit their reliance on the appearance of witnesses. Such considerations should encourage trial judges and appellate judges to limit their reliance on the appearance of witnesses and to reach conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy at CLR 129 [31]; ALR 210.

   [6] (2004) 209 ALR 568

6. Should there be found, on this appeal, that the Magistrate has failed to provide adequate reasons for the findings of credit,7 the appropriate course of action is for the District Court Judge to set aside the order of the Magistrate and remit the matter back to the Magistrates Court to be heard by another Magistrate in accordance with Section 225(2) of the Justices Act 1886 (Qld). This section provides:-

   If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.

Burden of proof

1. In his reasons, the learned Magistrate stated[8]:

   “This court does not wish to severely castigate the young man who has come along before the court today in an attempt to prove his innocence.”

   [8] p 6 ll 1-3

2. It is submitted that the learned Magistrate had wrongly stated the onus of proof in a matter of this nature. To read that statement in isolation may be misleading. What the learned Magistrate was attempting to say was that the appellant, by calling evidence, was attempting to prove his innocence. In other parts of the transcript, it is clear that the learned Magistrate was properly appraised of the onus of proof.[9] Of particular importance is in his decision[10] the learned Magistrate stated:

   “… I am satisfied that the prosecution have, on this occasion, discharged a very high onus of proof incumbent upon them, that is, proof beyond a reasonable doubt.”

   [9] p 2 ll 12-14, p 10 l 20 and p 130 ll 5-10

   [10] Reasons at p 10

3. The loose statement by the learned Magistrate about the appellant proving his innocence did not mean that he had shut his mind as to what was the correct approach was. This ground of appeal fails.

Decision unreasonable, contrary to evidence and case not proved beyond a reasonable doubt

1. In order to appreciate the strength of this argument, it is apposite to refer to the High Court decision of Fox v Percy[11]:

   “But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

   It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (eg Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348, per Samuels JA.). Thus, in 1924 Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) ((1924) 20 LI L Rep 140 at 152. See also Coghlan v Cumberland [1898] 1 Ch 704 at 705.):

   ‘…I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.’

   Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances.[12] Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

   [11] (2003) 214 CLR 118 at 128-129 per Gleeson CJ, Gummow and Kirby JJ

   [12] See material cited by Samuels JA in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992)

2. One case which preceded the decision in Fox v Percy and is illustrative is the decision of State Rail Authority of New South Wales v Earthline Constructions Pty Ltd[13]:

   “There is also the case, which was accepted in the early Privy Council decisions where, although a credibility finding has been made which represents an apparent obstacle to appellate review, it is so contrary to the ‘extreme and overwhelming pressure’ resulting from the rest of the evidence, or is so ‘glaringly improbable’ or ‘contrary to the compelling inferences of the case’, that it justifies and authorises appellate interference in the conclusion reached by the trial judge.”

   [13] (1999) 73 ALJR 306 at 332 per Kirby J

3. While it was not challenged in this case that the radar device was working correctly, it was submitted that there was a reasonable doubt as to whether it was the appellant’s vehicle. The evidence in that regard was that the weather was fine and clear, it was about 8.58 pm. Constable White observed a semi-trailer travelling in a south-bound direction in the left-hand lane and about 100 metres behind the semi- trailer was a sedan with only one headlight. The left-hand headlight was not operating. Officer White then targeted the sedan with his speed detection device in order to determine at what speed it was travelling. He recorded a reading of 133 kilometres per hour about 237 metres from his position in the median strip. He said there were no other vehicles in his sight other than the sedan with one headlight and the semi-trailer in the vicinity. He said he maintained a visual observation of the sedan and after it moved into the right-hand lane it overtook the semi-trailer and both vehicles approached the location. The police vehicle lights were then activated and the subject vehicle, which was driven by the appellant, was apprehended. It was a yellow Hyundai sedan, registration 019-AYP. The learned Magistrate had no difficulty in being satisfied that this was the subject vehicle. There is nothing in the evidence which could, in any way, contradict the identity of the subject vehicle, particularly as it was identified as having one light out and it was the only other sedan in the vicinity.

4. Of more importance in this case as far as the appellant is concerned is that the learned Magistrate rejected the evidence that the defendant had set and was using a speed warning device in his vehicle and the observation of a witness in the vehicle, Mark Walsh, in relation to the speedometer and speed warning device. It is submitted that there was credible and uncontradicted evidence which would have caused the learned Magistrate to have a reasonable doubt about the prosecution case. Once it is established that the police officer had apprehended the relevant vehicle driven by the defendant and it was travelling at 130 kilometres per hour, as was the subject of the charge, it is very difficult for the defence, then, to avoid the consequences of that finding. In terms of Fox v Percy and the analysis in SRA v Earthline Constructions, it is submitted by the appellant’s counsel that there is a basis upon which an appellate court would interfere with the conclusions of the learned Magistrate. In the present case, the learned Magistrate made various findings which would impact adversely on the credibility of the appellant. A summary of those is conveniently set out in the respondent’s submissions:[14]

   [14] Exhibit 2 para 5.10

• the appellant in evidence placed Officer White some 400 metres from the position where Office White said he was.

• the appellant’s response to the Police officer with regard to his headlight not being operable versus his evidence in the court.

• the fact that the appellant did not indicate any speed when Officer White informed him he had been caught doing 133km/h.

• the fact that the appellant was given four (4) separate opportunities to indicate what speed he believed he was travelling at yet did not once mention to Officer White that he had set the speed alert device to 108km/h.

• the fact that the appellant asked if there is any other way the matter could be handled yet still did not indicate or mention in any manner that he had a speed alert device.

• the fact that the appellant only mentions the speed alert after a period of approximately five (5) minutes during which time Officer White was absent conducting licence checks and writing up the infringement notice.

1. In relation to the witness Walsh, the learned Magistrate stated the following: “The evidence of Mr Walsh that he continually has some fascination with speedometers, rev meters, taco-meters, call them what you will is, for this court, just a little bit over the top. I cannot accept Mr Walsh’s evidence that he has this habit of continually looking at the speedometer and that the speed alert device that has, in fact, been fitted to his vehicle.”

2. The evidence in relation to that was that Mr Walsh said he looked at the speedometer every 20 seconds.[15] He also stated that he did not observe the speedometer going over 108 kilometres per hour.16 The defence case was that the appellant’s vehicle had left the highway onto an access road but then decided to come back on and that it had stopped at a stop sign near the overhead bridge across the highway. It then proceeded onto the access road, came back onto the highway and had, in fact, travelled some 300-odd metres before the radar device established its speed. The appellant said that by the time he merged onto the highway he was travelling at about 100 kilometres per hour. It is unlikely in those circumstances that Mr Walsh had the opportunity to check the maximum speed or any speed more than once in that particular timeframe. If his evidence be accepted, he checked it every 20 seconds or so. However, both the appellant and Mr Walsh were adamant that the warning device did not activate. The learned Magistrate rejected their evidence. The complaint on this hearing was that he did not set out his reasons. He did refer to credibility issues which clearly reflected adversely on the appellant and in one respect in relation to Mr Walsh on the weight one could give to his evidence. Of particular importance was that when initially apprehended the appellant did not refer to the fact that there was a speed warning system which did not activate. In other words, it was implicit in his Honour’s reasons that this was an afterthought after Constable White approached the vehicle, having checked its registration and written out a ticket. The Magistrate found that the appellant and Mr Walsh were somewhat economical with the truth concerning their apprehension and what transpired on the night in question. It was open for the learned Magistrate to so find given the matters referred to above. This ground of appeal is dismissed.

   [15] T114.33

Refusal of an adjournment

1. This point relates to the evidence of a report from the RACQ as to the accuracy of the defendant’s speedometer. The maker of the report was not called and evidence from the defendant’s father that he observed the findings was attempted to be led. The report was refused admission under s 93 of the Evidence Act. In relation to that section, there is no evidence referred to which would have established the grounds for admissibility under s 93. Also any evidence by the appellant’s father, Mr Haskett, would not have been the best evidence and properly objected to. The case was not called on without notice and was within the discretion of the learned Magistrate to refuse to adjourn the hearing17 because there had not been strict compliance with proof of the report. The appellant was aware that he was to rely upon the report and his counsel attempted to finesse the matter by proving the report through the appellant’s father. In any event Mr Haskell gave evidence of the speed test and the speedometer seemed to be working properly. Mr Haskett could not give evidence nor could the RACQ about whether the warning device was activated at the material time. The hearing had taken one full day and there had to be some limits put upon the time taken in this case by the appellant over a speeding fine. It could not be said that the learned Magistrate erred in attempting to regulate the court’s proceedings and conduct the court in an effective manner, without the matter going into a second day because of the manner in which the trial was conducted.

Section 24 – mistake of fact

1. The onus is upon the Crown to negative a defence raised under s 24 of a reasonable and honest mistake of fact. In the present case, the appellant and his witness had given sworn testimony that the vehicle did not exceed 108 kilometres per hour, otherwise the warning device would have been activated. The appellant’s case is that if it did go in excess of 108, then it was due to an honest and reasonable mistake of fact. It is difficult to know on what basis this defence can be raised as there was evidence before the court that the speedometer and warning device were in working condition. As was pointed out by his Honour Judge McGill SC on the hearing to have this heard de novo, there were three like possibilities in the case. First, that the car was in fact speeding and the defendant and his witness were lying. That was the view accepted by the Magistrate. The second was that, in effect, the car was speeding but the equipment was defective and the defendant and his witness were telling the truth. That might give rise to a defence under s 24, as was observed by his Honour. However, that defence was weakened by the evidence led in the defence case that the speedometer and the warning device were, in fact, in proper working order. The third possibility was that the car was not speeding and that the defendant and his witness were telling the truth and that the police officer was mistaken in the way he operated the equipment or perhaps identified the subject vehicle. In relation to the latter, the speed of a vehicle tested by the officer was not challenged and the learned Magistrate was justifiably satisfied beyond a reasonable doubt about the identity of the vehicle being that of the defendant. The s 24 defence could only be relied upon as was suggested in argument, if there was some irregularity which occurred between the date of the offence and when it was subsequently tested, both in relation to the speedometer and the warning device. It should be noted that there was evidence from the appellant and Mr Walsh that the warning device was not activated by excessive speed at the time. The learned Magistrate rejected that evidence and the reasons for rejecting so have been referred to. There must be some reasonable basis for an honest and reasonable mistake of fact and in this case in all the circumstances, the s 24 defence has not been properly raised. Where both the appellant and his witness are adamant that the vehicle did not exceed 108 kilometres per hour, then it is difficult to know on what basis the mistake of fact could have arisen. Once the speedometer and the warning device are found to be in working order, the only logical conclusion was as reached by the learned Magistrate, that the witnesses were not being truthful. Once the defence adhere to a statement that the appellant was not speeding, on what basis can an honest and reasonable mistake of fact be established: although the appellant was speeding there was some operative mistake due to a possible malfunction of which there is no evidence.

Expert evidence from Mr Philip Haskett

1. Mr Haskett had had some experience in the motor trade and with motor vehicles as he had been involved in motor racing. The evidence which in argument was attempted to be led was that he could have given evidence at what speed the subject vehicle could have arrived at between when it was stopped and when it was intercepted. Given the evidence of the appellant that he had reached a speed of 100 kilometres an hour before he got onto the highway, that evidence would have little relevance. There was ample distance for such a speed to be reached, notwithstanding this was a smaller four cylinder vehicle. It would have been inappropriate for Mr Haskett, who was not known as an expert in relation to this type of evidence, to swear the issue in relation to matters upon which questions of credit were crucial. It would have had little or no probative value.

Pre-determination by Magistrate in bias

1. It is submitted that the learned Magistrate had interfered in the defence case both in evidence-in-chief when the defence witnesses were giving evidence and also when counsel for the appellant was cross-examining the police witness. It is submitted that proof of apprehended bias is sufficient and the case of Re Refugee Review Tribunal ex parte H18 was referred to. The learned Magistrate was criticised for adopting an inquisitorial manner. His interference, it was submitted, meant that the appellant did not get a fair trial. Counsel was unable to refer to more than a couple of examples of the facts giving rise to this allegation but relied upon the totality of the evidence in the case to establish that point. The appellant or his counsel did not have access to the transcript and so it has been necessary to look at the transcript overall. I have had regard to the references at pages 18, 37, 41, 45 and 98. Having had regard to the totality of the evidence in this case, the interference by the learned Magistrate is not unusual. He was attempting to keep Mr McAdam’s questions relevant and to the point in the case. The fact that the Magistrate interrupted the proceeding does not mean that he was being unfair but he may have been attempting to keep the hearing within certain parameters. Mr McAdam claimed he was somewhat severe. It may have been related to an attempt to finish the case in the day rather than having pre-determined the issue and not acting judicially or showing apprehended bias. Mr McAdam says that this is an adversarial system, not an inquisitorial system, but that particular submission overlooks the right of a judicial officer to attempt to keep matters within perspective, particularly a speeding charge and the effective use of court time and resources. Having had the opportunity to have the case determined over a day and a further half day on the appeal, the appellant has had ample opportunity to have his case heard and determined fairly. This ground of appeal fails.

Orders

1.           Appeal dismissed

and Review) Act 2001 to a rehearing on the basis of certified transcripts or fresh evidence if leave is
granted. See Jamal Charara v The Queen [2006] NSWCCA 244; Gianoutsos v Glykis [2006] NSWCCA
137; Di Natale and Anotherr v Kelly [2006] NSWCCA 201

27 NSWLR 326 at 348 and noted in SRA (1999) 73 ALJR 306 at 329 [88]; 160 ALR 588 at 617-618.”