Iaria v Queensland Police Service
[2014] QDC 288
•17 December 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
Iaria v Queensland Police Service [2014] QDC 288
PARTIES:
FRANK IARIA
(appellant)
v
QUEENSLAND POLICE SERVICE
(respondent)FILE NO/S:
APPEAL NO: 152/14
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Cairns
DELIVERED ON:
17 December 2014
DELIVERED AT:
Cairns
HEARING DATE:
12 December 2014
JUDGE:
MORZONE QC DCJ
ORDER:
1. Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW - appeal - conviction – disobeying speed limit – mode of hearing of appeal – allegation of predetermined decision - error of law – challenge to findings of fact – apprehended bias – whether conviction unsafe and unsatisfactory.
Legislation
Justices Act 1886 (Qld) s 222, s 223(1), 227
Traffic Regulation 1962, s 211, Schedule 13 Part 2
Transport Operations (Road Use Management) Act 2009, ss 120 & 124
Transport Operations (Road Use Management – Road Rules) Regulation 2009, s 20
Cases
Johnson v Johnson (2000) 201 CLR 488
Whitehorn v R (1983) 152 CLR 657
Morris v R (1987) 163 CLR 454
Fox v Percy (2003) 214 CLR 118COUNSEL:
Appellant was self represented
J Crawfoot for the Respondent
SOLICITORS:
The Office of Director of Public Prosecutions for the respondent
On 14 August 2014 the appellant was convicted, after a summary trial in the Magistrates Court held in Cairns, of disobeying the speed limit
The appellant now appeals his conviction.
Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.
Background
On 26 August 2012 the appellant was detected by police travelling 93 km/hr along the Captain Cook Highway between Holloways Beach and Machans Beach roundabouts. The speed limit in that zone was 80 km//hr.
By virtue of s 20 the exceeding is an offence punishable by a maximum of 40 penalty units.
The proceeding was first heard on 21 January 2013, which resulted in an appeal to this court 19 November 2013. The appeal was successful and the proceeding was remitted to the Magistrates Court for rehearing.
On 29 April 2014, the appellant gave notice that at the trial he proposed to challenge the accuracy of the speed camera on five grounds:
1. The impact of rain;
2. The size of the target motorcycle;
3. Possible interference by electronic device;
4. Possible interference by reflective signs; and
5. The presence of other moving objects within the image.
The trial proceeded on 14 August 2014. The trial magistrate convicted the appellant and imposed a fine of $220 and orders that he pay costs of $840.22.
Mode of Appeal
Pursuant to section 223 of the Justices Act 1886, an appeal under section 222 is by way of rehearing on the original evidence given in the proceedings before the trial magistrate, and new evidence adduced on appeal in special circumstances with leave. The appeal is not a new trial to consider, as if presented for the first time, the arguments advanced.
Fundamentally, the appellant must demonstrate some legal, factual or discretionary error.
Grounds of Appeal
The appellant appeals against the conviction in reliance on the grounds of appeal in the notice of appeal that:
“[The trial magistrate] would not recognise my evidence as some was downloaded from the net; prosecutions was outdated certificate of calibration of camera; witnesses did not produce evidence of camera calibration for day 26-8-2012; Both [the magistrate] and witnesses are ignorant of motorcycle riding and laws.”
In his outline of submissions on appeal, the appellant raised new arguments to the effect that the trial magistrate had predetermined the matter (para 6), was biased (para 13) and intimidated the appellant during the hearing.
The grounds of appeal relate to the conduct of the trial, conduct of the trial magistrate, and that the verdict was generally unsafe or unsatisfactory. The appellant seems to rely upon a combination of errors or defects in the trial as giving rise to a miscarriage of justice, even if any ground considered in isolation would not have that result.
Conduct of Trial Magistrate
It is convenient to first deal with the new arguments that the trial magistrate had predetermined the matter (para 6), was biased (para 13) and intimidated the appellant during the hearing.
Pre-determination
The appellant submits that “Judge Priestley’s guilty verdict had been decided long before hearing had taken place on 14th July 2014 as he claimed on our first court sitting in 2012 that if the prosecution says I am guilty of speeding he has no choice but to and convict me, therefore Judge Priestly was not interested in looking at any of my evidence I had prepared for court …” (para 6). I deal with the quality of the foreshadowed evidence later. Here I am concerned about the assertion of pre-determination.
The remarks (if made) ought be considered in their proper chronological and situational context. The appellant has not produced a transcript of the occasion. I have attempted to piece it together as best I can having regard to the court record.
The complaint and summons was filed on 20 November 2012, which summons the defendant to first appear on 21 January 2013 (not in 2012). However, suffice it to say that the defendant had not given the requisite notice of challenge or dispute. He did that informally on 29 April 2013 and later by the form of Notice of Intention to Challenge or Dispute dated 10 March 2013.
Against this background, it seems to me that the remark (if made) was both accurate and appropriate in the absence of the requisite notice. In any event, no point was raised at the hearing.
Bias
In paragraph 13 of the appellant’s appeal submissions he complained about the delay in the proceedings, and continued to say: “… I wish for this case to be reassessed and thrown out or to be reheard by a just judge. one who is honest not biased …”.
The test for determining whether the trial magistrate should have disqualified himself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.[1]
[1] Johnson v Johnson (2000) 201 CLR 488 at [11]
I have considered the transcript of the hearing, evidence adduced and the magistrate’s decision. I can find absolutely no basis or other reasonable justification for the appellant’s assertions, and I reject them.
Intimidation
The appellant also asserts that the trial magistrate intimidated him during the hearing because he “unfairly warned [the appellant] a number of times and accused me of being rude to witnesses”. (para 9).
It is often difficult for judicial officers to ensure the integrity of proceedings which involve a litigant appearing in person. This is all the more challenging when ignorance of procedural matters is overlayed with emotional reaction.
I have carefully read the transcript, and have not found any improper conduct on behalf of the trial magistrate. Indeed, it seems to me that he showed remarkable restraint and courtesy in the circumstances.
Conduct of Trial
The first appeal ground is, in effect, that the trial magistrate erred in law by excluding a bundle of documents, including documents sourced from the Internet.
The trial transcript records as exchange between the appellant and the trial magistrate during his evidence in chief, but it is difficult to discern the nature of all the documents forming part of the bundle. Nevertheless, I invited the appellant to tender the documents he sought to rely upon. In the appeal, the appellant tendered some of the documents (Exhibit 1) but explained that other document were now lost or destroyed after the hearing.
Exhibit 1 in the appeal comprised:
1. A handwritten sketch depicting the highway and the location of the camera and motor cycle, with some handwriting writing;
2. A document headed “Mycase 14th August 2014”;
3. Several pages containing commentary about the use and accuracy of speed cameras;
4. A photo graph of the parked motor cycle adjacent to a river stream; and
5. A photo montage containing images captured on the speed camera, other photographs and handwritten annotations.
In my view, those documents were inadmissible as evidence for several reasons. Document 1 and 2 were in the nature of submissions. Document 3 contained unsubstantiated opinion evidence of unknown origin or authorship. Document 4 merely identified the motorcycle, which was not in issue. Document 5 was a combination of the speed camera image, non-contemporaneous photographs and hand written annotations identifying reflective signs, location of the motor cycle and hard surfaces. Those features were already depicted in the speed camera images, already in evidence in the trial (Exhibit 1) and the montage at best served as a mere aid, and was not probative of any issue in the proceeding.
For these reasons, the trial magistrate was entitled to refuse tender of these documents at the trial.
Therefore, the first appeal ground must fail.
Unsafe & Unsatisfactory
The appellant’s third appeal ground is to the effect that the magistrate and witnesses were “ignorant of motorcycle riding and laws”, and therefore came to the wrong decision
The burden rested on the prosecution to prove the guilt of the appellant to the requisite standard, beyond reasonable doubt. In the context of this case, there was no burden on the appellant to establish any fact, let alone his innocence.
The High Court held in House v. The King[2] that:
"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have 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 allows erroneous or irrelevant matters to guide or affect 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. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance."
[2] (1936) 55 CLR 499 at 504 and 505
As to the appellant’s reference to “laws”, he could not identify any error of law, but instead argued that the trial magistrate failed to apply “common sense”. His complaint seems to be about the magistrate’s fact-finding role rather than the use of a wrong principle.
To succeed on the aspect, the appellant must show that the trial magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal.[3] This involved my independent examination of the evidence, including credit of witnesses, to make my own assessment of both the sufficiency and quality of the evidence.[4]
[3] Whitehorn v R (1983) 152 CLR 657 at 687
[4] Morris v R (1987) 163 CLR 454 at 463-4, 466 per Mason CJ, at 473 per Deane, Toohey and Gaudron JJ, at 477-9 per Dawson J
During the trial, the prosecutor adduced written and oral evidence. He relied upon the force of ss 120(1), (2) & (4) and 211(1)(e) and Schedule 13 Part 2 of the Transport Operations (Road User Management) Act 1995, to prove the accuracy of the speed camera image (Exhibit1), the notation of date, speed, time, location and speed limit, and compliance with the operation and testing requirements for the speed camera subject of the proceeding. The prosecutor also relied upon a certificate pursuant to s 120(2A) of the Act to prove the accurate calibration of the speed camera subject of the proceeding (Exhibit 2). The prosecution witnesses provided a body of oral testimony[5] which both corroborated the certificates and negatived any adverse impact of:
[5] Witness Evans – T2.10/29-42; T2.11/5-10; T2.12/7-22; T2.14-15; T2.11/5-10; T2.9-14; T2.24-28. Witness Clark – T2.24/15-24; T2.17-28; T2.30/31
1. The impact of rain;
2. The size of the target motorcycle;
3. Possible interference by electronic device;
4. Possible interference by reflective signs; and
5. The presence of other moving objects within the image
On the other hand, the defendant gave evidence about the rain and the wet road, but did not adduce any other evidence of features relied upon in the notice of dispute. In my view the state of the evidence would not have improved even if the appellant was permitted to rely upon document 5 in Exhibit 1 in this appeal.
Significantly, the defendant did not adduce any direct evidence of his speed, for example, observations of his speedometer. Instead, he relied upon circumstantial evidence and asked the court to draw the inference that he was travelling at less than 93 km/hr. These matters were summarised in the respondent appeal submissions, as affirmed by the appellant on the appeal as:
1. His motorcycle was not capable of travelling at 93 km/hr given the condition of the road and proximity to the roundabout;[6]
[6] T2.30/28-30
2. The motorcycle had off-road tyres and he would have come off the bike if travelling at 93km/hr;[7]
3. His jacket would have ‘blown up like a balloon’ if he was travelling at 93 km/hr;[8] and
4. His posture was consistent with a speed slower than 93 km/hr.[9]
[7] T2.30/34-39
[8] T2.30/34-39
[9] T2.30/23-24; T2.32/30-32
In Fox v Percy,[10] Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,[11] as to the correct approach of an appellate court where findings of fact based on credibility of witnesses are challenged:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’” (references omitted)
[10] Fox v Percy (2003) 214 CLR 118 at 127 [26]-[27]
[11] Including Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479
This is not an exhaustive formula. The same court (at 128 [29]) recognised that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”.
In my view there is no basis to depart from the findings of the magistrate based on the testimony of the witnesses.
Further, the trial magistrates’ findings of fact based on inference ought be taken as correct unless and until the contrary is demonstrated. In Fox v Percy,[12] affirmed the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”.
[12] Fox v Percy (2003) 214 CLR 118 at 127 [25] per Gleeson CJ, Gummow J and Kirby J.
To the extent that the appellant asserted competing inferences, consistent with innocence, the trial magistrate properly drew on the certified evidence consistent with guilt because, in the absence of any cogent evidence, it overcame any other possible inference as to leave no reasonable doubt.
In my view there was a logical and rational connection between the facts found and the trial magistrate’s deductions or conclusions. It seems to me that the verdict was reasonable and supported by the evidence, and according to law.
Order
For these reasons, I dismiss the appeal against conviction.
Judge Dean P. Morzone QC
District Court of Queensland
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