Jones v. Lyndon
[2008] QDC 115
•23 May 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Jones v Lyndon [2008] QDC 115
PARTIES:
ERIC MARSHALL JONES
Appellant
v
NIGEL KEITH LYNDON
Respondent
FILE NO/S:
196 of 2008
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
23 May 2008
DELIVERED AT:
Brisbane
HEARING DATE:
19 May 2008
JUDGE:
Robin QC DCJ
ORDER:
Appeal allowed, conviction set aside
CATCHWORDS:
Justices Act 1886 s 222 – appeal against conviction for failing to stop at a stop sign or stop line – police evidence that appellant braked twice (he said he stopped twice) preferred on basis of supposedly conflicting evidence attributed to appellant which he did not give – allegation of bias in magistrate not made out.
COUNSEL:
Appellant in person
Ms Z Rutherford (solicitor) for the respondent
SOLICITORS:
DPP for the respondent
Mr Jones argued his own appeal under s 222 of the Justices Act 1886 against his conviction by an acting magistrate at Caboolture after a summary trial on 25 January 2008 of the offence of failing to stop at a sign or line on 18 January 2007 in breach of s 67(2) of the Transport Operations (Road Use Management – Road Rules) Regulation 1999. He had represented himself before the magistrate.
There was some debate about whether the appeal was against conviction only or whether it extended to an appeal against the sentence of a fine of $375.00 and an order for payment of costs of court of $66.30. In the end, as will be seen, it is unnecessary to resolve that point. However, I am inclined to think that the statement in the grounds of appeal that the magistrate was “over harsh considering alleged traffic offence” is capable of being read as extending to an appeal against the sentence.
As his Honour said in giving reasons for the sentence (page 24 of his reasons), “this is not a particularly serious charge. However, it is a breach of the traffic law.” Mr Jones has a bad traffic history, essentially for speeding. This alleged offence of rolling slowly through a stop sign/stop line in executing a left hand turn in his vehicle from Grant Road into Caboolture River Road is totally different in character, in my view. There is not the slightest suggestion of any pedestrian, cyclist or other traffic being placed at risk.
On the police version Mr Jones’ speed along Grant Road was estimated at 10 to 15 kilometres per hour before he braked, and then braked again. His sworn evidence was that he “stopped” (rather than braked) twice, once at the sign on the footpath of the severely truncated corner, after that at the stop line painted on the road some distance in front. He swore that three feet further into the intersection, at which point he was able to check for traffic coming along Caboolture River Road, the view of which was partially obscured by a parked vehicle (the police vehicle in which the respondent and his colleague Constable Pascoe were sitting, charged with making observations of the intersection), assured that the road was clear, he accelerated to execute a left turn and proceed along Caboolture River Road.
The police followed, activating the lights and siren. Mr Jones pulled over and conversation ensued in which the protagonists gave essentially the same versions of events as they gave from the witness box. The police officers gave versions of observations of the movement of Mr Jones’ vehicle, subsequent observations (such as the driver being a male person) and of the words spoken in the conversation which were absolutely identical (with the exception that one of them gave evidence of the preceding vehicle proceeding in a lawful way into the intersection); they both swore (in identical terms) to some additional conversation as to some matters that do not appear particularly pertinent, such as Mr Jones’ awareness of the stop sign; they also attributed to Mr Jones a threatening statement about the CMC (unwise, if it was made) which was ventilated for the third time when the appellant was cross-examined at page 44 of the transcript (this became available to the court only when Ms Rutherford, for the respondent, offered her spare copy):
“Were you asked why – whether you knew why he’d been stopped? --- Yes, sir.
Did you reply, “No”? -- Yes, sir.
Did a police officer say, “I observed you didn’t stop back there at the intersection”? -- No, “We pulled you over for failing to stop at a stop sign.”
Okay. Did you then say, “Yes I did, I stopped twice”? -- Yes, sir.
Did a police officer say to you, “No you didn’t, you proceeded through the stopped sign and braked twice”? -- No, sir.
And did you say, “No, this is ridiculous, I’m going to report you to the CMC”? -- No, sir.”
His Honour recounted that latter disputed statement in his reasons at page 7 (line 49), page 10 (line 27) and page 17 (line 30), where there was a finding that the statement was made. I find it unsurprising that at page 18, following the guilty finding Mr Jones alluded to the matter in the following context. His Honour asked:
“Can I hear from you please Sergeant in relation to antecedents?
SGT BARNES: Yes, there is traffic history if I may approach?
BENCH:Yes. Have you shown the defendant?
SGT BARNES: Not yet, your Honour.
DEFENDANT: I will be talking to the CMC.
BENCH:Now just stop that right now. Stand up please Mr Jones. Just because you’ve been found guilty here today – Mr Jones.
DEFENDANT: Yes.
BENCH:If you’re not prepared to comply with the directions of the Court you’ll go into custody and I’ll deal with you later this afternoon. You have the right to appeal.
DEFENDANT: I will sir.
BENCH:-------- from what I have done here today. Unless and until you appeal, you must accept the verdict of this Court.”
In his presenting his appeal, Mr Jones contended that the word “now” where first attributed to his Honour ought to have been attributed to him. Also, he told this court that he was objecting to the manner in which the prosecutor threw the copy of the traffic history at him. The foregoing exchange was not his Honour’s only resort to the judicial technique of threatening to lock up a self-represented litigant thought to be unco-operative. At page 23 (line 40), according to the transcript, he says “No, no, no. Address me. Do that one more time and you’ll wait in custody until this matter’s determined.” At this point, Mr Jones was making a plea (successful in the end) that no order be made disqualifying him from holding a licence.
Disregarding standard advice of possibilities of obtaining an extension of time to pay a fine or a fine option order and of the right of appeal to this court and a closing warning against making “threats, either against this Court or police officers who are simply doing their jobs”, the reasons for sentence concluded:
“While I take into account sections 187 of the Penalties and Sentences Act I am of the view that it is inappropriate to disqualify you here today because I am certain that there will be issues that you will have to face before the Petrie Magistrates Court on the 7th of the 3rd 2008 that will deal with you globally, not only in respect of this offence but in respect of your previous history, and that you will have to argue long and hard to keep your licence before that Court on that date, when the Court will quite properly look at the whole of your traffic history. Although, that is open to this Court here today.
I refuse the application to disqualify you here today. You will be convicted and the conviction will be recorded against you. You will be fined the sum of $375, ordered to pay Court costs of $66.30. In default of payment you will serve five days in imprisonment.
How long, Mr Jones, are you asking to pay that fine and those Court costs?
DEFENDNAT: Three months, sir.
BENCH: All right. I might start you off on two.”
The matters set out immediately above would appear to be an inadequate foundation for Mr Jones’ complaint that his Honour was biased. They arise after the announcing of a decision to prefer the police evidence to Mr Jones’. In my opinion, they bespeak his Honour’s concern to protect the position of the court and, I suppose, also the police in carrying out their important public functions. These aspects of the proceeding in the Magistrates Court should not be used to retrospectively infect the decision already reached.
There are aspects that ought to be noted of earlier events which, while they may have caused Mr Jones disquiet, I am not prepared to accept as indicating bias. In arguing his appeal, Mr Jones referred to a last-minute change of court on the date of trial, which apparently led to his Honour’s hearing the charge, rather than another magistrate. His Honour, as it happens, had previously convicted Mr Jones of the offence in absentia and imposed by way of penalty a fine in a lower amount and ordered payment of court costs. The bench complaint sheet shows that this occurred on 5 October 2007. According to another magistrate’s endorsement, on an earlier day Mr Jones had pleaded not guilty and been remanded to appear “at 9.30 am [9.00 am/pm] on the 5 Oct 07”. The conviction is recorded in his Honour’s endorsement on 5 October 2007:
“No appearance of the Defendant. Service is proved. Hearing Ex parte. I am satisfied that the provisions of Section 142A of the Justices Act 1886 have been complied with, and the facts as alleged in the Complaint constitute an offence as referred to in that section and reasonably sufficient particulars thereof are set out in the Complaint annexed thereto.
I hear the charge(s).
Defendant is convicted and Fined $300.00 and ordered to pay $66.30 Costs of Court, and the sum of $ NIL being in default of payment to serve 1 month Imprisonment. Allowed to pay.
A conviction is recorded/not recorded.”
It may be doubted whether the “4” inserted in a blank in the imprint of a rubber stamp was intended by his Honour to quantify default imprisonment.
The conviction was set aside by him later in the day pursuant to s 147A of the Justices Act when Mr Jones was recorded as present and the matter was set down for the trial which ultimately took place on 25 January 2008. On the last date, his Honour gave no reason for the fine being fixed in a sum 25% greater. This aspect of the matter strikes me as a curiosity, but Mr Jones made no mention of it; he may not have been aware of the $75 difference.
Nor did he specifically mention the repeated interruptions he was subjected to from the bench in the course of giving his evidence after being advised at page 39 to “Go for your life Mr Jones”. On the next two pages he was asked to stop or “hang on” 18 times in 90 lines (i.e. about a page and a half) of transcript. The police witnesses were similarly interrupted, although not to the same extent. For Constable Lyndon it was 14 times in three pages of transcript. Constable Pascoe was asked to stop 17 times at pages 20-22 and another five times later on. The point of all this was to enable his Honour to make accurate notes of the evidence, a goal which comparison of his ex tempore reasons with the transcript ultimately produced shows was achieved. While some witnesses may find that amount of interruption compromising their ability to give their evidence, as it happens, that does not appear to have occurred here.
Mr Jones did mention in the appeal hearing the aspect of the police officers getting his name wrong, in the sense of referring to him as Mr Marshall. Constable Lyndon did this at page 10 (line 45) and immediately corrected himself. At page 21 of the transcript, after Constable Pascoe had said “Mr Marshall” four times, Mr Jones, having in the course of his Honour’s explanation of court procedures (transcript pages 2-5) been advised of his “right to object to evidence” and told to do so by standing and saying the word “objection” (page 5), followed that procedure, asking that he be called Mr Jones. After the witness apologised, Mr Jones would have been justified in developing some concern that his objection had not improved his prospects. The transcript at 22-23 reads:
“BENCH: Mr Jones, you’re entitled to make an objection that may or may not have been an issue that you could have pointed to when this matter proceeds further. You’ve now indicated to this witness that he has made an error in his evidence.
DEFENDANT: It just sounds – to me – it just sounds wrong to me him saying it.
BENCH: Right. Mr Jones, in making a decision here today, I have to make an assessment of the witnesses whilst they are giving their evidence. That assessment will be based upon the accuracy and the similarity of the evidence given by the witnesses that are giving their evidence here today.
It may well have been a tactical advantage on your behalf that you may have been able to submit to the Court, for example, one police officer’s – correctly identifies me as Mr Jones and another police officer has identified me as Mr Marshall. There is that inconsistency between the police evidence. Obviously, Mr Jones, that advantage is now lost because of what’s happened – the objection that you’ve taken here today.
You’re certainly entitled to object to that evidence. It’s now going to be repaired immediately obviously because this witness is now well aware that your surname is Jones and that the name Marshall has some other connection with you as well too. But I simply make that comment. You’ve raised it. This witness is now going to repair the issue.
DEFENDNAT: It just sounds strange, sir.
BENCH: Well, it’s – yes it does and everyone else in the room bar this witness prior to what’s just happened, was aware of that. All I simply say is, that may have been a tactical advantage that you had that is simply lost now ------
DEFENDANT: But it’s quite relevant that he’s not – he doesn’t know me apparently.
BENCH: Well, no, no, no. We won’t get into that. Take a seat. Your objection’s noted. It’s currently being repaired. I’ve attempted to shut – anyway, we’ll move on.”
Mr Jones, who did not have the transcript, as he said he could not afford one (it runs to 80 pages, including the reasons), did not note the pleasantry at the end of the first police officer’s evidence (page 18):
“BENCH: Constable Lyndon, thank you for giving evidence? --Thank you, your Honour.”
The dismissals of Mr Jones (page 48) and Constable Pascoe (page 37) from the witness box were somewhat less effusive. It is important for any tribunal with a fact finding function to avoid any appearance of distinctions favourable or unfavourable to particular witnesses while the process of taking evidence remains incomplete. Differential treatment of witnesses was a concern in Keating v Morris [2005] QSC 243. See [97] – [108].
The aspect in which Mr Jones professed a recollection in his sworn evidence was that one of the police officers evinced an intention to breathalyse him at the scene (it was about 2.50 pm), to the extent of removing the appropriate device from the boot of the police vehicle – ultimately not proceeding on the basis that the equipment was not working. Each officer responded by repeated resort to the formula “I don’t recall”: 15 (Lyndon) and 33 (Pascoe).
As the prosecutor put it in his cross-examination, and Mr Jones accepted (47 line 8), “This charge is all about whether you stopped or didn’t stop”. Asked to define stopping, Mr Jones volunteered “anything around three seconds onwards … of time stopped”. I have no idea what the scientific concept of stopping might involve, but would be astounded if in the general community the notion (which is not relevantly defined for this context, although it is in others) contemplated something as long as three seconds. I would not regard Mr Jones’ evidence as an assertion that he stopped twice for that length of time.
The key proposition, that there was no stop at the stop line, had to be proved beyond reasonable doubt, as his Honour made clear. Credibility of witnesses was plainly important. In her helpful written outline prepared on behalf the respondent Ms Rutherford included the following passage from Riley v Doyle (unreported CA nos 15 and 16 of 1997) 9 May 1997:
“Where credibility is the critical issue and the Magistrate has made findings based on credibility, an appellant cannot succeed unless it can be shown that the Magistrate has failed to use or has misused his advantage in seeing the witnesses or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable (Devries v Australian National Railways Commission (1992-3) 177 CLR 472).”
In an earlier paragraph the outline offers a précis of the well known passage from House v R (1936) 55 CLR 499 at 504 regarding the requirement for it to be shown that the Magistrate “act[ed] upon a wrong principle … allow[ed] extraneous or irrelevant material to guide or affect him … [mistook] the facts … [or did] not take into account some material consideration.” Although this reference was made in the context of the sentencing discretion, I think it may appropriately be taken as a guide (along with Devries) in respect of a Magistrate’s fact-finding function.
His Honour revealed his reasoning in the following passage at pages 13-14 of his reasons:
“In cross-examination [Mr Jones] was adamant that he stopped twice clearly. However, in cross-examination he said that he proceeded through the intersection very slow, very slow. He said that twice.
During the course of this hearing I have had the opportunity of listening carefully to and observing closely the witnesses whilst they have given their evidence. In particular, I have had the chance to examine each witness’s opportunity to be in a position to see, hear or otherwise experience the facts in issue and to articulate to this Court what was seen, heard or otherwise experienced. I have also had the chance of observing each witness’s powers of observation, judgment and memory. I have also had the opportunity of examining the extent to which each witness’s version of the disputed facts is consistent with facts not in issue, and with the account of other witnesses given for the same party.
Based on my assessment of the witnesses who have given evidence here today, I found that the police officers’ evidence was given in a consistent and forthright manner. I found that their evidence was given unequivocally and professionally. I assessed their evidence as credible and worthy of belief and acceptance.
I find that the police officers’ evidence was not diminished or lessened in any way by cross-examination. Police officers are to be encouraged and commended to give evidence in a way that appears to be forthright as was the manner they gave their evidence here today.
By contrast, I found the defendant’s evidence was not given in such an unequivocal and credible manner. In his evidence-in-chief I found that Mr Jones was initially confused concerning which officer initially approached him after being intercepted on Caboolture River Road. Also in cross-examination I find that there was some inconsistency in the answers given. He said that he definitely stopped twice clearly. And then further in cross-examination he said that he proceeded through the intersection very slow, very slow. While I am not suggesting that Mr Jones is deliberately lying in these proceedings, the way that Mr Jones has given evidence and the answers given by him in both in evidence-in-chief and cross-examination does not inspire the same confidence in the Court in the accuracy of his evidence compared to that of the consistent nature of the evidence given by the police officers, except for the misnaming of Mr Jones by Constable Pascoe in his evidence-in-chief.
Based on the evidence that I have observed here today I accept the police officers’ evidence where it conflicts with that of [Mr Jones].”
The reasons may be read as suggesting that Mr Jones said he “proceeded through the intersection very slow, very slow”, twice. The reference, which his Honour took pains to note twice himself (perhaps for emphasis) on my reading of the transcript must be to a single exchange in cross-examination at 47-48:
“So did you – do you claim you completely stopped prior to crossing over that stop line or -----?----- Twice, yes. Once at the stop sign and once at the stop line. And then a hesitation three foot out from the – into the – intersection.
And what did you hesitation constitute? A stop or a slowing? – A very slow. Very slow.”
All Mr Jones said twice (in this context) was “very slow”. My reading of the reasons is that they are founded upon Mr Jones having given inconsistent versions: one, that he stopped twice, the other that he “proceeded through the intersection very slow[ly]”. I am quite unable to find any passage in the evidence to that or remotely similar effect. The conclusion appears to me inescapable that his Honour misunderstood the passage of cross-examination, which is expressly limited to the “hesitation three foot … into the intersection” as applying to the overall exercise of manoeuvring the vehicle from Grant Street into Caboolture River Road. This supposed (but non-existent) inconsistency was the basis on which the police evidence was preferred, as it seems to me. I think that the appeal must be allowed on this basis. Mr Jones’ evidence simply was not what his Honour treated it as being. No court is entitled to act on supposed evidence which never existed.
I will make some further observations, but emphasise that they are not relied on as an independent basis for allowing the appeal or as reinforcement for the basis on which this court does act. In arguing his appeal, Mr Jones managed to convey to me more clearly the point I think he was trying to make below in his final “address” when he said, rather clumsily, at page 50:
“The police officers are not firstly saying – have not got their – their conversations clearly together. One knows something and the other doesn’t.”
What I think he was trying to convey is that only one of the officers observed enough to give an account, that the other is doing no more than echo the principal version, after being apprised of it in some way. If the function of fact finding and evaluation of evidence were mine (and I accept that it is not, sitting here on appeal), I would have been impressed by the misnaming of Mr Jones not being the error of Constable Pascoe alone (as the reasons suggest in the passage quoted) but being an error made by Constable Lyndon as well. I would find the co-incidence of errors troubling, particularly where the officers’ evidence about events, including conversation longer than a year in the past was effectively word for word the same and where both took refuge in the evasive “do not recall” response to the breathalyser allegation, as to which (I infer) neither knew what the other might say. I would find it hard to justify the accolade the officers receive in the judgment under appeal. It is unnecessary here to go into one of Mr Jones’ main points, that the police officers gave inconsistent evidence about the location of their parked vehicle when comparison is made of marks placed on the prosecution’s photographic exhibits and marks made on photographs he placed before Constable Pascoe to be marked by the witness. Mr Jones produced some of these marked photographs of his to me. There would be problems in relying on them, as (unlike the police photographs) they do not form part of the record below. For some reason, his Honour did not get them tendered.
I have paid a tribute to the Magistrate for the accuracy of his notes, which did record Constable Lyndon’s misnaming of Mr Jones as Mr Marshall (see page 7 line 26). Were I in his place, I would have attached some significance to the identical mistake being made by both police officers. The note-taking may have failed in respect of what I regard as the crucially wrongly understood passage in Mr Jones’ cross-examination set out above.
I have observed no witness in the witness box and am in no position to make factual findings. The question is not whether I could reasonably suspect that Mr Jones failed to stop at a stop line, or whether I think it is likely or probable that he failed to stop. The question is whether, accepting that minds may differ, the case presented by the prosecution was capable of establishing beyond reasonable doubt that he did so fail. By getting the evidence wrong, his Honour disabled himself from embarking on his task of answering the vital question on the right basis.
The conviction should be set aside. The whole affair strikes me as a matter so minor that it would be a waste of resources for it to be pursued further. Even on the police case, Mr Jones made a gesture towards complying with s 67 and came to a near stop. I would not contemplate sending the charge back to the Magistrates Court for re-trial in the circumstances, accepting that course would be open.
In fairness to Ms Rutherford, I place on record that, although the appeal grounds assert in a general way that the prosecution failed to prove this case, there was no relevant detail provided. The purported outline of argument supposed to satisfy the Practice Direction was only a single paragraph adding nothing. It should have analysed the transcript and reasons of his Honour in appropriate detail, as it has fallen to me to do so in the circumstances. Ms Rutherford had no opportunity to confront what I see as the true point in the appeal. In my view it is one not capable of being answered.
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