Kuipers-Lloyd v Police

[2014] SASC 72

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

KUIPERS-LLOYD v POLICE

[2014] SASC 72

Judgment of The Honourable Justice Kelly

17 June 2014

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - GENERALLY

Appeal against conviction. The appellant was charged with speeding contrary to Rule 20 of the Australian Road Rules. The allegation was that he drove 68 kilometres per hour in a 60 kilometre per hour zone. The appellant, who was self-represented at trial and on appeal, appeals on the grounds that the Magistrate did not fully consider the facts, prevented meaningful cross-examination, taxed the appellant for being self-represented, and erred in his assumptions.

Held: Appeal dismissed. The Magistrate did not err in his decision to convict the appellant.

Australian Road Rules r 20; Magistrates Court Act 1991 (SA) s 42(4), referred to.

KUIPERS-LLOYD v POLICE
[2014] SASC 72

Magistrates Appeal:   Criminal

KELLY J.

1. This is an appeal against the decision of a Magistrate on 29 November 2013 convicting the appellant of one count of driving a motor vehicle at a speed of 68 kilometres per hour whilst in a 60 kilometre per hour speed zone contrary to Rule 20 of the Australian Road Rules. 

2. The appellant, David Kuipers-Lloyd was self-represented at the trial and again on appeal.  He makes four main complaints, namely that the Magistrate did not fully consider the facts, prevented meaningful cross-examination, taxed the appellant for being self-represented and erred in the assumptions he made. 

3. Before turning to each ground of appeal it is necessary to summarise the background. 

4. The prosecution case was that at about 10.15pm on the night of 20 March 2012 a police officer on mobile traffic control, Senior Constable Walton, observed a Jaguar sports vehicle accelerate ahead of other traffic at the intersection of Marion Road and Sir Donald Bradman Drive at such a rate of speed that the officer decided to follow and time the Jaguar.  He timed the vehicle over a distance of approximately 300 to 500 metres travelling at a constant speed of 68 kilometres per hour.  Shortly before the intersection of Marion Road and Richmond Road, he stopped the vehicle and issued an expiation notice to the driver, namely the appellant Mr Kuipers-Lloyd.

5. At the trial on the speeding charge, what occurred after the Jaguar was stopped was the subject of much contention and cross-examination of the two police witnesses involved in the issuing of the expiation notice. 

6. At the hearing of the appeal the appellant explained what he meant by ground 1.  He submitted that the Magistrate simply ignored facts presented by the appellant and his witness, and uncritically accepted the evidence of the police officers which, in the appellant’s submission, was demonstrably untrue and unreliable.  The appellant submitted that the Magistrate simply ignored his evidence and that of his wife in circumstances where the evidence given by him and his wife was unshakable.  The appellant also submitted that the evidence of both police officers called for the prosecution in relation to what occurred after the appellant’s vehicle was stopped on Marion Road was both false in some respects and unreliable in other respects. It was therefore unreasonable for the Magistrate to have accepted their evidence in preference to that of his wife and himself.  I shall deal with each complaint in turn.

7. The appellant’s submissions on this ground were almost exclusively directed to the issue of the police officers’ reliability and credibility.  In particular, the appellant submitted that the evidence of both police officers was vague, lacking in detail in a number of important respects, and on the critical issue of where the offending was alleged to have occurred and where the appellant was stopped on Marion Road, that the police officers were wrong and lying.  The appellant maintained that police officer Walton did not have the ability to track his vehicle for the distance he claimed.  Moreover, the behaviour of both police officers at the scene constituted police harassment and their behaviour at and during the trial demonstrated that they had colluded in producing affidavits for use in connection with the proceedings at trial and in relation to another matter, namely, a police complaint lodged by the appellant about their behaviour on that night. 

8. The appellant claimed that it was extraordinary that a police officer, whose job in the main was traffic patrols and who had a detailed knowledge of the area, was unable to identify the precise point on Marion Road where he says the appellant was stopped. 

9. At trial, both Walton and Officer Kungel, the other police officer who happened to be passing by within a few minutes of Walton stopping the appellant on Marion Road, testified to the location at which the appellant was stopped by Walton.  It was not until the appellant’s address at the conclusion of the evidence that his defence became clear, namely that Walton never stopped him near 171 Marion Road as claimed, but in fact stopped him before the appellant reached Sir Donald Bradman Drive at a location somewhere approximate to 49 Marion Road. However, I do not consider that the appellant has identified any aspect of the prosecution evidence either in examination or cross-examination which is capable of casting any doubt over the accuracy of the evidence of the police officers that he was stopped at a point closer to Richmond Road.  Moreover, the appellant never explained why the police communications record made from information supplied by Walton that evening recorded the location as being outside 171 Marion Road.  This record was consistent with the version of both Walton and Kungel.

10. It is apparent from a perusal of the transcript of the trial (and not in dispute) that the appellant was irate at being stopped and was aggressive and argumentative with the police officer at the scene.  There is nothing in the cross‑examination of the police officers about what transpired at the scene which causes me to think that they have embellished the truth or lied about what took place at the roadside.  The fact that the police officer was unable to identify with precision by reference to the adjoining premises, the exact point on Marion Road where he stopped the appellant is of no moment.  The police officer is a traffic police officer who in the course of his duties has had occasion to stop hundreds of motorists at various locations in suburban Adelaide.  It is not difficult to grasp why he could not remember the precise location of every single one. 

11. In fact, this was a very simple and straightforward matter which ultimately became a question of credit between the prosecution and the defence witnesses.

12. I am mindful that the Magistrate who saw and heard the witnesses made decisive findings as to credit.  The appellant has not demonstrated that the Magistrate has acted on evidence inconsistent with any fact incontrovertibly established by the evidence or any fact which was glaringly improbable.  There is nothing submitted on appeal, nor is there anything in the transcript of the trial or the Magistrate’s reasons, which causes me to have any doubt about the correctness of the Magistrate’s conclusions. 

13. The findings he made were open to him and I have no misgivings about the conclusion he reached.

14. I turn now to deal with ground 2 which is a complaint that the Magistrate prevented meaningful cross-examination.  In support of this ground the appellant submitted that the Magistrate repeatedly taxed him for being self-represented and stopped him from cross-examining at important points when he was trying to develop his defence.

15. Once again, a perusal of the transcript reveals that the Magistrate intervened only at points necessary to ensure that the appellant’s questions were intelligible, relevant to the issues and fairly put.  At times the Magistrate was at pains to point out the requirements that the appellant should fulfil as a self-represented litigant presenting his own defence. 

16. The Magistrate did indeed interrupt at points when the appellant failed to allow the witness to finish an answer, failed to identify the source of an out of court statement (affidavits of the police officers) which he wished to put to the witness, misquoted or failed to accurately recite previous evidence he wished to put to the witness, asked inadmissible questions such as the existence of a certain state of mind of other people or when a witness was asked to speculate or give opinion evidence which was inadmissible, made a comment rather than asking a question, or when the appellant asked a question which was irrelevant to the facts in issue.

17. In my view the Magistrate gave considerable latitude to the self-represented appellant and on several occasions allowed him to proceed even though that particular line of questioning would not have been permitted if the appellant been represented.

18. In his closing address, the appellant for the first time identified with clarity the fact that he was claiming that the location where he was stopped was at a very different point on Marion Road to where the police witnesses claimed.  This had never been put clearly to either witness, although it is plain from the evidence of Walton and Kungel (whose evidence on this point was not contradicted or questioned by the appellant) that both officers gave clear evidence that the appellant was stopped on Marion Road shortly before its intersection with Richmond Road.  This location is well away from the location suggested by the appellant which was before the Sir Donald Bradman Drive intersection with Marion Road. 

19. Even though the Magistrate pointed out during the appellant’s address that the appellant had not clearly put to the prosecution witnesses the location where he said the police officers stopped him, I consider that it was a necessary conclusion from the evidence of the two police officers that even had that been specifically put to them it would not have caused either officer to change their clear evidence that the location of the stop was at a point much further south on Marion Road closer to Richmond Road.  Moreover, that was the location which had been communicated by some means by Walton to police communications that night, hence the record indicating that the appellant was stopped outside 171 Marion Road consistent with the evidence of both Walton and Kungel.

20. For these reasons I do not consider that there is any substance in this ground of appeal.

21. Ground 3 is a complaint that the Magistrate taxed the appellant for being self-represented.  This ground was dealt with by the appellant in making submissions as to ground 2.  The complaints made in respect of each ground of appeal are similar.

22. There is no support in the transcript of the trial or in the Magistrate’s reasons for the appellant’s assertion that he was prejudiced by the Magistrate’s attitude to the appellant being unrepresented.  On the contrary, it appears that the appellant was extended some additional latitude or leeway in the cross-examination he was permitted to make of the police witnesses.  The Magistrate was careful to respect and explain the appellant’s procedural rights at different stages during the trial. 

23. During the hearing, the appellant complained that the Magistrate prematurely made up his mind on the matter. At the end of the case for the defendant and after the evidence had been completed the Magistrate said:

    I reserve my judgment in respect of this matter.  I have made a decision about it but I need to set out some brief reasons and hopefully will do that this afternoon...

24. It appears from the transcript that at that stage his Honour was merely proposing to proceed in accordance with the usual practice of not hearing addresses from either party at the conclusion of the trial where a defendant is self-represented. His Honour explained to the appellant:

    It’s very unusual in circumstances where one party is unrepresented for that to occur.  I have heard all the evidence.  I really don’t need for you to give me a summary.  The reason for that is it’s regarded as a disadvantage to an unrepresented defendant to be required to sum up in circumstances where there is an experienced prosecutor also doing so.

25. However, the appellant was strident in his wish to make a closing address and the Magistrate permitted this course in deference. While it is unfortunate that the Magistrate announced that he had formed a view prior to the conclusion of addresses, it is perfectly understandable in the circumstances why he did.  In any event, I am satisfied that no miscarriage of justice occurred by his Honour expressing a view at the conclusion of all of the evidence.

26. I turn now to deal with the last ground of appeal which is that the Magistrate erred in the assumptions which he made. 

27. The appellant claimed that the Magistrate was wrong to draw a negative inference about one aspect of his wife’s evidence.  The Magistrate said:

    I make no comment about the prosecution submission other than to say it caused me some disquiet when Exhibit D5 was produced to the wife.  Without anything being said in relation to the exhibit, which was a photograph, she spontaneously and immediately volunteered that there was insufficient room for the number of cars as alleged to be parked in that location.  Her evidence was identical in the words used by the defendant on that point, and was not given in relation to any question. 

28. That extract constitutes part of the Magistrate’s reasoning for preferring the evidence of the police witnesses to that of the appellant and his wife.  Given the whole of the evidence, I consider there is nothing remarkable or sinister about that particular observation. 

29. The rest of the appellant’s arguments on this ground amounted to re‑argument of the complaints made in relation to ground 1 and were essentially directed to the Magistrate’s disregard of the evidence of the appellant and his wife and his preference for the evidence given by both police officers.

    Conclusion

30. Having read the transcript at trial and having perused all of the material including the exhibits at trial, I consider that the appellant has failed to identify any error of fact or law which would justify the intervention of this Court. Though this Court has wide powers on a Magistrates appeal, including rehearing of witnesses or receiving fresh evidence, the interests of justice in this case did not require me to do so.[1] I have no misgivings about the verdict his Honour reached. 

    [1]    Magistrates Court Act 1991 (SA) s 42(4).

31. This appeal should be dismissed.