Philp v Commissioner of Police

[2024] QDC 218

DISTRICT COURT OF QUEENSLAND

CITATION:

Philp v Commissioner of Police  [2024] QDC 218

PARTIES:

PHILP, Patrick John

(appellant)

v
COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

449/24

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

12 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

6 December 2024

JUDGES:

Smith AM DCJA

ORDER:

1.   The appeal is dismissed.

2.   The Magistrate’s order is confirmed.

CATCHWORDS:

TRAFFIC LAW – TRAFFIC REGULATION – Speed Limits – where the appellant was the driver of a motor vehicle photographed travelling at 91 kph in an 80 kph zone – whether prosecution had proved the elements beyond reasonable doubt – whether the police required to position speed detection device more than 300 metres from the speed limit sign

Police Service Administration Act 1990 (Qld) s 4.9
State Penalties Enforcement Act 1999 (Qld) s 157
Transport Operations (Road Use Management) Act 1995 (Qld) ss 120, 121, 123C, schedule 4
Transport Operations (Road Rules) Regulation 2009 (Qld) ss 20, 21, 22, 25, schedule 5
Bromet v Oddie [2003] FCAFC 213, applied
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, considered
Cullis v Ahern [1914] HCA 59; (1914) 18 CLR 540, cited
Plaintiff M47/2012 v Director General Security [2012] HCA 46; (2012) 251 CLR 1, cited
Powell v May [1946] KB 330; [1946] 1 All ER 601, cited

Stuart v Chief of Army (2003) 177 FLR 158; [2003] ADFDAT 3, applied

COUNSEL:

Self-represented appellant

C McMullin for the respondent

SOLICITORS:

Self-represented appellant
Office of the Director of Public Prosecutions for the respondent

Introduction

1. The appellant appeals his conviction on 29 January 2024 of the following charge:

   “On 21^st of June 2023 at Eagle Farm  the appellant being the driver of a car drove at a speed over the speed limit namely 80 kilometres per hour applying to the Southern Cross Way, Eagle Farm.”

2. The appeal is by way of rehearing on the evidence given before the Magistrate. In order to succeed in this appeal, the appellant needs to establish that the decision is the result of legal, factual or discretionary error.

   Trial

3. The trial commenced on 29 January 2024, at which time the appellant pleaded not guilty. The Magistrate explained the procedure for the trial to the appellant.

4. The prosecutor informed the Court that this was a matter where a traffic infringement notice had been issued to the appellant driving vehicle registered number 082IKY. It was alleged that he was travelling at 91 kilometres per hour in an 80 kilometre per hour zone at about 12.55pm on 21 June 2023.

5. Exhibit 1 was a certificate which attached a photograph showing the appellant’s vehicle travelling at 91 kilometres per hour. The photograph also showed that the speed limit was 80 kilometres per hour. The second image tendered as Exhibit 2 was a closeup of the number plate. Exhibit 3 was a certificate which said that the Vitronic Speed Camera System bearing serial number 762511 was tested on 24 November 2022 in accordance with the specifications of the device’s manufacturer and detailed further requirements about calibration testing prescribed and that the photographic detection device was found to be producing accurate results.

6. Exhibit 4 was a certificate under Pt 22 of the Traffic Regulation 1962 certifying the camera code site number 716700102, the descriptor of Southern Cross Way, Eagle Farm, that the speed limit was 80 kilometres per hour and that the certificate was a copy of a part of the traffic camera coding manual.

7. Exhibit 5 was a certificate certifying that on 28 June 2023 the infringement notice number 21267808980 was served by sending it to the appellant at an address at Arana Hills and that the appellant was the owner of registered number 082IKY. Exhibit 6 was the certificate that the appellant was the owner of the relevant vehicle– a 2002 Toyota Sedan.

8. Exhibit 7 was a copy of the infringement notice with a picture of the Toyota and the registration number and the speed being 91 kilometres per hour in an 80 kilometres per hour speed zone.

9. The appellant was then asked if he intended to give evidence and he chose to give evidence in his defence. He gave evidence that on 21 June 2023, he was driving over the Gateway Bridge in a northerly direction and passed the traffic controlled gantry on the Gateway Bridge. He later took a photograph of this. He said there was no speed limit sign as one enters the Southern Cross Way off the Gateway Bridge. Therefore the traffic controls on the Gateway bridge were no longer relevant. After 700 metres on the Southern Cross Way he came across the 80 kilometre speed limit sign. He said he was slowing down at the time. 

10. In cross-examination, the appellant admitted that he passed an 80 kilometre per hour speed limit sign and it was he that was driving and that was his motor vehicle.

11. In closing submissions, the appellant said the speed limit sign was approximately 700 metres into the entry to Southern Cross Way. He said there was no speed limit sign onto the entry of Southern Cross Way. He submitted that the detection device should not have been operated within 300 metres of the sign decreasing the speed limit. This was in breach of the police traffic manual. It was unreasonable to expect him to reduce from 100 kilometres per hour to 80 kilometres in such a short distance.

12. The prosecution in final submissions submitted that all elements of the offence had been proved with the relevant certificates produced to the Court. On the appellant’s own evidence he travelled through a speed limit sign of 80 kilometres per hour. The zone was already 80 kilometres per hour at that point.

13. As to the Traffic Manual point, the prosecutor submitted that the statement that the detection device should not be within 300 metres of the decrease did not apply to photographic detection devices.

14. The Magistrate in his reasons referred to the charge and noted that the burden rested on the prosecution to prove the guilt of the defendant beyond a reasonable doubt. The Magistrate noted the certificates which had been tendered and was able to accept the evidence. The Magistrate referred to the appellant’s evidence and the fact that at the time he was slowing down. As to the suggestion that the speed detection device ought to not have been within 300 metres of the speed sign, the Magistrate found that this was an approved site and there was a certificate confirming the device was located on an approved site in accordance with the manual. Overall, he was satisfied beyond reasonable doubt that the elements had been proved and he found the defendant guilty.

    Fresh evidence

15. The appellant tendered an aerial photograph and a video recording by way of fresh evidence.   

16. This established that the speed detection device was within 300 metres of the speed limit sign.

17. The speed limit on the Gateway Bridge was 80 kilometres per hour. There was no speed limit sign as one leaves the Gateway motorway to go onto Southern Cross Way.

18. Section 22 of the Transport Operations (Road Use Management-Road Rules) Regulation 2009 (Qld) (the “Road Rules”) provides that the speed sign applies to the length of road where the driver is driving. There was no evidence before me as to when the Gateway Motorway ended and the Southern Cross Way started. In the circumstances I am prepared to give the appellant the benefit of the doubt and find the speed limit was 100 kilometres per hour on the road he was travelling immediately before the speed sign. This is because it may be argued that the Southern Cross Way was a different length of road without a speed limit sign in which case the default speed limit was 100 kilometres per hour.[1]          

    [1]Section 25 of the Road Rules.

    Appellant’s submissions

19. The appellant submits that for about 700 metres from the commencement of the Southern Cross Way prior to the speed limit sign there was no speed limit sign and the portion of this motorway was unrestricted. This meant that a speed of at least of 100 kilometres per hour was permitted. He submits that the photograph taken by the camera which detected his speed had been set up almost immediately inside the section of motorway that was restricted to 80 kilometres per hour. He submits that according to the Queensland Police Traffic Manual chapter 6.3.1 a speed detection device should not generally be operated on a road within 300 metres after a sign indicating any decrease in the prescribed speed limit. It is submitted that the positioning of the speed detection device was contrary to these constraints. To conform to requirements that he reduce his speed from 100 kilometres per hour to 80 kilometres per hour in that distance was impossible. He submits that the positioning of the speed detection device was not fair.

    Respondent’s submissions

20. The respondent submits that by reason of s 21(2) of the Road Rules, a speed limit sign on a road applies to the length of the road beginning at the sign and ending at either a new speed limit sign, an end speed limit sign, a speed derestriction sign or if the road ends at a T-intersection or a dead end. In those circumstances, a speed of 80 kilometres per hour still applied.

21. Section 20 of the Regulation provides that a driver must not drive at a speed over the speed limit. The appellant should have been doing 80 kilometres per hour from the point of the speed limit sign.

22. Chapter 6 of the QPS Traffic Manual is a guide to police officers who set up handheld speed detection devices whereas chapter 9 of the manual provides with regard to photographic detection devices.

23. In the circumstances, the appeal should be dismissed.

24. On 13 August 2024, the appellant filed further written submissions. In those further submissions, the appellant submitted that the Southern Cross Way was not a road to which s 21 of the Road Rules applied. It was submitted there was no definition of road within the Road Rules. In those circumstances, the charge was invalid.

25. By way of response, the appellant submits that schedule 4 of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM”) contains the dictionary. It is submitted that the Southern Cross Motorway falls within the definition of road. In those circumstances, the charge was a valid one.

    Discussion

26. Regulation 20 of the Road Rules provides:

    “Obeying the speed limit

    A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.”

27. Regulation 21 provides:

    “21     Speed limit where a speed limit sign applies

    (1)The speed limit applying to a driver for a length of road to which a speed limit sign applies is the number of kilometres per hour indicated by the number on the sign.

    (2)A speed limit sign on a road applies to the length of road beginning at the sign and ending at the nearest of the following—

    (a)     a speed limit sign on the road with a different number on the sign;

    (b)     an end speed limit sign or speed derestriction sign on the road;

    (c)     if the road ends at a T-intersection or dead end—the end of the road.”

28. The term “road” is defined in Sch 4 of the of TORUM Act. This is defined as “includes an area that is open to or used by the public and is developed for, or has as one of its uses, the driving or riding of motor vehicles, whether on payment of a fee or otherwise.” There is no doubt in my mind that the Southern Cross Motorway is open to and used by the public and is used for the driving of a motor vehicle and therefore is a road as defined.

29. The elements the prosecution needed to prove beyond reasonable doubt were:

    (a)The defendant was a driver. A driver is defined in the TORUM Act schedule 4 as “means the person driving or in charge of any vehicle, tram, train, vessel or animal.”

    (b)The defendant drove a vehicle. A vehicle is defined in Sch 4 as “any type of transport that moves on wheels …”

    (c)At a speed over the speed limit applying to him for the length of road where he was driving. Section 22 of the Road Rules defines “Speed Limit” as “the speed limit applying to a driver for any length of road in a speed limited area is the number of kilometres per hour indicted by the number on the area speed limit sign on a road into the area….”

30. Section 120 of the TORUM Act permitted the tendering of images or videos made by a photographic detection device. This rendered admissible Exhibit 1. The effect of this section is that the image or video produced by the prosecution is evidence of the matters contained therein[2] and the marking and writing associated with the image is taken to have been properly made.[3]

    [2]Section 120(2) of the TORUM Act.

    [3]Section 120(4) of the TORUM Act.

31. Section 120(2A) of the TORUM Act permitted the tendering of Exhibit 3 which specified that the photographic detection device was tested in accordance with the specification of the manufacturer and was calibrated and produced accurate results at the time of testing. This rendered admissible Exhibit 3.

32. Section 123C(3) of the TORUM Act rendered admissible a certificate certifying that the particular camera site code was part of the Traffic Camera Coding Manual. This rendered admissible Exhibit 4.

33. Section 157(2) of the State Penalties Enforcement Act1999 (Qld) permitted a certificate to be tendered concerning the infringement notice and the registration number of the defendant’s car. This rendered admissible Exhibit 5.[4]

    [4]The State Penalties Enforcement Act 1999 (Qld) applies – see section 121 of the TORUM Act.

34. Section 123C of the TORUM Act rendered admissible the details of the appellant’s vehicle. This rendered admissible Exhibit 6.

35. In the circumstances, and bearing in mind the appellant’s admissions in cross-examination, it was established beyond reasonable doubt that he exceeded the speed limit of 80 kilometres per hour.

36. Chapter 6 of the Traffic Manual  relates to “speed detection devices” and 6.1 states that the Queensland Police Service policies on “Photographic Detection Devices” are found in Chapter 9.

37. In my opinion Chapter 9 is the applicable chapter here. There is no relevant restriction on the placement of the device in that chapter.

38. However, it is arguable that the device here was also a speed detection device. The QPS Manual definitions defines this as “Means a device that is designed for measuring vehicle speed and includes Radar and LIDAR speed detection.”    

39. Chapter 6 provides that Speed detection devices should generally not be operated on a road within 300 meters after a sign indicating any decrease in the prescribed speed limit.

40. What effect does this have?

41. The introduction to the Chapter states that the manual is issued pursuant to s 4.9 of the Police Service Administration Act 1990 (Qld). It then states that the Manual is to provide guidance and instruction for traffic related policing. It then later states that members are to comply with the manual.   

42. In my view the Traffic Manual does not override the provisions of the Road Rules.

1. There are two reasons I reach that conclusion.

1. Firstly, it my view that the provisions of the manual insofar as the placement of the speed detection device are concerned are policy only. By way of example in Stuart v Chief of Army,[5] the accused was charged (amongst other charges) with a breach of general order by wearing a coffee-stained uniform at a dress parade.  It was alleged that this was a breach of Army Standing Orders for Dress, Volume 1, Chap 2, paragraph 2.3 and Chap 3, paragraph 3.8.  Chapter 2 was headed “Dress Policy” with paragraph 2.1 providing that the chapter gave general policy for army dress.  Paragraph 2.3 provided, “It is the responsibility of all personnel to maintain their uniform in good order and repair and present the highest possible standards of appearance.” 

   [5](2003) 177 FLR 158; [2003] ADFDAT 3.

2. The DFDAT held at [15] that the relevant orders relied upon were not orders for the purpose of the section.  The relevant passages of the dress manual dealt with policy and explanatory matters.  It was not intended to be an order therefore the conviction was quashed.

3. Also, Dowsett J in Bromet v Oddie[6] said at [94]:

   “Whether or not a service member has failed to comply with a Defence Instruction applicable to him or her may depend upon the way in which the instruction is framed. If it is framed as a statement of doctrine or policy, or as guidance or information, it may be incapable of application so as to prescribe or proscribe particular conduct, particularly if it deals with outcomes rather than methods. In some cases, members may only be obliged to take into account such an instruction.”

   [6][2003] FCAFC 213.

4. Secondly insofar as there is any conflict between the traffic manual and the Road Rules it is my opinion the Road Rules prevail. It would appear to me that the provisions of the traffic manual are inconsistent with the specific provisions of the Road Rules.[7]

   [7]Plaintiff M47/2012 v Director General Security [2012] HCA 46; (2012) 251 CLR 1 at [54].

5. The provision in the Road Rules is an absolute one. In my view it can be said the Road Rules provision covers the field[8] and in those circumstances if there is any inconsistency this should prevail in favour of the Road Rules.[9]  

   [8]Cullis v Ahern [1914] HCA 59; (1914) 18 CLR 540 at page 543.

   [9]Powell v May [1946] KB 330; [1946] 1 All ER 601.

6. It may be argued that the principles in Bunning v Cross[10] have application here i.e. the evidence was obtained in breach of Chapter 6 of the Traffic Manual. Applying these principles it seems to me that the mischief the Road Rules seeks to address is a very important one. The risk of serious accidents caused by high speed must be avoided. It is expensive to the community to deal with the aftermath of serious road accidents caused by excessive speed. In my view the evidence obtained of the appellant’s vehicle’s speed should not be excluded.   

   [10][1978] HCA 22; (1978) 141 CLR 54.

7. It may be perceived unfair if there is not much opportunity to reduce one’s speed, however a prudent driver must be constantly on the outlook for speed signs and take measures to reduce speed in advance of a speed limit sign.

   Conclusion

8. In all of the circumstances, on my review of the matter, I am satisfied that the elements of the offence were proved beyond reasonable doubt and there was no basis to exclude any of the evidence lead by the prosecution.

9. In all of the circumstances, I am satisfied the conviction is a valid one.

   Orders

   1.The appeal is dismissed.

   2.I confirm the Magistrate’s decision.