Queensland Police Service v Rouse
[2013] QMC 21
•17 October 2013
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Queensland Police Service v Rouse [2013] QMC 21
PARTIES:
QUEENSLAND POLICE SERVICE
(complainant)
v
JAMES THEO ROUSE
(defendant)
FILE NO/S:
MAG116019/13(2); MAG116179/13(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
17 October 2013
DELIVERED AT:
Brisbane
HEARING DATE:
17 September 2013
MAGISTRATE:
Springer BL
ORDER:
Defendant is discharged.
CATCHWORDS:
TRAFFIC LAW – OFFENCES – EVIDENCE – Whether the data block was a writing or marking made by the photographic detection device – Whether a photographic detection device can also be a radar speed detection device or a laser-based speed detection device
COUNSEL:
Byrne (Sergeant) for complainant
Defendant on own behalf
SOLICITORS:
Complainant on own behalf
Defendant on own behalf
Introduction
The defendant James Theo Rouse is charged with two offences of exceeding the speed limit, the two incidents some 32 minutes apart on the same day, being 22 January 2013, both on Eagle Farm Road, Pinkenba. The two alleged offences involved the same motor vehicle and were detected by a photographic detection device (PDD). The defendant pleaded not guilty to both charges. He appeared without legal representation. The defendant did not give or call evidence.
The prosecution relied on various legislative provisions to allow the tender of various certificates to prove various things. The documents tendered in each matter were identical, save for the photographs for each of the different offences. It was the same PDD for each, being a LTI 20-20 TruCAM serial number TC001885. The following reasons relate to both charges.
Issues for discussion
The defendant’s challenge
A document completed by the defendant is dated 30 August 2013 and seeks to challenge matters relevant to the prosecution of the two charges. It reads (with unnecessary words deleted):
“I hereby notify that I intend to challenge or dispute –
The image from the photographic detection device OR
A marking or writing made by a photographic detection device.
Grounds for this challenge are:
My grounds for this challenge or dispute are –
No data block information
No operator authorisation
No image number
No deployment log.
Such a Notice of Challenge is required because of section 120(7) of the Transport Operations (Road Use Management) Act 1995:
(7) A defendant who intends, at the hearing of a charge against
the defendant under this Act, to challenge—
(a) the accuracy of a photographic detection device; or
(b) the image from a photographic detection device; or
(c) a marking or writing made by a photographic detection
device on an image; or
(d) a matter mentioned in section 120A(4)(a),(b) or (c);
must give written notice of the challenge to the prosecution.
The prosecutor referred the Court to various provisions which she said overcame the matters challenged by the defendant. I shall deal later in these reasons with the various grounds for the challenge.
Section 120 of the Transport Operations (Road Use Management) Act 1992 (TORUM Act) is relevant to the proceeding. Section 120 states:
120 Evidentiary provisions
(1) This section applies to a proceeding for an offence involving a
motor vehicle under this or another Act.
(2) An image produced by the prosecution purporting to be
certified by the commissioner stating that the image was
properly taken by a photographic detection device at a
specified location and time is evidence of the following
matters—
(a) the image was taken at the specified location and time;
(b) the accuracy of the image;
(c) the things depicted in the image;
(d) any requirements prescribed by a regulation about the
operation and testing of a photographic detection device
were complied with for the specified device at all
material times.
(2A) A certificate purporting to be signed by the commissioner
stating that a stated photographic detection device—
(a) was tested at a stated time and in accordance with—
(i) the specifications of the device’s manufacturer; and
(ii) any further requirements about calibration testing
prescribed under a regulation; and
(b) was found to produce accurate results at the time of
testing;
is evidence of the matters stated and evidence the device was
producing accurate results when so tested and for 1 year after
the day of testing.
(3) If an image produced under subsection (2) is one in a series of
images also produced under subsection (2)—
(a) the image may be numbered; and
(b) the time it was taken may be identified by reference to
another image in the series.
(4) A marking or writing made by a photographic detection
device on an image is taken to have the meaning prescribed
under a regulation and is evidence of what it is taken to mean.
(6) Evidence of the condition of the photographic detection
device is not required unless evidence that the device was not
in proper condition has been given.
(7) A defendant who intends, at the hearing of a charge against
the defendant under this Act, to challenge—
(a) the accuracy of a photographic detection device; or
(b) the image from a photographic detection device; or
(c) a marking or writing made by a photographic detection
device on an image; or
(d) a matter mentioned in section 120A(4)(a),(b) or (c);
must give written notice of the challenge to the prosecution.
(8) The notice must be in the approved form and must—
(a) be signed by the defendant; and
(b) state the grounds on which the defendant intends to rely
to challenge a matter mentioned in subsection (7)(a), (b)
or (c) or section 120A(4)(a),(b) or (c); and
(c) be given at least 14 days before the day fixed for the
hearing.
(9) In this section—
on, an image, includes adjacent to or associated with the
image.
There is no subsection (5) of section 120.
Delegations by the Commissioner of Police
The defendant raised an issue about the power of the Commissioner of Police to issue certificates. I understood the defendant’s brief submission on this issue (T 17: L 25) was about powers of delegation deriving from the Police Powers and Responsibilities Act 1992. The relevant Act is the Police Powers and Responsibilities Act 2000.
The Commissioner of Police is specifically authorised to delegate powers of the Commissioner under the Police Service Administration Act 1990 (the PSAA) whether under that Act or any other Act “to a police officer or staff member” (see s 4.10 of the PSAA). The power of the Commissioner of Police to delegate powers is a practical necessity given the wide scope of matters with which the Commissioner would otherwise be required personally to deal.
The Commissioner’s power to delegate is unaffected by changes in the person occupying the position of Commissioner of Police.
The Acts Interpretation Act 1954 (Qld) provides specifically provides in section 27A for how a delegated power or functions can be performed.
Several of the exhibits comprise copy delegations. It has been a regular practice in the Magistrates Court in hearings such as these that in relation to the delegations tendered by prosecution in traffic matters, that an original delegation, or on some occasions, an original ‘certified copy’ is produced to the court with a photocopy of that document.
I did not understand the defendant to raise the issue of the admissibility of the copy delegations where the ‘original’ delegation shown to the court was itself a copy, certified to be a true copy by a justice of the peace. In any event, I would consider the approach considered in McCollom v Kovarik [2013] QDC 111 should be followed and that the copy delegations should be treated as admissible.
I find that the various certificates made by delegates of the Commissioner of Police and other office holders that were tendered in the hearing were made by persons to whom proper delegations had been made. I accept that the certificates have been signed pursuant to valid delegated powers and are capable of proving the matters the subject of the certificates, other preconditions being met.
The scope of the defendant’s notice of challenge
I turn first to the ‘no operator authorisation’. The meaning of the phrase ‘no operator authorisation’ in the notice of challenge is ambiguous and can be read as meaning the operator was not authorised because of a lack of training. An alternative interpretation is that the operator was not authorised to operate it as he or she did (if there were in fact an operator) because he or she was not doing so in accordance with the requisite Australian Standard or manufacturer’s instructions, if such a requirement existed. There was no evidence of the actual manner of operation or of any training by the operator (if a person had operated the PDD at the relevant times). The prosecutor stated at Transcript page 10 line 20:
And the final ground of no operator authorisation. With respect to this ground, your Honour, the defendant was asked via email if he could provide further information on that point – excuse me – and he referred back to section 112 of the Road Rules Act.
Upon looking up that section of the road rules, that’s in relation to roundabouts, however, a check of section 112 of the Transport Operations Road Use Management Act refers to the use of speed detection devices. Your Honour, this is not a speed detection device; this is a photographic detection device and it is in section 113 of the Transport Operations Road Use Management Act, which I’ve provided you with and the definition is there. Again, your Honour, I refer you to the photographs and the accompanying certificates, which is evidence under section 120, subsection (2), and again I refer you to subsection (d): “Any requirements prescribed by regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times.” Further, your Honour, during correspondence with the defendant, he raised the issue of whether or not he was actually driving the vehicle.
The issue of whether Mr Rouse was in fact the driver was not pursued at the hearing and I therefore disregard that. The specific point about there being no operator authorisation was not clarified at the trial. The defendant is not legally represented and I therefore consider that it falls to me to take a wide interpretation of the challenge that he may have been trying to raise.
Consideration of issues
I gave leave to both the prosecution and defence to make further submissions about a decision involving a similar fact situation which was pending at the time of hearing. Both provided written submissions. I shall return later to those submissions.
Section 112 of TORUM Act requires that ‘when using a radar speed detection device or laser-based speed detection device’, a police officer must comply with the appropriate Australian Standard for using the device as in force from time to time or if no such standard, the manufacturer’s specifications for the device.
Three photographs were tendered by the prosecution. They became exhibit 1. The largest photograph is a photographic image of a vehicle depicted in the image; another is a close up of the number plate and the third is a smaller image the same as the first but with a small red and white circle on or near the number plate and with information in typeface to the right of the image. There was no evidence before me about the meaning or significance of the red and white circle. The certificate for each of those photographs is in identical terms and states:
I, BRETT A VINSON, occupy the office of Senior Sergeant, Traffic Camera Office. I am authorised delegate of the Commissioner of the Queensland Police Service under section 4.10 of the Police Service Administration Act 1990.
I certify that:
This image was properly taken by a photographic detection device being LTI Speed Camera System model LTI 20-20 TruCAM bearing the serial number TC001885
AND
the photographic detection device was used at a specified location namely Eagle Farm Rd, Pinkenba at 11.17 on 22 January 2013.
From the wording of this certificate, it is clear that it was made under section 120(2) of the TORUM Act. That certificate means that there is evidence of the matters mentioned in section 120(2) in relation to the relevant image. I refer to section 120(2)(d) of the TORUM Act, quoted above. That refers to requirements prescribed by ‘a regulation’; the certificate would, in effect, have deemed compliance with such a regulation. However, the requirement for the manner of operation in section 112 referred to above is in the TORUM Act; the Act is not a regulation.
As noted in the extract from the transcript quoted above, the prosecution position was that the TruCAM device used in this matter “is not a speed detection device; this is a photographic detection device …”.
I have been unable to locate a definition of what constitutes a ‘radar speed detection device or laser-based speed detection device’ as referred to in section 112. One should therefore look at the ordinary meaning of the words used. A “photographic detection device” is defined in section 113 as meaning “a device or system, that captures an image, of a type approved under a regulation as a photographic detection device”. The Traffic Regulation 1962 sets out in Schedule 10 various “approved photographic detection devices”. They include, relevantly to the matter before me, a “LTI speed camera system model LTI-20-20 TruCAM”. Thus, while by express definition, that particular device is a “photographic detection device” (PDD) (see Schedule 10, Part 5 of Traffic Regulation 1962), in my view, does not conclusively mean that it may not also be a speed detection device.
In that regard, I note that also included within the definition of a PDD are the “Gatso speed camera system models Radar AUS GS, RS-GS2 and RS-GS11” and the “Robot speed camera system models Multaradar CM, Multaradar SD 480 and Multaradar SD580”. Those other devices having ‘radar’ in their names were not used at the location where the defendant was allegedly found to be speeding.
I mention these other devices because of the reference to ‘radar’ within their names. Of course, the inclusion of that word may be entirely misleading and the device has no ‘radar’ component to it. There is no evidence before me that the “L” in the description of the TruCAM means laser. However, the names of the devices raise the issue that a photographic detection device may also be a radar speed detection device or laser-based speed detection device. The definition of PDD does not exclude that as a possibility. Nor is there a definition of the phrase “radar speed detection device or laser-based speed detection device” which specifically excludes those devices which are photographic detection devices. It can therefore be seen that I reject the written submission of Sgt Byrne that in the decision in Takoushi (referred to in the defendant’s supplementary written submissions)[1] that Magistrate Cull erred in finding that sections 112 and 113 of the TORUM Act were not mutually exclusive.
[1] The defendant referred to this being a decision of Magistrate Guttridge in Pine Rivers. There was a decision involving a defendant of that surname involving a TruCAM device in the Brisbane Magistrates Court on 26 September 2013 determined by Magistrate Cull. I assume that is the decision to which the defendant intended to refer.
Further, there is no evidence about the use of the device, namely whether it was automatically taking images from a static sight, or its use was controlled by a police officer.
In my view, where the purpose of the certificates is to facilitate the prosecution in proving evidentiary matters, the provisions about what the certificates achieve in terms of evidentiary matters should be read strictly.
Accordingly, in the absence of evidence or a statutory definition that the LTI-20-20 TruCAM device is not a radar speed detection device or laser-based device, the obligation under section 112 of the TORUM Act would arise. There is no evidence of compliance with that obligation before me. I consider that the notice of challenge given by the defendant adequately raises the issue. His submissions address it.
In the circumstances, I have concluded that section 112 of the TORUM Act applies. The prosecution has not established the use of the device was in accordance with the statutory requirements in section 112 of the TORUM Act.
Although that, in my view, disposes of the matter with a need to make a finding of ‘not guilty’, I intend to address one other issue raised by the defendant in detail, namely the ‘no data block information’.
No data block information
Mr Rouse raised in his submissions the issue of there being no data block on the photograph that was sent to him. He could not point to any legislative provision which requires that to occur. The prosecutor pointed out that the provision of a photograph with the Infringement Notice is a courtesy. That is expressed to be so, as may be seen from exhibit 12. In the absence of a statutory obligation to do so, I do not accept that, prior to a hearing of a charge, there is an obligation for a photograph purporting to depict the offence to carry the information ordinarily contained within a data block. Having said that, however, the usual practice of a defendant being provided with a brief of evidence prior to a hearing means that one would normally expect a full brief of the evidence intended to be relied on by the prosecution to be provided to the defendant. That would include any image with the relevant data block included.
There are obvious advantages to the prosecution being able to rely on the contents of a data block. Section 120(4) quoted above refers to a “marking or writing made by a photographic device on an image …’ (emphasis added). By a combined reading of that subsection with section 211 of the Traffic Regulation 1962 and Schedule 13 Part 2 of that Regulation, that would ordinarily mean where the marking or writing is made by a photographic detection device on an image, there is evidence of the speed limit and speed of the vehicle, among other matters.
In the absence of oral evidence of the speed limit, one must look to the various documents that were tendered. The purported ‘evidence’ of the applicable speed limit being 60kmh could be said to come from one or more of the following: first, a reference in the data block to “Speed Limit: 60 kmh”; second, the reference to the Speed Zone in the Infringement Notice sent to the Brisbane City Council (ex 12); third, the reference in the extract from the Traffic Camera Coding Manual. I consider those sources in that order.
(i) The data block
There is no evidence before me as to how or when the information in the data block device is incorporated into or placed adjacent to the photographic image. In my view, for the prosecution to succeed, there would need to be evidence that the “marking or writing” was made by “a photographic detection device” (see s 120(4) TORUM Act) or “made by a photographic detection device on an image taken by the device” (see s 211(2) Traffic Regulation).
In my view, the certificates (which are identical terms for the three photographs that comprise exhibit 1) being certificates under section 120(2) do not address that matter. I draw the distinction between “the things depicted in the image” in section 120(2)(c) and “a marking or writing” in section 120(4); the different terminology must mean different things.
(ii) The Infringement Notice
The original Infringement Notice was not sent to the defendant. I note however that exhibit 14 certifies that Infringement Notice 00158418634 was sent to the defendant, but a copy is not in evidence. In any event, the mere inclusion of a number signifying a particular speed limit on an Infringement Notice would not, without legislative imprimatur, be evidence that was a speed limit applying to a particular location.
(iii) Extract from Traffic Camera Coding Manual
There is also a reference in exhibit 4, which is an extract from part of the Traffic Camera Coding Manual. That exhibit certifies “this document for camera site code number 170027 is a copy of a part of the Traffic Camera Coding Manual”. On the rear of the certificate the following appears:
Site Number: 170027
Location: Eagle Farm Rd, Pinkenba
Site Speed Limit: 60
Section 212 of the Traffic Regulation 1962 states:
(1) A court must presume a document purporting to be the Traffic Camera Coding Manual is the Traffic Camera Coding Manual, until the contrary is proved.
(2) In a proceeding, a certificate purporting to be signed by the commissioner stating a document is a copy of a part of the Traffic Camera Coding Manual is evidence of that fact.
I interpret subsection (2) to mean that the ‘evidence’ referred to is of a document being a part of the Manual, but not evidence of accuracy – for other purposes – of the contents of the Manual.
There is no legislative presumption or deeming provision or evidence that the “marking or writing” constituting the data block was “made by a photographic detection device”. In the absence of one or more of those, merely because the information appears on or adjacent to an image does not mean it is made by a photographic detection device as referred to in section 120(4) of the TORUM Act. Accordingly, the information contained in the purported data block is not capable of constituting evidence of matters being (specifically relevant here) the speed limit in the area and the speed of the vehicle contained in the image. In the circumstances, I am not satisfied that there is evidence about the speed limit applying to the area where the defendant was alleged to be speeding.
Nor is there any ‘evidence’ apart from the data block about the speed of the vehicle taken to be driven by the defendant. For the same reason about what I see are difficulties with proving the connection of the data block to the PDD, there is no evidence of the speed at which the subject was travelling at either time. I am therefore not satisfied that the speed the vehicle was travelling at was 73 kmh at 11.17 am and 78 kmh at 11.49 am on 22 January 2013.
For the reasons given above, I do not consider that I need to address the matters of there being “No image number” and “No deployment log”, although in relation to the former, I am inclined to the view that there is no requirement for there to be an image number on a photographic image and would accept the submissions of the prosecutor about that point.
Misconceptions in the defendant’s submissions
Mr Rouse, during his submissions, incorrectly referred to legislation. He referred to the Road Rules Act, when I understand he was in fact referring to the TORUM Act.
He relied on a decision in the matter of Police v Mills, dealt with by Magistrate Previtera of this court on 15 July 2009. No transcript of Her Honour’s decision was provided to me. However, from inquiries made, I have ascertained that Her Honour gave brief oral reasons in finding that there was no case to answer, because there was no evidence of a certificate being issued by a testing authority, a matter that she considered was required under the legislation relevant to the matter before her. It is not clear what the nature of the device was which relevant in the matter before Magistrate Previtera. Accordingly that decision does not assist.
Mr Rouse also referred to a decision from Pine Rivers in the matter of Robert Evert (as shown in the Transcript, but perhaps should be “Ebert”). Again no transcript was provided. I have not had regard to that decision
A recent decision
The defendant has provided a copy of a written decision of Magistrate Cornack in the matter of QPS v Curtain delivered on 20 September 2013 at the Holland Park Magistrates Court. Sgt Byrne has responded in the prosecution’s supplementary written submissions. Some of the matters that I have raised above were also considered by Her Honour and resulted in a finding of not guilty. I am not bound by decisions of a fellow magistrate but would regard them as persuasive. Sgt Byrne submits Her Honour erred in interpreting the regulation relating to time incorrectly. I have approached the matter before me differently from Magistrate Cornack, and accept the prosecution submission that time is not an element of the offence. However, I have taken a different focus, one which results in the same outcome for the defendant here.
Conclusion
The prosecutor and Mr Rouse agreed that the same submissions apply to both charges which Mr Rouse faced.
In summary, I find the prosecution:
(a) has not excluded the operation of section 112 of the TORUM Act, because it is not definitive that a photographic detection device may not also be a “radar speed detection device or laser-based speed detection device”; and
(b) has not established that the purported data block, being a “marking or writing” on or adjacent to the image was made by the particular photographic detection device, with the result that there is no evidence of the speed of the vehicle taken to have been driven by the defendant, or of the speed limit alleged to have been exceeded.
Accordingly, I find Mr Rouse not guilty of the two charges of speeding on 22 January 2013 and discharge him in relation to those.
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