Rotundo v Qld Police Service

[2011] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:

Rotundo v Qld Police Service [2011] QDC 204

PARTIES:

MAURO ROTUNDO
(Appellant)

V

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

2582 of 2010 (Brisbane)

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Caboolture Magistrates Court

DELIVERED ON:

25 August 2011

DELIVERED AT:

District Court, Ipswich

HEARING DATE:

30 May 2011

JUDGE:

Bradley DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

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

TRAFFIC LAW – TRAFFIC REGULATION – SPEED LIMITS

CRIMINAL LAW – appeal against conviction – where appellant convicted of speeding

Traffic Operations (Road Use Management) Act 1995 (Qld), s 124(1)(p)

Mbuzi v Torcetti (2008) 50 MVR 451; [2008] QCA 231, followed

COUNSEL:

Appellant in person

B White

SOLICITORS:

Appellant in person

Office of the Director of Public Prosecutions

Background

1. On 4 January 2009 the appellant was issued a traffic infringement notice alleging that he had driven a vehicle on the Bruce Highway at Morayfield over the speed limit of 80km/h. 

1. The appellant contested the charge, and after a trial in the Caboolture Magistrates Court on 21 August 2009, he was found guilty.

1. The appellant appealed to this court against his conviction and on 15 March 2010 Judge Botting allowed his appeal, set aside the conviction and remitted the matter back to the Magistrates Court in Caboolture to be heard before a different Magistrate.  

1. On 12 August 2010 the appellant was again tried on the charge in the Caboolture Magistrates Court and was again found guilty.  The appellant has appealed to this court against his second conviction.  The appellant has not been legally represented in any of the proceedings either in the Magistrates Court or in the appeals to this court. 

Facts

1. The appellant, who was born on 3 March 1967, was driving a silver BMW sedan with New South Wales registration plates along the Bruce Highway at Caboolture at approximately 8.14am on 4 January 2009.  Constable Kevin Davis from the Redcliffe District Traffic Branch was driving southbound on the highway in the same direction as the appellant in an unmarked police vehicle. 

1. The speed limit on the relevant part of the highway drops from 110km/h to 100km/h but then was at the time, further reduced to 80km/h through a section in which roadworks were being conducted.  Constable Davis intercepted the appellant’s vehicle within that zone and recorded his observations prior to interception and his conversations with the appellant on a micro-cassette tape. 

Grounds of Appeal

1. The appellant’s Notice of Appeal does not disclose any grounds of appeal, however the following can be gleaned from the appellant’s outline of argument:

1.          That the Magistrate misstated the evidence in saying that the appellant agreed that the speed of his vehicle had been measured whilst travelling in an 80km/h zone via Constable Davis.

2.          The Magistrate should not have accepted Constable Davis’ evidence regarding the speed at which the appellant was driving.

3.          The speedometer in the police vehicle was not “a speed detection device” which could give a reading of another vehicle’s speed.

4.          The Magistrate should not have preferred the evidence of the police officer over that of the appellant.

5. The certificate tendered at trial by the prosecution issued pursuant to s 124 of the Transport Operations (Road Use Management) Act 1995 (“the Act”) and an Instrument of Delegation should not have been admitted and the Magistrate showed bias against the appellant by admitting the documents.

6.          The appellant states “Nothing was proved.  The police witness statement and story was not corroborated by any physical evidence nor was it corroborated by a witness”.  The appellant appears to be arguing that the evidence generally was insufficient to support the conviction.

Evidence

1. The only two witnesses to give evidence before the Magistrate were Constable Kevin Davis and the appellant himself. 

1. Constable Davis’ evidence was that he had been a police officer for 17 years and in the traffic branch for about 12 years where his normal duties include traffic enforcement, primarily using motor vehicles.  On 4 January 2009 he was on patrol on the Bruce Highway between Caboolture and Burpengary where there was an 80 km/h roadwork zone.  The reduced speed limit was indicated by “numerous” sets of official traffic signs.

1. At about 8.14 am Constable Davis was driving south in an unmarked police vehicle which was fitted with “a normal pointer type speedometer” and an additional Ballinger type digital speedometer.

1. The weather was fine and clear, dry and sunny and the road southbound was a two lane bitumen road.

1. Constable Davis said that when he was just to the north of the Caboolture-Bribie Island overpass he was travelling in the left lane where the speed limit had changed from 110 to 100km/h. He approached the 80km/h signs and saw a BMW vehicle approaching behind him in the right hand lane.

1. As the BMW vehicle passed him Constable Davis merged into the right lane behind it and followed at a constant distance of about 45 metres.  As the vehicles entered the signed 80km/h zone, Constable Davis noted the speed of both vehicles to be about 102km/h as indicated on the Ballinger speedometer.  He noted that the Ballinger speedometer indicated about the same speed as the standard needle speedometer in his vehicle.

1. Constable Davis remained behind the BMW and observed its speed decrease to about 86km/h and move into the left lane.  When the vehicle initially overtook his vehicle Constable Davis activated his micro cassette recorder and spoke his observations into the machine.  When the vehicle slowed to 86km/h Constable Davis turned off the tape as he did not then intend to take any enforcement action.

1. However, as the two vehicles continued in the left lane and approached the Buchannan Road overpass, Constable Davis observed the BMW to accelerate and change into the right lane travelling at about 99km/h.  Constable Davis then recommenced recording his observations and followed the appellant’s vehicle noting that it gradually increased to a maximum speed of 105km/h.  As there was no safe area to indicate to the appellant’s vehicle to pull over, Constable Davis maintained a constant distance of about 45 m between the two vehicles and when the vehicles were approaching the Uhlmann Road overpass he activated the police lights. The appellant’s vehicle pulled over at the first available safe stopping area.  This was still inside the signed 80 km/h zone.

1. Constable Davis’ evidence was that when the Ballinger speedometer reached the speed of 105km/h as his vehicle was following the appellant, he pushed the button on the speedometer to lock the speed in the display.  He estimated that he followed the appellant’s vehicle through the 80km/h speed zone for approximately 4km.

1. When he approached the appellant’s vehicle Constable Davis recorded the conversation he had with the appellant and with the female passenger.  That conversation was played in evidence before the Magistrate and a copy of the tape tendered as an exhibit.

1. Constable Davis said that the appellant’s vehicle overtook “half a dozen easily” other vehicles during the period that he followed it and that he was able to maintain the same distance behind the appellant’s vehicle throughout the period that he followed it. In cross-examination Constable Davis said that he “remained behind [the appellant] for the whole of the four kilometres, through [his] lane changes, through [his] decelerations and [his] accelerations.” It was as the appellant was passing other vehicles that he accelerated to 105 kilometres an hour.

1. Constable Davis’ evidence was that “at no stage in the 80 km zone did [the appellant] do 80 except for after I had activated my lights, he slowed down, he would have slowed down through 80 kms an hour to come to a stop.  That is the only time in the whole section that I saw him do 80.”

1. It is apparent from the recording of the conversation at the roadside between Constable Davis and the appellant that when Constable Davis showed the appellant the displayed speed of 105 on the digital speedometer he told the appellant that he had followed the appellant’s vehicle for “sometime” at that speed.

1. Tendered in evidence through Constable Davis, and against the objections of the appellant, was a certificate issued pursuant to s 124(1)(p) of the Act certifying that the Ballinger digital speedometer fitted to the police vehicle driven by Constable Davis was tested on 11 August 2008 and found to produce accurate results at the time of testing. Also admitted into evidence was an instrument of delegation issued pursuant to the Police Service Administration Act 1990 indicating that the officer who issued the certificate had the authority of the Commissioner of Police to do so.

1. The appellant gave evidence that he has a 26 year driving history and that his employment requires him to drive extensively.  He has no traffic convictions whatsoever and has an excellent road safety record.

1. The appellant said that he was driving from the Sunshine Coast to the Gold Coast with his girlfriend, who was the owner of the vehicle, and his two young children.  He was in no hurry and at all times during the journey he observed the relevant speed limits.  He was also utilising the vehicle’s cruise control.

1. The appellant conceded that he was intercepted by Constable Davis some four kilometres into the 80 km per hour section of the highway.  He conceded also that he overtook three vehicles in that zone and that he was unaware that he was being followed by an unmarked police vehicle until Constable Davis activated the lights on his vehicle.

1. It was the appellant’s evidence that as he entered the 80 km per hour speed zone he used his brakes to reduce the speed of the vehicle and activated the cruise control at the speed limit. 

1. The appellant agreed that he was travelling faster than the vehicles he overtook but maintained that he nevertheless did not exceed the speed limit of 80 kms per hour.  The appellant agreed that at Constable Davis’ invitation he looked at the Ballinger speedometer in the police vehicle and noted that it read “L105”.  He conceded that the speedometer in his vehicle had not been checked and neither had the cruise control or the Navman, both of which devices the appellant said he was utilising whilst driving.  The appellant therefore conceded that he could not be sure that the speed he believed he was travelling was correct.

1. During his conversation with Constable Davis at the roadside the appellant indicated that his Navman device showed the “moving average” of the vehicle he was driving at 88 kms per hour.  The appellant conceded however that that reading was referable to the whole of his trip from the Sunshine Coast to the point of interception.

1. The appellant’s clear evidence was that he checked the speedometer on the vehicle, he was driving as the conditions of the road changed and prior to overtaking the vehicles in front of him to ensure he did not exceed the relevant speed limit.

Challenge to Certificate and Instrument of Delegation

1. The certificate issued pursuant to s 124(1)(p) of the Act and the instrument of delegation referred to in paragraph 21 were not with the rest of the Caboolture Magistrates Court file, which I had before me. It seems that when Judge Botting heard the appeal from the original trial the certificate and instrument tendered at that trial also failed to make their way to the District Court. In fact a certificate relating to the Ballinger digital speedometer and issued pursuant to s 124(1)(p) of the Act dated 5 January 2011 inexplicably did make its way to the District Court file for this appeal. Clearly that certificate could not have been the one relied upon at the appellant’s trial in the Caboolture Magistrates Court on 12 August 2010. It is clear therefore that three separate certificates have been issued on different dates pursuant to s 124(1)(p) relating to the Ballinger digital speedometer operated by Constable Davis when following the appellant’s vehicle.

1. It is evident from the transcript of the proceedings in the Caboolture Magistrates Court and the documents themselves that each of those certificates refer to testing of the speedometer on 11 August 2008 and each was therefore evidence that the speedometer “was producing accurate results when so tested and for six months after the day of testing”.[1]  Similarly the instrument of delegation which was before the Magistrate was evidence that the officer signing the certificate had been delegated the power to do so by the Commissioner of Police.

   [1]Section 124(1)(p) Transport Operations (Road Use Management) Act 1995.

1. It is most unfortunate that the exhibits which were before the Magistrates Court at each of the hearings have somehow gone missing and it is unsurprising that the appellant has grave suspicions and concerns about that. However there is nothing before me to suggest that either the certificate or the instrument of delegation tendered before the Magistrates Court was incorrectly issued or inadmissible as evidence. The appellant did not give written notice to challenge the accuracy of the Ballinger digital speedometer which, if he wished to do so, he was obliged to do pursuant to s 124(4) of the Act and the Magistrate was entitled to rely upon that documentary evidence as proof that the speedometer was producing accurate results as at 4 January 2009.

1. The Magistrate gave reasons for his rulings to admit the certificate and instrument into evidence despite the appellant’s objections to them. Particularly the Magistrate addressed the appellant’s concern about the production of new documents, identical in substance, but issued subsequent to the first trial. The Magistrate was satisfied that the appellant was not prejudiced or disadvantaged by the late production of the new documents. This was clearly the case and the Magistrate demonstrated no bias against the appellant in relation to this issue.

Analysis

1. The resolution of the charge against the appellant turned essentially on an assessment of the credit of the two witnesses; Constable Davis and the appellant himself.  The Magistrate had the opportunity of hearing and observing Constable Davis and the appellant when they gave their evidence.  On appeal a judge should:

“Afford respect to the decision of the Magistrate and bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence, but the Judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions.”[2]

[2]Mbuzi v Torcetti (2008) 50 MVR 451 at [17].

1. For the following reasons I conclude that the evidence of Constable Davis should be accepted over that of the appellant:-

1.          His lengthy experience as a police officer in the traffic branch.

2.          The length of time and distance over which he followed the appellant’s vehicle.

3.          The constant distance at which Constable Davis kept his vehicle from the appellant’s whilst following behind the appellant. 

4.          The detail Constable Davis was able to give of the appellant’s driving over that time and distance. This indicates that he was closely observing the appellant’s vehicle.

5.          His use of both the needle speedometer and the Ballinger digital speedometer.

6.          The locking in of the speed reading of “105” on the Ballinger speedometer.

7.          The appellant’s admission that he overtook three vehicles within the 80 km per speed zone.

8.          The appellant’s admission that he was unaware that he was being followed by an unmarked police vehicle until the lights were activated on the vehicle.

9.          The “moving average” speed displayed on the Navman in the appellant’s vehicle does not contradict the evidence of Constable Davis.

10.       Constable Davis’ evidence in cross-examination as to how he satisfied himself that the speedometers in his vehicle were accurately recording the speed of the vehicle.

1. The prosecution did not have to prove beyond reasonable doubt that the appellant’s vehicle reached the speed of 105 km per hour, simply that it was travelling over the speed limit of 80 km per hour.  Constable Davis’ evidence provided ample and credible support for the allegation that the appellant’s vehicle was travelling over the relevant speed limit.

1. The prosecution case did not depend on the certificate relating to the Ballinger digital speedometer, and even without the documentary evidence, there was sufficient evidence before the Magistrate for him to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of speeding.

1. Judge Botting decided in the first appeal to this court that the observations Constable Davis recorded prior to intercepting the appellant and subsequent to leaving the appellant were inadmissible. It is clear from the transcript of the second trial that those observations were properly disregarded by the Magistrate.

Appellant’s complaints

1. Turning to the specific complaints made by the appellant, it is not the case that the Magistrate stated that the appellant had agreed that the speed of his vehicle had been measured by Constable Davis.  The Magistrate found that in the vicinity of the BP Service Station, within the 80 km per hour zone, the appellant’s vehicle’s speed gradually increased until it reached a maximum of 105 km per hour.  This finding was clearly open on the evidence before the Magistrate.

1. As I have said, Constable Davis’ evidence relating to the appellant’s speed was credible and persuasive and, despite the appellant’s contrary version of events, was rightly preferred over that of the appellant.

1. It was not alleged by the prosecution that the Ballinger digital speedometer could give a reading of another vehicle’s speed. The speed that Constable Davis locked in on the speedometer was simply the speed the vehicle he was driving achieved whilst following the appellant’s vehicle at a constant distance.

1. The documentary evidence was correctly admitted and the Magistrate did not demonstrate any bias towards the appellant by admitting it.

1. It is true that Constable Davis’ evidence was not corroborated by any other evidence, but his evidence was reliable and persuasive and was sufficient to support a conviction.

1. On the evidence the Magistrate was correct to convict the appellant and his appeal is dismissed.