Tate v Glock

[2005] QDC 332

DISTRICT COURT OF QUEENSLAND

CITATION:

Tate v Glock [2005] QDC 332

PARTIES:

RICHARD BRIAN TATE

Appellant

PAUL TERRANCE GLOCK

Respondent

FILE NO/S:

Southport Registry 469/04

DIVISION:

Appellate Jurisdiction

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport

DELIVERED ON:

31 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2005 subsequent written submissions received to 27 September 2005

JUDGE:

Judge Rackemann

ORDER:

Appeal upheld, conviction set aside and verdict of not guilty entered

CATCHWORDS:

Appeal against conviction – whether proof beyond a reasonable doubt – whether speed limit posted was 60km/hour or 80km/hour

COUNSEL:

Mr Horvath for the appellant

Mr Falconer for the respondent

SOLICITORS:

Quinn and Scattini for the appellant

Director of the Public Prosecutions for the respondent

1. On 7 July 2004 the Appellant was convicted, in the Magistrate Court at Southport, of exceeding the speed limit by at least 15 kilometres per hour but less than 30 kilometres per hour.  In particular it was alleged that on 13 July 2003, he was travelling along the Nerang-Broadbeach Road, Carrara, at 84 kilometres per hour in a 60 kilometres per hour speed zone.  This appeal is against that conviction.

1. The Appellant accepts that he was driving at 84 kilometres per hour, but contends that the posted speed limit was 80 kilometres per hour. Even if that was so, his speed still exceeded the limit by 4 kilometres per hour, but counsel for the respondent informed this court that no point would be taken about that [1].

   [1] T34.

1. The relevant section of road has been the subject of changes in the posted speed limit. The prosecution concedes that, at some point in 2003, the posted speed limit became 80 kilometres per hour, but says that did not occur until 29 August.  The critical issue at trial was whether the prosecution had proved its case beyond a reasonable doubt, particularly with respect to the posted speed limit on the night in question.

1. To prove its case, the prosecution relied upon the evidence of two police officers who said that they observed 60 kilometres per hour speed signs posted at the relevant point.  The prosecution’s other witness, Mr Hallett, a traffic engineer, also gave evidence to the effect that the prevailing speed zone, at the time, would have been 60 kilometres per hour.  Ultimately, the learned Magistrate accepted that evidence in preference to the evidence of the Appellant.  He described the appellant’s evidence as “unreliable and not credible”. 

1. The Appellant also called evidence from another witness, Mr Hill, who the learned Magistrate described as an honest witness but one whose evidence was unhelpful.  I respectfully agree with the learned Magistrate’s observations with respect to the evidence of the Mr Hill.

1. The appeal to this court, is by way of re-hearing on the evidence given in the proceeding below (and any new evidence admitted by leave).  In exercising that jurisdiction, it is appropriate to have regard to the advantages of the learned Magistrate who received the evidence viva voce and observed the demeanour of the witnesses as they gave their evidence[2].  It is often difficult for an appellant to overturn a conviction where it is based upon the assessment of the reliability and credibility of the various witnesses.  Unlike in the case of a jury verdict however, this court has the benefit of a statement of reasons from the learned Magistrate. 

   [2] For a discussion of the disadvantage of the Appellate Court see Fox v Percy (2003) 214 CLR 118 125-6

1. I have read the transcript of the evidence at trial, reviewed the relevant exhibits and listened to the audio tape (Exhibit 4).

1. The Appellant’s evidence was that there were three different points at which speed limits were posted along the road.  The Appellant’s evidence at trial was that at the first of those points (being the point at which the relevant speed limit was set), the posted speed limit was 80 kilometres per hour.  That evidence was contested on the prosecution case.

1. The Appellant also gave evidence that, at a second point, there was an “exit speed” of 60 kilometres per hour for those leaving the road in question.  As the learned Magistrate accepted, the existence of such a speed zone would suggest that the speed limit posted at the first point was higher.  Neither of the two police officers could recollect seeing the exit speed sign and Mr Hallett was unable to assist as to the date of its erection.

1. The evidence of the Appellant was that there was a posted 60 kilometres per hour speed zone at a third point, as one approached the round about.  The evidence of the police officers, who had parked their vehicle near that point, confirmed the existence of a 60 km/hour posted speed limit at that point.  The Appellant contended that the existence of that speed limit suggested that the earlier speed limit had been higher.

1. While the learned Magistrate rejected the appellant’s evidence, he did not purport to do so on the basis of an assessment of his demeanour.  The learned Magistrate dealt with the Defendant’s evidence in the following passage: -

“Having heard the evidence, I did not find the defendant’s evidence to be credible on material aspects. For a citizen to be blatantly pulled over and affronted with a ticket in the face of observable signage would provoke a response of far greater proportion than from this Defendant at the time. At the very least, he might have gone back in all the circumstances, the very next day perhaps with a camera. Such documentary evidence would be hard to contest upon proof in the usual way. That was not done. Photographs were taken, however on the 13 January 2004, but in my view, these photographs are of little assistance to me, setting out the current status of the road as it is now, but not as it was as of 13 July 2003.”

1. The learned Magistrate had evidence of the Appellant’s “reaction” upon the night in question.  That evidence included an audio of at least part of a conversation with one of the police officers[3].  That was tendered by the prosecution, notwithstanding that it contains no admission on the part of the accused.

   [3] The tape may not have been on the whole of the conversations on that evening

1. There was a dispute as to whether the Appellant invited the police officers to accompany him back to the speed sign, but the respondent concedes that, on the evidence of one of the police officers, the Appellant said words of the effect “I thought it was an 80 kilometres per hour zone”.  The respondent also concedes that the Appellant said to the other officer “oh you are kidding it’s an 80 zone through here isn’t it?” and “um, um, um, I am honestly sorry I thought it was an 80 zone through here”.  The Appellant’s reaction on the day, as admitted by the respondent, appears consistent with his evidence that the prevailing speed zone was 80 kilometres per hour.  It is difficult to see the justification for treating this reaction as indicative that the appellant’s evidence lacked credibility.

1. The learned Magistrate said that “at the very least” the Appellant might have gone back the next day, perhaps with a camera, to establish documentary evidence.  No doubt such photographs would have been useful in proving the Appellant’s innocence, but the Appellant is not the one who bore the onus.  The Onus was on the prosecution to prove its case beyond a reasonable doubt.  The court should be careful not to approach issues of credit in a way which, in effect, reverses the onus. 

1. The Appellant was not to know, at the time, that it would later be suggested that a relevant change to the speed signs was then imminent.  On his evidence, the relevant section of road was signed at 80 kilometres per hour at the time and there had been no subsequent change.  Why, he asked in cross examination, would he need to take an earlier photograph of a sign that hadn’t changed?

1. The strength of the Appellant’s “reaction” to being pulled over on the night in question, and his failure to gather photographic evidence the next day to prove his innocence, do not form a reliable basis upon which to make an adverse finding with respect to the credibility of the Appellant’s evidence. 

1. Counsel for the Appellant focused upon difficulties within the prosecution case which, it was submitted, raised a reasonable doubt as to his client’s guilt.

1. The prosecution’s first witness was Mr Hallett, whom the learned Magistrate found to be a “witness of credit”.  Mr Hallett is a traffic engineer employed as a consultant to the Queensland Department of Main Roads.  He had responsibilities for the setting of speed limits on the relevant section of road.  He was called to give evidence as to the prevailing speed zone.  In doing so he referred to documents of the Main Roads Department.  He produced certain documents which became Exhibit 1. 

1. Exhibit 1 includes a plan, apparently approved in 2001, for the replacement of speed signs.  The relevant changes were described, on the plan, as “replaced with “80km/h””.  That plan does not describe the signs which were replaced, but Mr Hallett gave evidence of his personal knowledge that “for quite a considerable period before that date (July 2003) it had been 60 and it had remained 60 until the signs were changed”[4].  When asked whether he could say, from reading the documentation, what the speed zone was as at 13 July 2003, he responded, “that would’ve been before the signs were changed to 80, so the speed limit would have been 60”[5].

   [4]T6

   [5]T5

1. As to the date of the change, Mr Hallett pointed to another document, in exhibit 1, where the “date and time of erection” is described as “COB 29 August 2003”.  At the base of that document different signatures appear beside the entries for “erection recommended” and “approved” respectively.  In each case, the date of 29/08/2003 is written. 

1. Mr Hallett did not himself change the signs or give evidence of witnessing them being changed. He interpreted the documents as evidencing that they had been changed on 28 August 2003, by the close of business that day. Presumably (given the other entries on the document) this would mean that the erection was recommended, approved and effected on the same day. He conceded however, in cross examination, that work could be done before the paper work is finalised. [6].

   [6] T16 line 32

1. Mr Hallett was unable to assist with respect to the date when the exit speed sign, at the second point, was erected.

1. In relation to the posted 60km/hour speed limit near the roundabout, Mr Hallett relied on documents (which are not part of exhibit 1) to say that it was posted on 14 January 2004.  That conflicts with the evidence of the Appellant, and the evidence of the police officers, who swore that it was in place on the night in question.

1. The content of Main Roads Department documents, as interpreted by Mr Hallett, is not a reliable basis upon which to convict the Appellant.  Mr Hallett conceded that work could be done in advance of the documentation.  The conflict between the Appellant and the police officers on the one hand, and the Department’s records (as interpreted by Mr Hallett) on the other concerning the posting of the speed limit closer to the roundabout, gives further cause for concern in that regard. 

1. The learned Magistrate said that, even if he were to reject the documentary evidence, he found Mr Hallett’s personal observation to be reliable and truthful.  Mr Hallett had given evidence, from his personal knowledge, that as at July 2003 “it would have been a 60 kilometres per hour speed limit”.  It is at least possible, if not probable, that in giving evidence of his personal knowledge of the speed limit as at the relevant time, he was reaching a conclusion from his (unreliable) belief, based on his interpretation of the documents, that the speed sign had not been changed until 29 August 2003, together with his recollection that, until changed, the speed zone was 60 kilometres per hour.  There is no reason to question Mr Hallett’s honesty, but there is a doubt about the reliability of his evidence of his personal knowledge about the prevailing speed limit as at 13 July 2003.

1. The matter upon which most reliance was placed by counsel for the appellant was the learned Magistrate’s failure to refer to the conflict between Mr Hallett, on the one hand, and the police officers and the Appellant on the other, concerning the 60 kilometres speed zone closer to the roundabout.  That is a matter of significance.  The significance extends beyond the doubt it casts on the reliability of conclusions drawn from the Main Roads Department documentation about when signs were changed or erected.  As Mr Hallett accepted, the purpose of posting a 60 kilometres per hour speed limit in advance of the roundabout is to ensure that approaching drivers slow down.  When asked why vehicles would need to slow down if they were already in a 60 kilometres per hour zone, Mr Hallett responded “it couldn’t have been at that stage, it would have been 80”.  In other words, the existence of the 60 kilometres per hour speed zone closer to the roundabout, as confirmed by the appellant and the police officers, suggests that the prevailing speed zone, to that point, was higher.  This raised an element of doubt within the prosecution case.

1. Even allowing for the advantages of the learned Magistrate, it is evident that there was a reasonable doubt in relation to the prevailing speed zone at the relevant time. 

1. The area in question was one which was the subject of planned changes in speed limits.  Neither the prosecution nor the defence tendered photographic evidence which established, with certainty, what the speed zone was on the day.  No one who changed the speed signs or witnessed them being changed, was called by the prosecution to directly establish when the change occurred.  The conclusions drawn by Mr Hallett from the documentary evidence to which he pointed, was not reliable, for the reasons discussed above.

1. There was evidence of 60 kilometres per hour speed signs in two later positions, namely on the exit and at a position closer to the roundabout.  The presence of 60 kilometre per hour signs in either of these positions would suggest that the prevailing speed zone in the section in question was higher than 60 kilometres per hour.  The learned Magistrate accepted that, as a matter of logic, with respect to the exit speed sign of 60, but did not otherwise refer to it.  Perhaps that was because His Honour did not accept the Appellant as a credible witness.  The police officers could not recall seeing the exit speed sign and Mr Hallett was unable to assist.  The basis for the learned Magistrate coming to an adverse view with respect to the credibility of the Appellant’s evidence is however, unreliable.  In any event, the existence of the further 60 kilometres per hour speed zone, closer to the roundabout, was also indicative of a higher prevailing speed limit to that point.  The currency of that speed zone, on the night in question, was confirmed not only by the Appellant but also by the police officers.  The effect of Mr Hallett’s evidence was that, at the time those 60 kilometres per hour speed signs were in place, the earlier speed zone would have been 80 kilometres per hour. 

1. The Magistrate also had before him evidence that, on the night in question, the two police officers observed that the posted speed limit was 60 kph, as well as evidence of Mr Hallett’s recollections[7].  It might well be that the speed zone on the night in question was 60 kilometres per hour.  On the evidence before the learned Magistrate however, there was a reasonable doubt and he ought to have so found.  Accordingly, I uphold the appeal, set aside the conviction and enter a verdict of not guilty.

   [7] Subject to the observations made earlier.