Tolstoff v. Harmer

[2008] QDC 119

DISTRICT COURT OF QUEENSLAND

CITATION:

Tolstoff v Harmer [2008] QDC 119

PARTIES:

PETER TOLSTOFF

Appellant (Defendant)

v

DAVID HILTON HARMER

Respondent (Complainant)

FILE NO/S:

D123/08

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

27 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2008

JUDGE:

Robin QC DCJ

ORDER:

Appeal allowed

CATCHWORDS:

Justices Act 1886 s 222 – appeal against conviction for disobeying speed limit – 103 kph in 70 kph zone – new trial ordered where brief of evidence suggested the radar speed detection device relied on may not have been the one the subject of certificates under s 124(1)(pa) of the Road Transport (Road Use Management) Act 1995

COUNSEL:

Appellant in person

Ms Rutherford (solicitor) for Respondent

SOLICITORS:

DPP for Respondent

1. This is Mr Tolstoff’s appeal filed on 18 January 2008 in respect of his conviction in the Magistrate’s Court at Brisbane on 19 November 2007 of an offence of disobeying the speed limit of 70 kilometres per hour on North Torook Parkway, Mount Glorious on 6 April 2007. The correct respondent (who did not object to the appropriate amendments being made) is Luke Roland Herburg. The dates recited above indicate that the Notice of Appeal was filed late. That was attributable to confusion created by State authorities, including those charged with the responsibility of collecting the $450.00 fine and $68.15 costs of court ordered by the Magistrate. I granted the necessary extension of time on 1 February 2008. See [2008] QDC 20.

1. Mr Tolstoff represented himself at first instance and in the appeal, when, with the benefit of additional experience, he made a better job of it.  It was uncontentious that he was riding his new motorcycle at the time and place mentioned in the charge.  He disputed the reading of 103 kilometres per hour allegedly registered by a mobile radar device.  He says the reading, when he was shown the screen, appeared to him be 102 kilometres per hour, although it is difficult to see what might turn on that difference.  His case is that he was not speeding, rather proceeding within a line of moving traffic, some in front, some behind (the police evidence was that the leading traffic was moving well below the limit).  Mr Tolstoff gives various reasons for his confidence about his basic proposition.  He says he checked his speed higher up on the road, when it was only 20 kilometres per hour; he was “running in” his motorcycle and adhering to the supplier’s instructions to limit revolutions per minute – which would not have permitted him to exceed the relevant speed limit; the road which ran through a rain forest was wet after recent rainfall and strewn with a certain amount of debris which would preclude a responsible driver (as he claimed he was, having put behind him a clutch of speeding offences in the 1980s and a single one in 1995) from adopting the speed alleged.

1. What Mr Tolstoff had to confront was the alleged reading of the radar device which was operated by an officer in a police vehicle moving in the opposite direction on the same stretch of road.  It was activated when the operator observed the motorcycle driving at a speed he took to be “drastically” excessive.  The police vehicle and the motorcycle closed and passed.  The respondent police officer in his evidence at page 7 distinguished between the clear and audible tone emitted by the radar device, which he said was an indication there was one vehicle in the beam, and the “garbled sort of tone” he associated with there being other vehicles in the beam.  He said that when the incriminating reading was taken “there were no other vehicles behind the motorcycle”.

1. Section 124 of the Transport Operations (Road Use) Management Act 1995 contains potent “facilitation of proof” provisions giving evidentiary effect to various certificates to establish the accuracy of readings of such devices.  Mr Tolstoff did not follow the procedures set out in sub-section (4) and following to foreshadow any challenge in writing.  His Honour accepted the certificates he admitted as Exhibit 3.  He considered some of Mr Tolstoff’s arguments directed at the accuracy of the reading, such as some contribution by other vehicles, but he refused to take into account any distortion that might have been caused by the presence of overhead powerlines.  Mr Tolstoff, who professes some expertise in these matters acquired in his employment with Energex, asserts the possibility of high voltage transmission lines having that effect, and of various road signs in the relevant area (and, if I understand correctly, moisture on the road) contributing to an apparent reading which he swore bore no relation to his speed.

1. It has to be said that arguments in that vein were presented to his Honour in a clumsy way, and, for the most part, not as evidence from the witness box, when Mr Tolstoff might have sought to establish his expertise (and faced cross-examination), but in a closing address to the court.

1. I have not troubled too much to distinguish between the cases the appellant presented at trial and on appeal because, as will be seen, I think that the appeal must be allowed on a different ground. Section 223(2) of the Justices Act allows this court to receive fresh evidence if “satisfied there are special grounds”.  I do not accept Ms  Rutherford’s submission that special grounds are limited to satisfying the test indicated in Clarke v Japan Machines(Australia) Pty Ltd [1984] 1 Qd R 404, at 408. A considerable amount of new material was tendered on the appeal, and admitted by me provisionally (in the sense that exhibit numbers were assigned) with a view to determining in due course after considering Mr Rutherford’s argument whether to grant leave under s 223(2). This includes material downloaded from the internet (the soundness of which I do not purport to assess) relating to the accuracy of readings of devices such as that allegedly used by the police here. Plainly, this sort of thing could have been obtained all along and an attempt could have been made to use it before the Magistrate. Other evidence comes from meteorological authorities; it tends to establish that there was rain in the area around the time of the alleged offence, so that the road may well have been wet; apropos debris on the road, what purports to be email advice from the authorities involved appears to indicate that, relevantly, sweeping of the road occurred on a date after the alleged offence. There is material from the gentleman who sold Mr Tolstoff his motorbike. While, as Ms Rutherford says, all the foregoing could have been obtained at trial, in my opinion, assuming for the moment that the weather conditions were as Mr Tolstoff says (now with independent official support), there was no occasion for him to anticipate that police officers would deny it. In principle, an unanticipated denial might produce the “special grounds” needed under s 223. Section 223 differs from RSC Order 70:10 which was considered in Clarke in that only the latter contains an express prohibition applicable in the circumstances that further evidence “shall not be admitted”, (subject to the “special grounds” exception).

1. While I found myself unable to grasp the relevance some of Mr Tolstoff’s points about the unreliability of the officers’ evidence generally (such as a mistake they may have made about where he lived), there are other respects in which I do see the point of his challenge.  One concerns following traffic which, although denied in police evidence from the witness box, appears to have been asserted by an officer in a difficult-to-decipher field recording made when the police, having executed a u-turn and pursued Mr Tolstoff, pulled him over.  According to the police transcript of the tape Mr Tolstoff said “there was cars behind me and there was cars in front, so …” upon which the respondent said, “and you were flying in between the pair of them”.  The transcript also has Mr Tolstoff querying the duration of the reading obtained by the radar device.  I have no basis for judging the reliability of a “two second reading”, if that is what it was, which presumably was achieved in a sweep as the vehicles moved towards each other on that stretch of road.  His Honour received a transcript in evidence; it is not clear whether he read it.

1. It is enough, for present purposes, to observe that I am satisfied there is room in this scenario for a genuine dispute to arise between knowledgeable people as to the scientific reliability of a reading.  I accept Mr Tolstoff’s statement that he received the prosecution’s brief of evidence only minutes before the hearing, which, in moral terms, at least, places him at a disadvantage in giving any written notice under s  124, and in other ways.  I do not accept Ms Rutherford’s suggestion that because Mr Tolstoff indicated to the Magistrate he was ready to proceed, rather than seek an adjournment, he should be taken as expressing satisfaction with the way things were working out.

1. He has subsequently expressed extreme dissatisfaction at his Honour’s comments about his evidence.  The reasons for judgment at page 6 have him saying, “bluntly, I accept none of Mr Tolstoff’s evidence.  It is a reconstruction.  It is a throwing himself in the best light and meanwhile, trying to throw at best the police officers’ evidence into total disrepair, which I do not accept.  It is really a matter of reconstruction of the evidence given by the police officers, which I have accepted.  I do not accept at all there was any other four-wheel drive that they had to give way to and I believe it was not a vehicle that figured at all in these proceedings.”  According to Mr Tolstoff, he took a note of his Honour saying that his “testimony was contrived and rehearsed”, which he took as saying he was a liar.  That statement does not appear in the transcript and, as I told the parties at the hearing I would do, I have attempted to obtain the tape to check whether it was said.  A desire not to have his honesty unfairly impugned seems to loom large in Mr Tolstoff’s approach, which explains why he is so keen to establish that he was correct (and the police may have been wrong) in respect of the rain, etc.

1. The s 222 appeal system does not give him the luxury of attempting to restore his reputation in this way.

1. I have reached the view that this appeal must be allowed, and that the charge ought to be reheard (assuming the police want to proceed) in a rehearing which I think ought to be before another magistrate, pursuant to s 225.

1. The reason, essentially, is that in the circumstances, s 124 may not assist the prosecution in the way intended.  The point is one not made by Mr Tolstoff, for which he deserves no criticism.  I have come across it only after a careful consideration of all of the material before me, which includes the brief of evidence, admitted as Exhibit 9.  This tender was not something Mr Tolstoff set out to achieve, rather something I invited as a way of attempting to reconstruct the evidence which was before the Magistrate.  The exhibits he admitted were not available in this court.  Subsequent enquiries revealed that, at the expiration of the appeal period, they had been returned to whoever tendered them.  I have set steps in train to attempt to retrieve them.  On 26 May 2008 my associate was informed by the police officer involved that the police exhibits could not be found (also that the certificates tendered were signed).  The point of interest during the hearing of the appeal was that the copies of the certificates under s 124(1)(p), (pa) and (pb) were unsigned.  I had no way of knowing whether those admitted by his Honour were signed.  I would take them to have been signed, and his Honour to have checked that.  The courtesy of handing over the brief of evidence is qualified (as my associate’s informant said) by withholding facsimiles of signatures of members of the Police Service.  What became intriguing after closer examination of Exhibit 9 was that the radar speed detection device identified in the certificate(s) as EE38213M and as tested and found to be accurate on 3 July 2006 (according to the certificate), also said by the respondent in the witness box to have been the one he was using on 6 April 2007, is not the one he identifies in his statement in exhibit 9, a statement clearly describing events of 6 April 2007 at 1.55 pm on Northbrook Parkway, Mount Glorious.  He there identifies the device he was using as EE38074M.  I am in no position to make any findings, but the possibility is a real one that the respondent was giving evidence by reference to the certificates he had obtained, rather than in relation to the facts as set down by him in his official “Queensland Police Service Statement of Witness” which was presumably accurately prepared.  Exhibit 9 shows him as the author of two documents (both unsigned in their form in that exhibit), one of which says he was operating EE38074M, the other of which (the certificate) says he was operating EE38213M.

1. In my opinion, s 124 cannot be used to gloss over such discrepancies.  The conviction is unsafe in the circumstances and ought to be set aside.  As indicated above, rather than have a trial of the charge on a basis which this court is seriously concerned may have been a false one in respect of the provenance of the radar device, there can be a trial on more reliable information (it is to be hoped) at which Mr Tolstoff will have an opportunity to present his full case as it has now developed.  At the very least, it is appropriate here to “clear the air” and have the discrepancies within Exhibit 9 explained.

1. When exhibit 9 was received on the appeal, Mr Tolstoff told me (p 24 of the appeal transcript) that “I was also advised by Police Prosecution at the time, to ignore all the errors”.  To my inquiry “what errors?” he referred to the transcript of the field tape (part of exhibit 9), in particular the police getting his address wrong.  It seems clear there was discussion about errors in that transcript.  If there was an error in such an important matter as the identification number of the radar speed detection device, in my opinion it was the Prosecutor’s duty to draw that to Mr Tolstoff’s attention and not to rely on him, especially when realistically, there was no time, to suspect and discover the discrepancy.  It is inconceivable, given the nature of the points sought to be taken against the police by the appellant, that he would not have exploited this significant one had it been drawn to his attention.

1. Before making final orders directing the substitution of the correct respondent, allowing the appeal, setting aside the conviction and orders and remitting the matter to the Magistrate’s Court for a rehearing before another magistrate (for which Mr Tolstoff should comply with relevant requirements, such as those of s 124), I am prepared to hear the parties as to whether the prosecutor did communicate or might have communicated the discrepancy in identification of the device to the appellant.