Hill v. Lette [2010] QDC 136 (23 June 2010)

Last Updated: 14 July 2010

DISTRICT COURT OF QUEENSLAND

CITATION:	Hill v Lette [2010] QDC 136
PARTIES:	WAYNE JOHN HILL (Appellant) V CHRISTOPHER MICHAEL LETTE (Respondent)
FILE NO/S:	D58/2009
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court, Gladstone
DELIVERED ON:	26 March 2010 (ex tempore)
DELIVERED AT:	Gladstone
HEARING DATE:	22 March 2010
JUDGE:	Irwin DCJ
ORDER:	Appeal against conviction dismissed (a) Appeal against sentence allowed (b) Sentence imposed at first instance varied to the extent of ordering the appellant is fined $200
	VEHICLES AND TRAFFIC – offences – speeding – radar speed detection device – admissibility of certificates to prove offence CRIMINAL LAW – appeal against sentence – where appellant convicted of speeding – where the particulars were that the appellant was travelling at the speed of 142 kilometres per hour in a 100 kilometre per hour zone – where the court was satisfied beyond reasonable doubt the appellant was speeding – where the court was unable to conclude the appellant was travelling at any particular speed – whether the sentence imposed by the magistrate was manifestly excessive Police Service Administration Act 1996 (Qld), s 4.10 Transport Operations (Road Use Management) Act 1995 (Qld), s 124 Transport Operations (Road Use Management - Driver Licensing) Regulation 1995 (Qld), s 30A Transport Operations (Road Use Management - Road Rules) Regulation 1995 (Qld), s 20 Bevacqua v Wykes [2009] QDC 137, applied House v The King (1936) 55CLR 499, applied Lekich v Dixon [2009] QDC 111, applied Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, applied
COUNSEL:	R. J. Byrnes for the appellant S. M. Gordon for the respondent
SOLICITORS:	Michael Café & Associates for the appellant Director of Public Prosecutions (Qld) for the respondent

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 (Qld) from the appellant's conviction in the Bundaberg Magistrates Court on 13 August 2009, following a summary trial on one count of driving a motor vehicle on a road over the speed limit applying to the road contrary to section 20 of the Transport Operations (Road Use Management - Road Rules) Regulation 1995.

The prosecution case was that on 23 November 2008, the appellant was the driver of a motor vehicle detected travelling on Tablelands Road, Miriam Vale at 142 kilometres per hour in a 100 kilometre per hour zone, by a mobile radar speed detection device, which was fitted to a police vehicle.

The prosecution relied on the evidence of the respondent, Sergeant Lette, his partner on that day, Senior Constable Tomlins and three certificates which were tendered on the basis that they had evidentiary force under section 124 of the Transport Operations (Road Use Management) Act 1995 (the Act).

The relevance of the certificates to the proof of the prosecution case is apparent when reference is made to the evidence of the two police officers. The respondent recorded the speed, relied upon by the prosecution, on a radar speed detection device which was fitted to the police vehicle which he was driving, and in which Constable Tomlins was a passenger.

The respondent had been a traffic branch officer for 30 of his 32 years of police service. Senior Constable Tomlins had five years experience with the Gladstone Traffic branch.

The respondent gave evidence that he was qualified to operate all speed detection devices used by the Queensland Police Service. Before commencing duty that day, he tested the device which was used to record the applicant's speed in accordance with the manufacturer's specifications, the Australian Standard and the Queensland Police Service policy. This indicated to him that all the LED lights were working correctly. He also did a turning fork test where the figures came up for display in target windows. Further, prior to checking the speeds of other vehicles, he activated the device and saw it showed the same speed as the police vehicle speedometer.

His evidence, as to detecting the speed of the vehicle being driven by the defendant, was as follows:
"We were travelling south on Tableland Road when my attention was drawn to a light coloured station wagon that was approaching us from the south. It appeared to me that this vehicle was travelling well in excess of the 100 kilometre per hour speed limit. I then activated the radar device and I saw the figures '93' appear in the patrol window of the display. I also saw the figures '142' appear in the target window. At the same time I saw the digital speedo was showing '93'. I then pressed the - at the same time I also heard a constant audible tone being emitted from the radar.

I then pressed the lock button which locked the speed of 142 into the lock window. I then continued to monitor this vehicle's progress by visual and by radar."

Senior Constable Tomlins' evidence was to a similar effect. His visual observations before the radar was activated were that the vehicle was being driven at what "Appeared to be exceeding the 100 speed limit." He said it was, "Well over."

The police officers intercepted the appellant's vehicle. He was the sole occupant. The conversation with him at this time was recorded on tape. It is not challenged that the conversation proceeded in the following manner.

After showing the appellant his recorded speed on the device the respondent asked him whether he had any reason for exceeding the 100 kilometre per hour speed limit. He replied, "I just come around the corner probably a bit too fast than normal."

The respondent then asked him, "You know you're doing those sort of speeds, mate, really." The appellant replied, "Yeah. Yeah. Nothing else I could say. I've got done. I've got done."

The respondent told him that at this speed there was an automatic loss of licence. The appellant then asked if the speed could be dropped by two kilometres. The respondent properly refused to do so.

The certificates were tendered as Exhibits 2, 3 and 4. Exhibit 2 was issued by the respondent as a delegate of the Commissioner of the Queensland Police Service pursuant to section 4.10 of the Police Service Administration Act 1990 and certified that the factory fitted digital speedometer fitted to the motor vehicle, which was the police vehicle they were driving that day, was tested on 2 September 2008 and was found to produce accurate results at the time of testing.

Exhibit 3 was a certificate issued in his own right, that at 1.15 p.m. on 23 November 2008, the mobile speed detection radar device was used in accordance with the appropriate Australian standard as in force on that day. This was at the time and date at which he used the device to record the appellant's speed.

Exhibit 4 was a certificate by another person said to be an authorised delegate of the Commissioner of the Queensland Police Service stating that the mobile radar speed detection device, which was used for this purpose, had been tested at 12.15 p.m. on 22 October 2008 in accordance with the appropriate Australian standard for testing the device as in force on the day of the testing and was found to produce accurate results at the time of testing and for one year after the day of testing.

The respondent also gave evidence that prior to ceasing duty on 23 November 2008 he retested the device in the same way he had done before he used it to record the appellant's speed, and found it was still working correctly.

He said he had activated the radar device when it was approximately 250 metres away from the appellant's vehicle and there was no other vehicle in the vicinity. His evidence was that it was a fine day and the bitumen road surface where the two vehicles were, was in good repair.

The appellant cross-examined him about the standard of the manufacturer of the device giving a plus or minus two kilometre leeway and the fact he had initially signed a certificate which was to the same effect as Exhibit 4. The appellant referred to this as the calibration certificate. The following exchange then occurred between the appellant and the Magistrate:

"DEFENDANT: Fair enough. Sergeant, I put it to you that the calibration certificate issued is unlawful and invalid in a Court of law as the requirements of Australian Standard AS2898.2 states clearly on page 6, subparagraph 2.2.5-----

BENCH: Sergeant, just on the matter of law you needn't comment. If you wish to make a submission on law it can be made at a later stage. At this stage the certificate is one that is valid and is in accordance with the legislation and satisfies the requirements of the legislation and the Australian Standards.

DEFENDANT: Well, Australian Standards states, 'Certificate-the testing authority shall issue a certificate only if the device has satisfied the testing requirements in clause 2.2.3, and'-----

BENCH: Just - if you wish to call evidence in defence of it, you should have given appropriate notice under the legislation."

The appellant's point appears to have been that as the officer who issued him with the ticket, the respondent, was not authorised to also sign the certificate. The Magistrate, who obviously regarded the certificate as evidence of the matters identified by the relevant paragraphs of section 124(1) of the Act, gave the appellant the legislation to demonstrate that fact.

The appellant, who said he was not questioning the use of the radar, went on to cross-examine Sergeant Lette about the topography of the area where the observations had been made by the police officers.

The following exchange took place between the appellant and Sergeant Lette during cross-examination:
"How fast - how can you judge the speed of a car going towards you if it's 60, 100?-- I base a lot of it on my - I base a lot of it on my 30 years of traffic enforcement. I can quite easily tell after doing it for that long-----

Yes?-- If a vehicle's exceeding the speed limit by a little bit or, like I said in my evidence, was well in excess of 100, I had no doubt in my mind that your vehicle was being driven well in excess of the 100. I was not surprised to see the speed of 142 appear on the radar."

The appellant showed the respondent a mud map he had drawn of the area and said to him he found his evidence of observing his vehicle from 250 metres ahead as unbelievable. The prosecution objected to the mud map being tendered at this stage and the defendant did not proceed with its tender.

When Senior Constable Tomlin gave evidence he said during his evidence-in-chief:

"You said that you saw the vehicle travelling well over 100 k speed limit, okay. How did you come to that assumption just looking at the vehicle?-- Umm, just the vehicle coming around a bend, you see vehicles coming around bends all the time, coming onto the straight. Just the surroundings, the vehicle coming around the bend, you can - you can-----

What I'm getting at just - you had experience in-----?-- Yeah, got experience, yes, sitting in the speed camera, you basically sit in the camera for numerous hours and you basically watch vehicles and you get, like anything, good at, umm, estimating vehicle speeds and, umm, if the vehicle's going to be-----

Yes?-- -----is over or not.

Before the - you heard that sound did you estimate the vehicle was - the sound from the radar device, did - had you estimated the vehicle was exceeding the speed limit?-- Yes."

Senior Constable Tomlins was not cross-examined by the appellant.

At the conclusion of the prosecution case the appellant was not asked if he wished to make a submission of no case to answer as opposed to being asked whether he wished to give evidence. However, the evidence he gave was in the form of an argument on law, which concluded:

"I respectfully state that I have no case to answer as the police cannot prove the accuracy of the device and the reading as a result should be deemed invalid. That is all.".

This argument, again, seemed to be on the basis that only the testing authority itself could issue Exhibit 4 and not the respondent. He was not told by the Magistrate that he was required to give evidence about facts and not to make statements of law when giving evidence. However, he was cross-examined by the Prosecutor as follows:

"Were you speeding when the police officer saw you?--I was going fast, yes.

How fast were you going?--I have honestly no idea. I got told I was doing 142.".

The appellant made no further submissions on facts or law following the completion of his evidence. His final address was limited to issues of mitigation of penalty.

The Magistrate, in the decision, which found the prosecution had proved beyond reasonable doubt the appellant was travelling at 142 kilometres per hour, and, therefore, he was guilty of the charge, accepted the police evidence as open, honest and accurate. He accepted the respondent's evidence about testing the device before and after using it to record the appellant's speed, and that it was operated accurately. He also was satisfied of the matters which were the subject of Exhibits 2-4. He concluded:

"I'm left in no doubt whatsoever that on the material date, 23rd of November 2008, in Tablelands Road, Miriam Vale, that Mr Hill did exceed the speed limit of 100 kilometres per hour, applying to him in the 100 kilometre zone in which he was driving. There's no error in the conduct of the operation of the speed detective device, that it was operating accurately on the material date, and I fine, on the evidence before me, that Mr Hill should be proven guilty of the offence beyond reasonable doubt.

I do find him guilty that on the 23rd day of November 2008 at Miriam Vale in the Magistrate's Court district of Bundaberg in the State of Queensland, he, Wayne John Hill, being the driver of a vehicle, namely a motor car, drove at a speed over the speed limit, namely 100 kilometres per hour, applying to the driver for the length of road, namely Tablelands Road Miriam Vale, where Mr Hill was driving.".

He therefore convicted and recorded a conviction against the appellant and fined him $750 and ordered that he pay $71.50 costs of Court. In default of payment within 28 days he was to serve 17 days imprisonment.

The appeal is against both conviction and sentence. The appeal and the outline of submissions were drafted by the appellant, who was self-represented at that time. He was represented at the appeal by Mr Burns of counsel who filed a supplementary outline of argument. Mr Burns advised, at the hearing, that the grounds of appeal relied upon are as identified in the supplementary outline. Mr Gordon, for the respondent, fairly does not take issue with the appeal proceeding on that basis.

It is only necessary for me to consider one ground of appeal. This is expressed as follows, in paragraph 14 of the supplementary outline:

"The two of the certificates tendered into evidence are signed by the respondent as the authorised delegate of the Commissioner of Police. No evidence of the delegation was put before the Court. This situation is on all fours with the facts in Lekich v Dixon [2009] QDC 111 and Bevacqua v Wykes [2009] QDC 137. Whilst these decisions are obviously not binding it is submitted that the Court should come to a similar conclusion in this case.".

I note, for the purpose of accuracy, that one of the certificates referred to in paragraph 14 was replaced at the trial by Exhibit 4, which was under the hand of a person purporting to be an authorised delegate of the Commissioner of the Queensland Police Service, other than the respondent.

However, that makes no difference to the determination of this appeal.

It is submitted there was no basis for the Magistrate to be satisfied beyond reasonable doubt that the defendant was driving at 142 kilometres per hour having regard to the decisions in Lekich v Dixon and Bevacua v Wykes.

Mr Gordon concedes this point but argues I should find, on the evidence, that the appellant exceeded the 100 kilometre per hour speed limit, although I could not find the extent to which he did so.

In Bevacqua v Wykes, at [15] Samios DCJ said:
"It is a normal attribute of an appeal by way of rehearing that "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellant court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ... At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. On appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of appeal. (See Muir JA Teelow v Commissioner of Police [2009] QCA 84 citing Allesch v Maunz (2000) 203 CLR172 at 180-181, 181)".

In Graham v Queensland Nursing Council [2009] QCA 280 per Fryberg J at [69]-[70] (with whose reasons the Chief Justice agreed), discussing the dictum of McMurdo P in Stevenson v Yasso [2006] 2Qd R 150 at [36]; [2006] QCA 40 said:

"The central task of an appellate court in an appeal by way of rehearing is not to analyse the correctness or otherwise of the decision below, although such an analysis may sometimes be helpful. It is to decide the case for itself. Often it will do so by considering only the evidence admitted at first instance. That is usually the position in appeals under section 222 of the Justices Act 1886 ... That requires an appellate court to draw its own inferences from the facts established by the evidence while respecting the advantage of the court or tribunal at first instance in seeing and evaluating witnesses. That is particularly relevant when issues of credibility arise.".

In this case, the appellant initially indicated he would seek leave under section 223(2) of the Justices Act for fresh, additional or substituted evidence to be adduced. However, Mr Byrne did not pursue this aspect of the appeal.

In Bevacqua v Wykes and earlier in Lekich v Dixon it was held by this Court that proof of delegation was required when there was reliance on certificates of the nature tendered in this case. I am of the same view.

I adopt the views of McGill DCJ in Lekich v Dixon at [38-[40]:

"[38]...The difficulty for the respondent is that section 4.10 of the Police Service Administration Act 1990 did not amount to a delegation to the respondent; it permitted a delegation to be made, relevantly, to the respondent.

In order to show, however, that the certificate of the respondent was effective as a certificate for the purposes of section 120 of the Act, it was necessary for the respondent to prove the fact of the delegation. Without proof of that, the certificate was not capable of having evidentiary effect provided for by section 120 in the case of a certificate by the commissioner. The respondent sought to prove the delegation by including reference to it in the certificate. The difficulty with that approach is that I am not aware of any statutory authority under which the delegation can be proved by the certificate of the delegate.

[39] The starting point, of course, for any criminal prosecution is that the evidence is to be given orally. Evidence in writing is prima facie hearsay and is inadmissible unless it comes within a statutory exception to the rule against hearsay. The fairly limited general provision for documentary evidence in criminal proceedings in section 93 of the Evidence Act 1977 was not wide enough to cover a certificate of this nature. Although there are a great many certificates of various kinds made admissible under section 124 of the Act, or by section 60 or elsewhere in division 2 of part 5 of chapter 3 of the Act, none of them includes a certificate by a person to whom something has been delegated that that delegation has occurred.

[40] Section 27A(14) of the Acts Interpretation Act 1954 provides that "a certificate signed by the delegator (or, if the delegator is a body, by a person authorised by the body for the purpose) stating anything in relation to a delegation is evidence of the thing.". Accordingly, a certificate signed by the Commissioner would have been admissible as evidence of the delegation, and by sub-section (15) a document purporting to be such a certificate is to be taken to be such a certificate unless the contrary is established, so that on the face of it, such a certificate could simply have been tendered. But there is nothing in the Act by which a certificate by the delegate is made evidence of the existence of the delegation. There is certainly nothing in section 120 of the Act which permits the delegate to certify to the existence of the delegation where the Commissioner's power has been delegated.

That reasoning is applicable to the certificates tendered in the present case under section 124 of the Act, under the hand of purported authorised delegates of the Commissioner of the Queensland Police Service. The certificates which were the subject of the decision in Bevacqua v Wykes which applied Lekich v Dixon, also purported to be issued under section 124 of the Act.

Therefore, in order to make Exhibits 2 and 4 admissible, in this case proof of delegation was required. As this was not proven, the certificates were not admissible against the appellant. As a result, the only evidence available to establish the accuracy of the speed recorded by the mobile radar speed detection device was that before and after using it to record the speed of the appellant's vehicle, the respondent tested it in accordance with the manufacturers specification, the Australian standard, and the Queensland Police Service policy and found it was operating accurately; and he used it in accordance with the appropriate Australian standard in force on that day.

However, to say the device was working correctly is not the same as saying it was giving accurate results. Even if this is to be assumed, part of the tests on which the respondent's evidence that the device was working correctly, was based on it correctly recording the speed of the police vehicle both before it was used to check the speed of other vehicles, and at the time it was used to record the speed of the appellant's vehicle. This was confirmed by the respondent's statement to the appellant after the interception had occurred when showing the appellant the reading on the device, that, "See up on the dash, the left-hand display, that's your recorded speed of 142 up there and the 93 this side, that's how fast the police car was going at the same time."

In the absence of Exhibit 2 there is no evidence as to the accuracy of the speedometer of the police vehicle. In the absence of this, there was no evidence upon which the Magistrate could be satisfied beyond reasonable doubt that the device was producing accurate results.

Therefore, there was no evidence on which the Magistrate could be satisfied beyond reasonable doubt, that the defendant was driving his vehicle at 142 kilometres per hour at the relevant time. The position is the same on the evidence before me.

I do not consider that the appellant's statement to the police officer, "I've got done. I've got done," after being shown the 142 kilometre per hour reading on the device, or his question to the police officers after this as to whether they would drop the speed down 2 kilometres, is an admission or is demonstrative of a consciousness of guilt that he was travelling at 142 kilometres per hour. As the appellant said during cross-examination, he had no idea how fast he was going. He was simply told he was doing 142 kilometres an hour.

However, I consider he impliedly admitted that he was exceeding 100 kilometres an hour in the other portion of his roadside conversation with the police, to which I have referred. This conversation was not challenged by him in cross-examination.

I consider that responding during cross-examination to the question from the Prosecutor, "Were you speeding when the police officer saw you?" with the answer, "I was going fast, yes.", in the context of a charge of exceeding a 100 kilometre per hour speed limit, is an admission that he was travelling at excess of 100 kilometres an hour.

I am entitled to rely upon this evidence by the appellant even if the appellant's evidence-in-chief was a submission of no case to answer which was rejected by the Magistrate. I agree with McGill DCJ, in Marchetti v Williams [2008] QDC 75 at [34], that as a general proposition in the case of an appeal under section 222 of the Justices Act, "Where a defendant has elected to give evidence, the question of whether the final result was correct, is to be decided by reference to all the evidence properly before the Court at the end of the case, and the defendant is not entitled to have a conviction quashed on the basis that a no case submission ought to have succeeded if any deficiency in the prosecution case was made good by the evidence subsequently given."

Both police officers also gave evidence of their experience in assessing the speed of vehicles. The respondent could rely upon 30 years working in the Traffic Branch and being a person qualified to operate all Queensland Police Service speed detection devices. Senior Constable Tomlins evidence was from sitting behind a speed camera for numerous hours, he had become good at estimating whether or not a vehicle's speed was over the limit. They both gave evidence of the speed of the vehicle driven by the appellant being, "well in excess" or "well over" the 100 kilometre per hour limit for the road on which he was driving.

Even if there are some difficulties in relying on these estimates of speed by the police officers because the Magistrate did not provide sufficient assistance to the appellant when the appellant demonstrated he was incapable of appreciating he had to give factual evidence-in-chief rather than a statement of law, so that he did not take the opportunity to expand on his cross-examination of the police officers based on the mud map as to their ability to observe him for a sufficient period to make these estimates,

I am satisfied he made admissions to the police and in cross-examination which are sufficient for me to find beyond reasonable doubt he was travelling over the 100 kilometre per hour speed limit. However, as accepted by counsel for the respondent, I am unable to conclude to this standard that he was travelling at any particular speed.

I therefore dismiss the appeal against conviction.

However because the Magistrate could not have been satisfied beyond reasonable doubt the vehicle was travelling at 142 kilometres per hour as particularised, I am entitled to interfere with the exercise of the Magistrate's sentencing discretion because he mistook the facts in imposing sentence: House v. The King [1936] 55CLR 499 per Dixon, Evatt and McTiernan JJ 504-505. In these circumstances the sentence was outside the sound exercise of the sentencing Court's discretion: Parry v. Mayfield Holdings (Qld) Pty Ltd [2006] QDC250 per Dearden DCJ at [29].

I consider that the imposition of a fine of $750 for exceeding the speed limit to an unspecified extent is outside the exercise of the sound sentencing discretion. The appellant should not be sentenced on the basis his speed was nearer to 142 kilometres per hour than 100 kilometres per hour, particularly when a speed at the top of this range can result in an automatic suspension of his driver's licence under section 30A of the Transport Operations (Road Use Management - Driver Licencing) Regulation 1999 (The Driver Licencing Regulation).
Having regard to the maximum penalty of $3,000 for this offence, the fact that at 44 years of age the appellant has previously committed only one traffic offence such that the Prosecutor described it as an exceptional history, I consider the appropriate penalty was a $200 fine. For completeness I note the previous conviction was for exceeding the speed limit by less than 15 kilometres an hour on 22 October 2002 for which he was fined $90 and incurred one demerit point.

The order of the Court is:

1 Appeal against conviction dismissed.
2(a) Appeal against sentence allowed.

(b) Sentence imposed at first instance varied to the extent of ordering the appellant is fined $200.

For completeness the order by the Magistrate as to costs, the default imprisonment, and time to pay are not varied.

I also make it clear that being unable to conclude that the appellant was travelling at any particular speed at the relevant time, there is no basis for concluding he was driving more than 40 kilometres per hour over the speed limit for the purpose of section 30A of the Driver Licensing Regulation.

...

Yes. I've considered what has been said to me on the issue of costs. Although I have not agreed with the reasoning by the Magistrate in coming to his conclusion that the charge of speeding had been established against the appellant to the appropriate standard, I have nonetheless dismissed the appeal against conviction on the basis that there was other evidence to support this decision.

I have in those circumstances reduced the fine which has a beneficial affect given the terms of my order to the appellant in terms of his future, to continue driving without an automatic suspension.

In circumstances where the appeal against conviction has been dismissed and the fine has been reduced from $750 to $200 I do not consider that this is a case where I should exercise my discretion to make an order for costs in favour of the appellant.

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