Chandler v Transport for New South Wales

1. [1]

   WARD P: I agree with Mitchelmore JA.

2. [2]

   BEECH-JONES JA: I agree with Mitchelmore JA.

3. [3]

   MITCHELMORE JA: This is an application for judicial review of a decision of the District Court, on 2 March 2022, dismissing the applicant’s appeal against his conviction in the Local Court for two charges of using a mobile phone when not permitted, contrary to r 300 of the Road Rules 2014 (NSW).

4. [4]

   The applicant required an extension of time to file what was ultimately titled an Amended Summons, dated 9 November 2022. The first respondent did not oppose the extension, noting that the delay was short and was sufficiently explained. The Court granted the extension during the hearing.

5. [5]

   The applicant contended that the decision of Pickering SC DCJ to dismiss his appeal was affected by jurisdictional error, submitting orally that he had two principal complaints with his Honour’s decision. The applicant’s first complaint was that Judge Pickering had found that he was using a mobile phone within the meaning of r 300 on the basis of photographic evidence alone, which he contended was impermissible. The second complaint was that in finding the offences proved, his Honour had reversed the onus of proof. For the reasons outlined below, Judge Pickering did not err in either of those respects.

6. [6]

   The other matters that the applicant raised in his written submissions took issue with findings of fact that his Honour made, on bases which are not within the jurisdiction of this Court on this application (as to which see s 176 of the District Court Act 1973 (NSW)). The Amended Summons should be dismissed.

Background to the application

1. [7]

   The first offence with which the applicant was charged was alleged to have taken place at 11.06pm on 23 July 2020 in Moore Park. According to the Short Particulars in the Court Attendance Notice, the offence was detected by “an appropriate approved traffic enforcement device” within the meaning of the Road Transport Act 2013 (NSW). The order approving the type of device for mobile phone use offences described it as “designed for photographing the driver of a vehicle that is using a mobile phone in contravention of the statutory rules”. The device was located on Anzac Parade. The second offence was alleged also to have taken place on Anzac Parade at Moore Park, at 11.26am on 18 August 2020, and was also detected by an appropriate approved traffic enforcement device. Photographs of what the devices detected on 23 July 2020 and 18 August 2020 were in evidence before the Magistrate in the Local Court and before Judge Pickering on the appeal to the District Court.

2. [8]

   Relevantly for present purposes, r 300 of the Road Rules provided:

3. [9]

   There was no issue that the photographs on both occasions showed the applicant driving a vehicle while holding an object in his left hand. The issue was whether the prosecutor could prove beyond reasonable doubt that the object that the applicant was holding was a mobile phone. In a statement dated 15 June 2021 which was tendered as his evidence in chief in the Local Court, the applicant stated that it was unnecessary for him to use his phone manually while he was driving because both of his vehicles had hands-free capabilities. However, he did need to remove the phone cover from his phone in order for it to charge properly on the wireless charging tray. While he could not remember the particular events that the photographs depicted, the applicant believed that there was a strong likelihood that on both occasions he was holding the phone cover, and not his phone.

4. [10]

   When questioned by the Magistrate about his statement, the applicant posited that the object might be a notepad, but it was “most likely” that it was a phone cover. When cross-examined (briefly) by the legal representative for the first respondent, the applicant maintained that position.

5. [11]

   It is unnecessary to address the decision of the Magistrate in detail. Relevantly to the present application, and as Judge Pickering noted, the Magistrate proceeded on the erroneous basis that the applicant needed to satisfy the Court on the balance of probabilities that the item that the photographs showed him holding was not a phone. Judge Pickering observed that there was no statutory or common law basis for imposing that reverse onus on the applicant, and that “fundamentally it is necessary for the photos themselves to ultimately prove that the phone was being used”.

6. [12]

   In dismissing the applicant’s appeal against his convictions, his Honour summarised the applicant’s evidence and reiterated that the applicant bore no onus of proof. His Honour then returned to the issue of whether he could be satisfied that the charges were proved beyond reasonable doubt, “having looked at the photographs, examined them and taken into account the sworn evidence of the appellant”. His Honour stated that the photographs were “never perfect in these matters”, noting that they were taken from cameras positioned above the cars. However, in the photos taken on both dates in question there was “a pretty good image of what is in the driver’s hand” (there being no issue that the driver was the applicant). His Honour was of the view that the only rational inference that could possibly be drawn from the photographs was:

   1. (1)

      in relation to the 23 July 2020 charge, that the driver was holding the object in a manner that “he is making or manipulating it so that it would be easier for him to see it”; and

   2. (2)

      in relation to the 18 August 2020 charge, that the object had “even more clearly” been manipulated “so that the front of it is facing towards the driver”.

7. [13]

   His Honour found it very difficult to accept that there was a notepad being used on either occasion. His observation of the photographs for both dates was that the item was a “hard plastic metal” device or item. That observation was inconsistent with the item being a notepad and his Honour rejected that possibility, having “no doubt whatsoever” as to his conclusion. His Honour also addressed the applicant having raised that the item was a phone case, acknowledging that this was “not for [the applicant] to prove”. His Honour accepted that a phone case and a mobile phone could be confused as similar items, observing that “fundamentally a phone case is often all you will see”. However, his Honour noted that it was necessary to look at all of the circumstances involved. Starting with the photographs for 18 August 2020, in particular a photograph timestamped 11:26:41, his Honour stated:

8. [14]

   His Honour reached the same conclusion about the object shown in the photographs of 23 July 2020:

9. [15]

   Subsequent to his dismissal of the applicant’s appeal, on 26 May 2022, his Honour dismissed a notice of motion filed by the applicant seeking that he state a case to the Court of Appeal. The applicant does not challenge that decision in these proceedings.

The application for judicial review

1. [16]

   The Amended Summons takes issue with the decision of Judge Pickering on a number of bases which were refined in the applicant’s written submissions, an updated version of which was filed on 23 January 2023 together with written submissions in reply. As the applicant submitted orally, the application raised two central complaints: his Honour relied on photographs without further evidence; and his Honour reversed the onus of proof. The first respondent addressed both of those issues in its written submissions dated 6 December 2022.

2. [17]

   In paragraph 14 of his written submissions, the applicant summarised the first of his principal contentions, being that his Honour erred:

3. [18]

   The applicant contended that it was not open to the judge to find that the object he was holding was a phone without any technical evidence or expert evidence to assist in identifying the object as a mobile phone, in circumstances where:

   1. (1)

      the photographs showed an object without any features or markings to assist its identification as a mobile phone;

   2. (2)

      the photographs did not show the driver’s face looking at the object;

   3. (3)

      there was no evidence to exclude the object being something other than a mobile phone;

   4. (4)

      there was significant delay in the period between the alleged infringements and the applicant being notified thereof; and

   5. (5)

      the applicant’s evidence indicated that he was known to carry a mobile phone cover while driving.

4. [19]

   In the applicant’s submission, his Honour’s finding that the object was a phone involved impermissibly making up for a shortfall in the first respondent’s evidence with his (non-expert) opinion as to what the photographs showed. He relied in this context on the decision of this Court in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 for the proposition that photographs could not be used to make findings of fact “absent the support of further conjunctive evidence”. The applicant placed particular emphasis on the reasons of Beazley P at [92]-[93], in which her Honour canvassed earlier authority regarding reliance on photographs, including Blacktown City Council v Hocking [2008] NSWCA 130 and Angel v Hawkesbury City Council [2008] NSWCA 144:

5. [20]

   Although the applicant emphasised particular parts of these paragraphs, read as a whole they do not identify a general proposition that it is impermissible to make a finding of fact on the basis of photographic evidence alone. Nor is the decision of Goode v Angland authority for such a general proposition. In Taitoko v R [2020] NSWCCA 43, Leeming JA referred to Goode v Angland and the two decisions which Beazley P considered in the above extract in relation to a ground of appeal alleging that the sentencing judge had given unreasonable weight to two photographs. The first respondent in the present case relied on what his Honour (Hoeben CJ at CL and Lonergan J agreeing) stated at [81] (which I have reproduced below with [80] for context):

6. [21]

   The applicant sought to distinguish Taitoko on the basis that the sentencing judge considered the photographs in conjunction with a statement of agreed facts (see [79]). That submission does no more than highlight what Leeming JA said at the end of [81]: each case will depend on the particular photographs and the particular purpose for which the photographs are sought to be deployed. It does not follow from the cases on which the applicant relied that Judge Pickering could only be satisfied beyond reasonable doubt that the photographs showed the applicant holding a mobile phone if his Honour had evidence in addition to the photographs, including expert or technical evidence. His Honour’s reliance on the photographs did not exceed any general limitation on the use that may be made of such evidence.

7. [22]

   The applicant’s written submissions indicate an appreciation on his part that the finding his Honour made, that the object in the photographs was a mobile phone, was a finding of fact. In making that finding, his Honour had regard to what he described as “all of the circumstances” that the photograph disclosed. Those circumstances included the size, shape, colour and appearance of the object shown in the photographs and the positioning of the object in the driver’s hand relative to the driver. Contrary to the applicant’s submission, his Honour did not require technical or expert evidence to tell him what the photographs showed. As his Honour stated, they were a “classic standard photograph of someone looking at their mobile phone”.

8. [23]

   The photographs provided a sufficient evidentiary basis for his Honour to make the finding, as a matter of inference, that the object in the photographs was a mobile phone: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33. Further, and in any event, deciding such questions of fact was within the jurisdiction of the District Court. Even if his Honour had made an error of fact, doing so would not be sufficient, without more, to engage this Court’s supervisory jurisdiction: Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242 at [27] per Meagher JA, citing Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245 at [4], [72].

9. [24]

   The applicant contended that Judge Pickering reversed the onus of proof, approaching the matter on the basis that “if the Applicant cannot prove the object to be a notepad or phone case, then he has not established a defence” and proceeded on the basis that “if the Applicant cannot prove what else he may be looking at, then it is presumed a mobile phone”.

10. [25]

    His Honour was hearing an appeal pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) which, pursuant to s 18(1) of that Act, was “to be by way of rehearing on the basis of evidence given in the original Local Court proceedings”. In McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298, Bell P described the task for the District Court in hearing an appeal of this nature as follows (at [25]-[26]; see also Basten and McCallum JJA at [83]-[91]):

11. [26]

    The reasons of Judge Pickering do not disclose error in the nature of reversing the onus of proof. That being the very error that his Honour identified in the decision of the Magistrate, his Honour was at pains to emphasise that the burden of proof rested on the prosecution, and that the question for his Honour was whether he could be satisfied beyond reasonable doubt, relevantly, that the item that the applicant was captured holding in the photographs was a mobile phone. His Honour accepted that “there will be cases where there is some uncertainty whether it was a phone and if such uncertainty creates a reasonable doubt then it must be in the benefit of the accused or the appellant”. In the present case, however, his Honour was satisfied beyond reasonable doubt that the item was a mobile phone. Reaching that conclusion necessarily involved considering the evidence that the applicant had given before the Magistrate as to what else the object might be, but it does not follow from his rejection of those possibilities that his Honour reversed the onus of proof, and his Honour did not do so.

Conclusion

1. [27]

   The applicant has not established any jurisdictional error. The application for review should be dismissed.

2. [28]

   The first respondent seeks its costs. In accordance with the general rule that costs follow the event (r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW)), an order for costs should be made in its favour.

3. [29]

   I propose the following order:

   1. (1)

      The Amended Summons is dismissed with costs.