Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chandler v Transport for New South Wales [2023] NSWCA 6 Hearing dates: 2 February 2023 Date of orders: 10 February 2023 Decision date: 10 February 2023 Before: Ward P at [1] Beech-Jones JA at [2] Mitchelmore JA at [3] Decision: The Amended Summons is dismissed with costs. Catchwords: CRIME – Appeal and review – Judicial review – Appeal from Local Court to District Court – where District Court dismissed appeal – offences of using mobile phone while driving when not permitted – whether decision of District Court affected by jurisdictional error – whether District Court erred in relation to use of photographic evidence – whether District Court reversed onus of proof Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 11(1), 18(1) District Court Act 1973 (NSW), s 176 Road Rules 2014 (NSW), r 300 Road Transport Act 2013 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Angel v Hawkesbury City Council [2008] NSWCA 144 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33 Blacktown City Council v Hocking [2008] NSWCA 130 Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245 Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298 Taitoko v R [2020] NSWCCA 43 Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242 Category: Principal judgment Parties: Ian David Chandler (Applicant) Transport for New South Wales (First Respondent) District Court of NSW (Second Respondent) Representation: Counsel: G E Lewer (First Respondent) Solicitors: Hunt and Hunt (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): 2022/184727 Publication restriction: Nil Decision under review Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 02 March 2022 Before: Pickering SC DCJ File Number(s): 2020/00303590; 2020/00303591 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Ian Chandler, sought judicial review of a decision of Pickering SC DCJ in the District Court, by which his Honour dismissed an appeal against the applicant's conviction in the Local Court. The applicant was convicted of two charges of using a mobile phone when not permitted, contrary to r 300 of the Road Rules 2014 (NSW). The applicant contended that his Honour's decision to dismiss his appeal was affected by jurisdictional error, by reference to two central complaints. First, he submitted that his Honour impermissibly found, on the basis of photographic evidence alone, that he had been using a mobile phone in a manner contrary to the Road Rules. Second, he submitted that his Honour reversed the onus of proof, by requiring him to positively establish that he was not holding a mobile phone. The Court (Mitchelmore JA, Ward P and Beech-Jones JA agreeing), dismissing the application, held: As to the first complaint: 1. The photographs captured of the applicant provided a sufficient evidentiary basis to find, as a matter of inference, that the object in the photographs was a mobile phone: [1], [2], [23]. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33 applied. 1. Even if Judge Pickering had made an error of fact in so finding, that would not itself be sufficient to engage this Court's supervisory jurisdiction: [1], [2], [23]. Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242; Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245 applied. As to the second complaint: 1. Judge Pickering was satisfied beyond reasonable doubt that the item the applicant was holding was a mobile phone. His Honour's consideration and rejection of the applicant's evidence to the contrary did not involve a reversal of the onus of proof: [1], [2], [26]. JUDGMENT 1. WARD P: I agree with Mitchelmore JA. 2. BEECH-JONES JA: I agree with Mitchelmore JA. 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. 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. 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. 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. 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. Relevantly for present purposes, r 300 of the Road Rules provided: 300 Use of mobile phones (1) The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless— (a) the phone is being used to make or receive an audio phone call or to perform an audio playing function and the body of the phone— (i) is secured in a mounting affixed to the vehicle while being so used, or (ii) is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press any thing on the body of the phone or to otherwise manipulate any part of the body of the phone, or (b) the phone is functioning as a visual display unit that is being used as a driver's aid and the phone is secured in a mounting affixed to the vehicle, or (c) the vehicle is an emergency vehicle or a police vehicle, or (d) the driver is exempt from this rule under another law of this jurisdiction. Maximum penalty—20 penalty units. Examples of driver's aids. 1 Closed-circuit television security cameras. 2 Dispatch systems. 3 Navigational or intelligent highway and vehicle system equipment. 4 Rearview screens. 5 Ticket-issuing machines. 6 Vehicle monitoring devices. … (4) In this rule— affixed to, in relation to a vehicle, includes forming part of the vehicle. audio phone call does not include an email, text message, video call, video message or other similar communication. body, in relation to a mobile phone, means the part of the phone that contains the majority of the phone's mechanisms. held includes held by, or resting on, any part of the driver's body, but does not include held in a pocket of the driver's clothing or in a pouch worn by the driver. mobile phone does not include a CB radio or any other two-way radio. use, in relation to a mobile phone, includes any of the following actions by a driver— (a) holding the body of the phone in her or his hand (whether or not engaged in a phone call), except while in the process of giving the body of the phone to a passenger in the vehicle, (b) entering or placing, other than by the use of voice, anything into the phone, or sending or looking at anything that is in the phone, (c) turning the phone on or off, (d) operating any other function of the phone. 1. 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. 2. 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. 3. 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". 4. 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. 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. 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". 1. 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: "It has all the hallmarks of just a classic standard photograph of someone looking at their mobile phone, in every aspect of how it is being held and what is being done. Also it looks like a phone, it looks exactly like a mobile phone. It is held like a phone, appears to be a phone and a photograph was taken of the appellant on 18 August 2020 holding a phone. I am well satisfied beyond reasonable doubt of that offence. You do not need to reverse the onus of proof on to the accused, the photograph speaks for itself, it is clearly a mobile phone and I reject his appeal on that matter." 1. His Honour reached the same conclusion about the object shown in the photographs of 23 July 2020: "Actually it looks less like a phone case and more like a phone without the phone case. Either way, again my issue with it is looking at all the circumstances involved. Sure it is again that a phone case can sometimes just look like a phone but why would you need to have the item manipulated in a way that has all the hallmarks that you are beyond reasonable doubt manipulating it so that you can see the front of it, i.e. consistent with manipulating a phone so you can see the front of it. Again, I have absolutely no reasonable doubt that that is any other item than a mobile phone. It is being held in his hand. It is irrelevant whether he is actually looking at it, it is irrelevant whether he is using it in the generic term because under the generic definition once you are holding it, and I am satisfied it is a mobile phone, the offence is made out. Again, it is not a matter of reversing the onus. In my view, as a tribunal of fact, I can see a mobile phone in the picture, I am satisfied beyond reasonable doubt it is a mobile phone and as such the offence is made out and in that respect the appeal is rejected." 1. 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. 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. Issue 1: Reliance on photographs 1. In paragraph 14 of his written submissions, the applicant summarised the first of his principal contentions, being that his Honour erred: "…by impermissibly determining objects photographed to be a mobile phone, and that it exceeded his jurisdiction [to] do so without expert testimony and/or technical evidence, and that it fell outside his jurisdiction to reach that conclusion using only his opinion and speculation which lacked specialised knowledge in the identification of mobile phones or was based on any training, study or experience, or based wholly or substantially on that knowledge." 1. 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. the photographs showed an object without any features or markings to assist its identification as a mobile phone; 2. the photographs did not show the driver's face looking at the object; 3. there was no evidence to exclude the object being something other than a mobile phone; 4. there was significant delay in the period between the alleged infringements and the applicant being notified thereof; and 5. the applicant's evidence indicated that he was known to carry a mobile phone cover while driving. 1. 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: "In Blacktown City Council v Hocking at [169], Tobias JA, with whom Giles JA agreed, considered, by reference to Schmidt v Schmidt, that photographs should not be used to make findings of fact that were not supported by the evidence. To use photographs in that way, according to his Honour, would be 'no more than conjectural'. His Honour accepted that photographs could have probative value of themselves, but that care was necessary that they not be the sole source from which primary facts were inferred if the primary facts were not apparent on the face of the photograph. A matter that frequently arises in the use of photographs is that they can be deceptive, particularly in relation to perspective and distance. This was the subject of observation in Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; [2008] NSWCA 130 where the Court (Beazley and Tobias JJA, Spigelman CJ, Giles and Campbell JJA agreeing) said, at [69]-[72], that photographic evidence could not trump the direct evidence of witnesses that compelled acceptance." 1. 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): "True it is that care must be taken where photographs are deployed. I regard it as self-evident that photographs (and, especially, the reproductions of photographs in appeal books) can contain obvious distortions of distance, colour and shape. They can also contain non-obvious distortions of distance, colour and shape. I sought to explain this in Goode v Angland … including by giving an example central to that appeal: the parallax error in photography of horses travelling around an oval racetrack. The care which must always be taken in the use of photographs is inherent in their nature, as has regularly been observed in judgments. I would not read those observations as establishing some rule of law or principle of evidence; cf Amante v R [2020] NSWCCA 34 at [4]-[8]. Read fairly and in context, the statements in decisions such as in Angel v Hawkesbury City Council [2008] NSWCA 130 at [69]-[72] and Blacktown City Council v Hocking [2008] NSWCA 144 at [167]-[172] relate to the particular use of the particular photographs in those cases (respectively, photographs which distorted distance, taken after the event, sought to be used to displace the testimonial evidence of witnesses, and photographs of the lip of a pit used to establish its condition seven or eight years earlier), rather than some general rule or principle. Each case will depend on the particular photograph and the particular purpose for which it is sought to be deployed." (Emphasis in original.) 1. 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. 2. 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". 3. 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]. Issue 2: Reversal of the onus of proof 1. 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". 2. 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]): "The task for a District Court judge in hearing a s 18 appeal is to form his or her own judgment on the facts and to determine, on the basis of the evidence that was before the magistrate (supplemented by any further evidence received pursuant to s 18(2) of the CAR Act or as a result of the calling of a witness pursuant to s 19), whether that evidence was sufficient to demonstrate the appellant's guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the Court reaching a fresh conclusion as to the appellant's guilt on the basis of evidence given in the Local Court, but without the error of law which tainted the result at first instance… No shifting of the burden of establishing guilt beyond reasonable doubt will have occurred on either scenario. The prosecution at all material times bears the onus of establishing guilt beyond reasonable doubt." 1. 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. The applicant has not established any jurisdictional error. The application for review should be dismissed. 2. 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. I propose the following order: 1. The Amended Summons is dismissed with costs. ********** Amendments 13 February 2023 - 13 February 2023 - Minor amendment to headnote. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2023