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  • Unreported Judgment

Ferguson v Olsen

 

[2019] QDC 189

DISTRICT COURT OF QUEENSLAND

CITATION:

Peter Kenneth Ferguson v David John Olsen [2019] QDC 189

PARTIES:

Peter Kenneth Ferguson

(Appellant)

v

David John Olsen

(Respondent)

FILE NO/S:

D 81/18

DIVISION:

Criminal

PROCEEDING:

Appeal under s 222 Justices Act

ORIGINATING COURT:

Magistrates Court at Ipswich

DELIVERED ON:

27 September 2019

DELIVERED AT:

Ipswich

HEARING DATE:

29 April 2019

JUDGE:

Lynch QC DCJ

ORDER:

  1. The appeal is dismissed.
  2. The appellant pay the respondent’s costs of the appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION

Where the appellant was convicted on summary trial of a charge of disobeying the speed limit – where the appellant appeals against conviction pursuant to s 222 of the Justices Act 1886 – where no notice of challenge of the accuracy or use of speed detection device – where learned Magistrate deemed evidentiary certificates proof of the accuracy and use of speed detection device – whether learned Magistrate erred in a finding of fact or law

Legislation

Justices Act 1886 ss 222, 223

Transport Operations (Road Use Management) Act 1995 s 124

Cases

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Fox v Percy (2003) 214 CLR 118

Minister for Immigration and Border Protection v SZVFW & Ors (2018) 357 ALR 408

Pershouse v Queensland Police Service [2013] QCA 296

COUNSEL:

L.D Reece for the appellant

C Bernardin for the respondent

SOLICITORS:

AJ Torbey & Associates for the appellant

Queensland Police Service

Appeal

  1. [1]
    On 29 August 2018 Peter Kenneth Ferguson (the appellant) was tried before the Ipswich Magistrates Court on complaint and summons alleging:

(T)hat on the 5th day of August 2017, at Moombra in the Magistrates Courts District of Ipswich … Peter Kenneth Ferguson being the driver of a vehicle namely a Citroen C5 drove at a speed over the speed limit namely 100 kilometres per hour applying to the driver for a length of road namely Brisbane Valley Highway Moombra where the said driver was driving and it is averred the said Citroen C5 is a vehicle … and it is averred that the said Brisbane Valley Highway is a road…

The complaint set out further particulars of the alleged offence as having occurred at 5.31pm on the Brisbane Valley Highway at Moombra, where official traffic signs indicated a speed limit of 100 kilometres per hour, and the speed of the offender was 113 kilometres per hour.

  1. [2]
    The learned Magistrate found the offence proved, fined Mr Ferguson the sum of $252.00, and ordered he pay the amount of $87.50 as costs of court. Mr Ferguson appeals against the decision of the Magistrate convicting him of the offence on the ground that the decision was against the evidence and the weight of the evidence.

  1. [3]
    I have concluded the appeal should be dismissed. My reasons for that conclusion are set out below.

Material

  1. [4]
    Exhibits 1-7 listed below were admitted during the hearing of the appeal. Exhibits 8 and 9 (the further submissions of the parties filed by leave) were subsequently also admitted.

Exhibit 1:Notice of appeal

Exhibit 2:Appellant’s outline of submissions dated 8/11/2018

Exhibit 3:The exhibits admitted at the trial (a photograph of a mobile radar display, a certificate for a Ballinger digital speedometer, 2 x certificates for a speed detection device, 3 x photographs of the roadway)

Exhibit 4:Transcript of proceedings before Magistrate on 29 August 2018

Exhibit 5:Transcript of decision of Magistrate on 29 August 2018

Exhibit 6:Respondent’s outline of submissions dated 13/12/2018

Exhibit 7:Transcript of conversation between police officer Olsen and appellant of 5/8/2017

Exhibit 8:Appellant’s further submissions dated 21/6/2019

Exhibit 9:Respondent’s further submissions dated 26/6/2019

Proceedings before the Magistrates Court

  1. [5]
    The prosecution called a single witness in the case against the appellant. Mr Ferguson appeared for himself without legal representation.

  1. [6]
    David John Olsen said he was a Constable of Police stationed at Ipswich Road Policing Unit. He said on 5 August 2017 he was performing traffic enforcement duties from a marked police motorcycle on the Brisbane Valley Highway. He said the events occurred at about 5.31pm, the weather was fine, and traffic was light. His vehicle was fitted with a Ballinger digital speedometer and a Raptor mobile radar. He was duly qualified in the operation of the radar device.

  1. [7]
    Constable Olsen said he was travelling south on the Brisbane Valley Highway at Moombra when he saw an oncoming vehicle he assessed as travelling over the 100 kilometre per hour speed limit. This was the Citroen sedan driven by the appellant. Constable Olsen said he observed the appellant was travelling in front of a large four-wheel drive vehicle, down a slight decline, and the gap between the two vehicles was slowly increasing with the Citroen slowly pulling away from the other vehicle. Constable Olsen said he activated the mobile radar attached to his motorcycle which displayed two speeds on the device screen, namely 107 km/h and 113 km/h. Constable Olsen said the radar device detected the larger vehicle, which returned the stronger signal, and displayed that vehicle’s speed on the left of the screen. He said that was a speed of 107 km/h which he attributed to the larger four wheel drive. He said the device also recognised the fastest moving vehicle by displaying that vehicle’s speed on the right of the screen. In this case that was the speed of 113 km/h which he attributed to the Citroen sedan. Constable Olsen said he “locked” the faster speed which was then kept on the right of the screen while the device continued to monitor the speed of the faster vehicle by displaying that speed on the left of the screen. Constable Olsen said the purpose of that was to show any change in the faster vehicle’s speed. Constable Olsen said the monitored fastest speed displayed continued to be 113 km/h. He said when he passed the Citroen, the monitored speed of 113 km/h dropped from the left side of the screen and was replaced with a speed of 107 km/h; which confirmed that the faster vehicle was in fact the one he had just passed and the slower speed was that of the larger four wheel drive. Constable Olsen said shortly before passing the Citroen he activated his vehicle lights, eventually turned around and intercepted the Citroen, and ultimately issued a traffic offence notice to the appellant. Constable Olsen said he recorded his conversation with the appellant who denied speeding and said he had been travelling with his cruise control set at 103 km/h. Constable Olsen said, as was his practice, he took a photograph of his mobile radar display screen, after having spoken to the appellant, which showed the speed of the vehicle the radar device had locked onto and the period of time that vehicle speed had been “locked”; in this case 7 minutes and 40 seconds. This photograph was admitted as Exhibit 1.

  1. [8]
    Constable Olsen identified a certificate issued pursuant to s 124(1)(p) of the Transport Operations (Road Use Management) Act 1995 (TORUM) relating to the motorcycle speedometer (admitted as Exhibit 2), a certificate issued pursuant to s 124(1)(pa) relating to the accuracy of the radar device (admitted as Exhibit 3), and a certificate signed by himself pursuant to s 124(1)(pb) concerning his use of the radar (admitted as Exhibit 4).

  1. [9]
    In cross-examination Constable Olsen said he was over a kilometre away and travelling towards the vehicles when he first saw them, but activated the radar when he was about 500 metres away. He maintained the Citroen was “gradually” pulling away from the other vehicle. Constable Olsen also described the gap as increasing by a margin of four car lengths per second; which the appellant pointed out was inconsistent with the rate which would result from speeds of 113 km/h and 107 km/h. The appellant also asked questions suggesting “parallax error” might have given the impression the gap between the vehicles was increasing because one was travelling downhill towards the officer. Constable Olsen rejected that proposition. Constable Olsen was shown two photographs of the section of roadway which were admitted as Exhibit 5.

  1. [10]
    The appellant gave evidence. He acknowledged he was driving the Citroen sedan referred to by the police officer. He said he was using a TomTom GPS device to display his vehicle speed. He said he regularly drove significant distances and always used that device which experience showed was more accurate than a vehicle speedometer. He said he saw the police officer with his lights activated well ahead of him and checked his speed which was 100 km/h. He said he had been travelling at that speed with the vehicle’s cruise control activated for a considerable distance. The appellant said he was certain he was not speeding. He also said he had not had a speeding ticket for 28 years and was someone who adhered to the speed limits. He postulated the possibility the police officer had confused the information on the radar device screen and was mistaken in attributing the speed of 113 km/h to the Citroen. In the course of the appellant’s evidence-in-chief, the Magistrate explained the operation of the radar device, as described by Constable Olsen, to the appellant. The effect of this was that the speeds displayed on the device showed there must have been two vehicles and that the faster speed which the officer “locked” on the screen must have been from the first vehicle to pass the police officer since that was the speed that disappeared after the vehicles passed. The appellant nevertheless maintained that he was not driving at that speed.

  1. [11]
    The appellant also called a witness to give evidence. John Allan Lynch said he was a passenger in the vehicle driven by the appellant at the time in question. Mr Lynch was familiar with the operation of the TomTom GPS device the appellant used and said in his experience it was always accurate. Mr Lynch said they had calibrated that device by comparing its recorded vehicle speed against that shown on roadside speed devices many times and always found it accurate. Mr Lynch said on the day in question he checked the TomTom device in the car intermittently as they drove and their speed did not change from 100 km/h. He said when he saw the lights on the police motorcycle some distance ahead of them he again checked the TomTom device which still showed they were travelling at 100 km/h. Mr Lynch said he again looked at their speed prior to the police bike catching up to them and it remained at 100 km/h.

  1. [12]
    Constable Olsen gave evidence of his speaking to the appellant after intercepting his vehicle. That conversation was referred to in evidence by both Constable Olsen and the appellant. The recording was not produced or played in evidence and the transcript did not become an exhibit. It was common ground on the hearing of the appeal that the transcript be admitted for the purpose of making sense of the evidence given at the trial as to that conversation. That transcript records Constable Olsen’s explanation of his detection of the appellant’s vehicle, the appellant’s denials that he was speeding, and the appellant’s explanation of his monitoring of his speed with the use of the TomTom device.

  1. [13]
    In the course of Constable Olsen’s evidence-in-chief, the appellant interrupted as follows:

Defendant:Your Honour, would it be of assistance if I say that I do not challenge the speed that was registered by the patrol officer at any time?

Bench:Meaning you’re not challenging the radar device.

Defendant:I am not challenging the radar device.[1]

  1. [14]
    Later, during the cross-examination of Constable Olsen, the prosecutor objected and the following exchange took place:

Prosecutor: But I would ask also, your Honour, that these are really straying into matters which should have been subject of a challenge. If he’s attempting to question the officer about the way the device is – works or used.

Bench:I think you understand the objection there, Mr Ferguson.

Defendant:I do understand the objection.

Bench: But more to the point is if you’re going to get into the operation or - - -

Defendant: No.

Bench: - - - how the radar works, then - - -

Defendant: - - - no.

Bench: - - - you really do need to do a challenge.

Defendant: That’s – no, no your honour. I’m not getting into the question of how the radar works, but how he interpreted what he saw. The radar, I believe, did the right thing. I am challenging whether – how he determined which vehicle it related to.[2]

  1. [15]
    Later, during the evidence-in-chief of the appellant, there was a further exchange as follows:

Bench:Now you say you had your vehicle on cruise control?

Defendant:Yes.

Bench:So there’s something wrong here?

Defendant:Yes. Well, I – I’m – that’s why I – that is why I am here. Because I know that I – I do adhere to the speed limits. And - - -

Bench:So are you, really, in those circumstances, challenging the radar?

Defendant:No. Because I’m – I’m saying that when – in his – in his report in here, he did not say that there were two readings, initially. He said there was – he had locked onto the fastest one, of 113.[3]

Decision of Magistrate

  1. [16]
    The learned Magistrate accurately summarised the evidence of the witnesses consistent with that set out above. Her Honour also referred to the details of the charge and the requirement for the prosecution to prove the elements of the charge beyond reasonable doubt. She recognised there was no onus on the appellant. The learned Magistrate accepted the appellant and Mr Lynch were honest witnesses but concluded that, in the absence of challenge to the accuracy of the radar device, she was bound to accept the evidence of the appellant’s speed.

  1. [17]
    The learned magistrate referred in detail to the each of the certificates tendered in evidence (Exhibits 2, 3 & 4). In respect of Exhibit 2 (relating to the speedometer of the police officer’s motorcycle), Her Honour remarked:

The purpose of these certificates is that, pursuant to that section of the Act, the device is deemed, by virtue of that legislation, to continue to provide accurate results for a period of 12 months from the date of testing, unless the contrary is proved. So, to that extent, that means that the onus shifts to the person who might be challenging the accuracy of the speedometer. As I have already indicated, Mr Ferguson had indicated he was not challenging any of that. So for the purposes of this – these proceedings, the speedometer attached to the police officer’s motorcycle is deemed, by virtue of the legislation, to be producing accurate results for a period of 12 months, and obviously this incident has occurred within that 12 month period.[4]

  1. [18]
    In respect of Exhibit 3 (relating to the radar device used by Constable Olsen), and Exhibit 4 (relating to the manner in which Constable Olsen used the radar device) her Honour said:

Again, pursuant to the provisions of the Transport Operation (Road Use Management) Act of 1995, section 124, this device is deemed to continue to produce accurate results for a period of 12 months from the date of testing. So that would therefore mean that it is deemed to be accurate from the 3rd of February 2017, up to and including the 3rd of February 2018. This incident certainly occurred within that deeming period. And again, unless the accuracy of that device is challenged, and that challenge obviously is shifted to the party who takes issue with the device.

The third and final certificate produced by the police officer was a certificate that he operated the device in accordance with the Australian standards at the time that the incident was – has occurred. And again, that is deemed to be evidence of the matters contained therein, unless evidence to the contrary is proved otherwise. And of course, again, that has not been the subject of any challenge in the proceedings here today.[5]

  1. [19]
    Later, her Honour said:

The difficulty however, as I see it for Mr Ferguson, is that the device effectively overrides everything. But because there has been no challenge to the accuracy of the device, and because of the evidence which has been given by Constable Olsen about the way in which the device is operated and what – and the information that it provides, then it is clear that the device was operating accurately; …[6]

Her Honour then went on to refer in detail to Constable Olsen’s description of his operation of the radar device and his observations of the appellant’s vehicle.

  1. [20]
    Ultimately, her Honour concluded:

The sad thing is though, and I cannot keep coming back to that, is that this radar device is essentially unassailable unless there is evidence produced to show that it is inaccurate. I have to find that it was Mr Ferguson’s vehicle travelling at 113 kilometres an hour, and I have to find that because there is no evidence before me that suggests that the radar was inaccurate or that it was producing any inaccurate results. And that the way in which the radar is operated clearly indicates that the fastest speed is the speed that was locked onto Mr Ferguson’s vehicle, not the vehicle behind.

I know that that was Mr Ferguson’s suggestion, that perhaps it was the vehicle behind. But in any event, even prior to the officer passing Mr Ferguson’s vehicle, there were two vehicles in the radar screen, and both of those vehicles were travelling at speed, and based on Constable Olsen’s evidence, that once Mr Ferguson’s vehicle had passed him, the 113 disappeared. Then I think it is a very reasonable inference to draw, and also in addition to the other evidence that is before the Court, that it was Mr Ferguson’s vehicle travelling at 113 kilometres an hour.

Sadly, and somewhat to spoil Mr Ferguson’s traffic history, I do find that he was travelling at that speed and find him guilty of the offence.[7]

  1. [21]
    In the course of the decision, her Honour dealt with the appellant’s criticism of Constable Olsen’s claim the Citroen appeared to be pulling away from the second vehicle. The appellant suggested that was perhaps an optical illusion because the appellant’s vehicle was travelling downhill as it approached the police officer. Her Honour accepted the point made by the appellant but nevertheless concluded she was bound to accept the evidence of the accuracy of the radar device.

Submissions on appeal

  1. [22]
    The appellant asserted the Magistrate erred in proceeding on the basis the prosecution case was unchallenged as regards the material issues. It was submitted that although the appellant expressly accepted the radar device was accurate regarding the detected speed of 113 km/h, the appellant had disputed the version of Constable Olsen that the device detected a second vehicle travelling at a speed of 107 km/h. It was submitted that since that speed did not appear in the photograph taken by Constable Olsen of the radar screen, a reasonable doubt remained as to the existence of any vehicle travelling at that speed. In addition, it was submitted there also remained a reasonable doubt whether the speed of 113 km/h detected by the radar device should be attributed to the appellant’s vehicle rather than the larger four wheel drive following. In that regard, the appellant relied upon the evidence of both the appellant and his passenger Mr Lynch, that the appellant’s vehicle was in fact travelling at 100 km/h, as contradicting the claim by Constable Olsen that the Citroen of the appellant was pulling away from the vehicle following. In addition, it was submitted the defence evidence also raised a reasonable doubt as to whether the speed of 107 km/h replaced the speed of 113 km/h after the police vehicle passed the appellant’s car. It was submitted there remained a reasonable doubt the appellant’s vehicle had been detected travelling at 113 km/h and the appellant should have been acquitted.

  1. [23]
    In addition, the appellant submitted the Magistrate erred in concluding the appellant’s vehicle was correctly identified as the one travelling at 113 km/h. It was submitted the evidence of Constable Olsen showed he assumed it was the appellant’s vehicle travelling at that speed due to his observation that the lead vehicle was drawing away from the second vehicle. It was submitted that conclusion was prone to error due to the vehicle travelling downhill, a factor acknowledged in the Magistrate’s reasons. It was also submitted Constable Olsen’s explanation to the appellant at the road side after the interception gave a different reason for determining which speed was that of the appellant. There, it was submitted, he relied upon the speed of 113 km/h disappearing from the radar screen after he passed the appellant as indicating that was the appellant’s speed. In addition, it was submitted the police officer’s account that he activated his lights and pointed to indicate to the appellant to pull over before the two vehicles passed, is inconsistent with his claim that it was after the two vehicles had passed and the speed of 113 km/h disappeared from the radar screen that he confirmed the appellant’s vehicle was travelling at that speed. It was submitted that, in combination with the evidence of the appellant and his passenger as to the vehicle speed, real doubt that the appellant’s vehicle was travelling at 113 km/h existed. It was submitted the prosecution case could not discount an error by the police officer in determining which vehicle was travelling at the speed of 113 km/h and therefore the evidence did not support the finding of guilt.

  1. [24]
    In the course of argument, the appellant also submitted the Magistrate erred in concluding that she was bound to accept the accuracy of the speed detection device. It was submitted the evidence of the appellant and Mr Lynch, which the Magistrate accepted as honest recollections, showed the appellant’s vehicle was not travelling at 113 km/h. The appellant acknowledged no notice of intention to challenge the accuracy of the device or contest the way it was used had been made. In further written submissions, the appellant submitted this was not fatal to any challenge to the Magistrate’s conclusions in this regard since that requirement should be construed as applying only to a technical challenge through expert evidence. It was submitted that, in any event, accepting the accuracy of the device did not require a finding that the appellant’s vehicle was the one travelling at 113 km/h, so that, the Magistrate erred by concluding she was bound to draw that conclusion. The appellant submitted that the evidence of the appellant and his witness should have raised a reasonable doubt as to whether the appellant’s vehicle was correctly identified.

  1. [25]
    The respondent submitted the evidence clearly established the appellant’s vehicle was travelling at 113 km/h and the Magistrate was correct to find the offence proved. It was submitted the Magistrate’s decision showed she considered all of the evidence and made specific findings accepting the reliability of the account of Constable Olsen, as well as the accuracy of the speed detection obtained by the radar device. In particular, the evidence of Constable Olsen explaining his operation of the radar device showed the appellant’s vehicle was the one travelling at 113 km/h. The respondent submitted that although the Magistrate regarded the appellant and his witness as honest, it was the reliability of that evidence that was in question. It was submitted their evidence was not sufficiently cogent to disprove the prosecution evidence. The respondent submitted the Magistrate considered the issues raised concerning possible mistake as to whether the appellant’s vehicle was drawing away from the following vehicle, as well as whether there was possible error in determining that the appellant’s vehicle was the one travelling at 113 km/h, but having accepted the evidence of Constable Olsen and the accuracy of the radar, was correct to reject those possibilities. The respondent submitted no error is demonstrated in the approach of the Magistrate, the evidence supported the charge, and the appeal should be dismissed.

  1. [26]
    In further written submissions, the respondent submitted the Magistrate was correct to accept the accuracy of the radar device because there had not been any notice given of an intention to challenge that evidence or the manner of use of the device as required under s 124(4) of TORUM. It was submitted the challenge to the reliability of Officer Olsen’s evidence was inevitably focused upon his manner of use of the radar device which was precluded in the absence of formal notice being given. It was submitted the evidence of the appellant and his witness was therefore of no consequence concerning the central issue in the case. The respondent submitted the appeal should be dismissed.

Consideration

  1. [27]
    This appeal is by way of rehearing on the original evidence plus any fresh evidence admitted by leave.[8] In Fox v Percy[9] the majority said:

The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.

The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share.

… If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.[10] (Citations removed.)

  1. [28]
    The requirement that error be demonstrated has been confirmed in subsequent decisions.[11]

  1. [29]
    Consistent with authority then, I am required to consider the material admitted before the Magistrate, and where error of fact or law is demonstrated, give the judgement which in my opinion ought to have been given at first instance. In undertaking this assessment, I am also required to observe the limitations that exist concerning assessment of credit. In the present case the learned Magistrate expressed the view that all witnesses gave honest evidence. In the end, I conclude determination of the appeal does not depend upon assessment of credibility.

  1. [30]
    The appellant submits the Magistrate was in error in concluding the evidence was sufficient to prove the charge beyond reasonable doubt. This requires examination of the detail of the evidence.

  1. [31]
    The evidence of Constable Olsen is fundamental to proof of the charge. Constable Olsen said that he was riding his motorcycle south on the Brisbane Valley Highway at Moombra and saw two vehicles travelling towards him. He activated the radar speed detection device attached to his motorcycle. He was qualified and experienced in the operation of the radar device. He said the device registered two vehicle speeds; namely, 107 km/h displayed on the left of the device screen, and 113 km/h displayed on the right of the screen. He said the device would record the strongest signal, i.e. from the larger vehicle, on the left of the screen and the fastest speed on the right. He said in this case the larger vehicle was the second vehicle of the two approaching him. He also said it appeared to him the first vehicle was gradually pulling away from the second vehicle. He said he locked the device onto the fastest speed which kept that speed on the right of the screen. He said the device then also continued to monitor that vehicle’s speed, which was then displayed on the left of the screen. He said the monitored speed did not change as he approached, but disappeared from the screen when he went past the first vehicle. He said the monitored speed then appeared as being 107 km/h, consistent with the speed of the larger vehicle that had been displayed initially. Constable Olsen said he was satisfied the speed of the first vehicle was 113 km/h.

  1. [32]
    The appellant disputed that he was speeding at all. He said that, consistent with his practice, he utilised a TomTom brand GPS device to monitor his speed while driving. He had considerable experience with that device and found it was more accurate than the speedometer in vehicles. He said he set the cruise control of his car at 103 km/h, so that it equated to the speed of 100 km/h as measured on the TomTom device, and drove at that speed over the relevant period. Mr Lynch, the passenger in the appellant’s vehicle, said he also had considerable experience in the use of the TomTom device to measure speed and found it accurate. He also said he checked their vehicle’s speed as recorded on the TomTom device periodically as they drove. He said before and after seeing the police motorcycle, he saw their speed was measured at 100 km/h.

  1. [33]
    As part of the prosecution case the certificates (Exhibits 2, 3 & 4) were admitted. The certificates are admissible pursuant to s 124(1) of TORUM. These certificates related to the accuracy of the speedometer on the motorcycle ridden by Constable Olsen, the accuracy of the radar speed detection device operated by Constable Olsen, and that Constable Olsen used the radar device in accordance with the appropriate Australian standards. The effect of ss 124(1)(p) and 124(1)(pa) is that the certificates provided evidence that the speedometer of the motorcycle and the radar speed detection device were operating accurately as at the date of this alleged offence. The effect of s 124(1)(pb) is that the certificate provided evidence that Constable Olsen used the radar device in accordance with the relevant Australian Standard at the time in question.

  1. [34]
    Sections 124(4) and (5) of TORUM provide as follows:
  1. A defendant who intends to challenge—
  1. the accuracy of a speed detection device or vehicle speedometer accuracy indicator for which a certificate is given under subsection(1); or
  2. the time at, or way in, which the relevant device was used;

at the hearing and determination of a charge against the defendant under this Act must give written notice of the challenge to the prosecution.

  1. The notice must be in the approved form and must—
  1. be signed by the defendant; and
  2. state the grounds on which the defendant intends to rely to challenge a matter mentioned in subsection(4)(a) or (b); and
  3. be given at least 14 days before the day fixed for the hearing.
  1. [35]
    The appellant concedes he did not give notice of any intention to challenge either the accuracy of the speed detection device or the way in which the device was used. The section is in mandatory terms. The section does not express any intention that the restriction only apply where the intended challenge to the evidence is of a scientific or technical nature. The plain meaning of the provision would cover any intended challenge, whether by expert evidence or simply through a statement by a defendant that he was not travelling at the claimed speed. I see no reason, in the absence of clear wording to the contrary, to interpret the section narrowly, as submitted for by the appellant. Failure to give the notice in the form required effectively prevents a defendant from making such challenges.[12] In this case it is clear the appellant was aware of the requirement to provide the notice in order to challenge either the accuracy of the device or the way in in which it was used. That is the conclusion to be drawn from the exchanges set out above at [13]-[15]. I conclude that not only was the appellant aware of the requirement to give notice of any challenge but the learned Magistrate was at pains to ensure he had opportunity to comply. It follows that, to the extent the evidence of the appellant and Mr Lynch presented a challenge to the accuracy of the radar device and the way in which Constable Olsen used it, that evidence should be ignored.

  1. [36]
    That course is consistent with the reasons of the learned Magistrate. The references her Honour made to the certificates and their evidentiary value were entirely correct. The conclusions expressed by her Honour that “…the device effectively overrides everything. But because there has been no challenge to the accuracy of the device…” and “…this radar device is essentially unassailable unless there is evidence produced to show that it is inaccurate”, demonstrate that her Honour proceeded on the basis that no evidence challenging the accuracy or manner of operation of the device had been produced. That left the evidence of Constable Olsen’s observations, his operation of the radar device, and the readings the device produced. Her Honour expressly referred to all of that evidence in giving her reasons. On the basis of that evidence, the only conclusions reasonably available were: the larger vehicle, which was following the appellant, was detected as travelling at a speed of 107 km/h; the faster vehicle was that of the appellant and was detected as travelling at 113 km/h; the appellant’s vehicle maintained that speed until passing the motorcycle; the appellant’s vehicle then travelled out of the beam of the radar device and so disappeared from the device screen; the speed of the second vehicle was then detected by the device at being 107 km/h.

  1. [37]
    The appellant argued the evidence of Constable Olsen left real doubt about the conclusion the detected speed of 113 km/h was that of the appellant’s vehicle. However, the evidence provided three bases to conclude that speed related to the appellant. First was the observation by Constable Olsen that the first vehicle appeared to be gradually drawing clear of the second vehicle. This observation is attacked on the basis of possible error in identifying a real separation from a distance and where the lead vehicle is travelling downhill. The Magistrate acknowledged that possibility of mistake but said that did not diminish the effect of the remainder of the evidence. Accepting this submission, as the Magistrate appears to have done, removes that observation as a factor in determining the first vehicle was travelling more quickly.

  1. [38]
    The second way the appellant’s vehicle was identified as travelling at the fastest speed was due to the way in which the radar device operated. The evidence of Constable Olsen was that the device detected the strongest signal from the larger vehicle and displayed that vehicle’s speed on the left of the screen; and also detected the speed of the fastest vehicle which it displayed on the right of the screen. Constable Olsen said the speed displayed on the left of the screen was 107 km/h and that the larger vehicle was a four wheel drive which was the second of the vehicles approaching him. Constable Olsen said the fastest speed displayed on the right of the screen was 113 km/h. It is not disputed by the appellant that there was no vehicle in front of his as he approached the police officer. In those circumstances the only reasonable conclusion open is that the appellant’s vehicle recorded the fastest speed.

  1. [39]
    The third way in which the appellant’s vehicle was identified as travelling at 113 km/h was again due to the way in which the radar device operated. Constable Olsen said that he locked the device onto the vehicle which was travelling fastest. He said that had the effect of keeping the locked speed on the right of the device screen and monitoring that same vehicle’s speed on the left of the screen. He said the locked speed was 113 km/h and the monitored speed remained at 113 km/h until he passed the first vehicle. He said at that point the monitored speed disappeared from the screen, consistent with the first vehicle, which was also the fastest, no longer being within the radar beam. Instead, he said the device then displayed a speed in the monitored screen of 107 km/h, also consistent with the earlier speed of the larger vehicle. Again, the only reasonable conclusion to be drawn from this evidence is that the appellant’s vehicle recorded the speed of 113 km/h.

  1. [40]
    The learned Magistrates reasons demonstrate that she accepted the evidence of Constable Olsen as to the way in which the radar device operated, how he did so and his observations of what it displayed. Accepting that evidence, and in circumstances where no evidence challenging the accuracy or manner of operation of the device was produced, the conclusion that the appellant’s vehicle was travelling at 113 km/h is inevitable.

  1. [41]
    The appellant identified a number of issues which it was submitted undermined the reliability of the evidence of Constable Olsen. Complaint was made that the evidence of a second vehicle travelling at 107 km/h depended entirely upon the version of Constable Olsen which was not supported by the photograph he took of the radar device screen. Constable Olsen’s explanation of that photograph was that it was taken after he had spoken to the appellant and issued a traffic offence notice to him. He said the timing shown on the screen was to demonstrate that that was the speed detected at the time the device was activated to lock onto the detected vehicle. In this case the photograph was taken 7 minutes 40 seconds after that occurred. The reason only one vehicle speed appeared on the screen when photographed was that the device was no longer monitoring a vehicle. This complaint is therefore without foundation.

  1. [42]
    Complaint was also made that Constable Olsen gave conflicting reasons for his belief the appellant’s vehicle was the one travelling at 113 km/h. It was submitted at the road side when speaking to the appellant Constable Olsen relied only upon the speed of 113 km/h dropping from the screen and being replaced by the speed of 107 km/h as the reason he identified the appellant as travelling at 113 km/h. The transcript of that conversation also records Constable Olsen told the appellant of his observation the appellant’s vehicle was “moving away from the vehicle behind”. The explanation given by Constable Olsen has been consistent and this complaint is also not made out. In addition, it was submitted the police officer’s claim that he identified the appellant’s vehicle as being the fastest after that vehicle passed him, was inconsistent with the officer also claiming he activated his police lights to intercept the appellant’s vehicle before they actually passed. As demonstrated above, the police officer had, before the vehicles actually passed, two reasons to believe the appellant’s vehicle was travelling at 113 km/h. That the officer activated the police lights shortly before passing the appellant shows no more than that he then believed the appellant was speeding.

  1. [43]
    Examination of the evidence and the reasons for decision given by the Magistrate discloses no error of fact or law. I am satisfied the only reasonable conclusion on the evidence was that at the relevant time the appellant’s vehicle was detected travelling at a speed of 113 km/h. The Magistrate was correct to find the charge proved beyond reasonable doubt. In those circumstances, the appeal against that decision should be dismissed.

  1. [44]
    Each of the parties sought an order for costs of the appeal if successful. In the circumstances I am satisfied costs should follow the event. The appellant should therefore pay the respondent’s costs of the appeal.

Orders

  1. [45]
    The orders of the Court are:

  1. The appeal is dismissed.

  1. The appellant pay the respondent’s costs of the appeal.

Footnotes

[1] Transcript 1-7 lines 25-30.

[2] Transcript 1-12 line 42 – 1-13 line 18.

[3] Transcript 1-24 line 46 – 1-25 line 7.

[4] Decision p.4 lines 28-36.

[5] Decision p.4 line 44 – p.5 line 10.

[6] Decision p.6 lines 36-40.

[7] Decision p.7 lines 21-40.

[8] Justices Act 1886, s 223(1).

[9] (2003) 214 CLR 118.

[10] At 125-126, 127-128; [22]-[23], [27].

[11] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204, [14]; Minister for Immigration and Border Protection v SZVFW & Ors (2018) 357 ALR 408 at 415, [30].

[12] See Pershouse v Queensland Police Service [2013] QCA 296 at [19]-[23]. In that case the appellant had completed a form which was non-compliant with the requirements of s 124(5) and therefore held not to be a valid notice under s 124(4). The suggested challenge in that case did not rely upon expert or technical evidence.

Close

Editorial Notes

  • Published Case Name:

    Peter Kenneth Ferguson v David John Olsen

  • Shortened Case Name:

    Ferguson v Olsen

  • MNC:

    [2019] QDC 189

  • Court:

    QDC

  • Judge(s):

    Lynch DCJ

  • Date:

    27 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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