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  • Unreported Judgment

Crossman v Queensland Police Service

 

[2020] QDC 122

DISTRICT COURT OF QUEENSLAND

CITATION:

Crossman v Queensland Police Service [2020] QDC 122

PARTIES:

IAN NORMAN CROSSMAN

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

2 of 2020

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

17 June 2020

DELIVERED AT:

Cairns

HEARING DATE:

29 May 2020

JUDGE:

Fantin DCJ

ORDER:

1. Appeal dismissed.

2. The appellant pay the respondent’s costs of the appeal fixed in the sum of $1800, to be paid to the Registrar of the District Court at Cairns within 90 days of today, to be paid over by the Registrar to the respondent.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – where the appellant was convicted after summary trial of exceeding the speed limit where the appellant gave a Notice under s 120(7) of the Transport Operations (Road Use Management) Act 1995 (Qld) of intention to challenge or dispute the accuracy of a photographic detection device - whether the photographic detection device was tested and calibrated according to law

Legislation

Justices Act 1886 s 56, s 222, s 223, s 225, s 226, s 232A

State Penalties Enforcement Act 1999 s 157

Transport Operations (Road Use Management) Act 1995 s 60, s 112, s 113, s 120, s 124,

Transport Operations (Road Use Management – Road Rules) Regulation 2009 s 20

Traffic Regulation 1962 s 210C, s 210F

Cases

Allesch v Maunz (2000) 203 CLR 172

Crossman v Queensland Police Service [2020] QDC 123

Dwyer v Calco Timbers (2008) 234 CLR 124

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy (2003) 214 CLR 118

Police v Hanton [2018] SASC 96

Teelow v Commissioner of Police [2009] QCA 84

Warren v Coombes (1979) 142 CLR 531

White v Commissioner of Police [2014] QCA 121

SOLICITORS:

The appellant appeared on his own behalf

Cairns Office of the Director of Public Prosecutions for the Respondent (T Grasso)

  1. [1]
    This is an appeal against conviction pursuant to section 222 of the Justices Act 1886 (Qld) (the ‘Justices Act’) from a decision of the Cairns Magistrates Court on 29 November 2019, following a summary hearing on 8 November 2019.
  1. [2]
    The appellant was charged with disobeying the speed limit pursuant to s 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld). At 5:40pm on 19 June 2018 the vehicle he was driving was captured by a photographic speed detection device driving at 67 kilometres per hour in a 60 kilometres per hour zone. He was issued with an infringement notice and elected to go to trial.
  1. [3]
    He gave a Notice under s 120(7) and (8) of the Transport Operations (Road Use Management) Act 1995 (Qld) (the ‘TORUM Act’) of intention to challenge or dispute (‘the Notice’). Such a notice must be given if a defendant intends to challenge the accuracy of a photographic detection device or the image from such a device, or a marking or writing made by such a device.  The Notice does not appear to have been formally tendered at the hearing but the prosecutor accepted that the Notice had been given, and the appellant provided a copy of the Notice to the Magistrate during final addresses.
  1. [4]
    The appellant was self-represented in the court below and on appeal. He did not give or call evidence, but cross-examined one witness and made submissions. The Magistrate reserved her decision.
  1. [5]
    On 29 November 2019 the Magistrate convicted the appellant of the offence, fined him $250 and ordered him to pay costs of $91.40. A conviction was recorded.

Ground of appeal

  1. [6]
    The appellant is a mature man employed as a professional driver of limousines for a local transport service. He is an experienced self-represented litigant.  He has appeared in several summary trials in the Magistrates Court, in several appeals to this Court, and in the Court of Appeal, seeking to challenge speeding fines.[1]
  1. [7]
    In the notice of appeal under “grounds of appeal”, the appellant stated:

“Magistrate erred in respect to:-

Human Rights Act 2019 (Qld) Part 2 Division 2 Section 35

Penalties and Sentences Act 1992 Part 2 Section 9

Legislative Standards Act 1992 “Fundamental Legislative Principles” 4(3)(d) and 4(4)(c)

TORUM’s Section 112, 120, 124

Traffic Regulation 1962 Section 210C, 210F”.

  1. [8]
    This appeal was heard by me on the same day as another appeal by the same appellant: proceeding 3 of 2020, Crossman v Queensland Police Service [2020] QDC 123.
  1. [9]
    The appellant filed a joint outline of argument for both appeals, although different issues were ultimately raised in each appeal. The outline was difficult to understand. It referred to documents not in evidence at the trial, the relevance of which was not immediately apparent.
  1. [10]
    During oral submissions, the disputed issues narrowed considerably. The appellant:
  1. (a)
    confirmed that he appealed against conviction but not sentence;
  1. (b)
    abandoned all grounds of appeal save for a single ground relating to the proper construction of the relevant statutory provisions relating to the testing and calibration of the photographic detection device; and
  1. (c)
    abandoned reliance on the documents referred to in his outline, save to the extent I refer to any such document in these reasons. 
  1. [11]
    The sole ground of appeal relied upon is that the device was not tested or calibrated in accordance with sections 120(2A) of the TORUM Act and 210F of the Traffic Regulation 1962 (Qld) (‘the Regulation’).
  1. [12]
    In the appellant’s outline, he articulated it in this way:

“LTI 20X20 TruCam Lidar speed camera device must be tested and a certificate provided in accordance with s 120(2A) TORUMs & s 210F calibration and testing of photographic detection devices, traffic regulations, 1962, prior to all ‘installations’”.

  1. [13]
    The appellant argues that the effect of those provisions is to require the device to be returned to the laboratory for testing and calibration before the device is used on each occasion.
  1. [14]
    The respondent submits that this construction is wrong, and that on the basis of the unchallenged evidence at trial, the Magistrate was entitled to find the elements of the offence proved.

Nature of appeal

  1. [15]
    The applicable principles for the hearing of such an appeal are not in dispute. The appeal is by way of rehearing on the original evidence given before the Magistrate, and any new evidence adduced by leave: s 223 of the Justices Act. 
  1. [16]
    For an appeal by way of rehearing "…the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate 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.”[2]
  1. [17]
    The rehearing requires this court to conduct a real review of the evidence before the Magistrate and make up its own mind about the case.[3] Whilst this does not involve a rehearing of the evidence of witnesses, the court has the power to draw inferences from primary facts, including facts not disputed and findings of fact.[4]
  1. [18]
    In conducting the rehearing, the court ought pay due regard to the advantage that the Magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the Magistrate’s view.[5]
  1. [19]
    Pursuant to s 225 of the Justices Act, the appellate court can confirm, set aside or vary an order or make any other order considered just.

Evidence and submissions in summary trial

  1. [20]
    To meet the Notice given by the appellant, the prosecutor relied upon a number of evidentiary certificates and delegations, including a certificate of the testing of the device pursuant to s 120(2A) of the TORUM Act and a certificate of the images taken from the device pursuant to subsections 120(2) and (4) of TORUM Act and the relevant provisions of the Regulation.
  1. [21]
    These provisions facilitate proof of the accuracy of speed camera images, the notation of date, time, speed, speed limit and location, and compliance with the operation, testing and calibration requirements for the relevant device.
  1. [22]
    The prosecutor tendered, without objection, the following exhibits:
  1. Exhibit 1 - three images taken by the photographic detection device, certified pursuant to s 120(2) of the TORUM Act;
  2. Exhibit 2 – photographic detection device test certificate, pursuant to s 120(2A) of the TORUM Act;
  3. Exhibit 3 – camera site number of the Traffic Coding Manual certificate, pursuant to s 60(4) of the TORUM Act;
  4. Exhibit 4 – Vehicle Identification – Exceeding the Speed Limit certificate, pursuant to s 157(2)(f) of the State Penalties Enforcement Act 1999 (Qld) (the ‘SPEA Act’);
  5. Exhibit 5 - certificate of the registration details of the subject vehicle, pursuant to s 60(2)(d)(i) and s 124(1)(n)(ii) of the TORUM Act;
  6. Exhibit 6 - a Service of Infringement Notice – Exceeding the Speed Limit certificate, pursuant to s 157(2)(a) of the SPEA Act;
  7. Exhibit 7 – Company Nomination Actual Offender – Exceeding the Speed Limit certificate, pursuant to s 157(2)(j) of the SPEA Act, nominating the appellant as the person in charge of the vehicle at the time of the offence;
  8. Exhibit 8 – statutory declaration of Suzanne Bartlett, director, nominating the appellant as the person in charge of the vehicle;
  9. Exhibit 9 – Oath of Service by Post, pursuant to s 56(8) of the Justices Act;
  10. Exhibit 10 - Withdrawal of Infringement Notice certificate issued to registered owner, pursuant to s 157(2)(e) of the SPEA Act;
  11. (k)Exhibit 11 – Service of Infringement Notice – Exceeding the speed limit certificate, pursuant to s 157(2)(a) of the SPEA Act;
  12. (l)Exhibit 12 – No Declaration Given – Exceeding the speed limit certificate, pursuant to s 157(2)(j) of the SPEA Act.
  1. [23]
    The prosecutor called three witnesses.
  1. [24]
    Senior Constable Haberland gave evidence that he was the operator of the photographic detection device.  On 19 June 2018, he was tasked to deploy a speed camera on Sheridan Street, Cairns North. The device he used was an LTI 20-20 TruCAM. It is a handheld device which can be used by handheld grip or attached to a pole to steady it (similar to a camera tripod but with only one leg). On this occasion, he used the device with the pole. It is aimed at a vehicle’s number plate and it records a detection. He had been trained to properly use and test that particular device about 18 months earlier. He had about 180 to 200 hours experience operating the device. He explained the testing process that he undertook on the day in question, both the physical test performed before he went out, and the subsequent tests performed at the deployment location. The device was also retested at the end of every deployment.
  1. [25]
    He was aware of the legal requirements for testing the device, and referred to s 210C of the Regulation. Before deploying the device, he tested it in accordance with those requirements and his training, and it was working correctly. At 5:40pm, he saw a white sedan pass him. He aimed the device at the numberplate and it captured an image of the sedan, indicating there was ‘a detection’. He confirmed that the images in Exhibit 1 were the images detected. The information on the memory card in the device was later uploaded to the police computer system. There was no opportunity for him to alter or tamper with any of the information recorded on the card. He had no other involvement in the matter.
  1. [26]
    The appellant did not cross-examine Senior Constable Haberland.
  1. [27]
    Timothy Eggar gave evidence that he was a qualified and experienced technical officer employed by Queensland Police Service in its calibration laboratory. He was an authorised delegate of the Commissioner of Police. One of the laboratory’s functions is to calibrate photographic detection devices. The laboratory is accredited by the National Association Testing Authority as an approved testing entity pursuant to s 210F of the Regulation for conducting calibration testing of photographic detection devices (Exhibit 13).
  1. [28]
    Mr Eggar gave evidence that he tested the LTI 20-20 TruCAM device on 28 September 2017 and generated a report. He explained the process for doing so, which involved a series of separate tests and measurements. He prepared a test report for the calibration of the device in question on 28 September 2017. He described in considerable detail the testing process undertaken to calibrate the device in question, reflected in that test report. The device passed all the relevant tests. The TruCAM device was tested by reference to a laser speed management simulator, which was itself tested and calibrated by a separate independent testing facility. Mr Eggar’s report of the calibration testing conducted on 28 September 2017 was tendered, without objection, pursuant to s 210F(3) of the Regulation and became Exhibit 14.
  1. [29]
    Mr Eggar’s report was checked and certified as correct by his supervisor. That calibration report stated that the device “was found to produce the results within the manufacturer’s specified speed accuracy of ±2km/h. The speed measurements differed from the nominal speed by no more than ± 1 km/h… This Report complies with the requirements of Section 210F of the Traffic Regulations 1962.” That document was tendered, without objection, and became Exhibit 15.
  1. [30]
    Three further documents certifying the testing and measurement by other laboratories of equipment used in the calibration test itself were tendered, without objection, and became Exhibits 16, 17 and 18.
  1. [31]
    The appellant did not cross-examine Mr Eggar or challenge any of the documents tendered through him.
  1. [32]
    Stephen Simons, Principal Adviser (Operations) of the Road Safety Camera Office, gave evidence. He was a duly authorised delegate of the Commissioner of the Queensland Police Service and the person who signed the relevant evidentiary certificates (Exhibits 1, 2 and 3). In Exhibit 2, he certified that the photographic detection device was tested on 28 September 2017 in accordance with the specifications of the manufacturer and any further requirements prescribed under a regulation, and that it was found to be producing accurate results at the time of testing.
  1. [33]
    He gave evidence about the security of the information recorded by an LTI TruCAM speed detection device. He explained that the file recording the detection was encrypted and stored on a card in the device. The card was then uploaded to a secure network on the police computer system. No officer had authority to “write to” or alter the information on the card. The file was then decrypted, the detection information reviewed and if satisfied the deployment was conducted correctly, the detection information was sent to infringement processing. He ruled out the possibility of operator tampering. He verified the process for creating the images in Exhibit 1.
  1. [34]
    The appellant cross-examined Mr Simons briefly. The cross-examination was limited to asking some questions about the use of the device in 2013 and some problems at that time with how data was presented. There was no attempt to explain how this was relevant to the use of the device in June 2018. The cross-examination was irrelevant. The appellant did not challenge in any way the evidence of Mr Simons.
  1. [35]
    At the start of the trial the Magistrate had explained to the appellant the trial process. After the prosecution closed its case, the Magistrate explained to the appellant his right of election. The appellant elected not to give or call evidence.

The Notice to challenge

  1. [36]
    During his address to the Magistrate, the appellant provided documents in support of his oral submissions, including a copy of the Notice which attached other documents. That document does not appear to have been marked as an exhibit or for identification.
  1. [37]
    In this appeal, the appellant attached a copy of the Notice to his outline of argument. He did not apply pursuant to s 223(2) of the Justices Act for leave to adduce the Notice as new evidence.  Nonetheless I am prepared to consider the Notice on the appeal because it was a document placed before the Magistrate in submissions. The respondent did not oppose that course.
  1. [38]
    In the Notice under Section B – Camera Detected Offences, the appellant ticked the box indicating he intended to challenge “the accuracy of a photographic detection device”. In the Notice, the appellant suggested that Senior Constable Haberland had used the device in an impermissible way (via the rear vision mirror) which resulted in a detection that was not correct or sufficiently rigorous to support a conviction. At trial, the appellant did not pursue this issue. He did not cross-examine Senior Constable Haberland at all, nor did he make any submissions about this issue.
  1. [39]
    Instead, he argued that the reading from the device could not be accepted as accurate as the device was not tested or calibrated according to law prior to its use. He also argued that the Australian Standards applied when testing the device.
  1. [41]
    The Magistrate found that these arguments had no merit. She found that the elements of the offence had been proven, and that the appellant was guilty of the charge.
  1. [42]
    To the extent that the appellant’s outline of argument on appeal raised issues about application of the Australian Standards and an argument of so called “reverse onus”, the appellant expressly abandoned these grounds at the hearing of this appeal.

The Magistrate’s decision

  1. [43]
    No issue is taken with the adequacy of the Magistrate’s reasons.
  1. [44]
    The Magistrate carefully summarised the evidence at trial. Ultimately she rejected the appellant’s argument that s 210F of the Regulation required the device to be calibrated before each time it is turned on. On the basis of s 120(2) of the TORUM Act, she also rejected his argument that the Australian Standards applied to the photographic detection device.
  1. [45]
    Questions of credibility of witnesses do not arise in this appeal.
  1. [46]
    The Magistrate found the offence proved beyond reasonable doubt and convicted the appellant.

Consideration

  1. [47]
    For the reasons that follow, the appellant has raised no matter which would suggest any error by the Magistrate in her determination of the summary hearing. The evidence was sufficient to prove the charge beyond reasonable doubt.
  1. [48]
    The certificates tendered were prima facie evidence of their contents. Subject to notice being given of an intention to challenge them, they could be challenged and disproved. The appellant gave such a notice. To meet that challenge, the prosecution adduced oral and documentary evidence referred to above. The appellant did not effectively challenge or disprove the certificates, or any of the oral or other documentary evidence adduced at trial. In the absence of any challenge, and construing the relevant statutory provisions strictly (as the court is required to do in such a case), the Magistrate was entitled to accept the evidence of the prosecution witnesses and the evidence contained in the certificates tendered.
  1. [49]
    The TORUM Act, Part 7, Detection devices, distinguishes between speed detection devices which are radar or laser-based (in Division 1) and photographic detection devices (in Division 2).
  1. [50]
    In Division 1, for a radar or laser-based speed detection device, a police officer must comply with the appropriate Australian Standard for using the device, if there is one in force at the time of use. But that requirement does not apply to a photographic detection device. Section 112 of the TORUM Act provides:

“112 Use of speed detection devices

  1. When using a radar speed detection device or laser-based speed detection device, a police officer must comply with—
  1. the appropriate Australian Standard for using the device, as in force from time to time; or
  2. if there is no appropriate Australian Standard for using the device in force at the time of the use—the manufacturer’s specifications for the device.
  1. This section does not apply to a device that is a photographic detection device.”
  1. [51]
    On appeal, the appellant accepted that the reference in s 112(1) to the appropriate Australian Standard did not apply to the TruCAM device the subject of the appeal, because it was a photographic detection device: s 112(2).
  1. [52]
    Division 2 of the TORUM Act is headed “Photographic detection devices”.
  1. [53]
    Section 113 sets out the defined terms for Division 2.
  1. [54]
    “Photographic detection device” is defined in s 113A(1) as “a device or system, that captures an image, of a type approved under a regulation as a photographic detection device.”
  1. [55]
    Section 208 of the Regulation, “Approved photographic detection devices”, provides that “A camera system described in schedule 10 is approved for section 113A(1) of the Act.”
  1. [56]
    Schedule 10 of the Regulation is headed “Approved photographic detection devices section 208”. The schedule contains seven separate parts, each part listing different types of camera systems, all of which are approved photographic detection devices. The subject device “LTI speed camera system model LTI 20-20 TruCAM” is listed in Part 5 under the heading “Digital speed camera system”.
  1. [57]
    The Regulation prescribes how a digital speed camera system must be operated and tested (s 210C) and calibrated (s 210F). Those are separate processes with different requirements.
  1. [58]
    Section 210C of the Regulation provides for the operating and testing of digital speed camera systems. It relevantly states:

“210C Operating and testing digital speed camera systems

  1. If a digital speed camera system is used to provide evidence of a prescribed offence, the following provisions must be complied with—

  1. if a relevant event happens—the system must be tested in accordance with the specifications of the system’s manufacturer to ensure the system operates correctly;

  1. Each of the following is a relevant event for subsection (1)(b) —
  1. the installation of the digital speed camera system

  1. In this section—

"installation", of a digital speed camera system, includes starting the operation of the system at a place at which the system is to be used.

  1. [59]
    The effect of s 210C is to require the device to be tested in accordance with the manufacturer’s specifications to ensure it operates correctly each time it is started at a place at which it is to be used. Sergeant Haberland gave unchallenged evidence that he tested the device before and after using it, in accordance with his training and the manufacturer’s requirements. The Magistrate did not err in finding that the device was tested appropriately.
  1. [60]
    Section 120 of the TORUM Act contains evidentiary provisions to facilitate proof of the matters in Division 2 relating to photographic detection devices.
  1. [61]
    Subsection 120(2) provides:

“An image produced by the prosecution purporting to be certified by an official stating that the image was properly taken by a photographic detection device at a specified location and time is evidence of the following matters—

  1. the image was taken at the specified location and time;
  2. the accuracy of the image;
  3. the things depicted in the image;
  4. any requirements prescribed by a regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times.”
  1. [62]
    Exhibit 1, three images certified as taken by the relevant photographic detection device, was prima facie evidence of the matters in s 120(2). Senior Constable Haberland gave oral evidence to the same effect, which was not challenged.
  1. [63]
    Subsection 120(2A) provides:

“A certificate purporting to be signed by an official stating that a stated photographic detection device—

  1. was tested at a stated time and in accordance with—
  1. the specifications of the device’s manufacturer; and
  2. any further requirements about calibration testing prescribed under a regulation; and
  1. was found to produce accurate results at the time of testing;

is evidence of the matters stated and evidence the device was producing accurate results when so tested and for 1 year after the day of testing.”

  1. [64]
    The unchallenged evidence established that the relevant device, an LTI 20-20 TruCAM device, was a photographic detection device and that it was tested and calibrated in the way required by the legislation.
  1. [65]
    Exhibit 2, Photographic Detection Device – Test Certificate, pursuant to s 120(2A), was prima facie evidence of the permissible certifiable fact referred to in that section. The permissible certifiable fact is that the device was tested on 28 September 2017 and in accordance with the specifications of the device’s manufacturer and any further requirements about calibration testing prescribed under a regulation, and was found to produce accurate results at the time of testing.
  1. [66]
    The effect of s 120(2A) is that the certificate is also evidence that the device was producing accurate results for one year after the day of testing. The date of this offence fell within that one year period.
  1. [67]
    The appellant also argued on appeal that s 120 of the TORUM Act did not apply to the TruCAM device because it was a handheld operated device and the section applied only to pole mounted devices, or should apply only to pole mounted devices. That is incorrect. There is no support for that argument on the plain words of the section, considered in the context of the legislation as a whole. The TruCAM device is defined as a photographic detection device and although schedule 10 of the Regulation identifies different approved photographic detection devices, s 120 does not distinguish between the different types of such a device.
  1. [68]
    Section 210F of the Regulation sets out separate requirements for the calibration testing of a digital speed camera system. The device in question is a digital speed camera system: Schedule 10 of the Regulation. Section 210F provides that calibration testing of a digital speed camera system must be conducted by an approved testing entity and a report provided. An ‘approved testing entity’ is defined as an entity the commissioner, on being satisfied the entity is competent to conduct the testing, has approved the conduct the testing. There was unchallenged evidence that the device was calibrated at a laboratory which was an approved testing entity. That exercise must be conducted at least once per year.
  1. [69]
    The appellant argued, before the Magistrate and on appeal, that the Regulation required the device to be tested and calibrated by an approved testing laboratory before each time it was “installed”, meaning each time it was used or deployed by an officer. He submitted that, because that had not occurred on this occasion, the Magistrate could not be satisfied that the device had been tested and used correctly by Senior Constable Haberland.
  1. [70]
    But that argument conflates the separate statutory requirements for testing and calibration. The appellant argued that “installation” for the purposes of s 210C was not deployment at the location where the device was to be used. That argument is contrary to the plain words of s 210C(3): "‘installation’, of a digital speed camera system, includes starting the operation of the system at a place at which the system is to be used.”
  1. [71]
    The appellant did not cross-examine any witnesses to suggest, nor did he adduce any evidence to prove, that the device was not producing accurate results on the date of the offence. As a result, there was nothing to rebut the statutory presumption arising from s 120(2A) of the TORUM Act and Exhibit 2 that the device was producing accurate results on the date of the offence.
  1. [72]
    The appellant also relied upon a decision of Peek J in the Supreme Court of South Australia in Police v Hanton [2018] SASC 96. That case was decided under a different statutory regime, which did not extend the presumption of accuracy for one year from the date of testing or incorporate reference to calibration testing prescribed under a regulation (as does s 120(2A) of the TORUM Act), and which required the certificate to state the extent of accuracy of the device on a date proximate to the subject driving (which the TORUM Act does not). In addition, in that case the prosecution relied upon the evidentiary certificate and did not adduce any additional oral evidence from the senior officer who signed the certificate to prove the relevant matters (which did occur in the subject case). The appellant in that matter successfully discharged his onus to rebut the presumption of accuracy by proving that the relevant test performed by the officer failed to show that the device was accurate at the time the test was conducted, to a particular extent of accuracy. That decision is of no assistance to the appellant in this appeal.
  1. [73]
    The Magistrate was also correct in finding that the speed detection device was calibrated according to the requirements in s 120(2A) of the TORUM Act and s 210F of the Regulation
  1. [74]
    The prosecution evidence established that at the date and time of the offence:
  1. the relevant device was producing accurate results;
  2. the device was tested and used correctly by Senior Constable Haberland;
  3. the device was used to detect a vehicle travelling at 67 kilometres per hour in a 60 kilometre zone;
  4. the detection was recorded in images which recorded the date, time, year, distance in metres that the vehicle was from the camera, timing of last alignment of the device, operator number of the user, serial number of the device, code designating the site location,  speed measured by the device, speed limit in that location, time the image was captured, and the target vehicle; and
  5. the appellant was the person in charge of the vehicle at that time, although the vehicle was registered to the transport company that employed him.
  1. [75]
    The Magistrate was entitled to find, beyond reasonable doubt, that the appellant had committed the offence. The appellant has failed to establish a legal, factual or discretionary error.

Costs

  1. [76]
    Pursuant to section 226 Justices Act, the Court may on appeal make such order as to costs as the Court may think just.
  1. [77]
    The respondent seeks its costs of the appeal, calculated in accordance with section 232A(1) of the Justices Act and Schedule 2, Part 1(4) and Part 2(1) Justices Regulation 2014.
  1. [78]
    The appeal had no merit. I am satisfied that it is appropriate to order costs against the appellant in the amount sought.

Conclusion and Orders

  1. [79]
    I order that:
  1. (a)
    The appeal is dismissed; and
  1. (b)
    The appellant pay the respondent’s costs of the appeal, fixed in the sum of $1800, to be paid to the Registrar of the District Court at Cairns within 90 days of today, to be paid over by the Registrar to the respondent. 

Footnotes

[1] Crossman v Queensland Police Service [2019] QDC 132, Crossman v Queensland Police Service (No. 2) [2019] QDC 2, Crossman v Queensland Police Service [2018] QCA 169, Crossman v Queensland Police Service [2018] QDC 267, Crossman v Queensland Police Service [2017] QDC 257, Crossman v Queensland Police Service [2016] QCA 75, Crossman v Queensland Police Service [2015] QCA 115, Crossman v Queensland Police Service [2015] QDC 265.

[2]Allesch v Maunz (2000) 203 CLR 172, 180 [23] followed in Teelow v Commissioner of Police [2009] QCA 84 [4] per Muir J (Fraser JA & Mullins J agreeing).  See also White v Commissioner of Police [2014] QCA 121 [8] per Morrison JA (Muir JA & Atkinson J agreed).

[3]Fox v Percy (2003) 214 CLR 118, 126 [25]; Warren v Coombes (1979) 142 CLR 531, 551; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5.

[4]     Teelow v Commissioner of Police [2009] QCA 84 at [3]–[4].

[5]White v Commissioner of Police [2014] QCA 12, [5]-[8] per Morrison JA (Muir JA & Atkinson J agreed); Forrest v Commissioner of Police [2017] QCA 132, 5 - 6.

Close

Editorial Notes

  • Published Case Name:

    Ian Norman Crossman v Queensland Police Service

  • Shortened Case Name:

    Crossman v Queensland Police Service

  • MNC:

    [2020] QDC 122

  • Court:

    QDC

  • Judge(s):

    Fantin DCJ

  • Date:

    17 Jun 2020

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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