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Whittaker v Turner

 

[2004] QCA 191

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

DC No 29 of 2003

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

DELIVERED EX-TEMPORE ON:

2 June 2004

DELIVERED AT:

Townsville

HEARING DATE:

2 June 2004

JUDGES:

McMurdo P and Cullinane and Jones JJ

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where applicant convicted in Magistrates Court of exceeding speed limit – where applicant contended that police officer could not have taken radar reading in the time available – where Magistrate accepted evidence to the contrary of police officer operating radar– where District Court judge on appeal reached same conclusion – whether applicant could demonstrate reasons to doubt conclusion – whether leave should be granted to appeal

CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – PRACTICE AND PROCEDURE – GENERALLY – where applicant convicted in Magistrates Court of exceeding speed limit – whether proceedings were invalid because complaint was sworn by someone without direct personal knowledge of the facts

District Court of Queensland Act 1967 (Qld), s 118

Justices Act 1886 (Qld), s 42, s 51(b), s 222

Transport Operations (Road Use Management) Act 1995 (Qld), s 62

Potts v Brooks; ex parte Potts [1983] 2 Qd R 48

COUNSEL:

The applicant appeared on his own behalf

J A Greggery for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  The applicant was convicted of exceeding the speed limit on 18 May 2002 under s20 Transport Operations (Road Use Management- Road Rules) Regulation 1995 (Qld) in the Mareeba Magistrates Court on 18 December 2002.  He was fined $135 and ordered to pay Court costs of $58.  He appealed from his conviction to the District Court under s222 Justices Act 1886 (Qld) ("the Justices Act").  The appeal was heard on 14 August 2003 and was dismissed on 21 November 2003.

The applicant now applies for leave to appeal from that decision under s118 District Court Act 1967 (Qld).  He has the difficult task of persuading this Court that having had one hearing in the Magistrates Court concerning a $135 traffic conviction and then an appeal to the District Court, he should now be given leave to appeal to this Court.

He contends that he was incorrectly convicted because of someone's deceit, that the complaint and summons originating the proceedings were falsely sworn on oath and that her Honour erred in dismissing the appeal.  He argues that the Court should grant leave to bring the appeal in the interests of the administration of justice, that the hearing of the appeal is of public importance because it concerns the integrity of the Queensland justice system and affects the fundamental rights of all Queensland residents.

Complaint was made in a form 3 under the Justices Act and is in the following terms:

"THE COMPLAINT of Gordon Leslie TURNER Sergeant of Police Station, Atherton in the State of Queensland made this twenty-fifth day of June, 2002, before the undersigned, a Justice of the Peace for the said State, who says that on the eighteenth day of May, 2002, at Kuranda the Magistrates Courts District of Cairns One Mark Alan WHITTAKER, being the driver of a vehicle namely a Mitsubishi motor car drove at a speed over the speed limit namely 80 kilometres per hour applying to the driver for the length of road namely Kennedy Highway, Kuranda where the said driver was driving and it is averred that the said Kennedy Highway, Kuranda is a road as defined schedule 4 of the Transport Operations (Road Use Management) Act 1995 contrary to the Acts in such case made and provided: WHEREUPON the said Gordon Leslie TURNER prays that I, the said Justice, will proceed in the premises according to law.

Signature of complainant:  ["G L Turner"].

Sworn/affirmed before me the day and year first abovementioned, at Atherton

Justice of the Peace: [indecipherable signature].

FURTHER PARTICULARS

Offence notice AO6978004 issued for the amount of $135.00 - to date this amount remains unpaid.

Vehicle registration number VRN 634-EMT."

Police Officer Hosking gave evidence before the Magistrate that on Saturday, 18 May 2002, he was performing duties with Police Officer Marrinan.  He turned on the radar unit attached to the police vehicle he was driving.  He tested the unit to ensure it was working.  At about 6.40 p.m. on Saturday, 18 May 2002, they were driving west on the Kennedy Highway at Kuranda across the Barron River Bridge at 68 kilometres per hour.  The speed limit was 80 kilometres per hour.  A line of three vehicles approached.  The vehicles seemed to be travelling fast and he activated the mobile radar.  The radar recorded speeds of 100, 102 and 104 kilometres per hour.  The reading was mixed and did not establish the speed of any single vehicle.  Once the first two vehicles has passed, he cleared the radar and took another reading.  This time it gave a clear reading of 106 kilometres per hour for the third vehicle, a red Mitsubishi sedan, registration number 634-EMT.  This vehicle was between 50 and 150 metres behind the second vehicle.  It took him about one second to clear the first reading, take the second and lock that reading into the radar unit.  He was unsure if he also flashed his lights at the third vehicle but if he did, this would have been completed with the other procedures within one second.  He then did a U-turn, activated the red and blue flashing lights on his police vehicle and requested the applicant, who was driving the Mitsubishi, to pull over.  The applicant complied and the police vehicle pulled in behind. 

The applicant said that he understood the speed limit was 80 kilometres per hour and that he believed he was travelling at around that speed.  When told that his speed was recorded at 106 kilometres per hour, he was asked whether he had any reason for exceeding the speed limit.  He said he did not.  Police Officer Hosking issued a traffic infringement notice which he explained to the applicant.  When he returned to his vehicle, Police Officer Hosking made brief notes of his conversation with the applicant on the back of the ticket.

Police Officer Hosking is a certified operator of the type of radar used on this occasion.  He tendered certificates as to the accuracy of that radar device and of the speedometer in the police vehicle.

The applicant gave evidence that he had stopped at traffic lights at Kuranda.  He left the lights at the same time as two other vehicles, which by the time Police Officer Hosking flashed his lights, were about 50 metres or perhaps a little more in front of him.  He followed those vehicles as he headed towards the Kuranda bridge.  A vehicle passed him going in the opposite direction flashed its lights and then did a U-turn.  The applicant stopped his vehicle at a point where it was safe to do so, 50 to 100 metres after the bridge.  He told Police Officer Hosking that he did not believe he was exceeding the speed limit and he did not believe his vehicle was doing 106 kilometres per hour and that perhaps it was one of the other two cars.  He did not check his speedometer, but he was an experienced driver and instinctively knew he was not travelling at 106 kilometres per hour.

In cross-examination, the applicant conceded that it was possible he was travelling at 106 kilometres per hour, but he did not believe he exceeded the 80 kilometre per hour speed limit.  The two cars in front of him were pulling away from him; he was not moving closer to them.

The applicant contended in his address to the Magistrate that it was not possible for Police Officer Hosking to have cleared and re-activated the radar, locked in the recorded time and flashed his headlights at the applicant within the second or so it took for the police car to clear the first two cars and approach and pass the applicant's sedan.

The Magistrate in his reasons rejected that contention, accepting the evidence of Police Officer Hosking, who was an experienced radar operator, that he could complete these procedures in about one second, the time it would take for the police vehicle to travel 50 metres, the minimum distance from the second vehicle to the applicant's vehicle, if their respective speeds were 68 kilometres per hour and 106 kilometres per hour, as recorded by the police officer.  The fact that the applicant was 50 metres behind the two preceding vehicles after all three vehicles left the traffic lights at Kuranda at the same time did not mean the applicant's vehicle was travelling more slowly than the preceding vehicles at the time the reading of 106 kilometres per hour was recorded.  The three vehicles were unlikely to have maintained a uniform speed over that distance.  The Magistrate also concluded that under s42 of the Justices Act which requires that proceedings under the Justices Act are commenced by complaint in writing "by the complainant in person…or other person authorised in that behalf", Gordon Leslie Turner, who brought the complaint, was authorised to do so.

The applicant appealed to the District Court under s222 of the Justices Act on the following three grounds.  First, he claimed, "As exercise of right to have the matter heard de novo by the District Court".  Second, he contended that the Magistrate erred in failing to take relevant facts into account in determining that the prosecution had satisfied the burden of proof.  Third, he contended there was a miscarriage of justice in that the Magistrate heard the matter even though the summons was issued on the basis of a complaint made by someone who was not involved in the matter.

The learned primary Judge noted that the first ground of appeal was not argued.  Her Honour found that the learned Magistrate's findings of fact supporting his decision were open on the evidence.  As to the third ground of appeal, her Honour noted that a complainant need not be the person aggrieved by the offence or have direct personal knowledge of it.  A complaint is a formal allegation in writing that a person has committed an offence giving the Court jurisdiction to inquire into whether a summons should be issued.  A complaint is not evidence of the commission of the offence. The applicant's contention, that the complaint cannot be sworn by someone without personal knowledge of the facts and was therefore invalid, is not supported by s51(b) of the Justices Act, which merely states that the complaint leading to the issue of a summons need not be on oath.  It does not require that it not be on oath.

The applicant has not demonstrated any reason to doubt the correctness of her Honour's conclusions such as would warrant the granting of leave to appeal.  The appeal was by way of re-hearing (see s223 Justices Act) and was conducted in that way.  The findings of fact made by the Magistrate were open on the evidence.  I turn now to the applicant's primary contention that the complaint was invalid because it was sworn by someone without direct knowledge of the facts.  There is no reason to think the Magistrate treated the complaint as in any way strengthening the case against the applicant because it was sworn.  The offence is under the Transport Operations (Road Use Management) Act 1995 (Qld) ("the Transport Act") and Regulations.  S62 of the Transport Act relevantly provides:

"(1)A proceeding for an offence against a transport Act is a summary proceeding under the Justices Act 1886."

S42 of the Justices Act relevantly provides:

"(1)…all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person…or other person authorised in that behalf."

S42 of the Acts Interpretation Act 1954 (Qld) provides:

"Any person may take a proceeding for the imposition or enforcement of a penalty…under an Act."

See also Potts v. Brooks; ex parte Potts [1983] 2 QdR 48.

S51(b) of the Justices Act does not require the written complaint preceding the issue of a summons to be on oath.  Compare complaints leading to the issue of warrants under s51(a) Justices Act.  Nothing in the Justices Act precludes the complaint leading to the issue of a summons from being on oath, nor is there anything in the Justices Act which requires that the swearing or affirming of a complaint cannot be on information or belief.  See s53(1) Justices Act.

Subject to s124(1)(r) of the Transport Act, which was not contentious here, a complaint, whether or not sworn or affirmed, is not evidence in the matter.  It follows that Sergeant Turner was entitled to bring the complaint, even though he was not a witness to the alleged offence outlined in the complaint, and it was irrelevant whether or not that complaint was sworn or affirmed.

I would refuse the application for leave to appeal.

CULLINANE J:  I agree with the orders proposed by the President and her reasons.

JONES J:  I agree with the reasons of the learned President and with the order proposed.

THE PRESIDENT:  That is the order of the Court.

Close

Editorial Notes

  • Published Case Name:

    Whittaker v Turner

  • Shortened Case Name:

    Whittaker v Turner

  • MNC:

    [2004] QCA 191

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Cullinane J, Jones J

  • Date:

    02 Jun 2004

Litigation History

Event Citation or File Date Notes
Appeal Determined (QCA) [2004] QCA 191 02 Jun 2004 -
Special Leave Refused [2005] HCATrans 210 21 Apr 2005 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)