SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The applicant, Stephen William Sheehan, was charged with exceeding the speed limit by travelling at 115 kph in a 100 kph zone on the Injune road, north of Roma on 8 March 2007, contrary to s 20 Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld) (now repealed).^[1]  He was also charged with then having his number plate obscured, contrary to s 24(1A) Transport Operations (Road Use Management - Vehicle Registration) Regulation 1999 (Qld) (now repealed).^[2]  He disputed both charges but was convicted of them in the Magistrates Court at Roma on 19 March 2008.  He appealed unsuccessfully against both his convictions and his sentence to the District Court.  He now applies for leave to appeal again, this time to this Court under s 118 District Court of Queensland Act 1967 (Qld). 

2. He contends this Court should grant leave for a further appeal as "[t]his is a very important precedent. The Q.P.S continue to use the same tactics/expert. The prosecution continue to withhold evidence and refuse to disclose basic information." Under the heading "grounds of my application", he has written "See Attached". This notation referred to a bundle of material which the applicant had also placed before the District Court judge.

3. To make sense of the applicant's contentions and before discussing them, it is necessary to set out something of the long history of this matter.

The hearing in the Magistrates Court, Roma on 23 November 2007

4. The matter first came on for hearing in the Magistrates Court at Roma on 23 November 2007.  The applicant was self-represented and pleaded not guilty. 

5. The prosecutor asked the magistrate to strike out a summons the applicant had issued against Inspector Coleman, the District Officer of the Roma Police District, contending it was wrongly issued. The magistrate accepted that contention and struck out the summons. His Honour considered it should have been issued in the name of the Commissioner of Police; the material the applicant wanted Inspector Coleman to produce was in the Commissioner’s possession, not the possession of Inspector Coleman.

6. During the course of argument, it became clear that the applicant was challenging the accuracy of the mobile radar device used by investigating police officer Bradford to measure and record the speed of the applicant's car on 8 March 2007. The applicant had not given prior notice to the prosecution of this challenge as required by s 124(4) and (5) Transport Operations (Road Use Management) Act 1995 (Qld) ("the Act").^[3]  The prosecutor urged the magistrate to hear the matters that day, claiming the prosecution was entitled to rely on certificates to conclusively establish the speeding charge, even though the applicant disputed it. 

7. The magistrate determined that the interests of justice required the granting of the adjournment to allow the applicant to give the required notice under the Act. The prosecutor then stated:

"I'd just like to put the Court on notice, also the defendant on notice.  If notice is served on the prosecution, for the prosecution to prove each and every element of the speeding offence beyond reasonable doubt, the prosecution will be required to have a number of specialist witnesses … .  One of these will be a Mr … Malcare [sic], who is actually a radar expert that comes from interstate and will be considerable costs, considerable thousands of dollars to have this expert witness here to prove each and every element beyond reasonable doubt -----

… If successful, those costs will be sought against the defendant."  (errors in the original)

8. The magistrate made sure the applicant understood the full effect of the prosecutor's statement. The applicant argued that this was a threat. The magistrate explained:

"Well, it's not a threat.  What [the prosecutor's] saying is that you have to be aware that these are the sorts of downsides to the case.  That's all he's saying.  Well, that's the same as any case."

9. The magistrate advised the applicant whom he should contact in the prosecution service to progress his matter and adjourned the further hearing of the charges.

The Magistrates Court trial

10. The case resumed on 19 March 2008 in the Magistrates Court, Roma.  The applicant was again unrepresented, although he had "a McKenzie friend", Mr Brian McGuire, assisting him. 

11. The prosecutor indicated that he would be calling Mr Mulcare as a radar expert. He produced a document setting out Mr Mulcare's qualifications. He requested that Mr Mulcare be able to sit in court as an independent expert witness, hear the prosecution witnesses, and give relevant evidence.  The applicant did not consent to this course.  Mr Mulcare was then sworn and gave evidence of his qualifications.  The applicant did not dispute those qualifications conceding:  "All right.  No, I'm happy."  The magistrate determined that Mr Mulcare was an independent expert witness for the purposes of the proceedings and that he could stay in the court room whilst other witnesses gave evidence. 

12. The prosecutor next tendered a number of certificates under s 124 of the Act. The certificate stating that the factory fitted digital speedometer fitted to motor vehicle registration number 944 JCW was tested at 9.30 am on 5 March 2007 became ex 4.^[4]  The certificate stating that the radar speed detection device, serial number 14009, was tested at 11.50 am on 25 October 2006 in accordance with Australian Standard 2898.2 and was found to be producing accurate results became ex 5.^[5]  The certificate specifying that Mark Andrew Bradford, police officer, certified that radar speed detection device, serial number 14009 was used by him as mobile radar at 4.06 pm on 8 March 2007 and was used by him at that time in accordance with Australian Standard 2898.2 as in force at that time became ex 6.^[6]

13. Police officer Bradford gave the following evidence.  He was an authorised operator of mobile radar devices having attended a police speed detection operator's course from 26 February 2007 to 2 March 2007.  His certificate of completion of that course was tendered (ex 7). 

14. On 8 March 2007, he was conducting a mobile radar patrol on the Carnarvon Highway, north of Roma.  He was in a Holden Commodore V8 executive police vehicle, registration number 944-JCW.  He checked that the mobile radar device, serial number 14009, was installed correctly and that its antenna was aimed correctly, directly in line with the direction of travel of the target vehicle.  He conducted the tests required to be undertaken before the device was used.  He described these tests in some detail.  At the conclusion of these tests, he was satisfied the device was operating accurately.  He headed north to commence his duties, activated the radar antenna and checked that the patrol speed displayed matched the vehicle's speedometer.  As he approached a bridge at the Eumamurrin Creek he saw the applicant's vehicle in the distance.  It seemed to be travelling in excess of the speed limit.  After police officer Bradford crossed the bridge, he activated the antenna on the device.  It indicated the applicant's vehicle was travelling at 115 kph.  He continued to track the vehicle for about three seconds and then locked in the speed of the vehicle.  During that three seconds the speed displayed on the radar was fairly constant, flickering up to 116 kph a couple of times and then back down.  The radar emitted a high pitched Doppler tone which was steady, constant and undistorted during that period.  As the applicant's vehicle came closer, its speed dropped rapidly but incrementally from 115 kph back to 100 kph.

15. The road was a long straight sealed stretch of bitumen road and there were no other vehicles in the vicinity at the time. He tendered photographs of the scene (ex 8
    and 9).

16. When he stopped the applicant's vehicle, a utility, he noticed metal frames on the trayback were holding rolls of barbed wire, one of which was partially obstructing the number plate. When he mentioned this to the applicant, the applicant removed the roll of wire from the upright metal frames. Police officer Bradford did not have a police issue digital camera but he took a photograph of the applicant's vehicle with his mobile phone.  The photograph (ex 10) did not show the roll of barbed wire obscuring the number plate as, by the time it was taken,  the applicant had removed the roll; but the photo gave an indication of how, if the roll were in place, it would have obscured the number plate. 

17. Mr Bradford digitally recorded his conversation with the applicant at the scene. That recording was played in court and a transcript of it was tendered (ex 11). It included the following. The applicant denied that he was driving his vehicle at 115 kph.  He insisted he was travelling "dead on 100".  Police officer Bradford told him he had tracked him for some distance at 115 or 116 kph.  The applicant enquired, "As I came down the hill or something?"  Bradford replied, "Yeah."  The applicant insisted that he did not think he was travelling in excess of the speed limit.  He told the police officer he thought his equipment was faulty.  The police officer stated he had tested it before he came out and it was accurate.  The applicant said: "I think you're just a fucking tax collector.  I know it's not your problem the government needs money.  This is ridiculous."  Later he added, "So you try and get people going down hills, do you, that's the fucking go, bloody ridiculous."  Police officer Bradford pointed out that the roll of wire was obstructing the number plate.  The applicant responded, "Christ you've got little to do you fellas, why don't you do something fucking useful."  Later he added, "If you wanted to be a tax collector you should have joined a different department.  I suppose you're one of these bastards who say, 'I'm just doing my job'."  Police officer Bradford replied, "I can do my job fully and write you a $240 ticket for an obstructed number plate as well if you like."  The applicant responded, "Yeah, fucking do it."  Police officer Bradford obliged.  During the conversation that followed, the applicant was abusive to police officer Bradford.  He enquired whether the police officer had Parkinson's disease because he was shaking.  He called him a "useless policeman".  He suggested he try and do something useful for the rest of his life.  And he asked whether he was "bullied at school or something, is that your trouble".

18. In cross-examination, police officer Bradford agreed that he had only been using a mobile radar device for about five days after completing his training course at the time he recorded the applicant's vehicle.  This was the first certificate (ex 7) he had received for mobile radar device use.  He agreed the photographs of the road scene were taken sometime after 8 March 2007 and only after he heard the applicant was contesting the matters, perhaps as much as six months later.  He agreed he had his AM radio on when he used the mobile radar device and spoke to the applicant.  During lengthy cross-examination, the applicant challenged the accuracy of the recording of their conversation.  The magistrate explained to the applicant that he should put his version of what happened to police officer Bradford.  The applicant did not challenge the accuracy of the bulk of the recorded conversation.

19. In re-examination, police officer Bradford repeated that there was nothing in between the mobile radar device and the applicant's target vehicle when he operated it and recorded the applicant's vehicle as travelling at speeds of 115 and 116 kph. He most recently visited the site that morning with Mr Mulcare to familiarise himself with it.

20. Christopher Mark Saunders gave the following evidence by telephone link. He is a technical officer employed by the Queensland Police Service ("QPS") at the calibration laboratory radio electronic section.  The laboratory at which he worked had received accreditation from the National Association of Testing Authorities ("NATA") and met the requirements of the Australian and International Standard for Competency in Calibration Laboratories.  The Commonwealth government recognised NATA as the sole national accredited body for establishing and maintaining competent laboratory practices.  The NATA accredited laboratory certificate in respect of Mr Saunders' laboratory was tendered (ex 12).  Mr Saunders had a national diploma in aerospace studies specialising in avionics.  He had 14 years experience in the aviation and electronics field with the Royal Air Force (“RAF”), including radar technology.  He had nine years experience in the electronic field whilst employed in various positions in New Zealand.  For the last four and a half years he was employed by the QPS radio electronic section in the speed laboratory specialising in the repair and calibration of all speed detection devices used by the QPS. 

21. He conducted a test on the mobile radar device serial number 14009 (used by police officer Bradford on the applicant's vehicle on 8 March 2007) on 24 October 2006 and he found it was producing accurate results. He detailed the tests he conducted. He tendered the test report he completed (ex 13). He also produced a calibration report on the function generator used in conducting these tests which showed that it was, at the relevant time, working in accordance with national and international standards (ex 14). The standards of measurement used in his laboratory were certified as meeting recognised national standards in accordance with reg 13 of the National Measurement Regulations 1999 (Cth) (ex 15).

22. In cross-examination, Mr Saunders agreed that the mobile radar device serial number 14009 did not have "pattern approval". Mr Saunders did not know if the device required "pattern approval" to be used in Australia.  His evidence, he explained, related to his testing of the mobile radar device in the laboratory.

23. Mr Mulcare, whose expertise was established earlier, gave the following further evidence. That morning before court, he attended the site where, on 8 March 2007, police officer Bradford claimed to have recorded the applicant speeding with the mobile radar device. At his request, police officer Bradford re-enacted his operation of the device on 8 March 2007. Police officer Bradford operated the device in an efficient manner which met all standard practices. Mr Mulcare noted there were no geographical or other features at the scene which would have interfered with the device.  Overhead power lines do not affect the accuracy of the machine.  It was unlikely that there were underground Telstra cables in the area; but if there were, they would have "absolutely no effect" on the device.  If police officer Bradford's AM radio was switched on in the police vehicle at the time he used the device, it would not produce any electromagnetic interference with the device.  He did not consider that the "nickels effect" would have any impact on the use of the device.  There is no formal legal requirement for radar equipment, or equipment testing radar equipment, to have formal "pattern approval" within Australia.  Pattern approval is a way of assessing equipment as producing accurate results.

24. When cross-examined at length by the applicant, Mr Mulcare gave the following answers. When he visited the site that morning he did not see any power lines, but in any case power lines will not affect the accuracy of the device. On a "good site", as the relevant site was, the range for the device to pick up something like the applicant's utility truck, with no other vehicles in between, was a distance of about 1.5 kilometres. Any correction made by the device, because of the angle between the mobile radar device antenna and the position of the applicant's utility as it descended a hill, would favour the applicant. If anything, he may have been travelling slightly faster than the recorded speed. Mr Mulcare refused to concede that anything could have affected the accuracy of the device operated by police officer Bradford at the relevant site on 8 March 2007.

25. After the prosecution closed its case, the applicant gave evidence including the following. He was a qualified rural surveyor with a Diploma of Business (Property Valuation); a qualified JP; a private and commercial pilot; and an aircraft engineer. He did not have any formal qualifications in engineering. He sought to persuade the magistrate that he should be permitted to give expert evidence as to the efficacy of the mobile radar device used by police officer Bradford on the applicant's vehicle on 8 March 2007. The magistrate determined that the applicant was not an expert witness about the operation or accuracy of the device and could not give expert evidence in respect of it. The magistrate explained that the applicant could, of course, give evidence about the alleged offences.

26. The applicant stated that as he was proceeding down hill at the site, he was aware of his speed and "was sitting dead on a hundred". He told police officer Bradford this when he was stopped. When the police officer activated his lights, he stopped his utility near the police vehicle. He got out of his car and walked to the police car and asked, "What's the problem?" This was not recorded on the police officer's digital recording machine. He became upset when the police officer did not accept his statement that he was definitely not speeding. He did not deny he made the abusive statements recorded and transcribed and set out earlier in these reasons.^[7]  He was absolutely certain he was not speeding as he approached police officer Bradford's vehicle.  He stated that there were trees and overhead power lines around the road. 

27. He gave no evidence about the obscured number plate charge.

28. His cross-examination was limited to the police prosecutor suggesting to him that he was exceeding the speed limit as he came down the hill. The applicant denied this.

The magistrate's decision

29. The magistrate gave an ex tempore decision in which he made the following findings.

30. Police officer Bradford gave evidence that he was driving a police vehicle with a mobile radar device fitted on 8 March 2007.  When he left the police station he made sure it was working properly.  He conducted all required tests.  He saw the applicant's vehicle travelling in a southerly direction towards Roma.  There were no other vehicles on the road.  He recorded the speed of the applicant's vehicle at 115 kph.  He apprehended the applicant.  The applicant said he had not been speeding.  The applicant became "most rude and obstreperous towards the [police officer]".  The "police officer, probably out of a peak of anger, further booked the [applicant] for the obscured number plate".  The magistrate accepted fully police officer Bradford’s reliability and honesty. 

31. The magistrate next considered whether the mobile radar device was working correctly. Mr Saunders gave evidence that he had calibrated the machine and he attested to its accuracy. Further, the appropriate certificates had been provided under the Act. These certificates were in proper form and admissible.

32. Mr Mulcare, "an expert in relation to this radar", gave evidence. On the morning of the court hearing, he had inspected the area where the applicant was said to have been speeding and gave evidence that "there was nothing… that would have affected the accurate operation of the radar on the day, at the time and at the place set out in the charge". If the radar is not working accurately, it warns the operator of interference and shuts down. Any inaccuracy in the reading would have been in the applicant's favour.

33. The magistrate was satisfied the applicant was guilty of the speeding charge beyond reasonable doubt. He determined that he should impose a fine slightly higher than the fine that would have been imposed had the applicant merely paid his speeding ticket without contest.

34. The magistrate then noted that he had not dealt with the count concerning the obscured number plate. He added that he was satisfied that the charge under
    s 24(1)(b) of the Regulation had been proved beyond reasonable doubt from the tendered photograph of the applicant's vehicle.

35. The magistrate invited the applicant to make any further submissions. The applicant submitted that he should not be punished for seeking justice. The magistrate stated that the applicant had been put on notice earlier that, by challenging the radar certificate, he could incur substantial costs. Costs claimed in relation to the expert, Mr Mulcare, were fair and reasonable.

36. The magistrate fined the applicant $200 for the speeding offence and $300 for driving with an obscured number plate. He ordered the applicant pay costs of court of $132.80 together with $4,767.46 expert costs.

The District Court appeal

37. The applicant appealed from that decision under s 222 Justices Act 1886 (Qld).  The appeal was heard on 3 August 2009.  His grounds of appeal were essentially as follows:

1. That the magistrate erred in law by refusing to allow the applicant to give “important” evidence in relation to both offences.

2. That the magistrate erred in law in interpreting legislation in relation to both offences.

3. That the magistrate erred in law by not requiring the attendance of an important witness "summoned" by the applicant.

4. That the prosecution failed to produce requested documentary evidence by way of discovery and failed to disclose available information which adversely affected the applicant's capacity to defend the matter.

5. That the magistrate showed bias against the applicant and denied him natural justice.

6. That the magistrate reversed the onus of proof and required the applicant to prove that he was not guilty.

7. That s 124 certificates ought not to have been admitted.^[8]

38. The judge refused the appeal on 1 March 2010 for the following reasons. The applicant seemed to criticise the magistrate for not disclosing material. The magistrate was not obliged to disclose information or documentation unless there was a possibility it may have had some impact on his decision and the magistrate had reason to believe that the documentation or information was not in the applicant's possession. The applicant had not established that the magistrate had any obligation to disclose information or documentation.^[9]

39. As to the first ground of appeal, the judge observed that the applicant was a qualified commercial pilot and aircraft engineer who claimed to have theoretical and practical knowledge of installation, repair and maintenance of aircraft instruments and avionics, including radios and radar, as part of his commercial pilot's licence.  After referring to the prosecution witnesses' evidence as to the mobile radar device, the judge noted that the applicant gave evidence that he was a qualified rural surveyor, registered valuer, pilot and aircraft engineer.  The applicant did not have formal qualifications in aircraft engineering.  The applicant's claim that the magistrate did not understand the meaning of the word "avionics" was, the judge concluded, mere speculation.^[10]  The judge concluded that the magistrate was entitled to reject the applicant's claim to be an expert witness as to the use and reliability of the mobile radar device and to refuse to allow him to give expert evidence about it.^[11]

40. As to the second ground of appeal, the applicant claimed that evidence collected by the mobile radar device could not be given in court without "pattern approval being adduced in evidence". The judge noted that the applicant cited no authority in support of his contention before the magistrate.^[12]  The applicant now claimed that the absence of "pattern approval" gazetted by the relevant Minister by notice published in the Government Gazette made the radar evidence inadmissible, and that certificates were wrongly admitted in evidence under s 124(1)(p), s 124(1)(pa) and s 124(1)(pb) of the Act.^[13]  The first of these (ex 4) certified that the speedometer fitted to the relevant police vehicle was tested on 5 March 2007 and was found to produce accurate results.  The second (ex 5) was that the identified device was tested in October 2006 in accordance with AS2898.2 and found to produce accurate results.  The Act provides that as a result, the device is deemed accurate for a further 12 months.  The third certificate (ex 6) stated that the relevant device was used on 8 March 2007 (the date of the alleged offence) in accordance with AS2898.2.^[14]  Mr Saunders gave oral evidence supporting the total contents of ex 5.^[15]

41. The judge distinguished the present case from Lekich v Dixon^[16] and Bevacqua v Wykes.^[17]  In Lekich, the only evidence against the appellant was documentary.  In Bevacqua, the only evidence, apart from the certificates, was from a police officer who had given evidence to the effect he had used a mobile radar device to record the appellant speeding.^[18]  In this case, there was the additional evidence from Mr Saunders supporting the documentary exhibits.^[19]  Whilst ex 5 should not have been admitted in accordance with Lekich and Bevacqua, evidence from police officer Bradford and Mr Saunders supported the facts stated in it.  The magistrate accepted the evidence of both police officer Bradford and Mr Saunders as reliable.^[20]  The magistrate also considered Mr Mulcare's evidence as of considerable assistance and clearly accepted his expertise.^[21]  Police officer Bradford's evidence, together with Mr Mulcare's evidence, was persuasive.^[22] 

42. As to the third ground of appeal, the applicant complained that he was unable to call a witness he summonsed, police inspector Coleman, who had rejected the applicant's submission that the prosecution of his case should be discontinued. Inspector Coleman could have given no probative, admissible evidence. The magistrate was therefore correct in striking out the summons concerning Inspector Coleman.^[23]

43. As to the fourth ground of appeal, the applicant contended that the prosecution should have disclosed the radar operations manual and other information concerning the training of police officers in respect of mobile radar devices and concerning the specific device used in this case. In the course of making that application to the Magistrates Court on 23 November 2007, the applicant was informed that such documentation was not in possession of the police prosecution service; it would have been in the possession of the Commissioner of Police; if he wanted that information, the applicant should have obtained it from the Commissioner. The prosecution did not have a duty to subpoena such material for the applicant. The applicant did not demonstrate that he was disadvantaged by the absence of that material. There was no merit in this contention.^[24]

44. The applicant also complained that he did not have a CD containing the recording of conversations he had with police officer Bradford at the roadside. The applicant contended that the CD played at court was inaccurate as it did not include his introductory words to police officer Bradford, "What's the problem?" The judge considered that these words were inconsequential and the conversation placed before the magistrate was otherwise accurate and included the applicant's exculpatory statements.^[25]  Although the quality of the CD with which the applicant was provided may have been poor, the prosecution did not fail to disclose the material and there were no statements in the recording attributable to the applicant against his interest.^[26]  Further, the applicant was provided with a transcript of the prosecution allegations as to what he said in the recording.^[27]

45. Mr Mulcare rejected the applicant's contention that "pattern approval" was needed in respect of the device for it to meet the Australian Standard. The judge was unpersuaded there was any reason to conclude the magistrate erred in accepting Mr Mulcare's evidence which he was well qualified to give.^[28]

46. As to the fifth and sixth ground of appeal, the judge rejected the applicant's allegations that the magistrate was biased against him, denied him natural justice and reversed the onus of proof.^[29]  During the hearing, whilst exasperated at times, the magistrate was for the most part helpful to the applicant.  The magistrate continued to advise the applicant appropriately and was tolerant towards him.^[30]  The magistrate was not required to be expressionless during the hearing.  The applicant had produced no evidence to support his claims.  If the applicant formed those impressions, they were not based on reason and no impartial observer would have so concluded.

47. The judge, in summary, rejected all grounds of appeal concerning the speeding offence.^[31]

48. As to the obscured number plate charge, the judge noted there was photographic and other evidence that a roll of fence wire sitting on a steel rod obscured the rear number plate of the applicant's vehicle. Those facts were not in issue. After setting out the applicable portion of s 24 Transport Operations (Road Use Management - Vehicle Registration) Regulation, the judge noted the applicant's contention that he should have been charged not under s 24(1)(b) but under s 24(1A).^[32]  The judge considered that the magistrate's interpretation of the relevant provisions of the regulation was entirely correct.^[33]

49. As to penalty, the judge considered that the fines imposed were moderate and appropriate and certainly not manifestly excessive and dismissed the appeals against conviction and sentence.^[34]

Conclusion

50. The applicant's contentions as to why he should be given leave to appeal are set out in [2] of these reasons.  His proposed grounds of appeal to this Court seems to be essentially those he argued in the District Court, set out at [37] of these reasons. 

51. The applicant is self-represented in this Court as he was in the Magistrates and District Court. He lodged a typewritten one page outline of argument attacking only his conviction for the speeding offence. In essence, his contentions are as follows. The police officer who gave evidence at the committal proceedings was inexperienced in the use of mobile radar devices; the expert witness called by the prosecution at the trial before the magistrate was not properly qualified and his testimony was unreliable. He did not give independent expert testimony but rather testimony which favoured his "employer", the prosecution. As a result, the applicant was wrongly convicted of the speeding offence.

52. In his oral submissions in this Court, the applicant essentially repeated the arguments he made in the District Court as to the speeding offence. First, he complained that the cheque he sent to Inspector Coleman was physically returned to him at the Magistrates Court.  As the District Court judge noted, this seemed in order; it followed the magistrate's ruling that the summons concerning Inspector Coleman should be discharged.  The return of the cheque has nothing to do with the correctness of the applicant's convictions.  As both the magistrate and the District Court judge recognised, the summons was misconceived; Inspector Coleman had no relevant evidence to produce or give; and the order discharging it on 23 November 2007 was appropriate in the circumstances.

53. The applicant's next contention concerned the issue of disclosure and the inadequate time he had to consider and investigate the prosecution material. He sought to attack with new evidence, or with further evidence which was available at the time of the Magistrates Court trial, the credit and qualifications of the prosecution's expert witness, Mr Mulcare.  It is unnecessary to deal in detail with this further evidence.  None of it throws any doubt on the correctness of his convictions so that he has not demonstrated that he should be permitted to rely on this further evidence in any appeal.  The applicant had ample time to prepare his best case when the hearing was adjourned from November 2007 to March 2008.

54. He next relied on this Court's decision in Dixon v Lekich^[35] as establishing the inadmissibility of the certificate tendered at first instance (ex 5) under s 124(1)(pa) of the Act, because a valid delegation by the Commissioner of Police was not established.  That case established that a certificate under s 124 of the Act, tendered without proof that the author of the certificate was a delegate of the Commissioner of Police, cannot be relied on as evidence of the fact stated in the certificate.  The magistrate did not appreciate this, no doubt because it was not argued and the magistrate's decision predated this Court's decision in Dixon v Lekich and the District Court's decision in Lekich and Bevacqua.  But the District Court judge recognised that the magistrate had erred in relying on the certificate.  The appeal to the District Court was by way of re-hearing: see s 223 Justices Act.  The judge considered the evidence before the magistrate and concluded that there was sufficient evidence, independent of the certificate, to establish the charge.  Police officer Bradford observed the applicant's car on 8 March 2007 and determined that it appeared to be speeding.  He then checked the mobile radar device before using it and found it was working accurately.  It accurately recorded the speed of his police vehicle; he used it in accordance with his recent training.  It recorded that the applicant was travelling at 115 kph, 15 kph above the speed limit.  Mr Saunders had tested the device about four and a half months earlier on 24 October 2006 and it was working accurately. 

55. The District Court judge was entitled to reject the applicant's evidence below that he was not speeding. There was no evidence, either in cross-examination of prosecution witnesses or in the applicant's case, that required the magistrate or the judge to reject the inference open from Mr Saunders' evidence and police officer Bradford's evidence that the device was operating correctly.  This was so even though police officer Bradford was inexperienced in the use of mobile radar devices on 8 March 2007, having only recently completed his training course.  Indeed, it was open to conclude that, as police officer Bradford had so recently completed his course, he was likely to be especially proficient in its use. 

56. Both the judge and the magistrate were also entitled to accept that Mr Mulcare was an expert in relation to mobile radar devices. The magistrate was entitled to refuse to allow the applicant to give expert evidence about it in his own case as he did not establish that he was an expert in mobile radar devices. He was able to cross-examine the prosecution expert witness, Mr Mulcare, at length about possible flaws in the accuracy of police officer Bradford’s use of the device on 8 March 2007 and of the accuracy of the device itself. As the magistrate and the judge appreciated, none emerged. The applicant called no competing evidence to undermine Mr Mulcare’s evidence of the accuracy of the device and police officer Bradford’s operation of it. 

57. The judge was well entitled to conclude on the evidence that the prosecution had proved its case at trial beyond reasonable doubt in respect of the speeding charge.

58. The applicant gave no evidence at trial contradicting police officer Bradford's evidence that the number plate on the applicant’s vehicle was obstructed by a roll of barbed wire fixed on metal uprights. There was no reason why the magistrate should not have found the applicant guilty of that offence on the evidence beyond reasonable doubt.

59. The applicant has not demonstrated that the District Court judge erred in dismissing his appeal. The application concerns minor breaches of the Act and associated regulations. The sentences imposed were modest. It is true that the applicant had a substantial costs order made against him, but he was warned by the magistrate that if he contested the speeding charge by requiring that an expert witness be called, he could face significant costs in respect of the expert if he did not succeed in his challenge.  He has already occupied two days at trial level in the Magistrates Court and another day at appellate level in the District Court.  He has had the benefit of considered reasons for judgment from the District Court judge.  He has not established any error on the part of the District Court judge amounting to a miscarriage of justice.  For these reasons, this is not an appropriate case in which to grant leave to appeal.

ORDER:

1. Application for leave to appeal refused.

60. MUIR JA:  I agree that the application for leave to appeal should be refused for the reasons given by McMurdo P.

61. FRASER JA:  I agree with the reasons for judgment of the President and the order proposed by her Honour.