McDonald v Bone
[1999] QDC 82
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- McDonald v Bone[1999] QDC 82
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McDonald v Bone[1999] QDC 82
McDonald v Bone[1999] QDC 82
DISTRICT COURT | Appeal No 4624 of 1997 |
APPELLATE JURISDICTION
JUDGE ROBIN QC
PETER JOHN McDONALD | Appellant |
and
MERVYN KENNETH BONE | Respondent |
BRISBANE
DATE 09/03/99
JUDGMENT
Catchwords: | Appeal – Magistrates Court to District Court – Justices Act s. 222 – Magistrates decision – s. 440 Traffic Act 1949 (Qld) – credibility of witnesses – whether unsafe verdict – Devries v. Australian National Railways Commission (1992-3) 177 CLR 472 – appellant contended unsuccessfully that failure of police officer's partner to corroborate the officer's version (partner being uncertain whether officer's or defendant's version was correct) necessarily created reasonable doubt – evidence did not support asserted doubts as to accuracy of radar speed detection device. |
HIS HONOUR: Section 440 of the Traffic Act 1949 provides, “When using a radar speed detection device, a police officer must comply with Australian Standard 2898 (as in force at the time).” The appellant, Peter John McDonald, was convicted of a speeding offence based on use of such a device at Wynnum Magistrates Court on 25 September 1997. The date of the alleged offence was 3 November 1996, and the place, Moreton Bay Road, Capalaba.
The police officer operating the device was Christopher Paul Gregory, whose partner was Andrew Grey. Gregory and Mr McDonald gave different versions of where the former was while operating the device, he claiming he was located on the traffic island dividing a dual carriageway. Mr McDonald makes the case that Gregory must have been not on the island, but on the far side of the remote carriageway, based on his observation, which was the first note he took of anything to do with the police, of Gregory moving, he says, across the remote carriageway waving a lighted baton with a view to getting him to stop.
As a backstop kind of argument, Mr McDonald tells the Court today from the Bar table that the traffic island is an extremely wide one and that even if he had been upon it, Gregory may have been too far away from the carriageway on which Mr McDonald was driving his taxi with two passengers in it to comply with the requirements of the Australian Standard.
I set out in these reasons now 2.4.1, 2.4.2, 2.4.3, 2.4.7 and 2.4.8 of the Standard; also 2.6.3.2:
“2.4.1 General. When selecting a site for the use of a radar device in the stationary mode, the factors listed in Clauses 2.4.2 to 2.4.8 shall be taken into account.
2.4.2 Radiofrequency interference (RFI). The operator shall ensure that the effects of radiofrequency interference are minimized by careful site selection.
2.4.3 Reflections from stationary objects. The operator shall ensure that the radar beam is not being reflected away from the direction in which it is being aimed by stationary objects as this may lead to incorrect target identification.
2.4.7 Extraneous moving vehicles. The operator shall take into account the fact that moving vehicles which are not on the roadway being monitored may be within the detection area.
2.4.8 Alignment. The operator shall ensure as near as possible that the beam of the radar device is parallel to the horizontal plane of the roadway and is related to the flow of traffic as follows:
- (a)For slant radar devices. At the angle specified by the manufacturer, within the manufacturer's specified tolerances.
- (b)For direct radar devices. As close as possible to being directly in line with the direction of travel of the target vehicle.
2.6.3.2 Visual observation. The operator of a direct radar device shall visually monitor the vehicle under investigation for sufficient time to identify it as the target vehicle. If the operator has any doubt that the speed measured by the radar device is not that of the vehicle under investigation that speed measurement shall be considered invalid. Mirrors shall not be used to observe the vehicle under investigation.”
Both police officers gave evidence and neither Mr McDonald, who gave evidence, nor anyone else contested their assertions that there was no traffic about at the relevant time, other than Mr McDonald's taxi; the relevant time was after 1 o'clock in the morning.
Although the taxi doubtless had a radio there was no evidence, so far as I am aware, of any feature which might have caused an erroneous reading on the bases covered in the sections of the standard I have quoted. I take it I have been referring to the appropriate edition as I have been reading from Exhibit 5 for the Magistrate.
Mr McDonald is highly critical of the evidence of police officer Grey in that he purported to give precise evidence about various matters, including the state of the traffic, but was completely non-committal as to the location of Gregory when he operated the radar device with the asserted result of a speed of 74 km/h in a 60 km/h zone.
In those circumstances, Mr McDonald is, in effect, submitting that the Magistrate must have had a reasonable doubt, either (a) because of his evidence on its own, or (b) because even if not accepted as proving Gregory was on the far side of Moreton Bay Road, it casts sufficient doubt on Gregory, his position being greatly strengthened, Mr McDonald says, given the failure of Grey to corroborate his partner.
Grey's evidence was that he did not know where Gregory was - he might have been on the traffic island in the middle of the road, he might have been on the far side of Moreton Bay Road. If the latter, then it is asserted, as I understand it, that the possibility of erroneous operation of the device is much increased.
Ms Aylward has referred me to authorities such as Devries v. Australian National Railways Commission (1992-3) 177 CLR 472. It is sufficient to set out from the headnote the central observations in the two judgments:
“Per Brennan, Gaudron and McHugh JJ. A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding. If the finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the judge has failed to use or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.”
“Per Deane and Dawson JJ. An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on a question of fact must set aside a challenged finding of fact which is shown to be wrong. Where it appears that a challenged finding has, to a significant extent, been based on the observation of the demeanour of the witnesses, an appellate court is inevitably placed in a position of real disadvantage compared with the trial judge. Even in such a case the court must weigh conflicting evidence and draw its own inferences and conclusions. The appellate court will be guided by the impression made on the judge who saw the witnesses, but there may be other circumstances which show whether or not a statement is credible and they may warrant the court in differing from the judge's finding based on the credibility of witnesses.”
I also refer to the Court of Appeal decision in Douglas Kenneth Craig, CA 139 of 1998, in which the High Court treatment of the topic of unsafe verdicts in Jones (1997) 72 ALJR 78 is discussed, particularly by Pincus JA. At page 6 of his reasons, Thomas JA described the case as revealing “a fairly typical conflict of evidence where the jury was free to prefer one version to another”. His Honour was referring to the Crown evidence.
The reasons of the Magistrate show that he considered the conflicting accounts carefully:
“The better evidence when one looks at the evidence of simply those two police officers is the evidence of Gregory, who was the person directly involved with this interception. His evidence was that he was in fact on the centre island - a matter of course which the defendant disputes in his evidence. So one must look at the evidence of the defendant and determine whether his evidence in that regard is reliable.”
The other passage which indicates the Magistrate correctly understood and embarked upon the task he had is page 11 of his reasons where (speaking of Mr McDonald's evidence) he says:
“Now, I must say that his evidence in that regard in relation to circumstances that led up to this event in his observations are not particularly convincing in my view. It appears that he is attempting to recall what did happen on that night in question and where he was at particular times. He also asserts that he was stopped at traffic lights - a matter not noted by the police officer Gregory - and that it would be difficult for him to reach that speed in the distance. He does agree that it could be 300 metres from the lights where he says he was stopped, and the evidence of the police officers is that his speed - or the speed of the motor vehicle was taken when he was some 200 metres away from the operator's position.
In relation to the police officers at the scene, that is Gregory and Grey, they appeared to give their evidence in a forthright manner and they appeared to be honest and reliable - appeared to give reliable evidence as to what occurred on this particular date. I made some comments in relation to the evidence of the defendant. I am not saying that the defendant is being untruthful in relation to what has occurred, but I am certainly not convinced on his evidence that his evidence is the more reliable to that of the police officers - in particular, the evidence of Gregory, who was the operator of instrument and made particular observations of the - of this motor vehicle as it approached, assessed that it was travelling at over 60 kilometres per hour and then took the speed of that motor vehicle which he said was locked on to radar.
As I say, there were a number of matters raised by the defendant which were not put to the witnesses in their cross-examination and some of those matters were particularly important, particularly in relation to the question of - when the defendant says now in his evidence that the speedo is reading 40 the police officer said a response was made to him that he was travelling at 60. And when he was asked was there any excuse at travelling at 74 there was no excuse. In fact, the defendant said that he had no excuse for travelling at 74.
The defendant did approach the police office after he left his position and started to write out a traffic ticket and he raised - the situation then was are you sure that it was him, referring to the vehicle that he was driving. He was told then that his was the only vehicle on the road and the defendant stated that he was stopped at the traffic lights the police office then indicated to him that he had not seen him stopped at the traffic lights. But the police officer's evidence is that he did not lose sight of that motor vehicle.
I accept Gregory's evidence that at the time the radar detection device was operated that he was in fact in the middle of the roadway, as he has given in his evidence, and not in the position as stated by the defendant who made observations at some point as seeing a baton coming across the road from the - the other side. That was not a matter that was raised with the police officer on the night but it is a matter the defendant raises in his evidence today.
He has raised other matters in relation to extraneous moving vehicles and this talks about divided roads. I have given my findings in relation to the position of the officer in that regard.
And I have considered the other matters raised by the - defendant and the evidence of - of Harrington, and I am satisfied on the evidence before me that there has been nothing raised in the evidence by the defendant which would suggest to me that the radar detection device was not operated in accordance with the operational procedures and the Australian Standards on that date. The section that deals with extraneous moving motor vehicles simply says that the operator shall take into account the fact of moving motor vehicles and it talks about vehicles on the other side of dividing road. But as I have stated also, I have made my findings in that regard: that the police officer was in fact on the median strip of the roadway.
As regards radio interference, I find that there has been no evidence adduced by the defendant and by way of direct evidence or anything in cross-examination of the expert Harrington which would have made me bear any doubts in relation to the manner of operation of the radar detection device or that there was in fact interference caused to that advice - device, I am sorry, by anything in the area and, in particular, any equipment which is installed in the taxi motor vehicle.
So in all of the circumstances I find that the prosecution has proved each and every element of the offence to the required standard. Where the evidence of the defendant is in conflict with the evidence of the prosecution witnesses, I accept the evidence of the prosecution witnesses and reject the evidence of the defendant.”
Nothing to which this Court has been exposed casts any real doubt on the efficacy of the device used by the police and the evidence before the Magistrate contained a number of certificates regarding it. But, essentially, this appeal has to fail because this Court, not having any new evidence presented before it, is not in a position to say that the Magistrate erred in his assessment of the conflicting evidence before him.
The big point made by Mr McDonald is that he says there is great significance in the failure of Grey to support Gregory. The Magistrate was unable to detect the same significance in that perhaps unusual situation, and so is this Court. So the appeal is dismissed.
...
HIS HONOUR: I order that the appeal be dismissed with costs to be taxed.