DISTRICT COURT OF QUEENSLAND

Facts

1. [1]
   After an eight day hearing over a six month period in the Magistrates Court, Brisbane, the Appellant was convicted of the offence of driving a motor vehicle in a built-up area at a speed exceeding 60 kms per hour by at least 15 kms per hour but less than 30 kms per hour, namely, 75 kms per hour.

2. [2]
   On 31 August 2001 the Appellant was fined $150.00 and ordered to pay $58.00 costs of court and a total of $4,881.55 costs in relation to prosecution witness expenses.

3. [3]
   The prosecution alleged that the Appellant’s vehicle was detected exceeding the speed limit by a Gatso 24 speed camera which was being operated by Constable Larissa Flood on Samford Road, Enoggera on the 8 October 1999.

4. [4]
   The Appellant contended at the trial that the speed camera had not been tested and was not being operated by Constable Flood in accordance with the relevant Australian Standard, and did not in itself comply with the relevant Australian Standard. In summary it is alleged that Constable Flood did not test the accuracy of the speed camera in accordance with Australian Standard 2892.2 as required by the relevant legislation, and secondly that the camera itself did not comply with Australian Standard 2898.1 with respect to radiofrequency interference indication.

Grounds of appeal

5. [5]
   The grounds of appeal detailed in the Notice of Appeal are:

The Magistrate erred in law and/or fact in:-

1. Finding that the relevant provisions of A.S. 2898.1 – 2898.2 had been complied with.
2. Rejecting the evidence of Mr. J.H. Kenny, Mr. D. Profke and the defendant.
3. Declaring Mr. D. Profke not to be an expert witness.
4. His interpretation of the Australian Standards and the definition of “immunity”.
5. Rejecting the defence’s No Case Submission.
6. Accepting the evidence of Constable L. Flood, Mr. R. James and Mr. T. Mulcare.
7. His findings with respect to the Gatso 24 Speed Camera’s degree of immunity to Radio Frequency Interference.
8. His findings with respect to the pre and post deployment accuracy testing of the Gatso 24 Speed Camera.
9. Finding that the Manufacture’s Recommendations for field testing the accuracy of the Gatso 24 Camera only required the use of the “test” button pre and post deployment and that the use of the “1 bye” button was not required.
10. Finding the defendant “guilty” beyond any reasonable doubt.

6. [6]
   However, it appears from argument that essentially the Magistrate’s decision is appealed against on the grounds that the Magistrate erred in law and/or fact in finding that the provisions of the relevant Australian Standards had been complied with.

The evidence

7. [7]
   Four witnesses were called before the Magistrate for the prosecution:

1. (a)
   Constable Larissa Flood the operator of the speed camera;

2. (b)
   Rodney Ian James, an electronics technician employed by the Queensland Police Service; 

3. (c)
   Thomas Malcolm Mulcare, a senior engineer and laboratory manager employed by RFI Industries Pty Ltd; and

4. (d)
   Senior Sergeant Rodney James Craig of the Queensland Police Service Traffic Camera Office.

8. [8]
   The Appellant gave evidence himself before the Magistrate and called or attempted to call four expert witnesses:

1. (a)
   Professor Ian Dennis Longstaff, an electrical engineer and expert in the field of radar.

2. (b)
   Justin Hugh Kenny, a mechanical and electrical engineer involved in the drafting of the relevant Australian Standard.

3. (c)
   Professor Tee Tang, an electrical engineer who was not accepted by the Magistrate as an expert witness; and

4. (d)
   Darren Keith Profke, a police officer with experience operating hand-held and mobile radar and the Gatso speed camera. Mr. Profke was not accepted as an expert by the Magistrate.

9. [9]
   In addition to the testimony of witnesses, the Magistrate received into evidence various certificates created pursuant to evidentiary and facilitation of proof provisions of the relevant legislation including:-

1. A certificate stating that the “radar speed detection device” (the radar control unit of the relevant speed camera) had been tested on 8 July 1999 in accordance with Australian Standard 2898.1 and found to be producing accurate results, which pursuant to s 124(1)(a) of the Transport Operations (Road Use Management) Act 1995 (“the TORUM Act”) is evidence the device was producing accurate results at the time of testing and for one year after that time.
2. A certificate stating that the “photographic detection device” (the camera control unit of the relevant speed camera) was tested on the 8 July 1999 and was found to be producing accurate results, tendered pursuant to section 124 (1)(pf) of the TORUM Act.
3. A certificate signed by Constable Flood stating that the speed camera was used by her at 12:19 p.m. on the 8 October 1999 and was used in accordance with the Australian Standard 2898.2 tendered pursuant to s 124(1)(pb) of the TORUM Act.
4. The photograph of the Appellant’s vehicle taken by the speed camera certified in accordance with s.120 of the TORUM Act that the image was properly taken by the speed camera.
5. A certificate tendered pursuant to s 124(1)(pa) of the TORUM Act stating that the handheld radar unit used by Constable Flood to test the speed camera was tested on 12 September 1999 and found to be producing accurate results.
6. A certificate tendered pursuant to s 124(1)(pb) of the TORUM Act signed by Constable Flood stated that the handheld radar unit was used by her on 8 October 1999 in accordance with Australian Standard 2898.2.
7. The Speed Camera Set-up and Deployment Log completed by Constable Flood on 8 October 1999.

10. [10]
    The evidence before the Magistrate was that the speed camera was fitted with both a test button and a “1 x” button. The test button tests the accuracy of the internal electronics of the speed camera, whereas the “1 x” button allows a test photograph to be taken which will confirm the accuracy of the camera and that it, and the vehicle it is in, are set up correctly, when used in conjunction with another device such as a hand-held radar.

11. [11]
    Constable Flood’s evidence was that she used the pro forma Speed Camera Set-up and Deployment Log issued by the Queensland Police Service and her operations guide in order to set up, test and operate the speed camera. The fact that Constable Flood positioned and tested the speed camera in accordance with s 210 of the Traffic Regulation 1962 was not challenged by the defence. Once the camera was set up, Constable Flood used a hand-held radar to test the accuracy of the radar control unit in the speed camera. This was done by waiting for a vehicle to enter the radar beam emitted by the camera unit and at the same time directing the hand-held radar gun at the vehicle, pressing the “1 x” button on the radar control unit of the camera and comparing the reading on the camera with that on the hand-held radar gun. Following that procedure Constable Flood carried out one pre-deployment test-shot on the camera and then commenced official deployment of the speed camera. The speed limit for the location was 60 kilometres per hour and Constable Flood set the speed camera for an enforcement speed of 71 kilometres per hour. She operated the camera at the site from 9.30 am until 3.30 pm. At the end of deployment Constable Flood carried out a test-shot by pressing the test button on the camera and did a number of further manual shots but did not again test the speed camera for accuracy against the hand-held radar gun .

12. [12]
    The appellant contends that whilst the pre-deployment test for accuracy essentially complied with AS 2898.2, the failure to similarly test against the hand-held radar post-deployment, did not.

13. [13]
    Constable Flood gave evidence that she had been in the Police service for 9 ½ years and attached to the Traffic Branch for six years. She holds a certificate for the operation of speed detection devices and had been a speed camera operator for approximately two years and during that time has detected over 5,000 speeding offences. Her evidence was that the pre and post deployment tests that she carried out indicated that the speed camera was working properly.

Relevant statutory provisions

14. [14]
    Section 210 of the Traffic Regulation 1962 outlines provisions which must be complied with for the operating and testing of speed cameras if a speed camera is used to provide evidence of a traffic offence. Section 112 of the TORUM Act provides as follows:

“112. Use of radar speed detection devices

When using a radar speed detection device, a police officer must comply with Australian Standard 2898.2 (as in force at the time).”

15. [15]
    Australian Standard 2898.2 has the title Radar Speed Detection – part 2: Operational procedures and Clause 2.5 is headed “Circuit Testing” and provides relevantly as follows:

“2.5.1General

The accuracy of the radar device shall be tested in accordance with Clause 2.5.3 at the commencement and at the end of each operator’s period of operation. Where the period of operation exceeds nine hours, the accuracy of the radar device shall also be tested in accordance with Clause 2.5.3 at intervals not exceeding nine hours.

2. Required Accuracy

…

3. Field Testing Procedure

The accuracy of the radar device shall be tested in at least one of the following ways:

1. (a)
   In accordance with the manufacturer’s recommended field testing procedure using any test equipment (e.g. tuning forks) approved by the manufacturer.

2. (b)
   Against a vehicle’s speedometer of known accuracy. Allowance shall be made for the known tolerance on the speed measured by the speedometer.

NOTE: The accuracy of the vehicle’s speedometer need not necessarily be within the required accuracy specified in Clause 2.5.2 as this test is only intended to detect a gross error in the test carried out in accordance with the manufacturers instructions.

3. (c)
   Against another radar device which has been tested in accordance with Item (a) or Item (b) and meets the requirements of Clause 2.5.2.” (emphasis added)

16. [16]
    Australian Standard 2898.1 is entitled Radar Speed Detection, Part 1: Functional requirements and definitions. The Preface to AS 2898.1 states that it “specifies basic, functional requirements for radar speed detection devices.”  Clause 2.1 is headed Design and Clause 2.1.2 provides as follows:

“Radio-frequency interference indication

Each radar device shall be capable of detecting the effects of RFI. No speeds shall be displayed while RFI is being detected.

Section 1 of the Standard defines Radio frequency interference (RFI) as: “any signal, other than the transmitted or reflected signal, which may interfere with the accuracy of the processed and displayed speed.”

17. [17]
    It was argued during the hearing below and indeed appears to have been accepted by both the Prosecution and the Magistrate, that s 112 of the TORUM Act makes it mandatory for Police officers using a speed camera to comply with both Australian Standard 2898.2 and Australian Standard 2898.1. This gave rise for both the “testing issue” and “the radio-frequency interference (RFI) issue” (as the Magistrate labelled them) to be determined by the Magistrate. However, it was argued before me on behalf of the Queensland Police Service that in fact it was not the intention of the legislature to make compliance with AS 2898.1 mandatory. I agree with that proposition and the Magistrate proceeded on a wrong premise with respect to the RFI issue.

18. [18]
    Section 112 of the TORUM Act imposes an obligation on a police officer who is using a radar speed detection device (including speed cameras) to comply with AS 2898.2. AS 2898.2 specifies procedures for using such devices whereas AS 2898.1 specifies functional requirements for such devices. Clearly an individual police officer cannot be responsible for the compliance of the speed camera he or she may be using at the time with the functional requirements of AS 2898.1. If the legislature had meant to make the compliance with AS 2898.1 by the Queensland Police Service mandatory then it would have said so. The intention of the legislature in enacting s 112 of the TORUM Act is clear and the mere reference in the preface to AS 2898.2 to the operational procedures applying to the use of “devices which comply with the requirements of AS 2898.1 to measure the speed of target vehicles for the purpose of law enforcement” does not enable a Court to imply that the legislature meant to include AS 2898.1 and 2 as mandatory provisions of the TORUM Act. To do so would be by implication adding words to s 112 when on the face of it the section is both clear and logical.

19. [19]
    However, even if the relevant legislation can be construed to require compliance with AS 2898.2 so far as the ability to detect, indicate and respond to RFI is concerned, the Magistrate found that the weight of the evidence before him (given by experts called by both the prosecution and the defence) was in favour of a finding that the speed camera was capable of detecting the effects of RFI and accordingly that the speed camera did comply in that respect with AS 2898.1. This finding was clearly open to the Magistrate on the evidence before him.

The Magistrate’s Decision

20. [20]
    In dealing with the issue of whether or not AS 2898.1 and AS 2898.2 had been complied with by Constable Flood with respect to her operation and use of the speed camera on the date of the offence, the Magistrate referred to the Certificates which had been tendered pursuant to Section 124 of the TORUM Act.

21. [21]
    After summarising Constable Flood’s evidence, the Magistrate found:

“Constable Flood stated in effect that she carried out field testing procedures at the deployment site in accordance with paragraph 2.5.3 (c) of AS 2898.2 – 1992. In fact her evidence indicates, I find, that she in fact also carried out procedures in accordance with 2.5.3 (a). However, the prosecutor stated that he was only relying on 2.5.3 (a).”^[1]

22. [22]
    The Magistrate went on to summarise the technical evidence of Rodney James which essentially was that from the tests that he conducted after 8 October 1999, all indications were that the speed camera was operating accurately on the 8 October 1999. He conducted tests with the speed camera in the same locality on 11 December 2000 using both a hand-held radar and a hand-held laser, and gave evidence that it was then recording correctly and accurately. Mr James referred to the manufacturer’s manual in relation to the speed camera and gave evidence as to what, he said, was the manufacturer’s recommended field testing procedure. The manual however was not put into evidence before the Court. Mr James gave evidence further that the Gatso 24 speed camera has an inbuilt immunity to radio frequency interference and that the manufacturer’s recommendations for field testing was to use a tuning fork and test button, and that the use of the “test button” at the end of deployment was sufficient to indicate that the camera was operating correctly.

23. [23]
    After considering the contents of the Preface and Foreward in AS 2898.1 and AS 2898.2 the Magistrate found:

“… that the use of the “test button” at the end of the deployment of such camera falls within 2.5.3.(a) and the words “using any test equipment (e.g. tuning forks) approved by the manufacturer”.”^[2]

24. [24]
    Ultimately the Magistrate concluded:

“Having considered all the evidence before me that is relevant to dispute number 2 before-mentioned [the RFI issue], I am satisfied that the provisions of AS 2898.1 – 1.3.21 and  2.1.2 as well as AS 2898.2 – 2.4.2 to 2.4.8, have been considered and complied with where applicable and to the extent required.

In relation to dispute number 1 before-mentioned [the testing issue], Exhibit 7 photograph, certified in accordance with Section 120 (2) under “Evidentiary Provisions” of the TORUM Act, is therefore evidence of the matters as set out in Section 120 (2), (3), and (4) of the said Act, and the provisions of Section 120 (5) of the Act have also been complied with by virtue of Exhibit 8 certificate, subject to consideration of any evidence to the contrary put before the court.”^[3]

25. [25]
    The Magistrate then summarised the evidence given by the Appellant which was that he was travelling at 60 kms per hour at the time that his vehicle travelled past the speed camera, and found that the Appellant was:

“mistaken, guessing or merely attempting to re-enact the events of the day in question having had the opportunity of  seeing exhibit 7 photograph, the particulars in the complaint, hearing the evidence from Constable Flood and his usual driving habits. Where there is dispute between the evidence of Constable Flood and the Defendant, I accept the evidence of Constable Flood and reject the Defendant’s evidence in such regard, for the reasons stated, and the fact that Constable Flood was at that location carrying out a specific duty of recording speeds of vehicles travelling in the direction that the Defendant’s vehicle was. I have also considered the head notes and obiter in the reported case of O'Leary v Daire (1984) Sup. Crt. SA) 13A Crim R 404, to which I have been referred, which deals with the presumption of the accuracy of radar in the absence of  “evidence to the contrary”.^[4]

The Issues

26. [26]
    The issues are therefore whether there was evidence on which the Magistrate could base his finding that the relevant Australian Standard with respect to the testing and operation of the speed camera had been complied with. Although the Magistrate did not specifically find that clause 2.5.3 of AS 2898.2 requires that a speed camera must be tested in the same way (i.e. in accordance with 2.5.3(a)(b) or (c)) both pre-deployment and post-deployment. It is clear and indeed logical on the face of the provision that the same test should be carried out both at the commencement and at the end of the period of operation of the speed camera and this is in accordance with general scientific principles. The Magistrate found that Constable Flood had complied with clause 2.5.3(a) of AS 2898.2 both at the commencement and the end of her period of operation of the speed camera i.e. that she had tested for accuracy in accordance with the manufacturer’s recommended field testing procedure. However, I accept the appellant’s argument that there was insufficient evidence before the Magistrate for him to determine what in fact the manufacturers’ recommended field testing procedure was. Clearly whilst Constable Flood did test the accuracy of the speed camera against the hand-held radar device at the commencement of her period of operation of the speed camera she did not do so at the end of her period of operation of the speed camera, and accordingly she did not test the speed camera for accuracy in accordance with clause 2.5.3 of AS 2898.2. There was not therefore evidence on which the Magistrate could base his finding that AS 2898.2 had been complied with respect to the testing of the speed camera.

27. [27]
    The evidence relied upon by the prosecution as proof of the speed at which the defendant’s vehicle was travelling at the relevant time, was the photograph of the appellant’s vehicle taken by the speed camera which has superimposed upon it a print-out of the speed recorded by the speed camera. That photograph, and the certification of the duly authorised delegate of the Commission of Police which is endorsed on the back of the photograph, and which certified to the effect that the relevant speed camera was a photographic detection device as defined under the TORUM Act,  was used at the time and place alleged and that the photograph was properly taken by the photographic detection device, was admitted pursuant to the facilitation of proof provisions of the TORUM Act.

28. [28]
    Clearly speed cameras such as the Gatso 24 used in this case, are sophisticated scientific devices. Under the TORUM Act, Parliament has allowed for the use of such devices by the Queensland Police Service and has provided in the legislation for readings and photographs taken by the speed camera to be prime facie evidence of the speed at which a subject vehicle is travelling. However, Parliament has recognised that such devices must be operated and tested properly and has referred in the legislation to the relevant Australian Standard for this purpose.^[5]  It is clear from the face of the legislation that it is the intention of the legislature that it is only if speed cameras are tested and operated in accordance with the relevant Australian Standard that the recordings they make can be used as evidence of the speed at which the vehicle depicted is travelling at the relevant time.

29. [29]
    There was no evidence however before the Magistrate to suggest that the speed camera was not operating properly at the relevant time, and in fact most of the evidence was to the contrary:

• Constable Flood (who was an experienced speed camera operator) gave evidence that all of the tests that she did carry out on the speed camera indicated that it was working properly. The Magistrate accepted Constable Flood as a credible and reliable witness.
• Mr. James viewed the film taken by the speed camera on 8 October 1999 and found no indication of any “illegal” shots which the camera is programmed to show if any errors are detected.
• The certificates admitted into evidence stating that both the camera control unit and the radar control unit which comprise the speed camera, had been tested on 8 July 1999 (exactly three months prior to the offence date) and each was found to be producing accurate results.
• The accuracy of the hand-held radar gun used to test the accuracy of the speed camera pre-deployment was not challenged.
• Constable Flood’s appropriate pre-deployment testing of the speed camera indicated that it was operating accurately.
• Mr. James’ evidence that the tests conducted by him with the speed camera in the same location on 11 December 2000 indicated that the camera was operating accurately.

30. [30]
    It would appear that the practice of the Queensland Police Force in testing and operating the Gatso 24 speed camera does not comply with the relevant Australian Standard which was published in 1992 probably because that device is more sophisticated than the devices in general usage when the Australian Standard was drafted. However, the Australian Standard in its Foreword does provide for updating amendments “to include suitable requirements for new types of equipment as they become available”. This simply requires submissions to be made to the Standards Australia Committee on Radar Speed Detection by the Queensland Police Service. It would seem that no such submissions have been made to date.

31. [31]
    The Appellant argued before me, (although not before the Magistrate) that non-compliance with the Australian Standard meant that the photograph taken by the speed camera of the defendant’s vehicle was illegally obtained and that therefore a discretion was enlivened in the Magistrate as to whether or not the evidence should be admitted.^[6]  The Appellant of course, argues that any such discretion should be exercised in its favour and the photograph should have been excluded.

32. [32]
    The challenge to the proper operation and testing of the speed camera is a challenge to the accuracy of the speed camera on the day in question. As such, it goes to the crux of the allegation against the defendant, namely that his vehicle was travelling at a speed in excess of the speed limit, as the photograph produced by the speed camera is the only evidence of the speed of the defendant’s vehicle. As that photograph was not produced by a speed camera tested in strict compliance with AS 2898.2 it was not legally obtained, and therefore it is necessary to consider the factors relevant to the exercise of a discretion conferred on a Court when considering whether to nevertheless admit such evidence.

33. [33]
    The competing interests in this case involve the public interest in ensuring that motorists who exceed speed limits are detected and penalised on the one hand and the need for the equipment used to detect speeding offences to be operated and tested properly for accuracy. Clearly the photograph produced by the speed camera has substantial probative value and it is not suggested that there was any deliberate infringement of the legislative requirements by Constable Flood, indeed, she proceeded according to the check list in the official Queensland Police Service Speed Camera Set-up and Deployment Log.

34. [34]
    Although the nature of the illegality does go to the accuracy of the result produced by the speed camera, there was, as I have said, a significant amount of evidence before the Magistrate nevertheless supporting a finding that the speed camera was operating accurately at the relevant time. The law could simply and effectively been complied with had Constable Flood tested the speed camera against the hand-held radar at the end of her period of operation, and, on the evidence before the Magistrate, there is little doubt that the result would have been that the speed camera had been operating accurately.

35. [35]
    Whilst the offence of speeding is not a criminal offence nevertheless there is clear public interest and concern in the detection of and penalisation of traffic offenders given the well-publicised road toll. In this case however the most important factor which would influence the exercise of the discretion in favour of the prosecution is the substantial evidence which indicates that the speed camera was operating accurately at the relevant time. The only contrary evidence was that of the appellant whose evidence was rejected as unreliable by the Magistrate. Accordingly, had the Magistrate considered whether or not to admit the speed camera photograph which had been illegally obtained then the discretion should have been exercised in favour of the prosecution and the photograph admitted into evidence.

36. [36]
    In summary then, the relevant legislation does not require radar speed detection devices used by police officers in Queensland to comply with Australian Standard 2898.1; there was not sufficient evidence before the Magistrate to prove that Constable Flood complied with Australian Standard 2898.2 when operating the speed camera on 8 October 1999; however the discretion whether to admit into evidence or exclude from evidence the photograph (ex 7) produced by the speed camera should be exercised in favour of the Respondent, and in accordance with s 120 of the TORUM Act such photograph is evidence of the speed at which the Appellant’s vehicle was travelling on the relevant date. The only evidence contrary to the photograph was the evidence of the Appellant himself whose credibility was rejected by the Magistrate and accordingly the Magistrate was correct in finding the appellant guilty of the charge of speeding. The appeal is therefore dismissed and the decision of the Magistrate confirmed.