Smith v Hutchinson[2010] QDC 294

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an appeal pursuant to section 222 of the Justices Act 1886 [Qld] from the appellant's conviction in the Warwick Magistrate's Court on 23 December, 2009, following a summary trial on one count of driving a motorcycle on a road over the speed limit applying to the road, contrary to section20 of the Transport Operations (Road Use Management - Road Rules) Regulation 1995 (The Regulation).

The Prosecution case was that on 26th October, 2008, the appellant was the driver of a motorcycle detected travelling on Cunningham Highway, Maryvale, at 175 kilometres per hour in a 100 kilometre per hour zone, by a mobile radar speed detection device, which was being used by the respondent from within a police vehicle.

The appellant's ground of appeal is succinctly expressed in the notice of appeal he drafted for himself as "Not Guilty". This can be taken to be a succinct way of saying the conviction is unsafe and unsatisfactory. Expressed in the way the appellant argued the appeal before me, the ground of appeal is that the Acting Magistrate erred in finding on the evidence before him that it was the motorcycle driven by the appellant which was detected travelling at 175 kilometres per hour, as opposed to another motorcycle which was travelling behind him.

The Prosecution relied on the evidence of the respondent and three certificates which were tendered on the basis that they had evidentiary force under section 124 of the Transport Operations (Road Use Management) Act 1995 (The Act).

The certificates were tendered as Exhibits "1", "2" and "4". "Exhibit 1" was issued by a delegate of the Commissioner of the Queensland Police Service, pursuant to section 4.10 of the Police Service Administration Act 1990, and certified that the factory fitted digital speedometer fitted to the motor vehicle which was the police vehicle the respondent was driving that day, was tested on 30 May, 2008, and was found to produce accurate results at the time of testing.

"Exhibit 4" was a certificate issued by the delegate that at 11.08 a.m. on 26 October, 2008, a radar speed detection device was used in accordance with the appropriate Australian standard, as in force on that day. This was the radar device which the respondent gave evidence that he used to record the appellant's speed. The time and date referred to in the certificate was the time and date at which, he gave evidence, he used the device for this purpose.

"Exhibit 2" was a certificate by the delegate stating that the mobile radar speed detection device which was used for this purpose had been tested at 2.40 p.m. on 6th February, 2008, in accordance with the appropriate Australian Standard for testing the device, as in force on the day of the testing, and was found to produce accurate results at the time of testing, and for one year after the day of testing.

A copy of the instrument of delegation from the Commissioner was also tendered.

The effect of these certificates is evidence that the speedometer and the mobile radar speed detection device were producing accurate results on that date, and that at 11.08a.m. on that date, the device was used in accordance with the appropriate Australian Standards.

No issue was taken about this by the appellant either before the Acting Magistrate or before me. Accordingly, the matter proceeded on the basis that there was no issue that device had accurately recorded a motorcycle proceeding at 175 kilometres per hour at the time and place alleged. Therefore, the only issue which arose for consideration is whether the Prosecution established, beyond reasonable doubt, that the appellant was the driver of the motorcycle which was detected travelling at that speed at the time and date.

Applicable principles

It was held in Graham v. Queensland Nursing Council [2009] QCA 280 per Fryberg J at [69] - [70], (with whose reasons the Chief Justice agreed) discussing the dictum of McMurdo P in Stevenson v. Yasso [2006] 2QDR 162, [36]:  "The central task of an appellate court in an appeal by way of rehearing is not to analyse the correctness or otherwise of the decision below, although an analysis may sometimes be helpful, it is to decide the case for itself. Often it will do so by considering only the evidence admitted at first instance. That is usually the position in appeals under section 222 of the Justices Act 1886...that requires an appellate court to draw its own inferences from the facts established by the evidence while respecting the advantage of the Court or Tribunal at first instance in seeing and evaluating witnesses. This is particularly relevant when issues of creditability arise."

As was also stated, by Fryberg J, in Stevenson v. Yasso, at 91, [138]:  "There is no suggestion that the case falls into that unusual category where an appellate court may reverse a finding made at first instance based on an assessment of creditability."  Fox v. Percy  is referred to in support of this proposition.

I note that although Mr Smith's certificate of readiness may have suggested that leave would be sought to adduce new evidence, he advised that this was not the case. I therefore proceeded to determine this appeal on the basis of the facts established by the evidence before the Magistrate.

Prosecution Evidence

The respondent, at the relevant time, had twenty-eight and a half years experience as a Queensland Police Officer, including about five years in relation to traffic duties. At about 11.08 a.m. he was travelling east on the Cunningham Highway at Maryvale. This is a bitumen sealed road with separation lines and centre marking lines. The speed limit is 100 kilometres per hour. He had the police vehicle set on cruise control at 98 kilometres per hour.

Immediately before he made the observation of what now is alleged to be the appellant's motorcycle, he was driving along a straight stretch of road where he could see clearly ahead. There were no vehicles on the road towards the end of this straight stretch. At the end of the stretch he could see there was a dip. As vehicles came out of the dip, the road veers to the left at a substantial gradient uphill at approximately 45 degrees.

He marked on photo 1, which was tendered as an exhibit, where he first saw what he described as the blur of a motorcycle travelling in the western bound lane towards him, on the uphill section of the roadway. This is before the motorcycle entered the dip. He described seeing the flash of the motorcycle go down the decline. He could see, as he put it, "very, very clearly", that this motorcycle was travelling at a "very high speed", well in excess of 100kilometre per hour speed zone. Although he lost sight of it in the dip, he knew it would be coming over the crest any second.

Consequently, his evidence was, that he activated the antenna on the mobile radar speed detection device in his vehicle, and waited about a second or two, until he saw the motorcycle coming over the crest of the hill. He said that he heard what might be described as the "Doppler" tone on the device issue a very clear high pitched tone, which was, in his evidence, very consistent with no wavering in it whatsoever.

He said that he locked the speed on the motorcycle as it came over the crest. This also locked the speed of his vehicle. He said it accurately recorded the speed of his vehicle at the cruise control speed of 98 kilometres per hour. He saw the speed of 175 kilometres per hour come up in the target window of the device.

When the appellant, who was representing himself before the Acting Magistrate cross-examined him about the possibilty that he recorded the speed of another motorcycle that was in the vicinity at the time, he responded:  "...your vehicle was the only one that came over the crest of the hill initially, and that was the one I locked on as it came over the crest of the hill."  He also said:  "...as Mr Smith's motorcycle came over the crest of the hill, I locked his speed on..."  He emphasised this by saying:  "I'd already locked the speed on for Mr Smith's motorcycle as it came over the crest." 

According to the respondent's evidence, after he locked this speed, he de-activated the antenna which locked the patrol speed in the patrol window, and activated the blue flashing light on the police vehicle. He said, "The motorcycle then decreased speed rapidly and pulled over."

He described the rider of the motor cycle, who he said was the appellant, Mr Smith, as being very good at pulling over. As the respondent was slowing the police vehicle, the motorcycle stopped 30 to 40 yards past the police vehicle. The respondent then did a U-turn and stopped where Mr Smith was. He then had a conversation with him. This conversation was not tape recorded. The respondent's evidence was of writing notes of the conversation on the back of a copy of the Traffic Offence Notice he issued to Mr Smith upon returning to the police vehicle after the conversation. However, he did not refresh his memory from these notes in the court room while giving evidence.

The conversation which is disputed by Mr Smith was alleged to be as follows:  The respondent says that he asked Mr Smith:  "Can you tell me what speed you were doing?" to which he received the reply:  "I don't know."  He then said he asked MrSmith if he would like to look at the radar device. According to him, Mr Smith did not speak but accompanied him to the police vehicle where he pointed at the device and said to Mr Smith:  "As you can see, I registered the speed of your vehicle at 175 kilometres per hour which is shown in the target window of the radar, and my speed of 98 kilometres per hours is shown in the patrol window of the radar device."  The respondent gave evidence that Mr Smith did not respond to this.

He said they then walked back to the vicinity of the motorcycle where he asked:  "What speed did you think you were doing?" to which he received the reply  "120". After a conversation about where Mr Smith was going, the respondent says that he asked him "Can you give me any reason as to why you were travelling so fast today?"  He alleges that Mr Smith replied  "It's just a beautiful piece of road."

At this stage, he issued the traffic offence notice to MrSmith and returned to his vehicle and wrote the notes of the conversation.

The Prosecutor, anticipating Mr Smith's position, that he was travelling with another motorcycle or motorcycles, and it was the speed of one of those other motorcycles that the respondent had recorded, asked a series of questions to clarify this. The respondent said he believed another motorcycle was travelling behind the motorcycle being ridden by Mr Smith. In this context, he said:  "...as Mr Smith came over the crest of the hill, I locked his speed in..."  he then continued:  "...and activated the lights. And then I saw the motorcycle come up over the dip behind him, and as they approached the police vehicle they both pulled over and I - I watched them both in my rear vision mirror to ensure that I knew where Mr Smith had parked his motorcycle, which was in front of the one that was travelling behind him. Then I did a U-turn and parked behind both of them."

He said that he did not pay particular attention to the speed of the second motorcycle, and did not record it's speed at any stage. He explained that he had already locked the speed on for Mr Smith's motorcycle as it came over the crest, as I have already mentioned, and wasn't in a position to be able to operate the radar detection device so he could clearly get the speed of the second motorcycle travelling behind Mr Smith's motorcycle. It was as a result that he didn't bother with recording, or attempting to record, the speed of the other motorcycle.

He then gave the following evidence about how the speed could be affected by the presence of a second motorcycle in different circumstances:  "Now, if it was the case where the two motorcycles were travelling directly behind each other, what indication would you have had that one or other of the vehicles was doing a specific speed?--If - if they had been both together on the highway and I had received a speed reading, I very much doubt that I would have been able to have picked which motorcycle it was. It may - it may more than likely have been both that were travelling at that speed. But I would not have been able to have determined which motorcycle that speed on the target window was detecting. The same thing happened to me about two weeks later, and I was unable to determine which motorcycle it was. So I just let both of them go."

"Okay, but what's the difference in relation to this particular matter, that's all?--The - the difference with this one is the - the second motorcycle was in the dip and not visible whatsoever to my vision, or to the - the beam on the radar, as the radar beam travels in a straight line, it doesn't follow the contours of the road."

"And if the two motorcycles were travelling together within short proximity to each other, what effect would that have on the audio and the Doppler?--If - if the second motorcycle had come up while the radar was activated, you would have generally, you would have inconsistent Doppler tone on the radar devise. It would - it would come up with a high pitch and a lower pitch, high pitch, low pitch, high pitch, lower pitch, like that sort of - sort of situation, because the closing rate speed would be different to each one."

"All right. What did you - adjust in relation to your - your evidence of detecting Mr Smith specifically, what did you say about the Doppler tone for his vehicle?--The Doppler tone was very high pitched and very clear and very consistent with no wavering whatsoever."

The respondent said he did not speak to the other motorcyclist who pulled over. When he was cross examined by Mr Smith about the presence of another motorcycle or motorcycles that could be responsible for the reading, the respondent said "There was one flash coming down the decline."  He then added:  "Now whether that was your motorcycle or whether it was the second motorcycle I'm unsure, but I know there was a vehicle coming over the crest of the hill at very high speed, and you came first."

The appellant then asked a long question in the form of a statement which clearly identified his version of events. It was in these terms:  "I looked straight in the mirror and there was another motorbike, right - right up my bum, and if I had - have put the brakes on severely, he would have run into me. I remember that very clear. I was actually riding with about 100 motorbikes at the time. Not at that particular instant, but there was this other guy behind me. When we pulled up, we pulled up together just past your car. I am submitting that you got the reading on the other guy. He actually told me later he was the one doing the speed?"

I observe that the last proposition about what the other motorcyclist purportedly told Mr Smith was inadmissible hearsay.

The respondent replied to that question:  "Well, for one thing, I would disagree with you that he was right up your backside, as you said. He was definitely further - a little bit further back than that, and I have no doubt that he was travelling at probably the same speed as your's. Now, you were part of a 100 motorcycles, and you were well ahead of the rest of the group."

The next question and answer was:  "There were other ones in front of us as well. That's what he was trying to catch up to?--Well, I didn't see them. And he may well have been travelling at a very high speed as well, but your vehicle was the only one that came over the crest of that hill initially, and that was the one that I locked on as it came over the crest of the hill. The other one was still in the dip."

I have quoted part of this answer previously in summarising aspects of the respondent's evidence that he had locked his mobile radar detection device onto the appellant's vehicle as it came over the dip.

The respondent said the device does not give a photo with a date stamp or tell him the number plate of the vehicle which is the subject of the reading.

The appellant specifically put to the respondent that he wasn't doing that speed, and he believed it was being done by the motorcycle behind him. The respondent responded:  "Definitely not, the vehicle that I locked onto that radar device was definitely your vehicle, and the other one was not in my vision whatsoever, and therefore it's not in the vision of the radar device either."

It was also put to the respondent that Mr Smith commented to him that a lot of motorbikes were going past at the time, and he said to the respondent there was no way in the world he was doing that speed. The respondent replied that he did not recall this being said to him.

Finally, Mr Smith said:  "I don't recall saying it was a beautiful piece of road either, so‑‑‑‑‑?‑‑Well you did, you definitely said that to me."

At the conclusion of the prosecution case, the appellant unsuccessfully made a no case to answer submission on the basis there was no connecting evidence to show the speed reading came from his motorcycle. In rejecting this submission, the Acting Magistrate said there was the evidence from the respondent that the appellant's vehicle was the only one in sight.

The Appellant's Evidence

The appellant said he was on a charity ride for a motorcycle club coming over Cunningham's Gap. As they were riding along, he pulled over, because he saw the flashing lights. He said he wasn't worried by this because he didn't think he was actually speeding.

His evidence was that there was another bike right behind him and which would have run into his back if he had braked really hard. His evidence was that the respondent walked up to him and asked:  "How fast do you think you were going?" to which he replied:  "I'm not sure, I wasn't looking at the speedo at the time."

According to him, the respondent asked whether he would like to have a look. He took this opportunity, and told the respondent:  "There's no way in the world he was going that fast."  He said:  "I wouldn't have even been doing 120."

He was issued with the ticket. He observed that the respondent never spoke to the second rider. That is consistent with the respondent's evidence.

The appellant then rode off on his motorcycle. He said that when he pulled in for fuel, the rider of the second motorcycle, who had also pulled over, came up to him and asked what he had been booked for. His evidence was that when he told the other rider that he had just been booked for doing 175 kilometres per hour, he received the response:  "No, that was me. I was probably going faster than that."  He said he was trying to catch up with his friends who were way out in front of him.

As I have already observed, this evidence was inadmissible hearsay. However, it was not objected to.

The respondent concluded his evidence by saying he honestly didn't believe he was doing the speed he was accused of.

In cross-examination he agreed he never told the police officer that it was the other rider behind him that was doing this speed, because as he put it:  "This is not what you do with a bunch of bikers."  He said:  "It wouldn't be worth it."  This was the only day that he had met the other rider.

As the cross-examination continued, he said he was sitting at 100 kilometres per hour coming down off the hill. He said that that is what he thought his speed would have been. He said he couldn't hit the brakes hard to stop because the other bike was going to run up the back of him. He said, "It's just a beautiful piece of road."  doesn't sound like something he would say. He said he was an experienced bike rider with thirty-one years experience. He agreed that his bike, which was a 2008 Duccati 998 cc could easily do 175 kilometres per hour, and could probably exceed 200 kilometres per hour. He said that the brakes were very good, and were much better than the new Harley brakes.

His evidence was he was dubious about braking at 175 kilometres per hour because he had never tried it. He couldn't see himself braking down within 250 metres. He denied decelerating over that distance especially with this other motorcycle sitting behind him. Despite this, he said, the other motorcycle managed to stop behind him.

At the conclusion of the cross-examination he was given the opportunity by the Acting Magistrate to clarify anything. He took this opportunity by saying:  "What's become unclear is this. I don't know, I'm being told that there wasn't a motorbike there, but I know there was. I mean I - I would've - I could've pulled up a lot harder but I - I couldn't because he was there. I just - I don't get that. I don't know why he's saying it, just that there's big signs on the road, there's dips in the road, you lose sight of the motorbike completely in the dip, who was first in the dip, who was first out."

The appellant's address

The appellant's address to the Magistrate was that he wasn't doing the speed he was accused of. He did not think he would have been doing 120 kilometres at the time. He thought it was just the guy behind him. As he put it:  "I don't even know that for a fact because of just all this evidence now. You

can see clearly on the road. The road's not a real good spot to be booking someone for 175."

Acting Magistrate's decision

One matter of interest which emerged from this was in the course of his submissions Mr Smith referred to the other person who was pulled over being on a Harley. In my view the Magistrate was entitled to consider this as an admission of fact. The Acting Magistrate correctly commenced with the proposition that the prosecution must prove each and every element of the offence beyond reasonable doubt. He noted the unchallenged certificates were evidence of the matters they specify.

His Honour summarised the respondent's evidence. In relation to the consequences of the presence of the other motorcycle he observed that though the respondent thought the appellant was riding in tandem with someone else when the appellant came up out of the dip he was the only rider in vision at that point. His Honour said:  "The police officer accepted that there was another rider following on behind but that rider was not in vision at that point and therefore was not in the beam of the radar at that point, but that both of these vehicles, when he indicated his lights and did the U-turn, had pulled over together."

He then correctly summarised the appellant's evidence and in particular that he was travelling at 100 kilometres per hour and it was the following motorcycle which was travelling at the greater speed. As the Acting Magistrate said:  "That's the conflict that the Court has to determine."  It is also the conflict that I must determine on this appeal.

He referred to the experience of the respondent in traffic duties when describing how the mobile speed detection device operated. He referred to the respondent's evidence that when he activated it the only vehicle in view was the appellant's motorcycle. He also referred to his evidence that if there were two vehicles in view travelling at different speeds he would not have achieved a clear consistent tone from the device.

Having said this, he described the evidence as follows:  "So there is the evidence of the police officer that there was only one vehicle in his vision. There's the evidence of hearing the Doppler tone of it giving a clear consistent tone, which is only consistent with one vehicle travelling at that speed, or two vehicles travelling at the same speed."

He referred to the conversation the respondent said he had with the appellant and said that this was inconsistent with a person not travelling at 175 kilometres an hour, but only travelling at 100 because in his view one would think that a person apprehended for speeding in these circumstances would strongly protest his innocence.

He clearly articulated that the appellant's version was that he was doing 100 kilometres per hour and the other vehicle was doing 175 kilometres an hour. However, he considered that there were difficulties with the appellant's case. He referred to the appellant's evidence that he only braked gently because he was concerned the other rider would run up the back of him. His Honour said given the differential speed between them it was hard to see that the other rider had not flown past him, and yet they both pulled up together on his version.

His Honour observed:  "That's not consistent with the version he would have the Court accept."  He referred to the appellant's version of his conversation with the respondent and said:  "There's really no reason to disbelieve the police officer as to the conversation he has noted on that day."  He referred to the evidence that his brakes were quite good and better than those of a Harley motorcycle which he says was travelling behind him.

Having reviewed the evidence the Acting Magistrate accepted the evidence of the respondent that there was only one vehicle in his vision at the time he activated the device, and this observation was consistent with there being a clear tone. He stated this was the only version of events consistent with there being a clear consistent tone, whereas the appellant's version of events would not be consistent with this.

His Honour said he was comforted in this finding by the lack of any strenuous complaint by the appellant to the respondent at the roadside. He accepted the appellant in fact responded  to the question, "Why were you travelling so fast?" by saying, "It's just a beautiful piece of road."  For these reasons he found the appellant was speeding on this day at 175kilometres per hour in a 100 kilometre per zone.

I have set out the Acting Magistrate's findings in detail to demonstrate that faced with having to make a decision in a case of "word against word", and clearly appreciating the onus lay on the prosecution to prove its case beyond reasonable doubt, he accepted the version of the respondent, who was the prosecution's only witness, beyond reasonable doubt despite the appellant's sworn evidence.

Having had the advantage to see both witnesses give evidence he clearly accepted the respondent's evidence as true and accurate to that standard, despite the appellant's sworn evidence.

Appellant's submissions

In the written submissions the appellant relies on before me, he describes the respondent's statement as ambiguous sand uncorroborated. He based much of his submissions on what was in the respondent's actual statement prepared for the proceedings.

As I explained during argument, he can only refer to the statement for the purposes of this appeal to the extent that parts of it were in evidence. This was something which he did not previously appreciate. In this case the Acting Magistrate clearly and carefully explained to the appellant as an unrepresented litigant, his rights and obligations in presenting his case. Not surprisingly he did not go into the details of the rules of evidence beyond those that are encapsulated in the rule in Browne v. Dunn.

I accept if the appellant had understood that the statement was not in evidence, he may have asked more questions about it particularly as to the inconsistencies which he has alleged in his submissions to me. This may have resulted in some parts of the statement being introduced into evidence. However, the proceedings did not operate unfairly to the appellant. The Acting Magistrate could not have been expected to have done more in ensuring that the appellant understood how the proceedings would be conducted and what his rights and obligations were in the proceedings. As such, I proceed to determine this case on the facts established by the evidence before the Acting Magistrate. I will assume that this is what the appellant's submissions about ambiguity and lack of corroboration relate to.

In relation to this, he says that the respondent's evidence is ambiguous in relation to "vehicles" and "motorcycles". He submits that in the first part of the respondent's statement he identifies the vehicle disappearing into the dip as a motorcycle but identifies the vehicle coming out of the dip towards him as a "vehicle" and not a "motorcycle". He argues that this should have been interpreted as there being confusion from the witness about what vehicles were coming at him as he apparently was able to identify a vehicle going into the road dip as a motorcycle but when a much closer motorcycle comes out of the dip towards him, he is only able to identify it as "vehicle" and not a motorcycle. However he conceded during argument that this was based on a reference to the respondent's statement.

During argument I observed that at that stage I could find no evidence on the record where the respondent had used these words interchangeably in his evidence. However, on further perusal, I have identified three instances where this occurred. The respondent said: "I know there was a vehicle coming over the crest of the hill at very high speed and you came first."  He also said: "Your vehicle was the only one that came over the crest."  Further he said: "The vehicle I locked onto the radar device was definitely your vehicle."  That demonstrates that the respondent was at times describing the appellant's motorcycle as a vehicle.

However, this is not an ambiguity because under section 15 of the Regulation "vehicle" is defined as a "motor vehicle". In schedule 4 of the Act "motor vehicle" is defined to mean "a vehicle other than a motorised scooter propelled by a motor that forms part of the vehicle..."  To emphasise that this includes a "motorbike" that term is defined as a "two-wheeled motor vehicle."  Consistent with this the charge is that the appellant was the driver of a motor vehicle, namely a Ducati Motor Cycle. Accordingly, there was nothing ambiguous in the use of the word "vehicle" during the respondent's evidence in describing a motor cycle and in particular the appellant's motor cycle.

The appellant also relies on the fact that "no identification was given" of the vehicle. As he has put it in his written argument, "no identification was given or possible by the witness in regard to him being able to keep the offending vehicle in view from the time of reading to the time of intercept nor did he state the colour or possible make of the - the bike."  He submits that the respondent relied heavily on his uncorroborated statement. He submits the fact is that there was no video taken of the incident, there was no photograph taken of his vehicle with a speed-reading attached and there were no identifying characteristics given such as size, shape, colour, registration or anything else on the identity of the vehicle doing the alleged speed. He submitted that the respondent's statement of showing him a speed registered on the radar and then saying, "as you can see I registered your speed as you came over the hill as 175", was allegatory and there was no confirmation of the identify of offending vehicle accompanying that reading.

He submits the Acting Magistrate ignored critical evidence presented by him that his motorcycle was not the only vehicle coming towards the respondent at the time. He supports this by saying, "many vehicles were coming towards the police vehicle" and his vehicle was passed by a motor cycle whilst hidden in the dip in the road as the respondent approached.

I note that the appellant himself used the word, "vehicle" to describe his own motor cycle during the course of the submissions. This emphasises my previous point that there is no ambiguity in the use of the term to describe a motor cycle.

However, turning to the substantive point, while the respondent appears to accept that the appellant was part of 100 motor cycles, his evidence was that they were behind the appellant. As he put it, the appellant was, "well ahead of the rest of the group". Further the appellant's evidence always was that the other motor cycle, which he alleged was travelling at 175 kilometres per hour, was behind him. When I put this to him during argument he accepted his statement in the outline to the contrary was an error. I do not consider this further.

The outline of submissions goes on to refer to his meeting with the other motor cyclist who was wearing colours at the rest stop. He refers to this person physically threatening him if he "dobbed" the person in. He therefore submits that the fear that he had in dobbing this person in must be taken into account. However while the appellant's evidence in cross-examination that he did not tell the respondent that it was the other rider who was responsible for the reading was not what you do with a bunch of bikers was relevant for consideration in assessing the credibility of his account, the alleged conversation with the motor cyclist was inadmissible hearsay. The relevance of it is diminished in any event given that despite this alleged warning the appellant has now dobbed that person in. The conversation is irrelevant to the issues to be considered on this appeal. I proceed on the admissible evidence which does not include any evidence from the appellant in the transcript of being physically threatened as opposed to having a fear of being hurt if he dobbed in any member of a biker group.

He submits that doubt exists in relation to which motor cycle was speeding. He emphasises that the respondent's statement alludes to several motor cycles being present and pulled over by the time he pulled to the left to perform a U-turn. He argues this would lead to conflict with the officer's statement. As he states he was travelling at 98 kilometres per hour on cruise control and claims he had only the appellant's vehicle on his radar. He asserts this confusion is further related in the respondent's statement when he says that both these motor cycles pulled up relatively at the same time.

He submits there is no distance estimate by the officer indicating that he had vision of one motor cycle from a certain time disappearing into a dip in the road and at the same time saw another vehicle coming over the crest of the road ahead of him at a very high speed.

He submits that the respondent's statement, that the radar unit emitted a clear high pitched Doppler tone indicating to him that the radar was recording the speed of a single moving object travelling at high speed does not indicate which vehicle was being monitored or speed recorded. He submits that the Decatur Genesis will sense a vehicle speed well before the operator has done his correct checks such as correlating patrol and speedo, etc and the officer has admitted that the first vehicle he saw was a motor cycle going downwards towards a dip in the road.

The appellant says that the respondent states that, "as such I activated the radar". He contends that for the officer to do this he would have to have taken his eyes off the road and correctly hit the button starting the speed recording process;  that the respondent then states that about two second's later, a vehicle came over the crest of the dip towards him; and that the respondent then states that as the motor cycle came over the crest, he saw the figures 175 appear in the target window, remembering that the first vehicle he saw was referred to immediately as a motor cycle, but the second vehicle, a vehicle much closer to him, was only referred to as a "vehicle" on two occasions until it suddenly became a "motor bike".

I have already addressed this last issue. However, when I questioned the appellant about the balance of this submission he responded it was based on information which he obtained from the manual about these devices. This was not in evidence before the Magistrate. Accordingly I do not take it into account on this appeal.

However, in oral submissions, he sought to support his arguments relevant to the issue of identification of his motor cycle by the respondent on the basis of the quality of the respondent's eyesight as demonstrated before the Acting Magistrate. This is a reference to the need for him to take his glasses off to read in Court. The appellant submits that the respondent would have needed to do this to read the figures shown on the device and this would have required him to take his eyes off the road to do so. This relates to the fact that as appears from the transcript, at the beginning of the respondent's evidence he explained he needed glasses for distance otherwise things became blurry. This was in a context which suggested these were transitional glasses. The point of raising the matter in Court was that the respondent only had sunglasses available to him and wished to be able to wear them while he was giving evidence.

However it does not follow that because he had to take his glasses off to read documents in Court that he was required to do so in order to see the readings on the device as to the vehicle's speeds. In any event, while there is nothing in the record that makes it clear that he was taking his glasses off to read, accepting what Mr Smith has said about this, the Acting Magistrate was also in a position to observe this and to take it into account when considering the truth and reliability of the evidence of the respondent about locking the radar device on to the motor cycle that came over the crest of the hill initially and watching this motor cycle come towards him, with the other motor cycle behind so that he saw where they pulled up in his rear vision mirror with the result he could distinguish between the motor cycle he locked onto and the other bike, with the appellant being the driver of the motor cycle he locked onto.

In relation to the issue of keeping the appellant's motor cycle under observation from the point the respondent locked onto it until it pulled up, the appellant submits that the officer states he waited until the appellant's vehicle was near him and then indicated for him to pull over, but by the time he had himself pulled over and executed a U-turn there were two motor cycles sitting there indicating the second bike had been doing a very high speed. He submitted that whilst the respondent stated he kept the target vehicle in view until he executed a U-turn this was not possible. He states there were obviously multiple bikes coming at him and he had already stated another bike pulled over at the same time as the appellant indicating it would have been the speeder and not the appellant. He contends the critical factor is that the respondent would not have been able to keep the offending vehicle in his eyesight to safely pull his own vehicle over to the side of the road and safely execute a U-turn ensuring that no traffic was impeded as he conducted that U-turn.

When I asked Mr Smith about where I would find evidence of multiple motor cycles coming towards him, he said I would find this in the respondent's statement. As I have said, this is not evidence. However, I will consider his general proposition that the respondent would not have been able to keep the offending vehicle in his eyesight while conducting a U-turn in considering this appeal.

The appellant returned to the point about there being no evidence as to distinctive points of identification of what he conveniently described as the offending motor cycle by submitting that at no time did the respondent identify the offending vehicle by colour, make or size. And he argues that is critical. He also observes in his submissions that two motor cycles had already gone past him and he did not refer to the appellant's vehicle in any correct identifying way by stating it was a particular colour or make. Again he told me that the reference to the two motor cycles already having gone past the respondent, was a reference to the respondent's statement. Because it is not in evidence, I cannot consider this.

However, I do have regard to the general issue that Mr Smith raises about identification. He submits there was confusion and the respondent as a lone police officer chose to book him rather than a person who was obviously an Outlaw Motorcycle gang member.

He put particular emphasis on the lack of corroboration of the respondent's evidence. He also argued that the mobile radar device did not give evidence of when, where or from what the alleged reading was taken.

In relation to the Acting Magistrate's reference to the evidence of the appellant that the other motorcycle pulling up together with his motorcycle, in circumstances where his Honour would have thought the other rider was proceeding at approximately 75 kilometres per hour faster would have flown past, he argued that this did not follow. He said this was explained by his not breaking hard because if he did so the other motorcycle would have collided with his rear, whereas the speed of the other motorcycle was such that it had to break hard.

Discussion:

As I have stated, this appeal is resolved by my drawing my own inferences from the facts established by the evidence while respecting the advantage of the Acting Magistrate and seeing and evaluating the witnesses. Using this advantage, the Acting Magistrate, who properly understood that the prosecution bore the onus of proof on each element of the charge, clearly preferred the respondent's evidence to the evidence of Mr Smith and accepted the truth and the reliability of the respondent's evidence to this standard.

Having closely examined the record and the Acting Magistrate's reasons for judgment I can find no suggestion that he misused that advantage such that I should come to any different view. This is not one of those cases which allows an appellate Court to reverse a finding at first instance based on an assessment of credibility and reliability.

I agree with Ms Christaldi's submission that it was not necessary for the respondent's evidence to be corroborated by some independent evidence before the Magistrate could rely on it or, for that matter, before I can rely upon it in considering this matter afresh on a re-hearing. This is in accordance with section 632(1) of the Criminal Code 1899 (Queensland) which states:

"A person may be convicted of an offence on the uncorroborated testimony of one witness." 

A reference to an offence by virtue of section 2 of the Code is to an act or omission which renders the person doing the act or making the omission liable to punishment. Under section 3 of the Code this includes simple offences. Therefore section 632(1) is applicable to the simple offence with which the appellant has been charged. This is not a case in which it would be dangerous, in my view, to convict without corroboration.

Therefore I proceed to determine this appeal on the basis and the facts established by the respondent's evidence. However, in doing so it remains for me to draw my own inferences from those facts.

In considering what inferences may be reasonably and logically drawn from the facts the relevant issues raised by the appellant, which remain for my consideration after my earlier analysis of them are:

• · The issues he raises in relation to identification
• · The issues in conjunction with his argument that it was not possible to keep the offending motorcycle under observation at all times, for example, when the respondent was completing the u‑turn and his need to take his eyes off the road in order to accurately read the device.

On the issue of identification I understand the appellant's argument that the respondent has purported to identify the offending motorcycle without reference to identifying characteristics such as size, shape, colour and registration. I also understand that the reading of the speed of the offending motorcycle from the device is not confirmatory of the identity of the vehicle.

However, proceeding on the basis of the evidence of the respondent, his evidence is really that of a continued observation of the offending motorcycle rather than of identification in the strict sense of that term. The starting point is that whether the original flash or blur which caught the respondent's attention and made him prepare to use the device was the motorcycle ridden by Mr Smith or not, he locked that device onto the first motorcycle that came over the crest of a hill.

On the basis of his evidence about the consistency of the tone emitted from the device this supports his evidence that he only locked the beam of the device onto this motorcycle and not two motorcycles proceeding at significantly varying speeds.

Therefore I accept it was the motorcycle that came over the crest first which was, as the appellant describes it, the "offending motorcycle" which was travelling at 175 kilometres per hour.

For completeness, on the basis of the respondent's evidence, as I have said, I accept for this purpose that the other motorcycle was not in the vision of the radar device. It was at this point the respondent activated the lights of the police vehicle and saw the other motorcycle come up over the dip behind him. He then saw both motorcycles commence to pull over. Importantly, he said he watched both of the motorcycles in his rear vision mirror so he knew where the offending motorcycle was parked in relation to the other motorcycle.

As he put it, "I knew where Mr Smith had parked his motorcycle which was in front of the one that was travelling behind him."  It was only then he did his u-turn. Therefore the u-turn did not cause him to take his eyes off the road at the crucial time of differentiating the offending motorcycle from the other motorcycle. His evidence is to the effect that at no time did he take his vision away from the offending motorcycle from the time he locked in its speed to the time that he commenced that u-turn. In fact, as he said in evidence, it was only after this motorcycle came over the crest and he locked his speed in that he activated the lights and saw the other motorcycle come over the dip.

On his evidence the motorcycle he approached after completing the u-turn was the offending motorcycle based on the position where he had seen it parked in relation to the other motorcycle. There was reason for him to be able to differentiate one motorcycle from the other because even though he did not mention it the appellant's motorcycle was a Ducati and the other was a Harley.

However, even without that fact there was a continuum of observation of the offending motorcycle from the time he locked the device onto it until it came to rest on the side of the road, and it was this motorcycle that he approached. That was the motorcycle ridden by the appellant Mr Smith.

This observation is further supported on the basis of the respondent's evidence of the conversation with the appellant which the acting Magistrate accepted, and which I also accept for the reasons I have given. Accepting this conversation occurred rather than there being any strong protest that the appellant was not doing the speed or a suggestion that it was done by the other motorcyclist, the appellant did not respond when he was first shown the recording registering him at 175kilometres per hour. The statement, when asked "Can you give me any reasons as to why you were travelling so fast today" was not a protest but an observation, "It's just a beautiful piece of road". This is an implied acceptance of a proposition that he was travelling as fast as alleged by the respondent. Even if Mr Smith was frightened to dob in the other motorcyclist as the person responsible for the speed, such a protest would be expected if he was only travelling 100 kilometres per hour.

The only statement he made to the effect he was not travelling at 175 kilometres per hour was to say he thought he was doing 120 kilometres per hour. However, this was still not a statement he was only travelling at 120 kilometres per hour which is his current evidence. Even on his own evidence he never claimed to the respondent that he was only travelling at 100 kilometres per hour. When first asked how fast he was going, his response was "I'm not sure I wasn't looking at the speedo at the time" and "I wouldn't have been doing 120 kilometres per hour". He also made this observation as late as the time of his final address to the Magistrate.

It is for these reasons I consider the evidence about the conversation between the respondent and the appellant supports the continuity of the respondent's observations that the appellant was the rider of the offending motor vehicle.

Although I have approached this as a case of continued observation the result would be the same if I approached this decision by applying the well established principles concerning identification evidence in the strict sense. Adopting the principle of the High Court in Domican [1992] 173 CLR 555, I am conscious of a special need for caution when convicting in reliance on the correctness of an identification. The reason for this is, it is quite possible for an honest witness to make a mistake in identification. Notorious miscarriages of justice have sometimes occurred in such circumstances. A mistaken witness may, nevertheless, be convincing. Even a number of apparently convincing witnesses may all be mistaken.

I accept that in general the powers of observation and recollection of observation are fallible and the risk of mistake is especially great with fleeting encounters.

Therefore, I have examined carefully the circumstances in which the identification was made. As I have said, it is a case based on a continuum of observation of the offending motorcycle over a short period of time and a relatively short distance as it came towards the respondent until he saw it pull to the side of the roadway in his rear vision mirror.

In this case the short period of observation leaves less room for confusion between the offending motorcycle and another motorcycle. Unlike the case of visual identification of a person, the short period of observation in the circumstances of this case makes it less likely a mistake will occur.

There is no suggestion by the appellant that the light at 11.08 a.m. was not adequate to allow the observations to be relied on. The evidence of the respondent is that his observations were not impeded in anyway including by taking his eyes of the offending motorcycle from the time he locked his device onto it.

It is not a case where it is relevant to consider whether the respondent had any special reason for remembering the appellant. It is not a case where any material discrepancy arises in the respondent's observations or description.

I am entitled to consider the evidence of the respondent's identification or observation of the offending motorcycle with other evidence in the case which supports it. As I have said it is supported by the respondent's evidence of the conversation which he says occurred between he and the appellant subsequently.

I am cautious about concluding that the observations made by the respondent of the offending motorcycle were made of the appellant's motorcycle; and I have been scrupulous to be satisfied that the respondent's evidence about this is not only honest but accurate. For the reasons I have given there is no reason for me to depart from the acting Magistrate's conclusion on this issue in this case, he having had the advantage of observing both witnesses give evidence.

I am aware of the specific weaknesses which have been relied on by the appellant with the respondent's evidence linking the appellant's motorcycle with the offending motorcycle. I have already stated what these weaknesses are. However, having considered these matters for the reasons I have given, I am satisfied beyond reasonable doubt of the accuracy and reliability of the respondent's observations identifying the offending motorcycle with the appellant's motorcycle.

For these reasons I am satisfied beyond reasonable doubt on the facts established by the evidence that at the material time the offending motorcycle which was travelling at 175 kilometres per hour on the Cunningham Highway, Maryvale was the motorcycle which was being driven by the appellant and therefore he is guilty of the offence of which he was convicted by the acting Magistrate.

CONCLUSION:

Accordingly, the appeal against the conviction for the charge of disobeying the speed limit in contravention of s 20 the Regulation is dismissed and pursuant to s 225(1) of the Justice Act, the order of the acting Magistrate convicting the appellant is confirmed. That is the order of the Court.

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HIS HONOUR:  I make no order as to costs. That is my decision.

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