Morrison v Bennett[2010] QDC 488

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was charged that on 29 July 2009 he drove a car at a speed over the speed limit namely 60 kilometres per hour on Sandgate Road, Nundah.  It was alleged he drove the car at 73 kilometres per hour on the road. 

2. [2]
   The appellant pleaded not guilty to the charge before the learned magistrate on 11 March 2010 and after a hearing was found guilty by the learned magistrate.

3. [3]
   The appellant appeals against the learned magistrate’s decision on the grounds the magistrate erred in interpretation of the law and legislation on a number of issues, including evidence provided by police prosecution.

4. [4]
   The case for the prosecution was that the appellant had been detected exceeding the speed limit by a photographic detection device. It was the prosecution’s intention to proceed on the hearing before the learned magistrate by way of tender of exhibits without any oral evidence being called. It can be seen from the transcript that the exhibits included a certified image pursuant to s 120(2) of the Transport Operations (Road Management) Act 1995 (TORUM).  The respondent concedes that the exhibits did not include a certificate pursuant to s 124(1)(pf) of TORUM.  That subsection is as follows:-

5. [5]
   If the appellant wished to challenge the image from a photo detection device at a hearing he had to give the Commissioner written notice of his intention at least seven days before the date fixed for the hearing. (See s 118(4) and (5) TORUM).

6. [6]
   There is no dispute the appellant did not give that notice. He was aware of the requirement and elected not to give notice because his submissions related to other issues.

7. [7]
   That is he admitted the device had taken a photo of his motor vehicle but because there was another motor vehicle in the photograph he submitted to the learned magistrate the prosecution had to fail as there was no evidence that could satisfy the learned magistrate his vehicle was the vehicle recorded as travelling at the excessive speed. This was the point decided in Police v Ardessie Pty Ltd, Southport Magistrates Court, 31 July 2009.

8. [8]
   Once it became clear this was the appellant’s argument the learned magistrate allowed the prosecution to re-open its case so that it could call rebuttal evidence. Sergeant Dixon then gave evidence. In my opinion he explained how the device detected the appellant’s vehicle rather than the other vehicle. In my opinion that was an end to the appellant’s point.

9. [9]
   However, despite that point the appellant told the learned magistrate that the charge should fail because there was no certificate as to calibration/testing of the device within the previous 12 months. For this submission the appellant relied upon The Police v Nocom, also a decision of the Southport  Magistrates Court of 9 April 2009.

10. [10]
    The learned magistrate was of the view that there was either no requirement for a certificate as to calibration for a “photographic detection device” to be tendered or if there was, the deeming provision in s 120(2) covered the issue of calibration testing.

11. [11]
    Section 120(2) of TORUM provides as follows:-

12. [12]
    However, on the hearing of this appeal the respondent concedes that s 120(2)(d) does not cover the issue of calibration or accuracy testing. It is submitted by the respondent that the sub-section relates to the matters in s 210 of the Traffic Regulation 1962.  These matters are the use and testing on the day of deployment, for example, correct positioning, aim of beam and use of test mode.  Therefore it is conceded there was no evidence led at the hearing relating to calibration/testing and the accuracy of any results of such testing of the specified device. 

13. [13]
    The appellant did not give or call evidence at the hearing.

14. [14]
    It is a normal attribute of an appeal by way of re-hearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. (See Muir JA in Teelow v Commissioner of Police [2009] QCA 84 citing Allesch v Maunz [2000] 203 CLR 172 at 180-181). 

15. [15]
    It is convenient to set out the grounds of appeal as they have emerged in the Outline of Submissions of the appellant. These have been conveniently summarized in the respondent’s submissions. They are:

1. There was late disclosure of material;

2. There was unfairness and/or no basis in law for the initial lack of witnesses, the reception by the magistrate of material in certificate form and in allowing the prosecution to re-open its case;

3. The magistrate ignored or failed to give weight to “evidence” produced by the appellant;

4. The magistrate misunderstood or ignored the case authorities presented by the appellant;

5. The magistrate erred in treating the certificate pursuant to s 120(2) as covering the issue of calibration;

6. Without evidence of calibration the charge should be dismissed as there was no evidence that the device was giving accurate readings;

7. The certificate tendered was not an original.

16. [16]
    Regarding the late disclosure of material the transcript reveals the appellant received the brief of evidence the week prior to the hearing and had it reviewed by his legal advisers. Therefore this is no basis to set aside the magistrate’s decision.

17. [17]
    Regarding unfairness regarding the prosecution’s ability to rely on certificates rather than calling witnesses his Honour Judge McGill in Lekich v Dickson (2009) QDC 116 said in circumstances where a legislative regime has been put in place under which documentary evidence can be given of various matters, the prosecution is not acting unfairly by taking advantage of that regime.

18. [18]
    Clearly the magistrate appreciated the point being made about the adjudication of the image rather than a challenge to the image itself. However, in my opinion it was only fair to allow the prosecution to call rebuttal evidence when the prosecution was not made aware by the appellant that the point was going to be taken.

19. [19]
    The appellant cross-examined Sergeant Dixon and although he asked some questions about the area being a down hill area where the device was positioned, the appellant had his opportunities to adduce other evidence.

20. [20]
    In my opinion the learned magistrate did not ignore or misconstrue the cases that were presented.

21. [21]
    In my opinion the error the learned magistrate made was that he ruled there was no need for a certificate regarding calibration/testing.

22. [22]
    In the Nocom case a certificate of calibration/testing was tendered in addition to a certificate of image pursuant to s 120(2).  The learned magistrate in the Nocom case found that the charge had not been proved beyond reasonable doubt due to a number of issues and deficiencies in the case.  These included that there were two vehicles in the photograph and no evidence was called as to the adjudication of the offending vehicle.  Further, both vehicles appeared blue yet the registration certificate for the defendant’s vehicle indicated the defendant’s vehicle was black.  The image did not clearly show the number plate and the enlarged image the magistrate viewed showed MSN 52 whereas the registration number of the defendant’s vehicle was MSN 62.  Finally, the certificate tendered pursuant to s 124(1)(pf) was deficient in that it failed to specify what testing was done and to what standard, and therefore was not properly admitted.

23. [23]
    The respondent concedes the learned magistrate was in error in the present matter in considering that the certified image under s 120(2) covered the issue of calibration/testing. However it is submitted by the respondent the learned magistrate did not err as no legislative provision on the point was brought to his attention at the hearing. What is relied upon by the respondent on the hearing of this appeal is s 120(6) of TORUM. That provides:-

“Evidence of the condition of the photographic detection device is not required unless evidence that the device was not in proper condition has been given”.

However it is accepted by the respondent on the hearing of this appeal that there is an absence of judicial consideration on this provision.  It is submitted that it is a clearly legislative qualification as to the necessity for evidence as to the accuracy of the device.

24. [24]
    Dictionary meanings of the word ‘condition’ suggest it refers to the state or quality of a thing (see Shorter Oxford or Macquarie Dictionary 3^rd Edition).

25. [25]
    In my opinion the reference in s 120(6) to the “condition” of a photographic detection device does not cover calibration/testing of the device. Therefore s 120(6) does not save the prosecution in this case.

26. [26]
    In my opinion the learned magistrate should have dismissed the charge on this ground as the learned magistrate could not have been satisfied beyond reasonable doubt the device being relied upon by the prosecution in this case was producing accurate results at the time the appellant’s motor vehicle was photographed by the photographic detection device. It was accepted by Sergeant Dixon who gave evidence before the learned magistrate that there is a requirement when the operator begins a deployment to ensure the device is in calibration as part of his pre-deployment procedure. However he accepted the certificates do not state that the device had been calibrated within the prescribed 12 months.

27. [27]
    Finally regarding the ground of appeal that the certificate tendered was not an original, section 44 of the Evidence Act allows for a copy of a certificate to be tendered in evidence. 

28. [28]
    In the end I allow the appeal. I set aside the orders made by the learned magistrate on 11 March 2010. I find the appellant not guilty.