DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was charged that on 22 December 2009 at Maryvale in the District of Warwick he was driving a motor vehicle on the Cunningham Highway at a speed over the speed limit which was 100 kilometres per hour.  It was alleged against him that he was travelling at a speed of 117 kilometres per hour on the road.  He was detected by a radar device fitted to a police motor vehicle.

2. [2]
   The matter came on for hearing before the learned magistrate at Warwick on 17 June 2010.  The appellant pleaded not guilty to the charge and represented himself.

3. [3]
   After the hearing before the learned magistrate the appellant was found guilty. The appellant appeals against the decision of the learned magistrate on the ground that the magistrate had not read the brief of evidence prior to the hearing and made a number of errors on several matters, showing prejudice towards the appellant.

4. [4]
   Initially the appellant relied upon a three page outline of argument in support of the appeal. Later the appellant produced a 24 page outline of argument expanding on the first outline of argument and the grounds of appeal stated in the Notice of Appeal.

5. [5]
   Despite the extent and complexity of the appellant’ arguments, two grounds of appeal are viable in this case. They are:

3. (1)
   that the learned magistrate erred in admitting into evidence the roadside conversation between the appellant and the police officer operating the radar device;

3. (2)
   the prosecution failed to tender a certificate showing the police officer who operated the radar device was authorized to operate the radar device;

6. [6]
   The prosecution case relied upon five certificates tendered by the prosecutor and the oral evidence of the police officer who operated the radar device.

7. [7]
   The relevant “certificate” for the purpose of this appeal is Exhibit 5 which states that the police officer who operated the radar device attended the speed detection operators’ course held at Warwick on 2 and 3 June 2006 and received 16 hours total instruction from the manufacturer/s agent in Queensland Police Station Facilitators’ in the use of the following speed detection device/s: “Decatur Genesis II Select Mobile Radar Conversion Course QCO 410”. It is signed by Inspector G Morrow 19 September 2006.

8. [8]
   The appellant questioned the police officer about this “certificate” and put it did not state he was an authorised operator. Further, he put it did not state he had successfully completed the training.

9. [9]
   The police officer said this was the certificate issued when you have successfully completed the training course. The police officer earlier said he was authorised to operate the Decatur Genesis and had been for a number of years.

10. [10]
    In the appellant’s most recent Outline of Argument he refers to s 6.3.5 and 6.9.2 of the “Queensland Police Regulations”.  These sections relied upon by the appellant appear   to come from the Traffic Manual of the Queensland Police Service.  These sections are directions from the Commissioner to police officers the Commissioner considers necessary or convenient for the efficient and proper functioning of the police service pursuant to s 4.9 of the Police Service Administration Act 1990. 

11. [11]
    These sections provide as follows:-

“6.3.5‘Authorised operator’

The term ‘authorised operator’ in respect of a particular type of speed detection device means an officer who:

1. (i)
   has successfully completed a Service operator’s course in the use of the particular type of speed detection device;

2. (ii)
   holds a current authorisation to operate the particular type of speed detection device;

3. (iii)
   has operated the relevant type of speed detection device in the last twelve months; and

4. (iv)
   where required, has undertaken and maintained authorisation by successfully completing a competency reassessment course in the use of the particular device.”

And:

“6.9.2Authorisation, re-authorisation and competency reassessment of speed detection device operators

POLICY

The Officer in Charge of the district or region in which the officer is stationed is to ensure that officers who successfully undertake courses in the operation of speed detection devices are issued with appropriate authorisation.

The authorisation of authorised speed detection device instructors and operators lapses if an authorised instructor or operator;

1. (i)
   has not used the relevant speed detection device within a 12 month period; or
2. (ii)
   has not successfully completed the relevant reassessment course in ADVANCE in the preceding 36 months.

Authorised instructors should use either a competency reassessment course or full course in the relevant speed detection device to determine re-authorisation of an operator in the relevant speed detection device (see also s.6.9.4.  Issue of speed detection device operator’s authorisation of the chapter).  In the event that an instructor is not reasonably available, an experienced and currently authorised operator together with a workplace assessor may undertake the reassessment course.

The method of retraining and re-authorisation of authorised operators is to be undertaken by the operator undertaking the relevant re-assessment course outlined on ADVANCE as either:

1. (i)
   Reassessment LIDAR Operators (QCO346);
2. (ii)
   Reassessment Mobile Radar Operators (QCO347) or separately Kustom KR10 (QCO417) or Decatur Genesis (QC0665); or
3. (iii)
   Reassessment Speed Camera Operators (QCO355).”

12. [12]
    The appellant submits that as the certificate Exhibit 5 related to a course on 2 and 3 June 2006 that was almost 43 months prior to the relevant date. Therefore the police officer was not authorized to operate the radar device on 22 December 2009.

13. [13]
    Apart from the documentary exhibits and the oral evidence of the police officer the learned magistrate also received into evidence a recording of the roadside conversation between the appellant and the police officer. The learned magistrate also had a transcript provided.

14. [14]
    When cross-examined the police officer accepted he did not tell the appellant that he was being recorded.

15. [15]
    During the conversation the following took place:

“Yeah I’m Senior Constable Dominic Cremasco from Warwick Traffic Branch,               mate the reason I stopped you coming from the top of the hill there,

Yeah

I checked your speed at 117 in a 100 zone

Was it that high, was it?

Yeah, what speed did you think you were doing?

Over 100 but I didn’t think – I didn’t think I was doing, I thought I was under 110 –

Yeah no 117

Yeah.”

16. [16]
    Other parts of the conversations were as follows:

“No, if he is doing 105, what’s the reason for you to have to pass him then – if the maximum speed limit is 100

Yeah, I know what you’re saying –

…

OK, other than just going past that truck, is there no other reason for being exceeding the speed limit

Oh, no”.

17. [17]
    The appellant argues in the circumstances it was unfair to admit these conversations into evidence against him. The learned magistrate proceeded on the basis that it was perfectly legal to tape the conversation.

18. [18]
    The oral evidence given by the police officer was that he was travelling eastbound on the Cunningham Highway.  He was approaching a crest on the overtaking lanes in front of him and he observed a silver Mercedes sedan travelling towards him in a westbound direction.  He formed an opinion at the time that the Mercedes was travelling in excess of 100 kilometres per hour limit.  He then activated the Decatur Mobile Radar.  It then displayed a target speed of 117 kilometres per hour.  He also saw that there was a patrol speed on the radar showing 93 kilometres an hour and he checked that with the speedometer of the police vehicle and it showed the same speed, 93.  He then tracked the Mercedes speed for a number of seconds before he locked that speed of 117 on to the radar.  He activated his emergency lights.  At the time there were no other vehicles travelling towards him that were in sight or in the radar beam at the time.  When he activated the lights and prepared to form a U-turn as the Mercedes travelled by, he saw the appellant was slowing.  He then observed a semi trailer also crest the hill on the overtaking lanes coming towards them.  He then intercepted the Mercedes a short distance away from that location and he had a conversation with the appellant.  Prior to speaking to the appellant he activated a digital voice recorder and recorded the conversation. 

19. [19]
    Early in the proceedings the appellant asked the magistrate for assistance regarding when he could make a no case to answer submission. He ultimately made the submission. The submission was rejected by the learned magistrate and the learned magistrate asked if the appellant wished to give evidence. He did not accept the invitation to give evidence but rather wanted to make a statement which he did. The learned magistrate then after hearing further from the defendant gave her decision.

20. [20]
    In the course of her decision the learned magistrate accepted Exhibit 5 and said she had no alternative but to accept the police officer was properly authorized by his attendance at the course which was supported by that certificate to say that he is properly in the position to operate the device as he did.

21. [21]
    The learned magistrate did not have the benefit of s 6.3.5 or s. 6.9.2 on the hearing nor submissions upon those sections in light of the evidence.

22. [22]
    The magistrate also rejected the appellant’s argument that the reading on the radar detection device had not linked to his vehicle. She also rejected his claim he did not know he was being recorded. She also rejected the claim by the appellant that the police officer should not be accepted because he gave inconsistent evidence about the location of where the offence took place. Then the learned magistrate returned to the tape and said that not once but three times the appellant acknowledged he was doing over 100 kilometres per hour which on his evidence then or on his speaking voice is in breach of the charge. The learned magistrate took the view that it was sufficient that the speed limit had been exceeded. It did not matter by how much. The appellant again sought to submit to the learned magistrate that he had been charged with doing 117 kilometres per hour but the learned magistrate again reiterated that as a bottom line it really did not matter.

23. [23]
    Regarding the admissibility of the roadside conversation s 130 of the Evidence Act provides that nothing in the Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.  In R v Swaffield (1998) 192 CLR 159 at 189 Toohey, Gaudron and Gummow JJ said:

“The term ‘is unfair’ necessarily lacks precision; it involves an evaluation of circumstances.  But one thing is clear: ‘the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him … unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardized if a statement is obtained in circumstances which affect the reliability of the statement’.  Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted.  While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone.”

24. [24]
    When the appellant appeared before me on the hearing of the appeal he said he would not have made the statements he made to the police officer had he known it would be recorded and used against him at a trial. He said he would have been more careful as to what he said.

25. [25]
    Even so it became a matter for the learned magistrate to exercise her discretion whether to admit the roadside conversation into evidence against the appellant.

26. [26]
    I do not consider the appellant had to be warned that he was being recorded and that what he said may be used in evidence against him. I do not consider he was at any disadvantage in his dealings with the police officer at the roadside. He was fully aware that he was being asked about exceeding the speed limit and what was being discussed with the police officer was that issue.

27. [27]
    Once admitted the road side conversation could amount to admissions the appellant was exceeding the speed limit. I also consider it was not necessary for the prosecution to prove the appellant’s speed was 117 kilometres per hour. Proof he exceeded the speed limit was sufficient. See Hill v Lette (2010) QDC 136.

28. [28]
    Therefore, that ground of appeal does not succeed.

29. [29]
    That brings me to the ground of appeal relating to the inadequacy of the Certificate of Authorization.

30. [30]
    I agree with the appellant that Exhibit 5 is inadequate. It merely says the police officer attended the course. It does not say he successfully completed the course nor that he is authorized to operate the radar device. In any event it appears to be out of date in accordance with the Traffic Manual.

31. [31]
    Therefore, despite the police officer saying he was authorised the learned magistrate could not have been satisfied beyond reasonable doubt that the police officer was authorized to operate the radar device at the time the appellant was detected.

32. [32]
    Therefore, I allow the appeal and set aside the orders made by the learned magistrate on 17 June 2010. The appellant is found not guilty.