DISTRICT COURT OF QUEENSLAND

1. [1]
   On 28 December 2009 a speed camera was operating on Old Northern Road, Everton Park. At about 10 am the appellant drove his motor vehicle past the camera. As a result, on 12 August 2010 he was convicted of exceeding the speed limit contrary to s 20 of the Traffic Operations (Road Use Management – Road Rules) Regulation 1999 and a fine was imposed. He appeals from that conviction, on the ground that the magistrate interpreted the legislation incorrectly.

2. [2]
   In his outline and in oral submissions, the appellant complained about the failure of the respondent to call the camera operator as a witness, and the fact that crucial evidence was not provided in relation to the way in which the camera was operated that day, nor was he allowed to put before the court crucial evidence relevant to that issue. He wished to assert at the trial that the camera had been operated contrary to the manufacturer’s instructions, and contrary to official police guidelines.

The trial

3. [3]
   At the trial the prosecuting sergeant advised that no notice had been given under s 118 or s 124 of the Traffic Operations (Road Use Management) Act 1995 (“the Act”) and indicated that therefore he was going to be relying on certificates, though he would call one witness, from the Traffic Camera Office, to give evidence that it was the appellant’s vehicle that had been detected by the device:  p 3. No adjournment was sought by the appellant for the purpose of giving a notice in the correct form.^[1]There was some discussion then about what the appellant was contesting, and at the foot of p 7 he indicated that what he was contesting was the way in which the detection device was set up on this particular occasion. There was then some discussion about the effect of s 124(4). The appellant seems to have conceded that that involved challenging the way in which the device was used (p 10) and said at p 11 that he was assuming that the officer who was operating the device would have been giving evidence.^[2]

4. [4]
   There was then some consideration of the question of whether the appellant had received with the complaint notice of the requirements of s 124; the upshot seemed to be that the appellant was provided with notice of a number of provisions including s 120(7) and (8), which refer to the requirements of s 120A(4). In the course of some further discussions, it emerged that one of the matters sought to be raised by the appellant was the question of whether it was his vehicle rather than some other vehicle the speed of which had been detected by the detection device. The magistrate seemed to consider that that question involved a challenge to the accuracy of the detection device, on the basis that the device did not just detect a speed, it also detected the object that was producing the speed:  p 14.

5. [5]
   With respect, I do not agree: the detection device triggers the camera which produces the photograph, and all that happens is that, when the detection device detects a speed which is above a predetermined setting, the camera takes an image of whatever it is that is in front of the camera at the time it is triggered. The image may well suggest, in some cases very strongly, the identity of the thing that triggered the detection device, but strictly speaking that is a matter for the interpretation of the image, rather than something which is determined by the device itself. Indeed, the function of the evidence of the witness who was called by the prosecution was to identify the appellant’s vehicle as the thing which must have been detected by the detection device.

6. [6]
   The prosecutor also tendered two photographs with certificates on the back, which were made Exhibits 1 and 2, and a further bundle of certificates which were together made Exhibit 3. Unfortunately the file which has been provided to the District Court in relation to this matter does not include any documents marked as exhibits, nor does it include any photographs containing certificates pursuant to s 120(2) of the Act, which the prosecutor said were on the photographs which were tendered as exhibits. There is on the court file an uncertified copy of the “Traffic Offence Adjudication Form” which includes a photograph and a close up of the number plate, and a data block, and copies of a series of certificates, which look to be original signed certificates and which match the certificates described at p 21 of the transcript, but which are not marked as Exhibit 3. I think the explanation must be that the exhibits have not found their way to this court.

7. [7]
   The appellant did not suggest that documents meeting the description attributed to them by the prosecutor had not in fact been tendered and made exhibits by the magistrate, so I should assume that there were such documents in evidence. I might add that the appellant showed me the copy documents that he had been provided with, which did not include copies of the certificates on the two photographs which were tendered, and did not include the photograph which became Exhibit 1, just the photograph which became Exhibit 2. That strikes me as unsatisfactory.

8. [8]
   In any case, there was no objection to any of the certificates, which were said in respect of Exhibits 1 and 2 to have been given pursuant to s 120(2) of the Act. The various certificates in Exhibit 3 were given under a range of sections.

9. [9]
   The prosecutor called as a witness an adjudicator in relation to photographic evidence from the Traffic Camera Office. He had been involved in the process of interpreting images from traffic cameras, including images produced by speed camera vehicles, for a period of over 18 months. The officer gave evidence interpreting the data block on the photograph, although the interpretation of the data block is dealt with in Part 3 of Schedule 11 of the Traffic Regulation 1962. It showed that at the time the device had been operating in forward mode, that is, detecting objects travelling towards the device, that the detected speed was 74 kilometres per hour, that the detection occurred at 10.01 am on 28 December 2009, that the detection was at the number assigned to this particular location within the traffic coding manual, that the maximum speed limit was 60 kph, and that this was the 104^th image taken after the particular film magazine was inserted in the camera.

10. [10]
    The police officer said the location of the beam was determined by reference to what he described as “the 61/82 rule”. He explained this rule twice to the magistrate on pp 24-25. Whether the magistrate understood what he was talking about I do not know, but I cannot follow it from the transcript. Presumably this is a method of determining where it is that the radar beam is located in the area shown in the photograph, so as to determine which vehicle was detected by that beam.^[3]The effect of the witness’s evidence, however, was that the interpretation of the data block was that the speed had been detected from a vehicle travelling towards the detection device, and from the photograph the only vehicle which could have produced that result, given the location of the beam, was the appellant’s vehicle.

11. [11]
    Under cross-examination, the witness was shown a photograph of a camera unit which was said not to have the appearance of the unit used in Queensland:  p 27. The photograph was not tendered. He was then asked about whether there were protocols in relation to the setting up of the mobile speed camera, to which objection was taken. For some reason that developed into an issue about whether it was relevant to know how this witness set up a mobile speed camera that he was operating, in circumstances where he was not the operator of the particular speed camera that was involved in the prosecution. That had nothing to do with the admissibility of the question, which was directed to whether there were protocols, that is instructions or directions, which an operator, presumably any operator, was expected to follow when setting up such a unit. Those protocols on the face of it would have applied to the particular operator who set up the particular unit that produced the image that was relied on. That was therefore a proper question, subject to the issue of whether it was directed to something which the appellant was not allowed to contest because of a failure to give the appropriate notice. Ultimately the magistrate allowed the question, and the witness said that they had a check list which they have to go through in setting up the vehicle:  p 30. The witness gave some evidence about the content of the check list at pp 32-33. He said that the operator will usually do a sketch plan, not to scale but indicating where the vehicle was set up in relation to cross streets, etc.^[4]They also have a log to determine start and stop times, speed limits, GPS coordinates, film number and session number.

12. [12]
    The witness was then asked about whether there were other things visible within the area relevant to the beam. He was then asked about the effective range of the beam, to which objection was taken: p 31. That was an extraordinary objection, given that the witness had in the course of evidence-in-chief at p 23 line 54, while explaining the significance of an entry in the data block, already given evidence as to the effective range of the beam:  “The two dots underneath the F represent the range, it was a range 2, which meant that basically the beam of the radar could have been working up to four lanes at that time.”  Evidently the witness in fact knew, as a result of his training and experience, something about the range of the beam. It cannot be that this evidence was admissible in evidence-in-chief but irrelevant for the purposes of cross-examination.

13. [13]
    The witness was asked about other vehicles heading in the opposite direction which were apparently within the range of the beam, and he responded that the detection device could be operated either in a bi-directional mode or in a single direction mode and that all of the vehicles detected in this particular session were detected in forward mode, which indicated that it was at that time being operated only in forward mode: p 32. He then expressed an opinion that if the device was in forward mode only it would not detect a vehicle going away from it. I suspect that strictly speaking he did not have the expertise to give that evidence, and all that he could say was that when the device is in forward mode it is not supposed to detect a vehicle which is going away from it, and that in his experience the device had not done so.

14. [14]
    The appellant then sought to cross-examine the witness on the proposition that the van on this occasion was set up not parallel to the road, but parallel to the fence line, which was not parallel to the road; not surprisingly this ran into difficulties, although it seems to me that in principle the witness could have been asked whether, if the van that made this particular image had in fact been set up parallel to the fence line but not parallel to the roadway, that would have meant that it was not correctly positioned. That was what followed from the witness’s evidence, and indeed from further evidence volunteered at p 37 that the readings obtained would not have been reliable under such circumstances.

15. [15]
    The witness was then shown a diagram and asked whether he could verify that that was a diagram showing a correctly set up van with a speed detection device: p 39. Objection was taken to this course, essentially on the basis that the provenance of the document had not been proved; but any document can be shown to a witness, and it may be that the evidence of the witness will serve to identify the document so as to make it admissible. It may well be that there was an objection open on the ground of relevance, because of the operation of the statutory restrictions on what it was that the appellant could contest, but apart from that the questioning was entirely proper. As it happened, the witness’s evidence did not seem to take the matter very far, and the diagram was not tendered.

16. [16]
    The appellant then sought to show the witness some images taken from Google Maps, to which objection again was taken. As it happens, the witness was not familiar with the area and was not in a position to identify the area by reference to the photographs. I have recently said something else about the admissibility of Google Maps in these cases,^[5]and I will not repeat what I said then; ultimately in this case the issue depends on other matters, to which I will come later, and the attitude to this material was not crucial.

17. [17]
    The prosecution then closed its case. The appellant complained about the absence of the camera operator; this was treated by the magistrate as a “no case” submission, which was rejected: p 45. The appellant then elected to give evidence and said that he was travelling south along Old Northern Road, he was not aware of the camera device. He was travelling down hill, the road was wet and there were a number of metal poles in the area. He said he had engaged the cruise control of his vehicle, and that his attention was drawn to the speed camera vehicle only when he saw the flash, presumably from that vehicle:  p 47. He said he looked at his speedo, and said in effect that he did not think he was exceeding the speed limit, and proceeded. Under cross-examination the appellant said that the speed he was travelling at was 61 and 62:  p 51. He did not know at the time whether the speed limit on the road was 60 or 70.

18. [18]
    The appellant said that the camera van was well off the roadway and parked at an angle to the roadway itself, an angle of roughly 30-45 degrees, facing a north-east direction, although he later said the back of the van was pointing roughly north-west: p 48. The road runs essentially north-south. In evidence-in-chief therefore he said in effect two things:  the detection device vehicle was not (and not close to) parallel to the road in question, and just after what was apparently the point of detection he looked at his speedometer and he was not exceeding the speed limit. The cross-examination of the appellant was notable for a complete failure to put the prosecution case. The prosecutor did not even trouble to obtain a formal admission of the proposition, which appears not to have been contentious, that the appellant was the person who was driving the vehicle shown in the photograph in Exhibits 1 and 2 at the time the photograph was taken.

19. [19]
    In his submission the appellant put forward the proposition that, because of the angle of the camera van, it was possible that it was the other vehicle going away from his vehicle that had been detected and that as a result his vehicle has been photographed.^[6]The prosecutor in reply relied on the evidence of the witness that the vehicle shown prominently in the photograph was the vehicle the speed of which had been detected.

Decision of the magistrate

20. [20]
    The magistrate noted that there was no dispute as to the date, time, place, identification of the appellant or his vehicle, or the proposition that his vehicle was a vehicle and that Old Northern Road was a road, nor that the speed limit at that place was 60 kilometres per hour. He noted that certificates as to the accuracy and correct use of the detection device were in evidence and that the appellant had not followed the correct procedure in relation to challenging such accuracy and use “as required by s 124” of the Act. He referred to the evidence that the vehicle housing the device ought to have been set up parallel to the roadway, and noted the appellant’s evidence that the vehicle in this case was at an angle to the roadway, and identified the point made by the appellant in his submissions.

21. [21]
    The magistrate noted that the appellant would have had the camera vehicle under observation only for a very short period of time, which was relevant to the reliability of his evidence, referred to the significance of the letter “F” in the data block in the photograph Exhibit 1, referred to the evidence of the appellant’s observation of his speedometer, and said that “The appellant’s sworn evidence as to his speed without other reliable evidence is not enough to rebut the presumption of accuracy in the certificates.”  He said that there nothing which raised any doubt in his mind as to the accuracy and use of the equipment and was therefore satisfied beyond reasonable doubt that the prosecution had proved its case.

Analysis

22. [22]
    There was technically one error of law in the reasons for judgment: the reference to s 124 of the Act was inappropriate. Although there was one certificate within Exhibit 3 which was in part given under s 124, it was a certificate under s 124(1)(n)(ii) that on the relevant day the vehicle having the registered number shown on the vehicle in the photograph was registered in the name of the appellant. By that paragraph such a certificate was evidence that the appellant was the owner of that vehicle on that day and, in the absence of evidence in rebuttal, conclusive evidence of such ownership. In the event, ownership was not crucial, at least not once the appellant admitted that he was driving the vehicle at the time. Subsection 124(4) imposes a requirement for notice of a challenge to be given to the prosecution but only in the case of a defendant who intends to challenge the accuracy of a speed detection device or vehicle speedometer accuracy indicator for which a certificate was given under subsection (1), or the time at which or way in which the relevant device was used. Since there was no certificate given for the speed device in question under subsection (1), subsection (4) did not apply.

23. [23]
    There was a certificate within Exhibit 3 given under the Act in respect of the accuracy of the device:  the certificate under s 120(2A) that on 23 February 2009 the device was tested in accordance with the specifications of the device’s manufacturer, and any further requirements about calibration prescribed under a regulation (none of which were identified in the certificate), and that the photographic detection device was producing accurate results. By that subsection, such a certificate is evidence of the matters stated and evidence the device was producing accurate results when so tested and for one year after the day of testing. In addition, subsection (2) applied to Exhibits 1 and 2, and provides:

“An image produced by the prosecution purporting to be certified by the Commissioner stating that the image was properly taken by a photographic detection device at a specified location and time is evidence of the following matters—

1. (a)
   the image was taken at the specified location and time;

2. (b)
   the accuracy of the image;

3. (c)
   the things depicted in the image;

4. (d)
   any requirements prescribed by a regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times.”

24. [24]
    Subsection (7) of that section then provides:

“A defendant who intends, at the hearing of a charge against the defendant under this Act, to challenge—

1. (a)
   the accuracy of a photographic detection device; or

2. (b)
   the image from a photographic detection device; or

3. (c)
   a marking or writing made by a photographic detection device on an image; or

4. (d)
   a matter mentioned in s 120A(4)(a), (b) or (c)

must give written notice of the challenge to the prosecution.”

25. [25]
    Subsection (8) provides that the notice must be in the approved form, signed by the defendant, and state the grounds on which the defend intends to rely for the challenge, and be given at least 14 days before the date fixed for hearing. The restriction in subsection (7) was the operative restriction; by the terms of that subsection it applied whether or not a certificate was tendered under the section, and the matter proceeded before the magistrate, and before me, on the basis that the effect of a failure to give such a notice was that the appellant was not allowed to challenge the matters referred to in subsection (7).

26. [26]
    The appellant said that he was not challenging the accuracy of the detection device, but rather whether it had correctly identified his vehicle, or whether it had been correctly used. The latter point depended on the question of whether the vehicle was set up parallel to the road. If the device is set up so it will provide accurate readings only if the vehicle in which it is mounted is parked parallel to the road,^[7] then the readings obtained will not be accurate even though there is nothing in the device itself, that is, the actual speed measuring process, which is inaccurate. It is not at all clear to me that the concept of the accuracy of the device in subsection (7)(a) is limited to the accuracy of the speed detection apparatus viewed as a separate piece of machinery and in isolation from the way in which it has been used, if the device will provide an accurate measurement of speed only if it is used in a particular way. It is, however, unnecessary for me to consider and decide that point, because one of the arguments advanced by the appellant involved challenging the proposition that the speed attributed by the device to whatever it was that had been measured by it was 74 kilometres per hour. This figure was one of the things included in the marking made by the device on the image, the data block referred to earlier.

27. [27]
    The way in which the device works, as explained earlier, is that when it detects a particular speed it triggers a photograph taken by a camera set up so as to produce an image of the vehicle which has produced that detection, though strictly speaking the identification of the vehicle responsible for the detected speed is a matter for interpretation of the image. However, the proposition that something was detected at 74 kilometres per hour is a matter stated in the data block and therefore a marking made by the photographic detection device on the image. One of the arguments advanced by the appellant certainly challenged that proposition. His point was that the vehicle was not parallel to the roadway and therefore had exaggerated the speed at which this vehicle was travelling. That in my view was clearly a challenge within subsection (7)(c), and, on the basis on which the matter proceeded before the magistrate, he was prevented from advancing that challenge by the failure to give the notice.

28. [28]
    It follows that, although it was not appropriate to refer to s 124 of the Act, the applicable provisions of s 120 of the Act were to the same effect and the error did not produce any effect on the substance of the reasoning, or the outcome. Any such slip was of no consequence.

29. [29]
    The arguments advanced by the appellant before the magistrate were in my view properly rejected. The argument that the detection device was, or might have been, actually detecting a different vehicle was properly rejected on the basis of the evidence of the witness who was called, and on the basis of the content of the data block within the image in Exhibit 1. The effect of that evidence was that the speed that was detected was that of a vehicle moving toward the camera and that the appellant’s vehicle was the only vehicle shown in the photograph which as in a position to qualify it as a possible candidate for detection. The second argument, that the vehicle containing the detection device was not properly set up, not being parallel to the road, was rejected by the magistrate on the basis that he rejected the evidence of the appellant, something he was entitled to do.

30. [30]
    The appellant gave evidence that he had not been aware of the vehicle in question until alerted to its presence by a flash which he related to the image of his vehicle being taken, and that immediately thereafter he looked at his speedometer. In those circumstances, he would have been past, or close to being past, the vehicle in question before he had any opportunity to examine its position on the road. Further, the appellant said that when he looked at his speedometer he was not concerned about his speed and continued on his way. If that were true, he had no reason to be concerned about examining the location of the vehicle relative to the road at the time. On the other hand, if he had looked at his speedometer (which would have been a natural enough reaction in the circumstances) and had realised that he was speeding, it means that another part of his evidence was unreliable and in these circumstances no great reliance could have been placed on his evidence about the location of the vehicle.

31. [31]
    I was concerned at one stage as to whether there actually was any evidence before the magistrate that the vehicle was properly set up. The certificate under s 120(1) did not in terms say that, merely that any requirements laid down in a regulation had been satisfied. However, counsel for the respondent drew to my attention the provisions of s 210 of the Traffic Regulation 1962, which are:

“If an analogue speed camera system is used to provide evidence of a prescribed offence, the following provisions must be complied with—

1. (a)
   the system’s camera must be positioned and aimed to ensure an image taken by the camera depicts the front or rear of the vehicle the speed of which was measured by the system;

2. (b)
   each person who inserts into or removes a film magazine from the camera, or who relocates the camera with a film magazine in place, or who changes information programmed into the system, must—

1. (i)
   ensure the camera is correctly positioned and aimed; and

2. (ii)
   use the system’s testing mode to ensure the camera operates correctly; and

3. (iii)
   if a fault is indicated, take corrective action and repeat the testing process until no fault is indicated by the system in its testing mode.

3. (c)
   if the tests or the film when developed indicates a fault has affected the proper operation of the system as required under this section, the film must be rejected for evidentiary purposes.”

32. [32]
    It is perhaps a little unfortunate that the regulation does not identify exactly what is required to be done in order to “ensure the camera is correctly positioned and aimed”, but the certificate does provide some evidence of the fact that that requirement had been complied with, and hence that at the relevant time the camera was “correctly positioned and aimed”. In view of the evidence that the camera is mounted at a particular angle to the beam from the detection device, it would follow that the beam from the detection device was also correctly positioned and aimed. No doubt the importance of the vehicle in which the detection device is mounted being parallel to the road in question is that the particular part of the device that produces the radar beam, and the camera, are mounted in the vehicle at particular predetermined angles to the line of the vehicle, and parking the vehicle parallel to the road ensures that they are therefore positioned at predetermined angles to the line of the road.^[8]

33. [33]
    It follows that if at a particular location the vehicle with the device is positioned at an angle to the roadway, particularly anything like the substantial angle asserted by the appellant, the camera would also be positioned at the same angle to the usual angle relative to the road at which the camera is positioned. One would expect therefore that all the photographs taken at this particular location would look different from photographs taken at other locations where the vehicle was parallel to the road, something which one would expect an experienced adjudicator to be able to detect easily, and which might even be detectable by an experienced magistrate. Hence the reference in paragraph (c) of s 210 to the possibility of “the film when developed” indicating a fault in the positioning and aiming of the camera. This is something which should have been explored in evidence, but does not seem to have been explored by either side with the one witness whose experience would have qualified him to say something about it.

34. [34]
    In any event, what matters for present purposes is that, in the light of the terms of s 210 of the Traffic Regulation, the certificate on Exhibit 1 (and Exhibit 2) was some evidence that the camera was correctly positioned and aimed at the relevant time. There was therefore evidence before the magistrate to support a conclusion that the detection device was properly set up and was therefore going to be producing reliable measurements of speed. Having rejected the appellant’s evidence as to the angle of the vehicle, therefore, the magistrate was entitled on all the evidence before him to convict the appellant.

35. [35]
    The appellant in his outline of argument submitted that the magistrate had not permitted him to put forward critical evidence that the camera was not set up in accordance with Queensland Police Service regulations or the Commissioner’s rules, but there was no evidence of that and in any event it seems to me that those are matters that, if they were to be raised, required a notice, in view of the terms of s 120(7). No such notice had been given, and the appellant did not request an adjournment to enable him to give such a notice in accordance with subsection (8). It follows that there was no bias shown on the part of the magistrate in that respect.

36. [36]
    The appellant complained about the absence of a site map, but if the prosecution was able to prove its case without calling the operator who set up the particular site, who would I suspect have been the only person able to prove a site map, this is not a proper ground of complaint. I do not think there was any obligation to provide material which was not going to be relied on by the prosecution. There was also, it seems to me, no proper basis shown for saying that it was necessary for the prosecution to prove that the particular site where the speed camera was operating had been properly approved and given a speed camera site number. There was some reference in the evidence to approved sites, but there is nothing in the legislation that I have seen which suggests that the evidentiary effect of the material relied on in this matter was dependent in some way upon the use of the device at an approved site.

37. [37]
    The appellant submitted that the magistrate disregarded a precedent in the form of a decision of another magistrate to the effect that there is a distinction between challenging an image and challenging the interpretation of the image. I agree that there is such a distinction,^[9]but the magistrate entertained a challenge to the interpretation of the image, and indeed that was the purpose of the evidence of the witness who was called by the prosecution. The outline also criticised the general scheme of “paper prosecutions” of speed camera offences, but this is a matter determined by the legislature and was not something either for the magistrate or for me. There was some criticism as well in relation to the certificates tendered before the magistrate, but these were points which were not raised before the magistrate. Some criticism was also directed to the way in which the magistrate conducted the proceedings, but it seems to me that by and large the proceedings were conducted by the magistrate properly and in an even-handed manner. I am not persuaded that any bias or apparent bias was shown in the course of the proceedings.

38. [38]
    Another matter argued during the hearing of the appeal by the appellant was that allowance had not been made for a margin of error said by him to be 3% in the speed detection device. This would not have resulted in his acquittal of the charge, but was relevant to penalty in circumstances where the amount payable by way of a fine, and the number of points lost, were related to the extent to which the speed limit had been exceeded. The difficulty for the appellant is that there was no evidence before the magistrate that the speed detection device had any such margin of error, and this issue was not one which was raised before the magistrate. It also seems to me that it is an issue which, if the appellant proposed to advance it, should have been covered by a notice under s 120(7), which was not done. In these circumstances, it is not available to the appellant in this appeal, and I do not need to consider it further.

39. [39]
    I have considered the evidence that was before the magistrate myself and made up my own mind in relation to it, bearing in mind the findings of the magistrate on matters of primary fact, particularly in relation to the issue of credibility of the appellant as a witness.^[10]Having done so, I agree that the magistrate’s conclusion on the evidence before him was correct. The appellant has failed to show that there was any error which vitiated the decision and requires a new trial or a different outcome. Accordingly, the appeal is dismissed.