Stockton v Queensland Police Service
[2011] QDC 234
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- Stockton v Queensland Police Service[2011] QDC 234
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Stockton v Queensland Police Service[2011] QDC 234
Stockton v Queensland Police Service[2011] QDC 234
DISTRICT COURT OF QUEENSLAND
CITATION: | Stockton v Queensland Police Service [2011] QDC 234 |
PARTIES: | MERYL DAWN STOCKTON (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | D75/11 |
DIVISION: | District Court at Maroochydore |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Sandgate Magistrates Court |
DELIVERED ON: | 30.09.11 |
DELIVERED AT: | Maroochydore District Court |
HEARING DATE: | 26.08.11 |
JUDGE: | J.M Robertson DCJ |
ORDER: |
|
CATCHWORDS: | VEHICLES AND TRAFFIC – where prosecution evidence below not challenged – where appellant entitled to now challenge speed traffic camera evidence – whether offence proved. SENTENCE – whether Magistrate recorded a conviction without inviting either party to make submissions. Legislation Penalties and Sentences Act 1992 Transport Operations (Road Use Management) Act 1995 Cases Hamilton v Bennett [2011] QDC 16 Police v Ardessie Pty Ltd, Southport Magistrates Court, 31 July 2009 |
COUNSEL: | Mrs M. Stockton, the appellant, self-represented Mr G. Cummings for the respondent, Director of Public Prosecutions |
- [1]Mrs Meryl Stockton (the appellant) has appealed against her conviction in the Sandgate Magistrates Court on 16 March 2011 of a breach of s 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (the Regulation) that she:
“On 23 July 2010 at Bridgeman Downs in the Sandgate Division (she) drove a motor vehicle namely a motor car at a speed above the limit namely 60 km per hour applying to the length of road namely Linkfield Road, Bridgeman Downs and it is alleged that (she) was travelling at 92 km per hour in the 60 zone.”
- [2]The decision of his Honour Magistrate Rinaudo was a considered decision reserved after a short trial in the Sandgate Magistrates Court on 2 March 2011. As at trial the appellant represented herself on the appeal.
- [3]At trial there was no dispute that the defendant was driving the vehicle on that road at the time it was photographed by a roadside camera set up in a police vehicle or a “photographic detection device” being a Gatso Speed Camera serial no. 3804. The only dispute at trial was whether or not the appellant was speeding.
- [4]As well as tendering all relevant certificates as required under the Transport Operations (Road Use Management) Act 1995 (the ‘TORUM’) and various certificates relating to delegation of power the prosecution tendered two photographs certified by Senior Sergeant Jeffrey Dixon as being images taken of the defendant’s motor vehicle on the road at the relevant time and date.
- [5]Senior Sergeant Dixon was called to give evidence. He swore that he had been an operator of the Gatso 24 Speed Camera since 1997 and was qualified to adjudicate on the images produced by those devices since 2007. He swore that because of the configuration of the camera and its placement and setting, the radar beam omitted was such that it was the defendant’s vehicle that was targeted and its speed recorded at 92 km per hour at the relevant time and date. He specifically rejected any possibility that vehicles travelling in the opposite direction, or vehicles travelling in the same direction as the appellant’s vehicle had recorded that speed, as the vehicles travelling in the opposite direction had passed through the beam area and were on their way out of it, and the vehicles (including a motorcycle) travelling in the same direction had not yet entered the radar beam when the speed was recorded.
- [6]The appellant was given the opportunity of cross-examining Senior Sergeant Dixon but declined to do so.
- [7]She gave evidence on her own behalf in which she did question the ability of the device to target her particular vehicle and not be affected by other vehicles. Her evidence showed a misunderstanding between evidence of facts and the effect of previous decisions involving the same offence. She categorically denied that she was speeding.
- [8]The notice of appeal contains only one ground that “the magistrate ignored critical evidence”. However the attached outline of argument does raise a number of other issues.
- [9]The difficulty for the appellant is that there is no merit at all in her suggestion (not raised below) that the prosecution had not complied with the legislative regime set up by the TORUM when it clearly had. As a result of the tendering of the various certificates including the two photographs (exhibit 1) certified by Senior Sergeant Dixon, the consequences were that the certificates under the TORUM became prima facie evidence that the speed camera fitted to the police vehicle had been recently tested in accordance with Australian standards and produced accurate results.
- [10]In relation to the photographic image generated from the speed detection device, the legislation clearly requires that once the image has been made available to the person (the appellant), if the image is to be challenged at the hearing, then written notice in the approved form stating the grounds for the challenge must be given to the Commissioner at least seven days before the fixed date of the proceedings. This had not occurred.
- [11]In relation to the accuracy of the speed detection device, the certificates tendered during the proceedings were not challenged by the appellant and thus is deemed evidence as to the accuracy of the speed detection device. If the appellant wished to challenge the accuracy of the certificates tendered in relation to the speed detection device, then written notice in the approved form, stating the grounds that the appellant wished to rely upon to challenge the matter should have been given 14 days prior to the date fixed for the proceedings.
- [12]The legislation clearly states the requirements for challenging the image taken and/or the accuracy of the speed detection device. The appellant was put on notice about these requirements when she received the infringement notice for the offence. His Honour was bound to accept the certificates to which no objection was taken and did not err in disallowing the appellant to interpret the photographic images since she had not put the Commissioner on notice and had no expertise in any event.
- [13]She also raises in her outline of submissions a suggestion that his Honour was biased. A reading of the record indicates that his Honour conducted the proceedings fairly and gave appropriate directions to the appellant as to the effect of certain evidence and her rights. From my observations she is clearly an intelligent and articulate person who has the capacity to understand the evidence presented despite her denial. In his decision his Honour distinguished a number of the decisions relied upon by the appellant (which she presented in the form of extracts from media reports on the cases) and in particular Police v Ardessie Pty Ltd a decision of the Southport Magistrates Court 31 July 2009 where, contrary to the evidence in this case, there was no evidence to satisfy the Magistrate. In relation to a photograph taken which recorded another vehicle, that it was the defendant’s vehicle that was recorded or “detected’ by the radar beam. In this case his Honour accepted (as he was entitled to do) the evidence of Senior Sergeant Dixon’s interpretation of the photographs which led to the inevitable conclusion that the prosecution had proved its case beyond a reasonable doubt.
- [14]His Honour did, properly in my view, rely upon the decision of his Honour Judge McGill SC in Hamilton v Bennett [2011] QDC 16, which had been published after the hearing but before his Honour gave his decision. His Honour gave the appellant an opportunity to consider the case before he gave his decision and to make further submissions which she chose not to do. She suggested in oral discussion before me that somehow or other that led to prejudice but she was clearly given appropriate opportunity to make submissions on the case but did not take that opportunity. Although factually a little different from the facts here Judge McGill’s observation at paragraph 29:
“….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...”,
is apposite in this case.
- [15]The appellant expressed the concern that his Honour’s finding was tantamount to a challenge to her honesty. His Honour did not however reach any such conclusion. I infer from his reasons that he believed that she was mistaken and she probably truly believes that she was not speeding. The appeal against conviction is dismissed.
- [16]In her notice of appeal the appellant did not complain about the sentence imposed. At the hearing I gave her leave to add a ground namely:
“That his Honour erred in recording a conviction.”
- [17]Section 12 of the Penalties and Sentences Act 1992 applies to sentences imposed under the Regulation. The definition of “sentence” in s 4 is:
“Sentence means any penalty or imprisonment ordered to be paid or served, or any other order made, by a court after an offender is convicted, whether or not a conviction is recorded.”
- [18]In the discussion at pp 9-10 in his Honour’s reasons for decision on 16 March 2011, it is clear that the appellant was never given any opportunity to make submissions about whether or not a conviction should be recorded. Whether or not a conviction should be recorded involves the exercise of a discretion pursuant to s 12(1) of the Penalties and Sentences Act 1992. As his Honour did not exercise that discretion he erred and it is for this Court to exercise the discretion in accordance with the law. The appellant is a 59 year old married woman with a dated traffic history of otherwise impeccable character. She has had many personal difficulties and I am satisfied having regard to the nature of the offence, her age and antecedents particularly the impact that recording a conviction will have on her “social wellbeing” that it is a proper case to order that no conviction be recorded. Otherwise his Honour’s sentence will remain unaltered.