Le Cerf v The Commissioner of Police
[2011] QDC 235
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Le Cerf v The Commissioner of Police[2011] QDC 235
- Add to List
Le Cerf v The Commissioner of Police[2011] QDC 235
Le Cerf v The Commissioner of Police[2011] QDC 235
DISTRICT COURT OF QUEENSLAND
CITATION: | Le Cerf v Hasted [2011] QDC 235 |
PARTIES: | PETER LE CERF (Appellant) v THE COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 14 of 2011 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court, Caboolture |
DELIVERED ON: | 7 October 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 October 2011 |
JUDGE: | Everson DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | APPEAL – CRIMINAL LAW AND PROCEDURE – driving offences – appellant convicted of disobeying the speed limit and failing to wear a properly adjusted and fastened seatbelt Justices Act 1886, s 222, s 223 Recording of Evidence Act 1962, s 10 Transport Operations (Road Use Management) Act 1995, s 124 Riley v Doyle & Anor [1997] QCA 112 Mbuzi v Torcetti [2008] QCA 231 |
COUNSEL: | Appellant in person Mr Ashen for the respondent |
SOLICITORS: | Office of Department of Public Prosecutions (Queensland) for the respondent |
- [1]This is an appeal pursuant to section 222 of the Justices Act 1886 (“JA”).
- [2]On 7 December 2010 following a trial in the Magistrates Court at Caboolture the appellant was found guilty of the offences of disobeying the speed limit and failing to wear a properly adjusted and fastened seatbelt on the D’Aguilar Highway at Caboolture on 9 August 2009. In respect of the former offence he was convicted and fined $400.00 and in respect of the latter offence he was convicted and fined $600.00. In both instances convictions were recorded.
- [3]In a rambling outline of argument and oral submissions the appellant appears to appeal both the convictions and the sentences imposed upon him. In the course of his oral submissions the appellant asserted that his appeal is based upon all of the inconsistencies and injustices in “the documentation”. Some of “the documentation” placed before the learned acting magistrate consisted of three certificates pursuant to section 124 of the Transport Operations (Road Use Management) Act 1995. This evidence was not challenged in the manner prescribed in subsections 124 (4) and 124 (5) and the appellant expressly disavowed any challenge to it when it was tendered.[1]
- [4]The only witness called for the prosecution was Senior Constable Fletcher who gave cogent evidence of detecting that the vehicle in which the appellant was travelling was speeding and that the appellant, the driver, was not wearing a seatbelt. He alleged that he activated the radar device in the police car in which he was travelling and ascertained that the appellant was travelling at 93 kilometres per hour in an 80 kilometre per hour speed zone. He then intercepted the appellant and had a conversation with him which he recorded and tendered at the trial. In the course of this conversation the appellant admitted that he was not wearing a seatbelt. A vague challenge to this evidence by the appellant is without merit.[2]
- [5]The appellant elected to give evidence. He asserted that he was partially wearing a seatbelt, across his waist but not across his shoulder and gave some evidence of the point at which he was intercepted by Senior Constable Fletcher and of the circumstances relating to this.
- [6]The learned acting magistrate gave a lengthy and considered decision in which he preferred the evidence of Senior Constable Fletcher to that of the appellant and found the appellant guilty of both offences. The significance of the findings of fact made by the learned acting magistrate was explained by the court of appeal in Riley v Doyle & Anor in the following terms[3]:
“Where credibility is the critical issue and the Magistrate has made findings based on credibility an appellant cannot succeed unless it can be shown that the Magistrate has failed to use or has misused his advantage in seeing the witnesses or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable.”
- [7]The role of a judge on determining an appeal such as this was explained in Mbuzi v Torcetti[4] as being that:
“the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to revise the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions.”
- [8]The evidence against the appellant was overwhelming and I cannot fault the findings which the learned acting magistrate made. The appellant’s evidence at its highest was not suggestive of his innocence, however the learned acting magistrate diligently approached his task of determining whether the prosecution had proved the appellant’s guilt beyond reasonable doubt.
- [9]Because of allegations made by the appellant in his outline of argument concerning the authenticity of the transcripts of the trial and the decision the subject of the appeal the respondent sought to tender certified copes of these documents pursuant to section 10 of the Recording of Evidence Act 1962. I gave leave for this further evidence to be tendered pursuant to section 223 of the JA. The appellant also took issue with his criminal history and traffic history to which the learned acting magistrate was taken in the course of sentencing him. As a consequence I also gave leave to the respondent to tender certain official records of sentences imposed on the appellant in the past.
- [10]In all of the circumstances the sentences imposed on the appellant by the learned acting magistrate cannot be described as manifestly excessive.
- [11]The appeal is entirely without merit and it is dismissed.