Parrella v Commissioner of Police
[2011] QDC 347
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Parrella v Commissioner of Police[2011] QDC 347
Parrella v Commissioner of Police[2011] QDC 347
[2011] QDC 347
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DEVEREAUX SC
No 2306 of 2011
DEAN PARRELLA | Appellant | |
and | ||
COMMISSIONER OF POLICE | Respondent |
BRISBANE
..DATE 21/10/2011
ORDER
HIS HONOUR: The appellant was convicted on 31 May 2011 of disobeying the speed limit on 18 July 2010.
The issue at the trial was whether the police officer could be accepted as reliable and accurate when he said he trained the device he used on the appellant's car when there were another car travelling just in front of the appellant.
The officer's evidence included that he was conducting LIDAR duties on Thistle Street, at Gordon Park, and was checking vehicles travelling west from Lutwyche Road.He said that at about 11.25 he saw a white vehicle travelling west towards his location and he said:
"There was a car in front of it, about - probably about three-to-four car lengths in front of it and it seemed to be increasing - gaining distance on the car in front of it. I then used my LIDAR device and pointed - aimed the LIDAR device at the white utility vehicle. I aimed the - the centre from middle of the - virtually where the number plate is on the front of the car and I got a reading, a speed reading of 82 kilometres per hour. The car was approximately 130 metres from where I was standing at the time."
The appellant, conducting the trial in person, cross-examined him:
"Now, how could you have taken a correct reading on my car when it was completely blocked - blocked by another car in the front?" . . . "Well, it wasn't blocked by the car in front. I've - when I looked through the sight, the aiming sight, I can see a beam of light and that beam of light is positioned in the middle of the grill of your vehicle."
The appellant gave evidence at his trial and said, among other things, that he was heading in a westerly direction coming off Lutwyche Road. He didn't notice any speed signs. He considered it not a built-up area. He said:
"I thought the speed limit was 60 kilometres. I'm not sure what speed I was doing, but with my experience of - as a driver, I know I was definitely not doing 82 kilometres, which is ridiculous."
He then went on to speak of there being two cars in front of him.
The learned Magistrate, after referring to certificates tendered in proof of the accuracy of the device and its correct use by the officer ( Transport Operations (Road Use Management) Act 1995, (TORUM) sections 124(pa) and (pb)) said, "The only real challenge here is by the defendant as to whether or not the detection device got the right car, or it got the right object, to use a more neutral term."
During the hearing today, I asked the appellant whether he agreed that that was the central issue of the trial and he did. His Honour then accepted the evidence of the officer as reliable and convicted the appellant. It was open for his Honour to do so. Having examined the record, which includes photographs of the scene tendered by the appellant at trial, and allowing for the Magistrate's advantage in seeing the witnesses, I'm drawn to the same conclusion.
The evidence was that the device had a range of 1000 metres. The appellant's car was about 130 metres from the officer when he trained it on the appellant's car. There is no reason not to accept the officer's evidence that it was the appellant's car.
Although no grounds of appeal were set out in the notice, I have taken the appellant's outline as an enumeration of grounds.
What I have already said deals with most of them. Paragraph 1 reads: "His Honour ignored the fact that I had a vehicle travelling directly in front of me and as all speed must be measured in a dead straight line with the direction of travel of the target [National Measurements Act 1960] it was not possible to gain a valid LIDAR reading on my vehicle.” Except that this may be an encapsulation of the central factual issue, to which I've already referred. I am not precisely sure what the ground means and the appellant was unable to elaborate.
During argument, he referred to an Australian Standard Number 4691.2, but he did not have a copy with him and he has not provided a copy to the Court and I have not been able to find one.
This point, if it means something other than an assertion that there was a danger that the officer trained the instrument on the wrong car, was not raised before the learned Magistrate. What was raised is referred to by the trial prosecutor as an intention to challenge, which it was served on 20 May 2011 by the defendant. The prosecutor said, "The defendant has indicated that as the device is reliant on the aiming agility of the police witness, proof from the device will be sought as the alleged reading could have come from any vehicle at any time or place. The police witness will not be asked any questions outside his level of operation expertise."
The short point is that the learned Magistrate was entitled to rely on the certificate tendered under section 124pb) of the TORUM. That certificate includes the assertion that at the time the device was used in accordance with the appropriate Australian standard for using the device, as in force on the day of use.
In the result, I am not satisfied that any issue requiring the setting aside of the decision is raised.
The appellant also referred to a New South Wales District Court decision which included a comment that the device does not tell the operator which vehicle the reading has come from. I accept that that is the case, but in this trial there was direct evidence from the officer as to which vehicle the reading came from.
In his written submissions the appellant referred to the decision of a District Court Judge in Toomer v. Winston . No reference to the District Court decision is included, but Ms Mant has today provided me with a copy of the Court of Appeal’s decision on appeal from that District Court decision. It is Commissioner of Police v. Toomer [2011] QCA 223. I have had the benefit of reading that and need not discuss it in detail, except to note that in that case a challenge was made to the accuracy of the use of the device by a police officer in circumstances where the targeted vehicle was 345 metres away. That distance did not prevent reliance on evidence that the instrument was used correctly and on the particular vehicle in question.
In the circumstances, the appeal is to be dismissed.