Kadri v Commissioner of Police
[2013] QDC 283
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- Kadri v Commissioner of Police[2013] QDC 283
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Kadri v Commissioner of Police[2013] QDC 283
Kadri v Commissioner of Police[2013] QDC 283
DISTRICT COURT OF QUEENSLAND
CITATION: | Kadri v Commissioner of Police [2013] QDC 283 |
PARTIES: | ERIK KADRI v COMMISSIONER OF POLICE |
FILE NO/S: | 1547/13 |
PROCEEDING: | Appeal |
DELIVERED ON: | 11 October 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 October 2013 |
JUDGE: | Samios DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS | INFERIOR COURTS – Magistrates Court – Appeal – magistrate found the appellant guilty of disobeying the speed limit – whether the police officer had tested the radar detection device pursuant to s 112 of the Transport Operations (Road Use Management) Act 1995 – whether appellant was disadvantaged in court proceedings – whether police prosecution failed to produce a copy of the Australian standard – whether the police officer failed to correctly identify the particular Australian standard – whether the magistrate erred in failing to reject the evidence of the police officer – whether magistrate erred in being satisfied the police officer correctly tested the accuracy of the detection device – whether the magistrate erred in failing to find at least a reasonable doubt that the police officer maintained constant sight of the appellant’s vehicle – whether the magistrate erred in being satisfied that the police officer had correctly identified the appellant’s vehicle – whether the magistrate erred in failing to have found a reasonable doubt that the appellant vehicle would have been visible for the length of time necessary Justices Act 1886 (Qld) s 222, 223 (1) Police Service Administration Act 1990 (Qld) s 4.10 Transport Operations (Road Use Management) Act 1995 (Qld) s 112 (a), 112 (b), 124 (1) (pa), 124 (1) (pb) Commissioner of Police v Toomer, [2011] QCA 233 at 23 Fox v Percy (2003) 214 CLR 118 at 128. |
COUNSEL: | Mr Kadri represented himself Mr Le Grand (Solicitor) for the respondent |
SOLICITORS: | Mr Kadri represented himself Office of Department of Public Prosecutions for the Respondent |
- [1]This is an appeal against the decision of the learned magistrate at Brisbane who on the 5th of April 2013 found the appellant, Mr Kadri, guilty of the offence of disobeying the speed limit. The learned magistrate fined Mr Kadri the sum of $200. Mr Kadri was also ordered to pay costs of $74.35. In particular, the learned magistrate found that Mr Kadri was travelling at a speed of 80 kilometres per hour in a 60 kilometre per hour zone. The offence was alleged to have been committed in Hale Street in Brisbane at about 8.31 am on the 25th of March 2012.
- [2]Mr Kadri’s grounds of appeal are that (1) the police officer had not tested the radar detection device in a particular way prior to using it on the date pursuant to section 112 of the Transport Operations (Road Use Management) Act 1995. (2) The appellant was disadvantaged in the court proceedings when the magistrate asked the prosecution to re-examine the police officer testimony on the correct use of the speed detection device on that day, effectively allowing improper and incorrect evidence. (3) The police prosecution failed to produce a copy of the Australian standard referred to in the certificate in order to give meaning to the certificate. (4) The police officer failed to correctly identify the particular Australian standard referred to in the certificate; effectively signed a false certificate.
- [3](5) The magistrate erred in failing to reject the evidence of the police officer that demonstrate the correct use of the device in accordance with the Australian standard. (6) The magistrate erred in being satisfied that the police officer had correctly tested the accuracy of the radar detection device in accordance with the Australian standard. (7) The magistrate erred in failing to find that at least a reasonable doubt that the police officer maintained constant sight of the appellant vehicle. (8) The magistrate erred in being satisfied that the police officer had correctly identified the appellant vehicle. (9) The magistrate erred in failing that at least a reasonable doubt that the appellant vehicle would not have been visible for the length of time necessary in order to have enabled the police officer to have done what he said in evidence he had done.
- [4]Now, Mr Kadri asks that the conviction be quashed and that there be a direction of a verdict of acquittal. This is an appeal pursuant to section 222 of the Justices Act 1886. Consequently, pursuant to section 223(1), the appeal is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices. In the hearing of the appeal, I must bear in mind any advantage the learned magistrate had in seeing and hearing the witnesses give evidence. In cases where the appellate conclusion has reached that the decision at trial is glaringly improbable or contrary to compelling inferences in the case, it may be necessary for me to give the judgment which, in my opinion, ought to have been given at first instance Fox v Percy (2003) 214 CLR 118 at page 128.
- [5]However, before substituting my own decision based on the facts and law, error in the decision at trial must be shown and due allowance must be made for the advantages available to the learned magistrate Commissioner of Police v Toomer, [2011] QCA 233 at paragraph 23. The matter proceeded by way of summary trial before the learned magistrate. The prosecution called only one witness, mainly Senior Constable Timothy Bowen. In his evidence, he said that he had 10 years experience working as a traffic police officer. He also said that he was an authorised operator of a light distance and ranging LIDAR, speed detection device, and he produced a certificate which attested to this which was made exhibit 1.
- [6]He said shortly after commencing duty on the day in question, he conducted tests on the device at the city police station. After testing the device, he took up a position on Hale Street at the intersection with the Milton Road off-ramp. He was using the device to target vehicles travelling in a southbound direction. Four photographs of the area were tendered through Constable Bowen. They were exhibit 2. He also gave evidence he saw two vehicles coming towards him in the middle of three lanes. He observed the vehicle at the rear changed into a lane closer to the centre of the road and accelerate past the vehicle which had been in front, and then changed back into the middle lane.
- [7]Having formed the opinion that the vehicle which was now in front was exceeding the speed limit, he said he then targeted the front number plate area of that vehicle with his device. The reading he obtained was that the vehicle was travelling at a speed of 81 kilometres per hour, and was at a distance of 302.1 metres from his position at the time it was targeted. He said he then intercepted the vehicle which was a black utility with the registration number 482SDA. He spoke to the driver who was the appellant. The conversation was recorded. The recording and the transcript were tendered in evidence.
- [8]The conversation is to the effect that Mr Kadri told Constable Bowen that he thought the speed limit was 70 kilometres per hour, and thought that he was probably travelling at 75 kilometres per hour. Mr Kadri was then issued a ticket alleging he travelled at 80 kilometres per hour to take into account the margin of error of plus or minus two kilometres per hour. He also kept Mr Kadri’s fine in the lower bracket. In the course of the prosecution case, certificates were also tendered pursuant to section 124(1)(pb) and section 124(1)(pa) of the Transport Operations (Road Use Management) Road Rules Act 1995 (TORUM).
- [9]These certificates were admitted into evidence and marked exhibits 4 and 5 respectively. I have looked at those exhibits. Exhibit 4 is to the effect that the constable certified the device was used by him at 8.35 am on 25 March 2012 in accordance with the appropriate Australian standard as in force on the day of use. The second of these certificates, exhibit 5, is to the effect that Inspector O'Dowd, an authorised delegate of the Commissioner of Queensland Police Service, pursuant to section 4.10 of the Police Service Administration Act 1990 states that the device was tested at Brisbane on 23 February 2012 in accordance with the appropriate Australian standard for testing the device as in force on the day of testing, and was found to produce accurate results at the time of testing.
- [10]With regards to those sections in TORUM, the effect is that each of those certificates is evidence in the first case that the device was producing accurate results when so tested, and for one year after the date of testing. And in the second case, is evidence of the matters stated. In particular, with respect to the certificate of the constable, which was exhibit 4, the certificate, by that section, is made evidence that the device was used by him in accordance with the appropriate Australian standard as in force on the day of use, namely the 25th of March 2012.
- [11]Mr Kadri’s submissions, though, relies on section 112 of TORUM. That provides, “When using a radar speed detection device, or laser-based speed detection device, a police officer must comply with (a) the appropriate Australian standard for using the device as in force from time to time or (b) if there is no appropriate Australian standard for using the device in force, at the time of the use, the manufacturer specifications for the device.
- [12]In this case, it is apparent that during the course of the proceedings, Mr Kadri challenged that the learned magistrate could be satisfied beyond reasonable doubt, that the device had been used by Constable Bowen in accordance with the Australian standard. These submissions spring from the fact that when Constable Bowen gave evidence, he said that he conducted various tests with the device in accordance with the manufacturer specifications and service guidelines, and these tests indicated that the device was functioning accurately. He did not orally say that he had used the device in accordance with the appropriate Australian standard.
- [13]However, in my opinion, Mr Kadri’s submissions overlooks the effect of the certificates, exhibits 4 and 5, that were tendered in these proceedings. While they are not said to be conclusive evidence and can be rebutted, the fact remains, they were evidence before the learned magistrate, which the learned magistrate could rely upon to conclude that Constable Bowen did use the device in accordance with the Australian standard. In the course of the proceedings, it was not demonstrated by cross-examination or otherwise – the cross-examination of Constable Bowen or otherwise, that some specific Australian standard had not been complied with. Therefore, in my opinion, the certificates, exhibits 4 and 5, were available to the learned magistrate as evidence in the proceedings. And there was no error by the learned magistrate in concluding that the device had been used and tested in accordance with the Australian standard.
- [14]I have considered all the evidence adduced before the learned magistrate, including the evidence given by Mr Kadri and the exhibits tendered during his evidence. I’ve also considered the learned magistrates reasons therefore concluding that the prosecution had satisfied her beyond reasonable doubt, that Mr Kadri was travelling the speed greater than the speed limit, and that he was, in fact, travelling at 80 kilometres per hour, allowing for the variance. And that, therefore, Mr Kadri was guilty of the offence. Considering the grounds of appeal, as I’ve said.
- [15]The first ground, I am of the opinion, is not made out for the reasons I have given. Further, I do not accept that Mr Kadri was disadvantaged in any way. The learned magistrate was simply proceeding to have matters clarified. There was no improper or incorrect evidence adduced. Further, it was not necessary to produce a copy of the Australian standard, referred to in the certificate, in order to give meaning to the certificate. That is not required by the sections I have referred to. There was no failure to correctly identify the particular Australian standard. The certificate was evidence, on its face, that the device had been used in accordance with the Australian standard. Nothing further was required. If something else was adduced in evidence that may have cast doubt on the certificate, then, obviously the learned magistrate would have had to have taken that into account. But nothing of that kind occurred.
- [16]I do not accept the learned magistrate erred in failing to reject the evidence of the police officer that demonstrated the correct use of the device in accordance with the Australian standard. Further, I do not accept the learned magistrate erred in being satisfied that the police officer had correctly tested the accuracy of the radar detection device in accordance with the Australian standard. Further, I do not accept that the learned magistrate erred in failing to find that, at least, a reasonable doubt, that the police officer maintained constant sight of the appellant’s vehicle. This is a ground of appeal that refers to the evidence being given by both the police officer and Mr Kadri.
- [17]There was also photographs tendered. The learned magistrate was entitled to come to the conclusion that she did, that was a matter for her. There was nothing demonstrated that shows that the learned magistrate made some error in that respect. Further, I do no accept the learned magistrate erred in being satisfied that the police officer had correctly identified the appellant’s vehicle. Again, this was a matter of evidence for the learned magistrate and there is no error demonstrated in the learned magistrates conclusions after having heard all the evidence and considered all the evidence which includes the exhibits.
- [18]Now, further, I am not satisfied that the learned magistrate erred in failing to find that at least a reasonable doubt that the appellant vehicle would not have been visible for the length of time necessary in order to have enable the police officer to have done what he said in evidence he had done. Again, that was a matter of evidence. The learned magistrate was free to accept the police officer’s evidence. There is no error demonstrated in the learned magistrate making that choice. If it needs to be said, the learned magistrate had before her a experienced police officer, his observations she could conclude were consistent with the evidence of Mr Kadri save for the speed of his vehicle. Further, the police officer’s version was consistent with the recorded statements made by Mr Kadri at the time he was intercepted and those statements were inconsistent with Mr Kadri travelling at or below the speed limit.
- [19]There was no error in the learned magistrate concluding that there could be some confidence in accepting statements made by someone very soon after the alleged commission of an offence rather than at some later time. Further, the learned magistrate’s decision is supported by the certificates and there was no evidence or any other reason to doubt the evidentiary effect of those certificates in this case. Therefore, in all the circumstances, I dismiss the appeal.