Roland v Commissioner of Police
[2013] QDC 44
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- Unreported Judgment
- Roland v Commissioner of Police[2013] QDC 44
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Roland v Commissioner of Police[2013] QDC 44
Roland v Commissioner of Police[2013] QDC 44
DISTRICT COURT OF QUEENSLAND
CITATION: | Roland v Commissioner of Police [2013] QDC 44 | ||
PARTIES: | Leon Robert Roland (Applicant) V Commissioner of Police (Respondent) | ||
FILE NO/S: | 133/2012 | ||
DIVISION: | District Court | ||
PROCEEDING: | Appeal against conviction | ||
ORIGINATING COURT: | Magistrates Court at Beenleigh | ||
DELIVERED ON: | 18 March 2013 | ||
DELIVERED AT: | Beenleigh | ||
HEARING DATE: | 29 January 2013 | ||
JUDGE: | Dearden DJC | ||
ORDER: | Appeal dismissed | ||
CATCHWORDS: | CRIMINAL LAW – APPEAL – where applicant found guilty of speeding in Magistrates Court – where speed of applicant’s vehicle measured by speed camera radar – late supply of prosecution brief – delegations – speed camera operation competence - miscarriage of justice | ||
LEGISLATION: | Justices Act 1886 s. 223(1). Transport Operations (Road Use Management) Act 1995 s. 60(2)(d)(1), s. 116(1), ss. 120(2),(2A), (2)(d), (4), (7), (8), Sch 4. Transport Planning and Coordination Act 1994 s. 37. Traffic Regulation 1962 r.211, Sch 10 Part 2, Sch 11 Part 3. Police Service Administration Act 1990 s. 4.10. State Penalties Enforcement Act 1999 s. 157(2). Public Service Act 2008 s. 103. | ||
CASES: | Stehbens v Queensland Police Service [2012] QDC 132 | ||
Allesch v Maunz (2000) 203 CLR 172 Teelow v Commissioner of Police [2009] 2 Qd R 489 Osgood v Queensland Police Service [2010] QCA 242. | |||
COUNSEL: | The appellant appeared on his own behalf J Wooldridge for the respondent | ||
SOLICITORS: | The appellant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent |
Introduction
- [1]The appellant, Leon Robert Roland, appeals pursuant to s. 222 of the Justices Act 1886 (Qld) from a decision of the learned magistrate at Beenleigh on 20 September, 2012 convicting the appellant of one offence of speeding (exceeding the relevant speed limit by 39 kilometres per hour). The appellant was fined $600 and ordered to pay court costs of $78.50[1].
Grounds of Appeal
- [2]The notice of appeal does not contain any grounds for appeal, but instead has attached a document marked “Outline of Argument”. Ms Wooldridge, who appears for the respondent Commissioner of Police, has helpfully distilled what appeared to be the appellants grounds of appeal. These are as follows: -
“Late receipt of material (log setups)
- (i)The magistrate erred in allowing the admission of log set ups allegedly from the camera vehicle operator where:
A.The camera vehicle operator in question had not, within a timely fashion, provided a sworn statement as part of the prosecution brief of evidence;
B.The appellant was not given advice or opportunity to rebut the information contained within the logs;
and
- (ii)Due to the late receipt of the material a miscarriage of justice occurred because the appellant was not given time to study the material, and to mount a suitable defence.
Delegations
- (iii)The prosecution relied upon invalid delegations:
and
- (iv)In the absence of a certificate that the operator used the device in accordance with Australian Standards and QPS rules, “any delegation certificates” should have been ruled inadmissible and not admitted into evidence;
Evidentiary matters of proof
- (v)There was no corroborative evidence of the operator’s qualifications and authorisation;
- (vi)The prosecution failed to prove competency of the operator;
- (vii)There was no evidence by way of certificate that the camera vehicle and device were set up according to Australian Standards and QPS rules and regulations;
- (viii)The prosecution failed to adduce evidence that the site of the offence was a current and registered speed camera site;
- (ix)The photograph indicated “so many interference factors” that the speed reading taken was not reliable and it is “well probable” that it would be false;
Other matters of challenge
- (x)A miscarriage of justice occurred because the appellant was not given the opportunity to raise the above evidentiary matters with the court.”[2]
Evidence
- [3]It was alleged by the prosecution at trial that on 29 August 2011 at 11.37am, the appellant drove a motorcycle registration UM971 at a speed of 102 kilometres per hour on Saverin Road, Eagleby, at a point where the designated speed limit was 60 kilometres per hour.
- [4]The appellant was charged by complaint and summons as follows: -
“That on the 29th day of August 2011 at Eagleby in the Magistrates Court District of Beenleigh in the state of Queensland one Leon Robert Roland, the driver of a vehicle namely a motorbike drove at a speed over the speed limit namely 60 kilometres per hour applying to the driver for the length of road namely Saverin Road, Eagleby where the said driver was driving and it is averred that the said motorbike is a vehicle as defined in Sch 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that the said Saverin Road, Eagleby is a road as defined in Sch 4 of the Transport Operations (Road Use Management) Act 1995.”[3]
- [5]The charge proceeded to trial before the learned magistrate at Beenleigh on 20 June, 2012. On 29 May, 2012 the appellant signed a Notice of Intention to Challenge or Dispute, as required by s. 120(7) & (8) of the Transport Operations (Road Use Management) Act 1995 (TORUMA). The appellant indicated in that notice that he intended to challenge only “the image from the photographic detection device”, and in the grounds for challenge stated “the camera vehicle operator will be questioned as to why he has set up this camera operation not in accordance with the Australian Standards QPS Guidelines or manufacturers specifications. No site map was included in the brief of evidence and no questions will be asked outside the operator’s level of expertise.”
- [6]No evidence was called in rebuttal of the matters which were subject of the averments (i.e. that the motor cycle was a vehicle as defined in Sch 4 of TORUMA, and that Saverin Road is a road as defined in Sch 4 of TORUMA), so no further proof was required in respect of those matters.[4]
- [7]Exhibit 1 at the trial was a photograph of the appellant’s motorcycle at the time of the alleged infringement, and was accompanied by a certificate pursuant to s 120(2) of TORUMA by Stephen J Embleton, Senior Sergeant, Traffic Camera Office dated 2 May, 2012, stating that Senior Sergeant Embleton was “a duly authorised delegate of the Commissioner of the Queensland Police Service under s. 4.10 of the Police Service Administration Act 1990.”
- [8]Exhibit 1 certified that: -
The image was properly taken by a photographic detection device being Gatso Speed Camera System model Radar AUS 24 bearing the serial number 537; and
The photographic detection device was used at a specified location namely Saverin Road, Eagleby at 11:37am on 29 August 2011.
- [9]In addition, the photograph[5]included a “data block” in the top right hand corner as prescribed by Traffic Act Regulation 1962 r. 211.
- [10]The prosecution also tendered a second photograph[6], with an identical certificate from Senior Sergeant Stephen Embelton, which was a close up of the motorcycle’s registration plate. The appellant indicated to the Magistrates Court that he had never received a copy of Exhibit 2, but did not dispute that the motorcycle in question was his motorcycle[7].
- [11]Ms Wooldridge submits, and I accept, that the consequence of the certificates attached to trial exhibits 1 and 2 was that, if made under a valid delegation, once submitted into evidence, together with the photographs, they were evidence of the following factual matters: -
- (i)The things depicted in the image[8], including the subject vehicle and the vehicle registration plates attached to that vehicle;
- (ii)
- (iii)
- (iv)That the vehicle was at the time of the photograph travelling at a speed of 102 kilometres per hour[11];
- (v)
- (vi)That any requirements prescribed by a regulation about the operation and testing of the device (the Gatso Speed Camera System Model Radar AUS 24, Serial number 537) were complied with at all material times[13].
- [12]Trial exhibit 3[14]was a certificate pursuant to TORUMA s. 120(2A) under the hand of Senior Sergeant Stephen J Embleton dated 1 May, 2012, certifying that Senior Sergeant Embleton “was an authorised delegate of the Commissioner of Police pursuant to s. 4(10) of the Police Service Administration Act 1990.”
- [13]Exhibit 3 relevantly stated that the photographic detection device type Gatso Speed Camera System Model Radar AUS 24, serial number 537 was tested at 12:05pm on 21 December 2010 in accordance with the specifications of the device manufacturer, and any further requirements about calibration testing prescribed under the regulation, and that the radar speed detection device was found to produce accurate results. No objection was taken to the admission of this certificate[15].
- [14]The certificate contained in Exhibit 3, if made under a valid delegation and admitted into evidence, was evidence that the camera used had produced accurate results at the time of testing and for 12 months subsequently[16], which was a period encompassing the date of the offence charged (29 August 2011)[17].
- [15]Pursuant to State Penalties Enforcement Act 1999 s. 157(2), the prosecution tendered a series of documents which were, pursuant to that section, proof of the matters stated within the documents, being: -
A certificate[18]dated 1 May 2012 verifying that infringement notice 150061758 for the offence of exceeding the speed limit involved a vehicle bearing the registration number UM971;
A certificate[19]dated 1 May 2012 certifying that infringement notice 150061758 for an offence of exceeding the speed limit had been sent by mail to the appellant;
and
A certificate[20]dated 1 May 2012 certifying that the appellant, having been served with the subject infringement notice, had not given the Commissioner notification by way of a valid statutory declaration, within 28 days of the issue date of the infringement notice, to the effect of nominating someone else to be the rider of the motorcycle.
- [16]A further certificate[21]pursuant to TORUMA s. 60(2)(d)(1) and s. 124(1)(n)(2), under the hand of Claire Patricia Kearney, Assistant Prosecutions Officer, dated 30 April 2012, stated that Ms Kearney was exercising the powers delegated to her by the Chief Executive under Transport Planning and Coordination Act 1995 s. 37 and Public Services Act 2008 s. 103.
- [17]This certificate stated that the silver 2002 Yamaha FJR 1300 motorcycle registration number UM971 was registered in the name of the appellant (Leon Robert Roland) at a specified address as at 29 August 2011 (the date of the alleged offence). If made under a valid delegation and admitted into evidence, the effect of the certificate was that it was conclusive, although rebuttable, evidence of that factual assertion[22]. Certified copies of these instruments of delegation were tendered as Trial Exhibits 8, 9 and 10 on the hearing[23].
- [18]The sole witness for the prosecution was the camera operator, Senior Constable Darren Smith. Constable Smith gave evidence that he had been a police officer for nine and a half years, had been with the Traffic Branch since September 2006, and that he had completed training including the use of the LIDAR device[24]. The learned magistrate would not allow certificates of training to be tendered as they had not previously been disclosed to the appellant and were objected to, but no issue was taken with Senior Constable Smith’s expertise and the evidence of training was given orally.
- [19]Senior Constable Smith gave evidence that he used the LIDAR device and an approved speed detection device in the course of his duties on a weekly basis.
- [20]Senior Constable Smith gave evidence that on the date in question (29 August 2011), he selected the site he was to perform his duties on that day from the computer traffic scheduling system[25]and conducted tests on the laser speed detection device before leaving the police station[26]. The prosecution tendered a Certificate – Laser Device[27]under the hand of Acting Senior Sergeant R J Corcoran, Beenleigh Police Station dated 20 June 2012, pursuant to TORUMA s. 124(1)(pa)[28]. The prosecution also tendered (as part of Trial exhibit 11), the relevant instrument of delegation for Acting Senior Sergeant Corcoran, which certificate stated that he was an authorised delegate of the Commissioner of Queensland Police Service pursuant to s. 4.10 of the Police Service Administration Act 1990[29].
- [21]The certificate in Trial Exhibit 11 stated that the laser speed detection device serial number UX020595 was tested in accordance with the appropriate Australian Standard as in force at the time of testing (14:10 hours on 11 November 2011) and was found to be producing accurate results. This certificate, if made under valid delegation and admitted into evidence, was proof of the matter stated and of the accuracy of the device for one year after the date of testing, although that date (11 November 2011) post dated the offence date (29 August 2011).
- [22]The prosecution also presented two further certificates in evidence through Senior Constable Smith, stating that the laser speed detection device serial number UX020595 had been used by Senior Constable Smith at 6:20am and again at 1:30pm on 29 August 2011 in a manner which accorded with the appropriate Australian Standard then currently in force[30].
- [23]Senior Constable Smith gave evidence that he attended at 16 Saverin Road, Eagleby at approximately 11:00am, on 29 August, 2011 and noticed there was a visible 60 kilometres per hour signpost in good condition, 200 metres north of the address and a similar signpost 100 metres south of that address.
- [24]Senior Constable Smith gave evidence of setting up the speed camera, which had been tested that morning[31]and a speed camera set up checklist and site sketch was tendered[32], as well as additional documentation as to the operation of the speed detection device on that day, with no objection by the appellant.[33]
- [25]Senior Constable Smith gave evidence that he had undertaken training in adjudicating traffic speed camera photographs[34], and gave evidence as to how, mathematically, it could be said that it was the appellants motorcycle which had been travelling at the stated speed of 102 kilometres per hour[35]. Senior Constable Smith also gave evidence that he had conducted regular test shots every hour and that no changes or issues were identified in the course of such testing[36]. Senior Constable Smith also gave evidence of the safety checks he conducted in shutting down the site in question and the transfer of the computer information[37].
- [26]In cross examination, Senior Constable Smith gave evidence that the speed camera was capable of taking two images a second; that it was necessary for the speed detection vehicle to be level with the traffic; that there was no issue from the fact that the test shots were done in relation to traffic travelling in the opposite direction to the appellant; that the setting up of the camera was in accordance with the Australian Standards; and that there was nothing in the detection/beam area that was capable of producing a reflection. Senior Constable Smith denied suggestions that star pickets, or a wooden paling fence with metal behind it would cause radar reflection. Senior Constable Smith gave evidence that there was a three kilometre per hour tolerance (plus or minus) for speeds up to 100 kilometres per hour, and thereafter a 3% tolerance; that he observed cabling in the area to be shielded; that he was going to a pre-determined authorised site; and had consequently met the standards in relation to “2.4.2 electromagnetic interference”.[38]
- [27]On re-examination, it was established[39]that if two vehicles were going through camera beam at the same time, no photograph would be taken.
- [28]Senior Constable Smith specifically recalled the appellant’s motorcycle as being the highest registered speed for a vehicle that day.[40]
- [29]The appellant made a “no case submission” on the grounds that the Australian Standards pertaining to avoiding potential electromagnetic interference had not been met, but this application was dismissed[41].
- [30]The appellant was the sole witness for the defence. The appellant gave evidence that he was the rider of the relevant motorcycle; that he was not speeding on the day; that he always tried to keep to the speed limit as much as he could; that he had adjusted his muffler so that his motorbike could be heard; and that there was a metal picket fence and letter boxes within the beam of the camera’s speed device[42].
- [31]The appellant gave evidence that he lived nearby to the site location; had been riding motorcycles for 38 years; that his motorbike was capable of heavy acceleration; that he was aware of his speed because there were speed cameras about and that he always watched his speed, claiming that he was travelling 60 kilometres per hour[43]. In re-examination, the appellant sought to establish through a photograph[44]that the camera was set up closer to the point of the “dog leg” than indicated in the evidence of Senior Constable Smith, although this had not been put to Senior Constable Smith in cross examination.
- [32]The learned magistrate, in a detailed decision covering some 16 pages of transcript, carefully reviewed the evidence, both oral and written, tendered by and or called on behalf of the prosecution and defence, and concluded, beyond reasonable doubt, that the prosecution had established “all elements of the offence”.
- [33]The learned magistrate noted the evidence of Senior Constable Smith to the effect that the LIDAR Speed Detection Device usually recorded a speed lower than the speed camera and considered that the variation of plus or minus 3 kilometres per hour up to a 100 kilometres per hour reading, was a benefit which should be given to the defendant. Accordingly the learned magistrate found that the prosecution had proved beyond reasonable doubt that the defendants speed was 99 kilometres per hour in a 60 kilometre per zone (ie 3 kilometres per hour less than the 102 kilometres per hour indicated on the speed camera), and found the appellant guilty of exceeding the speed limit of 60 kilometres per hour by 39 kilometres per hour[45].
The Law
- [34]I refer to and adopt my exposition of the relevant applicable law applying to appeals to the District Court from a Magistrates Court pursuant to s. 222 of the Justices Act 1886, as set out in paragraphs 14-16 of Stehbens v Queensland Police Service [2012] QDC 132.
Discussion
- [35]Dealing then in turn with the grounds of appeal as distilled by the counsel for the respondent, I find as follows: -
1.Late receipt of material (log set up)
The learned magistrate provided every opportunity to the appellant to seek an adjournment of the proceedings to challenge matters of evidence, and to consider materials sourced and disclosed by police in response to the appellants notice to challenge[46], but the appellant failed to accept the offering of adjournment even when it was renewed after the start of the trial[47]. In the circumstances, the appellant decided to proceed to trial despite the learned magistrate’s offer of an adjournment on at least two separate occasions, so it could not be said that there has been a miscarriage of justice.
2.Invalid Delegations
In respect of the asserted “invalid delegations”, the evidence at trial confirms that the operator (Senior Constable Smith) used the relevant device in accordance with Australian Standards, evidence confirmed by Senior Constable Smith in his oral evidence, and in the absence of any evidence to the contrary, the learned magistrate was clearly entitled to rely on that evidence to find the defendant guilty beyond reasonable doubt of the offence of speeding. None of the relevant delegations were called into question at any time during the trial.
3.Miscellaneous evidentiary matters
In respect of the remaining evidentiary matters raised by the appellant, there was no obligation on the prosecution to lead corroborative evidence of the operator’s qualifications; there was ample evidence for the learned magistrate to be satisfied of the training qualifications and experience of the camera operator; the relevant certificates tendered in evidence were sufficient for the learned magistrate to conclude that the camera vehicle and device had been operated in accordance with Australian Standards and QPS Rules and Regulations; the evidence of Senior Constable Smith was undisputed as to the site of the offence being a current and registered speed camera site; and as to the assertion that the speed reading was not reliable because there were “so many interference factors”, there was undisputed evidence from Senior Constable Smith that there was nothing within the detection beam that he observed that would have acted to affect the radar or interfere with the camera reading. There was, apart from the appellants own lay “opinion”, no admissible evidence which would in any way call into question the evidence of Senior Constable Smith on this issue. In respect of the assertion that there was a miscarriage of justice because the appellant was not given to opportunity to raise relevant evidentiary matters with the court, it is in my view indisputable that the appellant was given more than ample opportunity to raise any arguments he wished to, or for that matter to adjourn proceedings and to seek to call further evidence. The appellant has singularly failed to demonstrate a miscarriage of justice in any way whatsoever.
4.Conclusion
In short, although the nub of the appellant’s appeal is his (clearly genuine) belief that he did not exceed the speed limit as alleged on 29 August 2011 on Saverin Road, Eagleby, the overwhelming weight of the objective and admissible evidence is to the contrary. It follows, inevitably, that the learned magistrate did not, in any way, fall into legal, factual or discretionary error[48].
Orders
- [36]I order as follows:
1.Appeal dismissed.
- [37]I note that the respondent does not seek any order as to costs[49]and accordingly no order is made as to costs.
Footnotes
[1]Trial decision pp 3-17,3-19
[2]Exhibit 2 – Outline of submissions (respondent) PP1-2
[3]Complaint – Sworn and summons filed 16 February 2012 – Beenleigh Magistrates Court.
[4]TORUMA s.124(r) (ii) & (iii).
[5]Trial exhibit 1
[6]Trial exhibit 2
[7]Trial transcript p.32
[8]TORUMA s.120(2)(c)
[9]TORUMA s.120(4); Traffic Regulation r.211; Sch 10 Part 2 & Sch 11 Part 3
[10]Evidenced by the character “A” which appears in the position of “item B” at the start of the first electronic row of numbers of the data block on the photograph – See TORUMA s.120(4) and Traffic Regulation r.211, Sch 10 Part 2 & Sch 11 Part 3
[11]Evidenced by the number “102” appearing after the “=” sign in the position of “item F” on the first electronic row of numbers of the data block on the first photograph (trial exhibit 1) – See TORUMA s.120(4) and Traffic Regulation r.211, Sch 10 Part 2 & Sch 11 Part 3
[12]Evidenced by the number “060” which appears in the position of “item J” as part of the bottom electronic row of numbers of the data block on the first photograph (trial exhibit 1) – See TORUMA s.120(4) and Traffic Regulation r.211 and Sch 11 Part 3.
[13]TORUMA s.120(2)(d).
[14]Trial transcript pp33-34
[15]Trial transcript p34
[16]TORUMA s.120(2A)
[17]See Complaint – sworn, and summons filed 16 February 2012
[18]Trial exhibit 4
[19]Trial exhibit 5
[20]Trial exhibit 6
[21]Trial exhibit 7
[22]TORUMA s.124(1)(n)
[23]Trial transcript p.37
[24]Transcript p.38
[25]Trial transcript p.58
[26]Trial transcript p.41
[27]Trial exhibit 11
[28]Trial transcript p.45
[29]Trial exhibit 11
[30]TORUMA s.124(1)(pb)
[31]Trial transcript p.51
[32]Trial exhibit 14
[33]Trial transcript p.47, pp52-55
[34]Trial transcript p.38
[35]Trial transcript p.49
[36]Trial transcript p.51
[37]Trial transcript p.51, pp55-57 and see also trial exhibit 13
[38]Trial transcript p.66
[39]Trial transcript p.76
[40]Trial transcript pp.53-54
[41]Trial transcript p.130
[42]Trial transcript pp.97-98
[43]Trial transcript pp.118-119
[44]Trial exhibit 15
[45]Trial decision p.17
[46]Trial transcript p.22
[47]Trial transcript p.43
[48]Allesch v Maunz (2000) 203 CLR 172,180-181, adopted by Muir JA in Teelow v Commissioner of Police [2009] 2 Qd R 489; cited with approval by White JA in Osgood v Queensland Police Service [2010] QCA 242.
[49]Appeal exhibit 2 (outline of submissions - respondent) p.12