Luadaka v Queensland Police Service
[2014] QDC 192
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- Unreported Judgment
- Luadaka v Queensland Police Service[2014] QDC 192
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Luadaka v Queensland Police Service[2014] QDC 192
Luadaka v Queensland Police Service[2014] QDC 192
DISTRICT COURT OF QUEENSLAND
CITATION: | Luadaka v Queensland Police Service [2014] QDC 192 |
PARTIES: | DIANE LUADAKA v QUEENSLAND POLICE SERVICE |
FILE NO/S: | D125/14 |
DIVISION: |
|
PROCEEDING: | Section 222 appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 22 August 2014 |
DELIVERED AT: | Southport |
HEARING DATE: | 19 August 2014 |
JUDGE: | McGinness DCJ |
ORDER: | Appeal dismissed. |
CATCHWORDS: | APPEAL – Appeal against conviction – driving offences – speeding – detection device – LIDAR device. Justices Act 1886 (Qld), s 222; s 223. Rowe v Kemper [2008] QCA 175. Mbuzi v Torcetti [2008] QCA 231. |
COUNSEL: | The appellant is self-represented K Sampson for the respondent |
SOLICITORS: | Director of Public Prosecutions for the respondent |
- [1]On 3 April 2014 the appellant was convicted in the Magistrates Court at Southport of one charge of disobeying the speed limit pursuant to s 20 of the Transport Operations Regulation 2009. The appellant was fined $330. She appeals against her conviction. The appellant was not legally represented at the original hearing and was self represented at the appeal hearing.
- [2]During the hearing of this appeal, the appellant and respondent both relied on written submissions and supplemented those submissions with brief oral submissions. Before referring to the written and oral arguments it is appropriate to summarize the prosecution and defence evidence given at trial.
The evidence
- [3]On 29 April 2013 Officer Kerr-Hemingway (Officer K-H) was performing general duties which included operating a LIDAR device to detect vehicles travelling over the speed limit. He was working that day with Officer Karen Martin. He gave evidence she was no longer employed by Queensland Police Service at the time of trial. Officer K-H gave evidence he was qualified to operate the type of LIDAR device which he was operating on 29 April 2013. He attended a four day operator’s course in February 2011.[1] Officer K-H conducted a calibration test on the LIDAR device prior to commencing traffic duties on the day of the incident.[2] He was satisfied it was operating accurately. He gave evidence that at the end of the day he returned the LIDAR device to the Broadbeach station where he again conducted a calibration test of the LIDAR device as he had done at the beginning of the shift. Prosecution also tendered a certificate of calibration and instrument of delegation certifying the LIDAR device was tested in accordance with appropriate Australian Standards on 28 August 2012.[3]
- [4]Officers K-H and Martin commenced speed monitoring duties on Slatyer Avenue, Southport at approximately midday. The speed limit was 60km/h along Slatyer Avenue. The officers positioned their vehicle approximately 500 metres west of traffic lights at the intersection of Benowa Road and Slatyer Avenue. They set up the speed detecting site out the front of a Council pumping station where it was safe to pull cars over. Officer K-H tested the LIDAR device at the site in preparation for conducting speed monitoring.[4] Officer K-H trained the LIDAR device onto vehicles travelling in an easterly direction. Officer K-H gave evidence the appellant’s vehicle was travelling in the outside lane along Slatyer Avenue. He observed there was no other traffic on the roadway in the vicinity of the appellant’s vehicle at the time. When he saw the appellant’s vehicle, he focused the LIDAR device onto the vehicle’s number plate and pulled the LIDAR device’s trigger. The LIDAR device recorded the appellant’s vehicle travelling at a speed of 77km/h. Officer K-H stated he had a clear line of sight when he targeted the appellant’s vehicle as it approached. He estimated that he targeted the vehicle from when it was approximately 270 metres away and approaching. Officer K-H then moved onto the roadway and signalled to the appellant to pull over. He had a conversation with her, however did not record the conversation on tape. Officer K-H gave evidence of his recollection of the conversation as follows:
“‘Constable Kerr-Hemingway from Surfers Paradise Police Station. Do you know why I pulled you over today?’ The defendant replied with ‘I’m not sure.’ And I said ‘Do you know what the speed limit is for this area?’ which the defendant replied ‘60 kilometres an hour’. I said, ‘Do you realise you were doing 77 kilometres an hour in this area?’ To which the defendant then replied, ‘Yes, you’ve got me. I was on my way to an interview. I was late for an interview, I’m a nurse.’”[5]
- [5]Officer K-H said he then asked the defendant if there was any reason why she was travelling at that speed, to which she replied “no”. He then went over to the police vehicle to write out a traffic infringement notice.
- [6]He stated the reason he had not recorded the conversation between himself and the appellant was because he had no recording device with him. He stated this was because none were available from the Surfers Paradise station that day for him to use.
- [7]Officer K-H agreed the LIDAR device does not record any identification of what vehicle it targets. He maintained there were no other cars in the vicinity of the area when he targeted the appellant’s vehicle with the LIDAR device. He stated that he had four days of training on how to correctly operate the LIDAR device. He confirmed that he also undertook firearm testing every 12 months.
- [8]Under further cross-examination Officer K-H agreed to the following suggestions put to him by the appellant:
- The LIDAR device does not have telescopic sights;
- The device has no anti-gravity function, but rather it is like any handheld pistol;
- In order to operate the device, the operator has to raise it, aim it and pull the trigger to get a speed reading;
- The device sends out an invisible laser beam that would take a reading of whatever it is pointed at in less than 0.8 of a second;
- The laser device is, in a manner of speaking, similar to operating a firearm such as a rifle or pistol except that it shoots a laser beam rather than a bullet;
- The LIDAR device does not record date, time or location of where a reading is taken; it does not identify size, shape, colour, registration or what object it has taken a speed reading from. Officer K-H maintained there was no other cars on the road when he operated the device upon the appellant’s vehicle;
- He had received comprehensive training in operating the LIDAR device at the operator’s course he undertook;
- The beam emitted from the device focuses a small red dot onto the number plate of the vehicle approaching, which then records the speed at which the vehicle is travelling.[6] In his estimation, when he observed the appellant’s vehicle, she was speeding.
- [9]The appellant put to Officer K-H that he was not the operator of the LIDAR device, rather it was Officer Martin. Officer K-H denied the proposition and maintained he was the officer who targeted the appellant’s vehicle with the LIDAR device. The appellant did not suggest to Officer K-H in cross-examination that he was not holding the LIDAR when he pulled her over.
- [10]The appellant gave evidence she worked as a mental health nurse. On 29 April 2013 she was travelling in her vehicle from an interview at the Gold Coast Hospital to her place of work at Upton. She tendered a copy of a note from her diary to confirm she had a job interview at 11 a.m. at the Gold Coast Hospital.[7] After stopping at traffic lights at the intersection of Slatyer Avenue and Benowa Road, she then stopped for traffic travelling through Wardoo Street. She stated she could not have accelerated up to a speed of 77km/h from her stationary position prior to being pulled over by Officer K-H. The appellant said Officer K-H pulled her over. Under cross-examination the appellant stated she did not see Officer K-H until he walked out onto the road to pull her over. The transcript of the appellant’s evidence records the appellant giving the following evidence: “He walked in - on the middle of the road and pulled me over with his hand”[8] (singular). The appellant stated Officer K-H did not have the LIDAR device in his hand when he pulled her over.[9]
- [11]She stated they had a conversation. He then took her driver’s license back to the police car where he met with Officer Martin. She gave evidence that Officer Martin approached her with a breathalyser and Officer K-H returned carrying the LIDAR device. The appellant surmises the officers swapped over the equipment behind the police car.[10] The appellant also denied she made any admissions during her conversation with Officer K-H.
- [12]The appellant tendered four photographs of the scene where she was intercepted. The photographs show a female police officer (which it is accepted is Officer Martin) operating the LIDAR device. The appellant gave evidence she took these photographs from the Brolga Shopping Centre within five minutes of leaving police officers after being pulled over and fined.[11]
- [13]Under cross-examination the appellant accepted she knew the speed limit in the area was 60km/h. She denied travelling at 77km/h. She stated Officer K-H showed her the speed recorded on the LIDAR device.[12] She also stated that there were cars travelling in front of her along Slatyer Avenue at the time she was pulled over.
Magistrate’s decision
- [14]The Magistrate noted there was no dispute by the appellant that she was aware the speed limit in the area was 60km/h. He correctly identified the two major issues in dispute. The first was whether Officer K-H was the person who operated the LIDAR device, as opposed to Officer Martin. The second issue in dispute was whether he operated it correctly and took a reading from the appellant’s vehicle as opposed to some other object.
- [15]The Magistrate concluded that the only reliable evidence of who operated the LIDAR device came from Officer K-H. He stated he accepted Officer K-H’s evidence based on the fact that the appellant conceded she did not see Officer K-H until he came out onto the road to pull her over. The Magistrate was entitled to place no reliance on the photographs of Officer Martin operating the LIDAR device, clearly for the reason that the appellant did not take the photographs until after she had left the scene where she was pulled over and then drove around to a shopping centre from where she says she took the photographs.
- [16]The Magistrate concluded that Officer K-H gave honest, reliable and accurate evidence that he operated the LIDAR accurately, and directed it onto the appellant’s vehicle. The Magistrate accepted Officer K-H’s evidence that the appellant’s vehicle was the only one on the road in the vicinity at the time when he activated the LIDAR device on her vehicle and recorded the speed of the appellant’s vehicle as 77km/h. He accepted Officer K-H’s evidence concerning his experience to operate the LIDAR device correctly because Officer K-H had completed the LIDAR operator course and also completed weapon training, which included marksmanship training every 12 months. The Magistrate concluded in the circumstances, having accepted that evidence, the reading of 77km/h could only have come from the appellant’s vehicle.
- [17]The Magistrate also referred in his decision to the disputed evidence as to the conversation held between Officer K-H and the appellant. Although his reasons are not entirely clear, the Magistrate seems to have accepted that there may have been some inaccuracies in each witness’s recollection of the exact conversation that occurred between them. He does not appear to have relied on any alleged admission made by the appellant or on the accuracy of the conversations to determine the ultimate reliability and credibility of Officer K-H’s evidence.
- [18]The Magistrate noted that, although the appellant gave evidence that she could not have been travelling at 77km/h after being stationary at the traffic lights at Benowa Road, the appellant did not give any evidence that she knew what speed she was travelling at when pulled over by officer K-H. The Magistrate accepted Officer K-H’s evidence as accurate and reliable. He concluded that a combination of the officer’s evidence and the certificates tendered satisfied him beyond reasonable doubt of all the elements of the offence and convicted the appellant.
The law
- [19]Pursuant to s 223 of the Justices Act 1886, this appeal is by way of rehearing on the evidence before the Magistrate. I am required to review the evidence, to weigh the conflicting evidence and draw my own conclusions whilst affording respect to the decision of the Magistrate and bearing in mind any advantage he had in seeing and hearing the witnesses.[13]
Consideration of Grounds of appeal
Grounds 1 and 2 (appellant’s written outline)
- [20]The appellant submits that Officer K-H lied when he said he was the person operating the LIDAR device rather than Officer Martin. The plaintiff submits that it was Officer Martin who targeted her vehicle with the LIDAR device. The appellant submits that she had no opportunity to question Officer Martin. The problem with this submission is that the appellant did not ask that Officer Martin be produced as a witness at the trial. The appellant did not challenge Officer K-H’s evidence during the trial to the effect that Officer Martin no longer worked for QPS. It was open to the Magistrate to rely on Officer K-H’s evidence. In the absence of Officer Martin’s evidence, the Magistrate accepted Officer K-H as an honest and reliable witness.
- [21]The appellant also submits that the photographs she tendered of Officer Martin holding the LIDAR device which she took on the same day proved that Officer K-H lied when he said he was the officer operating the device. The photographs that the appellant took of Officer Martin operating the LIDAR device were not taken at the time the appellant was pulled over. Rather, as conceded by her, they were taken some short time later after she had left the scene in her vehicle and driven around to the Brolga Shopping Centre. All they establish is that sometime later, Officer Martin was operating the device.
- [22]In oral submissions, the appellant contended that, when Officer K-H walked out onto the road to pull her over, he didn’t have the laser gun in his hand, rather it was the female officer “up the road” with the gun in her hand. The appellant did not give this evidence at the trial. The appellant made no mention of seeing Officer Martin holding or operating the LIDAR prior to, or at the time the appellant was pulled over by Officer K-H. The appellant also submitted that the trial transcript wrongly recorded an answer she gave in evidence (referred to above in [10]). She submitted her evidence was to the effect that Officer K-H used both hands to pull her over, and that she could see he wasn’t holding the LIDAR device in either hand. Even accepting the transcript to have wrongly recorded her answer as “hand” instead of “hands”, she did not cross-examine Officer K-H as to whether he was holding the LIDAR device at the time he intercepted her, or what, if anything he did with the LIDAR device prior to pulling he over. The appellant said in evidence that it was Officer K-H who showed her the speed reading on the LIDAR device. This evidence is consistent with Officer K-H’s evidence that he operated the LIDAR device. On the appellant’s own evidence at the trial, she did not see who was operating or holding the LIDAR device prior to Officer K-H pulling her over. Although I accept the appellant’s contention that the appellant may have given evidence that Officer K-H used both hands to pull her over, I consider this is not inconsistent with Officer K-H’s evidence that he was the officer who targeted her vehicle with the LIDAR device.
- [23]There is no merit in grounds 1 and 2 of the appeal.
Ground 3
- [24]The appellant submits that Officer K-H lied when he said there were no recording devices available at the police station. The appellant never challenged Officer K-H’s evidence that there were no recording devices available for him to take out on traffic duty that day. As a consequence, there was no evidence before the court that he lied about this issue. Certainly, it is very unfortunate that officer K-H did not record his conversation with the appellant on tape. Because the appellant disputes she made any admissions against interest during that unrecorded conversation, I place no reliance on the contents of the alleged conversation, and would have myself specifically excluded it on the basis of unfairness to the appellant because it was not recorded. The magistrates reasons reflect, in my view, that the magistrate did not take the contents of the conversation into account as evidence the defendant made an admission that she knew she was speeding[14]. Rather, the magistrate based his decision on the other evidence given by Officer K-H, which he accepted was honest, reliable and accurate. There is no merit in this ground of appeal.
Ground 4
- [25]The appellant submits that, in the absence of corroborative evidence from the LIDAR detection device in relation to matters such as time, date, location or identifying particulars, any finding as to accuracy of the reading is merely speculative.
- [26]The Magistrate was entitled to rely on the calibration certificates which were tendered by the prosecution to prove that the LIDAR device was operating correctly on 29 April 2013. The Magistrate relied on Officer K-H’s evidence as to each of the issues raised by the appellant, namely Officer K-H’s evidence that he operated the device; the location he was at when he operated the device; that he targeted the appellant’s White Hyundai vehicle with the device; he pulled the trigger and the device registered a reading of 77km/h; there were no other vehicles in the vicinity of the appellant’s vehicle. This was direct evidence from Officer K-H, not hearsay evidence as the appellant submits. The totality of the prosecution evidence was sufficient evidence, if accepted, to prove Officer K-H operated the LIDAR device in an accurate manner when he took a reading of the appellant’s vehicle. There is no merit in this ground of appeal.
Ground 5
- [27]The appellant submits that the Magistrate completely ignored the photographs and other exhibits she tendered, as well as her submissions and arguments. There is nothing on the record to indicate the Magistrate ignored the photographs or the appellant’s submissions and arguments. In fact, the Magistrate referred to both the photographs and the weight he placed upon them, as well as the appellant’s arguments, in his decision[15]. The magistrate did not reject the appellant’s evidence that she took the photographs the same day. He logically concluded that the photographs were not evidence as to who was operating the LIDAR when the appellant pulled over, they were merely evidence that Officer Martin was operating the device soon after. There is no merit in this ground of appeal.
Grounds 6 to 9
- [28]The appellant has listed, at paragraphs 6 to 9 of her outline, a recitation of how a LIDAR device of the type used by Officer K-H operates. The information contained in Grounds 6 to 9 appears to be a combination of factual matters which she put to Officer K-H at the trial, some of which he agreed with. Other information contained Grounds 6-9, is an attempt to provide opinion evidence as to the shortcomings of the LIDAR device. None of the matters contained in these paragraphs, in my view, affect the reliability of Officer K-H’s evidence upon which the Magistrate was entitled to rely. There is no merit in these grounds of appeal.
Conclusion
- [29]I have reviewed the prosecution evidence and the appellant’s evidence at trial, as well as the submissions of both prosecution and defence. I consider the evidence establishes beyond reasonable doubt that:
- Officer K-H accurately targeted the appellant’s vehicle with the LIDAR device and the device recorded a reading of 77km/h in a 60km/h zone. I note that the appellant gave evidence that Officer K-H showed her the reading when she was pulled over. She did not dispute in evidence that the reading she was shown was 77km/h.
- The appellant gave evidence that she did not see Officer K-H until after he walked out onto the road to pull her over, so there was no evidence to dispute his evidence that he operated the LIDAR device on her vehicle as she approached.
- The photographic evidence, tendered by the Appellant, of Officer Martin holding the device merely establishes that, at a later point in time, Officer Martin had the role of operating the LIDAR device.
- The documentary evidence tendered proved that the LIDAR device was operating accurately on the date of the incident in accordance with Australian Standards. These documents were not challenged by the appellant. The appellant did not challenge the accuracy of the LIDAR device, only the way in which Officer K-H operated it, and whether he had measured the appellant’s speed as opposed to the speed of another vehicle.
- The certificate of Officer K-H’s attendance at the LIDAR operator’s course in February 2011, together with his evidence of firearm training and his experience using the LIDAR device previously, establishes he was qualified to operate the LIDAR device.
- There were no other vehicles in the vicinity of the appellant’s vehicle when Officer K-H locked the LIDAR device onto the appellant’s vehicle and recorded the vehicle’s speed at 77km/hr.
- [30]Having reviewed the Magistrate’s reasons, the transcript of the evidence, and the exhibits, I am satisfied beyond reasonable doubt that officer K-H gave credible and reliable evidence. I am satisfied beyond reasonable doubt the appellant was driving at a speed of 77km/hr when Officer K-H targeted her vehicle with the LIDAR device on 29 April 2013. I agree with the Magistrate’s conclusions. I confirm the Magistrate’s decision. The appeal is dismissed.
Footnotes
[1] Exhibit 1, certificate of completion of LIDAR police speed detection operator’s course.
[2] Exhibit 3, certificate of calibration, dated 29 April 2013.
[3] Exhibit 2.
[4] Transcript 6 lines 10 to 20.
[5] Transcript 7 lines 40 to 48.
[6] Transcript 17 lines 20 to 24.
[7] Exhibit 26.
[8] Transcript 29 lines 35-40
[9] Transcript 27 lines 36 to 37.
[10] Transcript 26 lines 29 to 30.
[11] Exhibit 5.
[12] Transcript 31 lines 34 to 35.
[13]Rowe v Kemper [2008] QCA 175 at [3]-[5]; Mbuzi v Torcetti [2008] QCA 231 at [17].
[14] Transcript of Decision 3 lines 10-15.
[15] Transcript of Decision 2 lines 12-22