Prus-Butwilowicz v Winston[2016] QDC 232

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant appeals, under s. 222 of the Justices Act 1886, against his conviction for speeding.  The charge was that he drove a car over the 100 kph speed limit on the Gateway Motorway at Eagle Farm on 4 February 2011.  The complaint was sworn and a summons issued on 28 September 2011 and required the appellant’s appearance on 1 November 2011.  The trial was conducted over three days on 9, 10 and 11 December 2013.  The learned magistrate, for reasons given orally on 3 February 2014, convicted the appellant.  After submissions were made about costs, the learned magistrate made orders on 11 April 2014 with respect to the costs of the proceeding.

2. [2]
   The Notice of Appeal was filed 9 May 2014. The hearing, set for two days, was to commence before me on Monday 5 September 2015. Without all the details, the appellant contacted the court by email, explaining that he was sick and could not appear. He telephoned the court when directed to do so. I adjourned the hearing to the following week. He again did not appear at the adjourned hearing on 12 September 2017 but emailed the court saying he was still unwell. On Monday 19 September 2015 I heard some submissions by telephone and ruled that I would decide the appeal on the materials filed.

3. [3]
   There was some difficulty assembling the record from the Magistrates Court. Not all exhibits were immediately available to the court. However, I am satisfied that sufficient materials have been obtained to allow a full review of the proceeding. Some still photographs, which the appellant’s expert witness, Mr Mulligan, made from a video exhibit, remain lost, apparently. I have watched the video and am satisfied the appeal can be heard without the still photographs. Also, it seems there was a photograph available to the learned magistrate of a 60 metre target, part of the range test facilities used by police. That has not made its way to the court but it was common ground that the target stood at or less than 1 metre from the ground. In the circumstances, absence of the photograph does not impair my conduct of the rehearing.

4. [4]
   The Notice of Appeal was filed before the appellant had access to the transcript of the hearing. It contains eight grounds. These have been reduced to six grounds in the appellant’s outline of argument.

Ground 1

That the complaint brought before the court was not brought by an appropriate complainant and that the prosecution was unable to substantiate that the complainant was authorised to bring such complaint.

5. [5]
   The appellant essentially argues that the conviction should be set aside because the proceeding was irregular because the person who swore the complaint was not authorised to do so. The complainant was not the officer who issued the infringement notice – the speeding ticket. The appellant made this argument at the beginning of the trial proper on 9 December 2013. The learned magistrate heard extensive submissions and gave reasons rejecting the appellant’s argument on that day.

6. [6]
   The appellant relied on a decision of another magistrate, some of which he read into the record. The learned magistrate referred to s 42 of the Justices Act and the decision of the Full Court in Potts v Brooks ex-parte Potts [1983] 2 Qd R 48 for the proposition that it is not the law that a complaint for an offence may only be sworn by the party aggrieved.  When giving reasons for decision on 3 February 2014, the learned magistrate returned to this point and referred to Whittaker v Turner [2004] QCA 191.  In my respectful opinion, the learned magistrate correctly decided this point based on those authorities.

7. [7]
   The complaint was made of an offence committed against s 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009.  A proceeding for an offence against a transport Act is a summary proceeding under the Justices Act: s 62 Transport Operations (Road Use Management) Act 1995 (the TORUM Act).  Section 42 of the Justices Act relevantly provides:

‘(1) Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or other person authorised in that behalf.’

8. [8]
   McMurdo P referred to these provisions in Whittaker v Turner, a case where this argument was disposed of.  The learned president referred to Potts v Brooks ex-parte Brooks and noted that s 51(b) of the Justices Act did not require the written complaint preceding the issue of a summons to be on oath.  McMurdo P concluded that the sergeant who swore the complaint in that case was ‘entitled to bring the complaint, even though he was not a witness to the alleged offence outlined in the complaint, and it was irrelevant whether or not that complaint was sworn or affirmed’.

9. [9]
   Although this is sufficient to dispose the first ground, the respondent referred in addition to remarks made by Magistrate Lee in Bell & Anor v Unimin Australia Pty Ltd (No. 3) [2012] QMC 16 to support a submission that the Justices Act does not impose limitations on who may make a complaint – differently from some other legislation – and the complainant in the present case was competent as a public officer under the provisions of the Justices Act s 4 definition of that term. 

10. [10]
    The respondent also referred me to ABC v Director of Public Prosecutions (Qld) & Anor [2007] QSC 134.  In that case, White J (as her Honour then was) had to consider whether costs could be awarded in favour of the Crown and the prosecutor upon the dismissal of an application for a permanent stay of a prosecution.  After referring to authority and concluding that costs could not be awarded against or in favour of the Crown in criminal proceedings, her Honour considered whether the DPP and the police officer complainant were to be characterised as “the Crown” for the purposes of that rule.  Her Honour examined the position of the police officer under the Police Service Administration Act 1990 s. 2.5A and, after referring to texts concerning the history of police and provisions of the Police Service Administrating Regulation 1990 concerning the oath or affirmation taken by a police officer, concluded that for the matter at hand the police officer was “sufficiently identified with the Crown”. 

11. [11]
    In the present case, the learned magistrate was told that Mr Winston, the complainant, was the Superintendent of Traffic. The submission by the respondent is that in those circumstances he was not acting personally as a complainant but rather on behalf of the Crown and, there being no restriction on who may bring a complaint, the complaint was properly made. I have already said that it is not necessary to go beyond the authority of Whittaker & Turner, but I accept the respondent’s submissions.  They are consistent with the authorities. 

Ground 2

That the presiding magistrate conducted himself in a fashion so as to deny the appellant procedural fairness as a result of the apprehension of bias.

12. [12]
    The appellant submitted the learned magistrate displayed “repeated instances of conduct that impinged on the defendant’s right to procedural fairness” stemming from an apprehension that the magistrate had already substantially prejudged the case. The first incident relied on arose at a pre-trial hearing on 19 September 2013. The appellant said he wished to challenge the expertise of Mr Mulcare, a prosecution witness. When he suggested that the hearing might take a day, the learned magistrate said: “I’d be surprised about that”. After some further exchange the appellant said: “well I hope Your Honour hasn’t made up your mind about this already, but…” . The magistrate spoke over him and said: “give me a break. I’ve heard nothing yet. I’m just saying to you we are not going to be wasting a whole day…”.

13. [13]
    About a page later in the transcript the appellant told the magistrate he would need a witness, Dr Gerwally. When asked why, the appellant told the magistrate: “because he’s advising on this Your Honour.” The learned magistrate said: “well come on, give me a break. A fellow standing on the street corner with a machine on his elbow hardly needs a physicist to talk about that”.

14. [14]
    That is the first incident relied upon by the appellant.

15. [15]
    The second is that the learned magistrate declined to have Mr Mulcare called by video link. The result was that Mr Mulcare was called in person by the prosecution. This sounded substantially in the costs order made against the appellant.

16. [16]
    On 9 December 2013, the first day of the substantive hearing, the learned magistrate heard argument about the expertise of Mr Mulcare. It came to light that Mr Mulcare had previously been a witness in a case before the learned magistrate. The appellant raised a concern that the learned magistrate would already have the opinion that the witness was credible and acceptable. His Honour said:

“His credit has never been argued in any case that he’s been in before me, and I think he’s been in two others that I can recall, maybe more, that’s the first point. So I don’t regard myself as in any way having formed a view that I couldn’t change.”^[1]

17. [17]
    The respondent submits that the learned magistrate could not be said to be biased merely because he had decided a previous matter in which the same expert had given opinion evidence. The respondent referred to the High Court decision in Vakauta v Kelly (1989) 167 CLR 568. The mere fact that a judicial officer has heard evidence from a particular expert in previous cases does not give rise to a reasonable apprehension on the part of a fair minded observer that the judge had pre-judged or might pre-judge the case, which is the relevant test: Webb and Hay v The Queen (1993-1994) 181 CLR 41 at [47].

18. [18]
    The appellant complains that the magistrate commented: “let us not muck around” when the appellant objected to the introduction of new evidence. It is necessary to set out the context from the record of evidence leading up to the comment and after it. The primary witness, Senior Constable Marturia, used a dashboard-mounted video recorder while testing the device, conducting traffic controls and pursuing the appellant. While the recording was played in evidence, the witness made remarks such as that he had targeted a motorbike which was “flying through traffic” and then targeted the appellant’s car. He also commented that by looking at the video one could see the appellant’s brake lights come on as the appellant passed the officer’s position. This led the officer to think the appellant had seen him and was going to pull over. The appellant did not pull over and the officer pursued him. Objection was taken that these remarks were all new. The appellant submitted that the witness should be controlled and only give evidence according to his statement. During arguments the learned magistrate said, of the witness, “that he has been asked to tell the court what he did and that’s what he’s doing”.

19. [19]
    In my opinion, the witness was adding unnecessary and inadmissible comment, probably beyond what was in his statements. But these remarks did not rendered the trial unfair nor demonstrate unfairness or perceived unfairness in the trial magistrate. In fact, the comment complained of, “don’t let us muck around” was directed at the police prosecutor when the magistrate told him to get on with the evidence.

20. [20]
    On the second morning of the trial, 10 December 2013, the appellant’s challenge to the prosecution expert, Mr Mulcare, was conducted on the voir dire. The appellant complains that the learned magistrate showed his bias by opening discussion about whether he was biased, saying, “Do not suggest I’m biased, alright?” A little later the learned magistrate said, “all you’ve asked him so far is something about some stupid words he uses when he appears on court about some degree he got in 1964”.^[2]

21. [21]
    The appellant also complains that the magistrate demonstrated a hostile attitude to him.

22. [22]
    The appellant’s questioning of the witness seemed designed to show that the witness wrongly declared himself to have obtained a degree from the ‘school of electronics’ when no such school existed. The witness agreed he had given evidence in court claiming to hold a ‘Bachelor of Electrical Engineering in the School of Electronics, at the University of Queensland.’

23. [23]
    The appellant cross-examined for some time about the specific subjects the witness had completed. The witness, while answering the questions, explained that “electronics wasn’t a noun back in 1964” but having gained his degree and experience he styled himself an electronics engineer. His Honour understood the point but saw little in it, asking: “How is that different to your expert, Mr Mulligan, who doesn’t hold a primary degree?”^[3]  The appellant repeated the point – that, unlike his own witness, Mr Mulcare claimed to hold a degree he did not hold. 

24. [24]
    The appellant also complained Mr Mulcare was not answering his questions and sought a direction from the magistrate. After some discussion the magistrate exhorted the appellant to “ask him questions, as many times as you like, and get him to answer what you want him to answer; okay? He’ll answer them”.^[4]

25. [25]
    After some further exchange, according to the transcript, the appellant said something indistinct, and then the word “bias”. That sparked the learned magistrate’s response:

HIS HONOUR: Do not suggest that I am biased; all right? Okay. You were asking questions, he is answering them, and I am making the decisions. Now, if you don’t want to ask the questions that’s your business; all right?

DEFENDANT: I - - -

HIS HONOUR: I am not biased, I am happy to listen to every question you ask him. I just told you that; okay? Now, do not start. If you can satisfy me that he’s not an expert then I’ll say he’s not an expert; all right? But all you’ve asked him so far is something about some stupid words he uses when he appears on court about some degree he got in 1964.^[5]

26. [26]
    This extract shows the context in which his Honour used the term “some stupid words”.

27. [27]
    Mr Mulcare was not an easy witness to question. He addressed the bench directly as he answered and was somewhat long-winded and self-serving, but was essentially attempting to show the relationship between the subjects he had studied and what is now called electronics. Twenty pages of transcript after the above extract the appellant was still seeking further clarification. The magistrate, having heard enough, made the next statement complained of, “That’s it. That’s the finish.” The appellant then questioned Mr Mulcare on another topic, namely his claimed involvement in the Australian Standards Committee.

28. [28]
    A reading of the entire transcript of the examination of Mr Mulcare and the learned magistrate’s reasons for accepting Mr Mulcare as an expert witness does not, alone or taken with the other particulars of this ground of appeal, demonstrate any unfairness or perception of bias in the trial.

29. [29]
    The appellant refers, as a final indicator of bias, to the witness costs awarded to the prosecution for Mr Mulcare’s expenses. He attacked the amount sought in written submissions and tendered a report from a firm, DGT Costs Lawyers. The learned Magistrate referred in some detail to the submissions made and the opinion of the costs consultant. The award of costs was for a very substantial amount.^[6]  But the award of costs, in this case made months after the trial proper, does not indicate the trial miscarried because of actual or perceived bias against the appellant or in favour of the witness.

Ground 3

That the calibration before operation of the radar device in question was not in compliance with the relevant and prescribed Australian Standards as necessary in the operation of the Queensland Police; and that this resulted in the prosecution being unable to meet the requisite standard of criminal proof.

30. [30]
    Section 112(1) of the TORUM Act provides:

When using a radar speed detection device or laser-based speed detection device, a police officer must comply with—

1. (a)
   the appropriate Australian Standard for using the device, as in force from time to time; or

2. (b)
   if there is no appropriate Australian Standard for using the device in force at the time of the use—the manufacturer’s specifications for the device.

31. [31]
    The appellant gave written notice, under s. 124(4) of the TORUM Act, of his intention to challenge the accuracy of the speed detection device.

32. [32]
    This ground of appeal reduces to the appellant’s submission that the placement of a target used for the testing of the device did not satisfy the relevant Australian Standard, so the “calibration was invalid and therefore invalidated at law any reading after that invalid calibration”.

33. [33]
    The prosecution led evidence of the accuracy of the speed detection device, which was a laser device, relying on statements, admitted by consent, and testimony of witnesses who tested the device. Senior Constable Marturia gave evidence of his testing of the device before and after the shift. He did that at Boondall Police Station.

34. [34]
    Exhibit P7 was the instrument of delegation from former Commissioner Atkinson to, relevantly, a Commissioned officer or sergeant, of the power to issue a certificate stating that a particular laser-based speed detection device has been tested and found to produce accurate results pursuant to s. 124(1)(pa) of the TORUM Act. Exhibit P2 was the certificate of Inspector Graham made under s. 124(1) (pa).  That paragraph provides:

(pa) a certificate purporting to be signed by the commissioner and stating a particular stated… laser-based speed detection device, … -

1. (i)
   was tested at a stated time in accordance with –

A. The appropriate Australian Standard for testing the device, as in force on the day of testing; or

B. …

and

2. (ii)
   was found to produce accurate results at the time of testing

is evidence that the device was producing accurate results when so tested and for 1 year after the day of testing;

35. [35]
    Ms Elena Lindenau, Technical Officer employed by the Queensland Police Service, gave oral evidence and her statement was admitted by consent.  She tested the particular device on 14 May 2010 and found it to be accurate.  Her test sheet, Exhibit P10 and certificate, Exhibit P11 were tendered by consent.  The witness first conducted a simulator test using a calibrator. Two documents, a certificate and a lengthy witness statement, Exhibits P12 and P15, were tendered by consent in proof of the accuracy of the calibrator used by Ms Lindenau to calibrate the device.  Second, she conducted fixed distance tests at the Alderley Radio and Electronics Section calibration range. 

36. [36]
    There was no issue, then, about the accuracy of the device.

37. [37]
    As to the operator’s compliance with the relevant Standard, the prosecution sought to rely on the certificate of Senior Constable Marturia pursuant to s. 124 (1) (pb). That paragraph relevantly provides:

(pb) a certificate purporting to be signed by a police officer stating a particular stated laser-based speed detection device ….. was used by the officer at a stated time in accordance with—

(i) the appropriate Australian Standard for using the device, as in force on the day of use; or

(ii) …..

is evidence of the matters stated;

38. [38]
    Senior Constable Marturia gave evidence that he re-trained in the use of the device in September 2010. On 4 February 2011 he obtained the device and performed the operational checks in accordance with AS 4691.2. He performed these tests at the Boondall Police Station, where there were two fixed targets, at 45 metres and 60 metres from a fixed operating point. The appellant tendered a diagram, described as a Main Roads Sketch - Calibration Base: Laser Speed Device - at Boondall Police Station – Exhibit D8.

39. [39]
    AS 4691.2 requires operational checks to be performed before the device is taken out to a measurement site. Relevantly, the operational checks include a range check, described as follows:

A range measurement taken to a suitable target over a known distance clear of obstructions shall be within the required accuracy as stated in AS 4691.1.

40. [40]
    AS 4691.1 sets out definitions and device requirements for laser-based devices. Under the headings: Section 2: Device Requirements; 2.6 Performance; 2.6.2: Distance Measurement, the standard requires:

“When tested in accordance with both appendix A and appendix C, the device shall measure the distance to the targets to the relevant of the following sets of accuracy criteria for the units on which the device is intended to operate:

1. (a)
   For metres, plus 0.3, minus 0.4m.

2. (b)
   …”

41. [41]
    Appendix C is entitled, Physical Method for Determination of Accuracy of Distance Measurements. Item C4 Test Facilities provides,

“two measured baselines shall be available with measured distances as follows:

1. (a)
   Short-range, greater than 15m. The range shall be accurately marked out on a level surface at a convenient location. The range, measured from the face of the target to the centre of a reference marker shall be determined with an expanded measurement uncertainty (95 per cent confidence level) not exceeding 0.05m. A calibrated steel tape or other calibrated surveying instrument shall be used for making up the range. Adequate precautions shall be taken to ensure constancy of the test distance.

NOTE: for operational use, it is recommended that a large, flat wall be used as the target. An aiming point may be provided by painting a 50mm diameter white circle or similar target on the wall approximately 1.7m above the ground. It is also recommended a permanent range reference marker be provided. This may be a painted line on a concrete surface. The line width should not exceed 50mm.

2. (b)
   Long range, 300mm or greater…”

42. [42]
    It was common ground that the 60m target was about 1 metre from the ground, whereas the recommended position for the target is 1.7 metres. The officer tested the device from the fixed position, labelled the ‘sliding arm’ in the diagram, attached to the wall of a building. As one can see by watching his video, the sliding arm was at about the officer’s shoulder height. The 45 metre target was along the same wall. The 60 metre target was across a road (within the police station). To aim at it, therefore, the operator moved slightly from the position used for aiming at the 45 metre target. The learned magistrate seems to have accepted that the 60 metre target was at an impermissible angle to the operator.^[7]

43. [43]
    The appellant’s contention is that because the height of the 60 metre target was not as recommended and was at an angle to the 45 metre target, the prosecution has not proved that when using the speed detection device the police officer complied with the appropriate Australian standard. No other point was taken in respect of the evidence in support of s 112 of the TORUM Act.

44. [44]
    Dealing with these arguments in a submission by the appellant that there was no case to answer, the learned magistrate concluded the range did not strictly comply with the recommended note in the Standard, but (i) it was only a recommendation and not a mandatory requirement; and (ii) the prosecution’s expert, Mr Mulcare, had given evidence that the non-compliance did not render the device inoperable.^[8]  His Honour considered the issue was the accuracy of the device.^[9]

45. [45]
    In his reasons for convicting the appellant, the leaned magistrate referred again to the Note in the Standard and said, “I did not receive any evidence from anybody that suggested to me that the accuracy or operational ability of the machine was affected in any way because that target was not 1.7 metres from the ground.”^[10]  By this statement it may be inferred that the learned magistrate was not moved by the evidence of Mr Mulligan that touched upon these issues.  I set that evidence out below.   His Honour referred to Ms Lindenau’s evidence of the testing of the device and concluded that, based on that evidence, the video evidence of the operator’s testing on the relevant day, the evidence of Mr Mulcare and the certificates, he was satisfied the device was working accurately.^[11]

46. [46]
    In my opinion the magistrate was right to conclude that the 1.7 metre height recommendation was not a mandatory requirement and that the position of the 60 metre target did not amount non-compliance with the Standard.

47. [47]
    Although I respectfully agree with the learned magistrate’s conclusion, based on all the evidence, that the device was accurate, it was in my view unnecessary to consider that issue. It was not the appellant’s argument that the device was inaccurate. The appellant’s argument was that there was noncompliance with the Standard and so s. 112 was not met, with the consequence that evidence of speed recorded on the device was inadmissible. The applicant in Day v Grice [2011] QCA 178 apparently sought to make a similar argument.  It was not necessary to consider the argument in that case^[12] and, because of the conclusion I have reached, it is not necessary in the present case to consider whether failure to satisfy s. 112 makes any evidence gained from the use of the device inadmissible.  Of course, the ultimate question in a trial for the charge of speeding is whether the accused exceeded the speed limit.  Evidence of speed that is based on the use of a speed detection device will only be reliable if the device is shown to be accurate and used properly.  Section 112 of the TORUM Act is a legislative tool designed to ensure these things.  It was satisfied in the present case.

48. [48]
    AS 4691.2 does not require the operator to test the device over two distances, 45 and 60 metres. It requires a range measurement to a suitable target over a known distance.  That requirement was satisfied by the 45 metre measurement.  None of the appellant’s complaints apply to that target.

49. [49]
    If the range measurement taken to the 60 metre target is to be relied on, the question becomes whether it was a suitable target. In my opinion, it did not become an unsuitable target because it was not located 1.7 m above ground, as recommended. It was a suitable target if its use would produce an accurate result. It was open to the learned magistrate to act upon Mr Mulcare’s evidence that the height of the 60 metre target was not ‘something that might cause the machine not to work properly.’^[13]

50. [50]
    The Standard required that the “range shall be accurately marked out on a level surface at a convenient location”. It was not in breach of the Standard that the target and the sliding arm were not at the same altitude.

51. [51]
    When cross-examining Senior Constable Marturia, the appellant apparently read from documents – he referred variously to “the UltraLyte users’ manual” and the “Queensland Police Service speed management training lidar which I obtained under subpoena eventually”.^[14]  The appellant did not put either document into evidence.  He also appears to have read to the witness from a part of Appendix C which relates not to the short range measurement tests conducted but to the long range test. In any case, s. 112 of the TORUM Act requires compliance with the relevant Australian Standard, not the police operating manual. 

52. [52]
    The assertion that the 60 metre target was at an angle to the operator is not supported by the Boondall Sketch, Exhibit D7. In fact, it shows the target drawn to face the operator. I respectfully do not agree with the learned magistrate that there was anything impermissible about the angle of the 60 metre target.

53. [53]
    In the result, the argument that the police officer using the device failed to comply with the relevant Australian Standard fails.

Ground 4

The bias of the presiding magistrate prevented the challenge to the deductive process of the opinion evidence of the prosecution witness, Mr Malcolm Mulcare, under the ‘basis rule’.

54. [54]
    In his written outline, the appellant submits that his examination of Mr Mulcare was curtailed and he was thereby prevented from laying a platform upon which Mr Mulcare’s opinion could be examined.

55. [55]
    Mr Mulcare’s evidence was significant. He assisted the learned magistrate with the relevance of the particular part of the Australian standard that I have discussed above. He gave an opinion that the manner in which the witness Senior Constable Marturia used the speed detection device at the place he used it in order to detect the speed of the appellant’s vehicle in the lane it was in was appropriate. He said the ideal part of a vehicle to aim the device was the number plate. That piece of evidence was not controversial. He gave evidence, which required no expertise, that a certain opinion of the appellant’s expert was speculative. In his written report Mr Mulcare presented the opinion that it is generally understood that cruise control settings and GPS speed readings are not as accurate as police speed measuring devices.

56. [56]
    The appellant had a proper opportunity to challenge Mr Mulcare, although he barely cross-examined the witness on the trial. I have already referred to Mr Mulcare’s evidence and the lengthy examination the appellant conducted of him on the voir dire. I am not satisfied the appellant has shown where or how the cross-examination of Mr Mulcare was curtailed. I am not satisfied the trial miscarried on this ground.

Ground 5

The defence expert witness who gave clear and cogent technical analysis which cast doubt over the legitimacy of the reading and the target obtained for the purported reading was not given sufficient probative value.  This impinged upon the magistrate’s determination of the criminal standard of proof as it substantially undermined the evidence of Mulcare so as to deprive it of its probative weight.

57. [57]
    In his written outline the appellant continues to attack Mr Mulcare’s evidence on the basis that it was not independent because he was and has always been a police witness and is truly part of the prosecution team. That does not, in my view, advance this ground of appeal.

58. [58]
    To understand the relevance of the evidence of Mr Mulligan, the expert called by the appellant, it is necessary first to give some more detail about the events surrounding the commission of the alleged offence. Senior Constable Marturia gave evidence that after testing the lidar device he went to the Gateway Motorway and positioned himself at a location at Eagle Farm. He arrived there just after 4.00pm. His dashboard-mounted video recorder recorded everything in front of his police vehicle.

59. [59]
    Diagrams and photographs put into evidence show where the vehicle was stopped and give an understanding of the events. Senior Constable Marturia parked his police car next to the southbound lanes of the motorway. The car, therefore, was facing south and the video recorder captured a view of vehicles driving to the south away from the police vehicle. Senior Constable Marturia targeted traffic as it was coming southbound towards him. He targeted a number of vehicles including a motorcycle. The motorcycle was travelling at about 130-135 kph. At the time of targeting the motorcycle he noticed the silver car which was the appellant’s Toyota Prius. He did not intercept the motorcycle because he thought the reading might have been from the car not the motorcycle. The silver car was behind the motorcycle when he first saw it. He thought the car was doing 105 kph and thought the motorcycle would pull away from the car. However the car stayed with the motorcycle and:

“so it is flying through traffic just as quick as what the motorbike was”.

60. [60]
    He then gave evidence that he targeted the appellant’s car with the lidar device and achieved a reading of 131 kph at a distance of 152m. He then drove his police vehicle to catch up with the appellant’s car. One can observe this passage of driving on the video produced by his dashboard recorder.

61. [61]
    Senior Constable Marturia recorded his roadside conversation with the appellant. The recording and a transcript were in evidence. Briefly put, the appellant denied he was speeding. He told the officer he had a cruise control set at “about 100”. The appellant explained that he was a barrister and very familiar with speeding cases. He was familiar with the operational problems of the speed detection devices. When the officer suggested that despite the cruise-control being engaged a driver can accelerate the car, the appellant said:

“But I don’t keep my foot on the accelerator”.

62. [62]
    The appellant also told the officer he had:

“Two sat-nav systems in this car… This one here, is different from this one by 1 kph at about 100k”.

63. [63]
    He told the officer one was set to alarm if he exceeded the speed limit by 6 kilometres and there had been no alarm. He was relying on that to monitor his speed.

64. [64]
    Mr Mulligan was examined on the first day of the trial for the purpose of establishing his expertise. He is an electronics engineer, semi-retired. He has been in that profession for 35 years. He has been familiar with speed devices since about 1983. He was a member of one of the original standards committees from about 1983 to 1996. He was involved with the committee that drafted the original radar standard. He has examined lidar devices since about 1996 and owns four or five different types of lidar equipment. He is a member of various institutes and organisations and has frequently given evidence in court. He was cross-examined by the police prosecutor after which the learned magistrate announced he was satisfied that Mr Mulligan had demonstrated expertise in a relevant area by virtue of his training and experience.

65. [65]
    At trial, the appellant did not give evidence but called Mr Mulligan. In evidence in chief, the appellant referred the witness to a document called the “the UltraLyte users’ manual” which included the following,

“First, the distances specified are horizontal distances.  A horizontal distance is measured along a straight and level path from the shooting mark to the centre of the aiming point.” 

Mr Mulligan said:

“The reason why it’s so specific in the manuals and in the Standard that for the accuracy of the test, you’ve got to ensure that the laser beam goes straight out and straight back.  Once you’ve introduced any angle or deflection of the laser beam, then the accuracy of the return measurement can’t be relied upon.  Now, in the set up in the manuals, they allow for slight variation in height.  Ok.  But with this target being across at 20 degrees from where we started and the requirement that the – the reflector be perpendicular, so perfectly level, but it’s down there just off the ground, when you point a laser gun down that reflector, it’s not going to come back to the gun.  It’s going to hit the target and reflect at an angle equivalent to the slope - probably may hit the ground, may go left, may go right.  There’s no guarantee that what you get back is a true and accurate measurement of the distance.”^[15]

66. [66]
    A little later, Mr Mulligan said the standards were not written as if legislation, but were “basically guidelines”.^[16]  

67. [67]
    Mr Mulligan considered targeting vehicles across one or two lanes would produce “fairly accurate” results but:

“as you start moving the gun further and further and further out you introduce an issue whereby, depending on the target, the beam hits the target and goes somewhere else before it comes back to you.”^[17]

68. [68]
    Under cross-examination, he explained that the consequence of the device being targeted at an angle to a vehicle is that the reading would be reduced - that is the reading cannot be higher than the true speed.^[18] 

69. [69]
    The witness had prepared a report for the appellant which was apparently tendered but is not noted on the exhibit list. The appellant supplied a copy to the court. Mr Mulligan concluded that the section of motorway was not suitable for laser speed detection for several reasons. These included obstructions, the sweeping left hand curve, the resultant short tracking time and the angle created in the particular case of the appellant’s car, being in the third or fourth lane from the operator’s side of the road. Mr Mulligan also argued that, because of the styling of the appellant’s car, the distance from the operator when he said he tracked the car and the width of the laser beam at that distance, almost 90% of the laser beam would have continued from or past the vehicle onto the concrete wall running behind the appellant’s car, then back to the device by various paths. This undermined the reliability of the reading.

70. [70]
    Mr Mulligan included in his report a diagram constructed from measurements in the police materials. It placed the appellant’s car, in accordance with Senior Constable Marturia’s evidence, 152 metres from the operator’s position. Assuming that at that point the appellant’s car was being overtaken by the motorcycle, Mr Mulligan concluded the time gap between when the motorcycle and the appellant’s car could be seen passing a particular point on the video was consistent with the motorcycle having travelled at 131 kilometres per hour and the car at 100 kilometres per hour. So, the likelihood was that the reading of 131 kph came from the motorcycle as it overtook the appellant’s car. If the appellant’s car and the motorcycle were travelling at the same speed, they would not be so separate at the observation point.^[19]

71. [71]
    Under cross-examination, Mr Mulligan accepted that he did not know the position of the motor cycle before it went past the police vehicle. His object was to ‘work out the highest probability for where the 131 came from.’^[20]  He also agreed he did not know what speed the motorcycle was travelling just before it passed the observation point.^[21]

72. [72]
    Mr Mulcare was recalled in rebuttal of Mr Mulligan’s evidence. He pointed out that the police officer’s video commenced significantly after the moment of speed detection. Either car could have changed speed during that period.

73. [73]
    Mr Mulcare also said Mr Mulligan’s understanding of the width of the laser beam was inaccurate – that at 152 metres the beam width was about 45.7 centimetres, not 60 centimetres.^[22]

74. [74]
    The learned magistrate gave Mr Mulligan’s evidence relatively substantial consideration in his reasons for decision. Ultimately, his Honour rejected Mr Mulligan’s evidence, saying:

“I am left with the unchallenged evidence of the arresting officer who was a skilled operator and had been a traffic officer using this type of equipment for some considerable time, and the evidence of Mulcare, who says that the calculation is speculative at best”.^[23]

75. [75]
    In my respectful opinion, the learned magistrate was right to reject Mr Mulligan’s calculations. Senior Constable Marturia’s evidence did not provide the premise, namely that the motorcycle was overtaking the appellant’s car at the time of speed detection, about 152 metres from the operator. Senior Constable Marturia said he detected the motor cycle travelling at “130, 135” about 500 metres away.^[24] The appellant’s car was ‘trying to stay with the motorcycle”, that is, the motor cycle was already in front of the car before the officer was able to target the car.  He heard the motor cycle pick up speed.  He continued:

“So by the time it come past me it would have been comfortably 140 plus because at that stage it was starting to leave the silver car behind. And then yes, I’ve tried to target the motorbike. I couldn’t get a target on him. I’ve gone straight to the car from there and which I achieved a target on the car”^[25]

76. [76]
    No other witness gave evidence about the relative positions of the motorcycle and the appellant’s car at the time of speed detection. Upon my review of the evidence I am not satisfied the evidence of Mr Mulligan cast a reasonable doubt on the evidence which proved the appellant sped as Senior Constable Marturia said.

Ground 6

That on all the evidence presented the verdict is perverse.

77. [77]
    I have reviewed the record, as detailed above, and am not satisfied the verdict is perverse. On the contrary, I am satisfied the evidence proved the appellant’s guilt beyond reasonable doubt.

Conclusion

78. [78]
    In the terms of Justices Act s. 225(1), I confirm the learned magistrate’s decision.