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Ring v Commissioner of Police[2019] QDC 32

Ring v Commissioner of Police[2019] QDC 32

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Ring v Commissioner of Police [2019] QDC 32

PARTIES:

AARON JAMES RING
(appellant)
v
THE COMMISSIONER OF POLICE
(respondent)

FILE NO:

D67/19

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Maroochydore(Wilkinson A/Magistrate)

DELIVERED ON:

21 March 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

5 December 2018

JUDGE:

Cash QC DCJ

ORDERS:

  1. The appeal is dismissed.
  2. The appellant pay the respondent’s costs of the appeal not exceeding the scale amounts in Schedule 2 of the Justices Regulation 2014.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – s 222 Justices Act – where the appellant was convicted of exceeding the speed limit – where the evidence against the appellant relied upon a video recording of the appellant riding his motorcycle – calculation of speed – opinion evidence – scientific and expert evidence – admissibility of evidence – reconstruction and experimentation – appeal by way of rehearing – sufficiency of evidence.

Justices Act 1886 (Qld) ss 222, 223

Justices Regulation 2014 schedule 2

Transport Operations (Road Use Management) Act 1995 (Qld) s 120A

Transport Operations (Road Use Management – Road Rules) Regulations 2009 (Qld) regs 20,21

Allesch v Maunz (2000) 203 CLR 172 [22]-[23]

Birks v Western Australia (2007) 168 A Crim R 350 [48]-[54]

McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612

R v Banhelyi [2012] QCA 357

R v Harbour [1995] 1 NZLR 440, 446

R v Sitek [1988] 2 Qd R 284, 288 & 292

Robinson Helicopter Company Inc. v McDermott (2016) 90 ALJR 679, 686-687; [2016] HCA 22 [43]

Sherrard v Jacob [1965] NI 151, 156

Victorian Stevedoring & General Contracting Co. Pty Ltd v Dignan (1931) 46 CLR 73, 107

COUNSEL:

D L Crews for the appellant

G J Cummings for the respondent

SOLICITORS:

Fowler Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    Since at least the early seventeenth century it has been understood that the average speed of an object during an interval of time can be calculated by dividing the distance the object travels by the length of the interval.[1]Commonly expressed, the mathematical formula is Ring v Commissioner of Police [2019] QDC 32, where “v” is speed, “d” is distance and “t” is time.[2]If any two of the variables are known it is possible to calculate the third.
  2. [2]
    The appellant, Aaron James Ring, was convicted by a Magistrate of riding his motorcycle in excess of the speed limit of 70 kilometres per hour on Caloundra Road. The conviction was founded upon video footage of the appellant’s motorcycle recorded by a camera at a nearby business. It was said that the time interval and distance travelled by the appellant could be determined from the footage and evidence of measurements at the scene, at least within a range of values. Having determined two of the relevant variables in this way, the third, the appellant’s average speed, could be calculated. Applying the formula referred to above, the average speed of the motorcycle was calculated to be more than 70 kilometres per hour across the range of values for distance and time.
  3. [3]
    The appellant appeals against his conviction pursuant to section 222 of the Justices Act 1886. I have considered the evidence before the Magistrate and the arguments raised by the appellant. Despite errors in the proceedings at first instance, I am satisfied that on the evidence properly admitted the appellant is guilty. For the reasons that follow, the appeal is dismissed.

Applicable legal principles

  1. [4]
    An appeal to this court pursuant to section 222 of the Justices Act 1886 is to be determined in accordance with section 223 of that Act. That is, the appeal is by way of rehearing on the evidence before the Magistrate (and any other evidence introduced with leave of this court) rather than a hearing de novo. It is for the appellant to demonstrate that the decision the subject of the appeal is the result of some legal, factual or discretionary error.[3]An appeal by way of re-hearing involves the appellate court conducting a “real review” of the evidence given at the trial. In Robinson Helicopter Company Inc. v McDermott[4]the High Court said:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”

  1. [5]
    In McDonald v Queensland Police Service[5] Bowskill J said that:

“It is well established that, on an appeal under s 222 by way of re-hearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”

  1. [6]
    The mere demonstration of error does not itself entitle the appellant to succeed on the appeal. If, after reviewing the evidence properly admitted, I am satisfied of the guilt of the appellant it would be appropriate to dismiss the appeal, despite some error in the proceedings before the Magistrate.

Evidence at the trial

  1. [7]
    The prosecution called ten witnesses to testify. It is not necessary for this appeal to detail the evidence of all of them. The events concerned a collision between the appellant’s motorcycle and a car driven by Deborah Boreham on Caloundra Road on 28 July 2016. The appellant suffered serious injuries as a result of the collision. The relevant part of the road is shown in the image below. The circle indicates the approximate area of the collision.

Ring v Commissioner of Police [2019] QDC 32

  1. [8]
    Deborah Boreham testified that she was driving her green Mitsubishi north along Sydal Street, having visited the chemist nearby. Sydal Street intersects with Caloundra Road. Ms Boreham intended to turn right to head east on Caloundra Road. She faced a give way sign and had to cross the two west bound lanes of Caloundra Road. At the intersection Ms Boreham looked east and saw the traffic lights on Caloundra Road at Latcham Drive displayed a red signal for traffic on Caloundra Road.  She drove onto Caloundra Road to turn right. She did not see the appellant’s motorcycle but heard it, then heard and felt a collision that spun her car around. She saw the appellant and his motorcycle on the road nearby.[6]In cross-examination Ms Boreham said she saw the traffic on Caloundra Road waiting for the lights to change before she moved into the intersection.[7]Ms Boreham was charged with, and later pleaded guilty to, driving without due care and attention.[8]
  2. [9]
    Lynette Coxeter had driven her car east on Caloundra Road and was waiting to turn right into Sydal Street. She saw what must have been Ms Boreham’s car approaching from her right to turn into Caloundra Road from Sydal Street. Ms Coxeter also heard and saw the appellant’s motorcycle approaching along Caloundra Road. She saw the collision. When how fast she thought the appellant was riding Ms Coxeter replied, “[He] didn’t appear to be going that – you know, he wasn’t flying up the road … It wasn’t like he was speeding, doing heaps and he was quickly past.”[9]In cross-examination she agreed she told the police the appellant appeared to be going at “normal” speed.[10]
  3. [10]
    Robert Meyers was a passenger in Ms Coxeter’s car. He recalled waiting to turn right into Sydal Street when he heard the loud noise of the appellant’s motorcycle approaching. He noticed Ms Boreham’s car come out of Sydal Street and saw the motorcycle hit her car.[11]As to the possible speed of the motorcycle he said, “I didn’t think he was speeding at the time.”[12]
  4. [11]
    Kenneth Krieger was driving his car west on Caloundra Road. He stopped at the red light at Latcham Drive. He was in the right lane with one car in front of him. The appellant’s motorcycle was waiting in between the two cars at the front of the queue.  Mr Krieger saw Ms Boreham’s green car cross part of Caloundra Road at the intersection about 400 to 500 metres down the road. When the light facing Mr Krieger turned green the motorcycle “took off” and by the time Mr Krieger’s car was at the stop line of the traffic lights the motorcycle had collided with Ms Boreham’s car.[13]Mr Krieger was asked if he thought the appellant was riding at the speed limit of 70 kilometres per hour. He said,

“I don’t know if he was or not. It covered a lot of ground quickly. Right? From where we were. So basically we rolled four metres forward, from the time of when the lights had changed, and in that four metres the impact had occurred.

  1. [12]
    Lahni Hill was putting fuel in her car at a store on Caloundra Road. She heard the appellant’s motorcycle changing through the gears. She saw the collision and went to assist the defendant. Ms Hill expressed the view that the appellant was not exceeding the speed limit of 70 kilometres per hour.[14]She confirmed this in cross-examination.[15]
  2. [13]
    A number of police witnesses testified. Senior Constable Daniel Barker and Constable Mitchell Taylor were among the first police on the scene after the collision. Barker assisted in traffic management and also helped Senior Constable Cook who arrived to investigate the collision.[16]Taylor and Barker took notebook statements from persons who said they were witnesses.[17]Copies of these “statements” were tendered, without objection, on the basis they could be regarded as evidence.[18]Senior Constable Barker attended the Bob Jane T-Mart store on Caloundra Road and discovered a security camera at the business had recorded the appellant riding along Caloundra Road and colliding with Ms Boreham’s car. He obtained that recording.[19]Senior Constable Barker was cross-examined about the steps he took to obtain and copy the video footage. There was no challenge to the notion that the footage depicted the appellant riding his motorcycle along Caloundra Road at the relevant time.
  3. [14]
    Timothy Woodcock was employed by the Queensland Police Service in a position described as senior forensic recording analyst. He described his tertiary qualifications and some fourteen years’ experience in video enhancement and video analysis.[20]Woodcock was asked to analyse two pieces of video footage. One was the footage of the collision and the other footage of a police car driving along Caloundra Road recorded at a later stage.[21]The latter video is discussed below. Woodcock was asked to analyse the timing information of the footage. The video contained a clock in the top right corner that displayed the time and counted up in full one second intervals.[22]Woodcock was able to ascertain that the video contained 25 unique frames in each second of footage.[23]In cross-examination it was established that Woodcock made a copy of the footage with a number allocated to each frame.[24]The effect of the evidence was that it could be said that each 25 frames amounted to one second in elapsed time, but it was not possible to say each frame represented Ring v Commissioner of Police [2019] QDC 32 of a second. That is, one frame could conceivably be longer than Ring v Commissioner of Police [2019] QDC 32 of a second and another frame shorter. But for every twenty-five frames one second passed. Woodcock could not exclude the possibility of “clock shift” contributing to error in the measurement of time, but considered it would be “miniscule”.[25]
  4. [15]
    Senior Constable Brian Cook was an investigator at the Nambour Forensic Crash Unit. He had worked full-time in crash investigation since 2009 and had undertaken many courses, including in the preparation of scale plans and what could be understood as the physics of collisions.[26]He investigated the scene with the assistance of Senior Constable Lonergan who marked relevant features at the scene to allow Cook to measure them later.[27]Cook measured those features using calibrated measuring equipment and produced a scale map of the scene.[28]Cook sent the video footage to be examined by Mr Woodcock. The purpose was to ascertain the frame rate of the video footage and, from that, the time interval between particular frames. Woodcock sent back a copy of the footage with each frame individually and sequentially numbered. Cook watched the video footage and identified two frames in which the appellant’s motorcycle can be seen. The first frame, numbered 884 by Woodcock, showed the motorcycle to the right of the image. The second frame, numbered 929, showed the motorcycle to the left after it had traversed some distance along Caloundra Road. These frames are reproduced below.

Ring v Commissioner of Police [2019] QDC 32

Ring v Commissioner of Police [2019] QDC 32

  1. [16]
    Cook made allowance for the possibility that the motorcycle was closer or further away than appeared in the footage and produced a range of values for the distance travelled by the motorcycle. Measured this way, the minimum distance traversed by the motorcycle from frame 884 to frame 929 was 42.6 metres and the maximum 52.1 metres. The minimum distance calculated assumed the appellant road his motorcycle “hugging” the centre line.[29]Cook calculated that there were 45 additional frames after frame 884 up to and including frame 929. He assumed each frame represented Ring v Commissioner of Police [2019] QDC 32 of a second and from that calculated that the time interval was 1.8 seconds.[30]Using the values he had determined for distance and time, Cook calculated the minimum possible speed of the motorcycle was 85 kilometres per hour and the maximum possible speed was 104 kilometres per hour.
  2. [17]
    Cook summarised his process as follows:[31]

“[W]e can’t say with accuracy where Mr Ring was within that lane. However, the images show that he’s in that lane … So that’s what we take into account. That we can’t say, right, he was 30 centimetres off the white line or he was 50 centimetres off the line or 60 or so on. What we can say, he was within that line, he has a speed range that we’ve calculated and we give him the – we err on the side of caution and we pick the lowest absolute speed that can be calculated in that time over that distance which in this case was actually 85 point something but we rounded it off to 85.”

  1. [18]
    The second video recorded a police car with a calibrated speedometer passing in front of a camera at the same location as the one which recorded the appellant’s motorcycle. The police car was driven at 70 kilometres per hour. This recording was made some time later and after the camera had been changed. As a result the field of view in the two recordings is marginally different. The apparent point of the second video was to demonstrate that a vehicle travelling at 70 kilometres per hour could not cover the same distance traversed by the motorcycle as seen in the first video. In this way, it was suggested, the later video supported a conclusion that the appellant was exceeding the speed limit.[32]
  2. [19]
    Senior Constable Cook was cross-examined about the possibility the recording equipment did not measure time accurately. He accepted there was the possibility of error.[33] Cook said the process he employed took account of “parallax error”.[34]Other avenues for error suggested in cross-examination included the process of copying the computer file containing the video footage, computer viruses affecting the equipment and the correctness of the assumption that 45 frames of the video represented 1.8 seconds in elapsed time. The potential size of any error was not identified.
  3. [20]
    During the evidence of Senior Constable Cook various exhibits were tendered. These included a large number of photographs of the scene after the collision. The relevance of most of the photos might be considered, at least, marginal. But whether or not they were all strictly admissible, no harm was done to the appellant’s case by the tender. A report prepared by Cook was also tendered, over objection. It contained much that was an expression of opinion. It was not admissible to prove either the facts or opinions asserted in the report. It remains unclear the basis on which it was tendered and received by the Magistrate.[35]This issue is discussed further below in the context of the appellant’s complaint about the evidence of Senior Constable Cook.
  4. [21]
    The appellant elected not to adduce evidence.

Intuitive response to the video recording

  1. [22]
    Having viewed the video that recorded the appellant riding his motorcycle along Caloundra Road, it is appropriate to note my intuitive response to what can be seen. When the appellant’s motorcycle appears in view and travels across the screen, the impression I gained is that he was travelling quickly. Many other synonymous adjectives might be selected to describe his speed. The matter is ultimately subjective. His speed seemed to me to be faster, in a relative sense, than other cars travelling on the road. But I am conscious that my impression of the video cannot provide a sound basis for a conclusion that the appellant was travelling in excess of the speed limit. I have exercised considerable caution in having regard to my impression of the video. It cannot prove the allegation and in my view cannot materially support the allegation. But the video does not show the events in a way that detracts from or undermines a conclusion based on other evidence that the appellant was exceeding the speed limit.

Admissibility of the video recordings

  1. [23]
    The appellant pursued three grounds. First that the Magistrate erred in admitting the evidence of Senior Constable Cook. Secondly, that the Magistrate erred in admitting the two video recordings. Thirdly, that the Magistrate “failed to properly apply the onus of proof”.
  2. [24]
    It is convenient to deal with the second ground of appeal first as the video recording of the appellant’s motorcycle provided the foundation upon which the prosecution case was built. There was no challenge to the proposition that the first video recording depicted the appellant riding his motorcycle along Caloundra Road and colliding with the car driven by Ms Boreham. Such a challenge would have been impossible given the motorcycle and the collision can be seen on the video and there was ample evidence to show the green car was Ms Boreham’s and that the appellant was found injured near the motorcycle immediately after the collision. The video recording was real evidence capable of being used testimonially, that is, to prove the things that the trier of fact saw on the video. It was, in effect, a “silent eyewitness”.[36]Subject to the operation of any exclusionary rule the video was admissible.
  3. [25]
    The appellant submitted that the video was inadmissible because “continuity” had not been proved. This should be understood as a submission that there was insufficient evidence to establish the video footage showed events germane to the allegation and was therefore irrelevant. For the reasons already stated, there was ample evidence from which to conclude that the footage depicted the appellant riding the motorcycle on Caloundra Road and colliding with Ms Boreham’s car. It was also submitted that the footage tendered was not shown to be “reliable”. The appellant referred to cross-examination said to raise doubt about the accuracy of the footage. It was of course open to the appellant to seek to diminish the value of the recording by pointing to the absence of checks on the computer recording equipment, such as its accuracy in keeping time. But such attempts could only go to the weight to be afforded to the evidence, and not to whether the evidence was admissible.[37]It follows that the video recording showing the appellant’s motorcycle was properly admitted.
  4. [26]
    The second video recording captured a staged event where a police car was driven along approximately the same route as the appellant’s motorcycle. The appellant submitted that the potential prejudicial effect of the evidence outweighed its probative value. But before such a matter arises for consideration the evidence must first be prima facie admissible. In turn this raises the question of whether the recording represented an attempt to reconstruct the events or whether it was, “a scientifically conducted experiment designed to establish not a fact but a probability.”[38]Only in the latter case would the recording have been potentially admissible. Critical to the consideration of admissibility on this basis is the similarity between the events under question and the manner in which the experiment was conducted. The higher the degree of similarity and the more scientifically rigorous the experiment, the more like the results will be admissible.[39]
  5. [27]
    The appellant established through cross-examination that the camera at Bob Jane T-Mart had been changed between when the collision occurred and when the police created the second recording. There was an absence of evidence about the extent to which the new camera and its mounting differed. It is apparent from looking at still images extracted from the two videos that the field of view is marginally different. It may be that the differences were not significant. But that was not established by the prosecutor. There was also an absence of evidence as to how the exercise was conceived and executed. It does not appear it could properly be described as “scientifically rigorous”. In my view the evidence was not admissible to prove that by comparing it with the video of the appellant’s motorcycle it established that he was speeding.
  6. [28]
    The Magistrate did not refer to the evidence as providing a direct basis for concluding the appellant exceeded the speed limit. Rather, the Magistrate referred to the tendency of the evidence to support the conclusion that the frame rate of the footage was 25 frames per second.[40]In this sense the tender of the video may not have played any significant role in the decision of the Magistrate. More importantly, for reasons set out below, I am satisfied that on the properly admissible evidence the guilt of the appellant has been established. The error in admitting the second video recording does not warrant allowing the appeal.

The evidence of Senior Constable Cook

  1. [29]
    The evidence of Senior Constable Cook was challenged in a general sense. This included the tender of the report he prepared.[41]The report contained assertions of fact and statements of opinion. It also contained some images. Absent some agreement by the appellant, the report could not be relied upon to prove the truth of the factual assertions and opinions contained in it. The images were admissible, but were not dealt with separately from the report. When the report was tendered the police prosecutor described it as, “a summary of the evidence that [Cook] has given here today. That it is in fact his notes in regards to this particular matter.”[42]Neither statement, even if correct, could render the report admissible. The Magistrate admitted the report over objection. The police prosecutor referred to passages from the report in support of her case when addressing the Magistrate. At times she cited “evidence” in the report.[43]Apart from some images, the report contained no “evidence”. When giving reasons for convicting the appellant the Magistrate referred to the report, saying Senior Constable Cook’s evidence was, “supported by documentary evidence contained in … the crash analysis report, which I accept.”[44]
  2. [30]
    The Magistrate was in error admitting the report and relying upon its contents as if they provided proof of the matters therein asserted. But it is not enough for the appellant to succeed merely to identify error in the proceedings at first instance. Unlike an appeal in the strict sense, where the powers of an appellate court are limited to making the decision that should have been made at first instance, I must conduct a rehearing and can substitute my own decision based on the facts and the law as it stands at the time of the hearing.[45]As I will come to, having conducted that exercise, I am satisfied of the guilt of the appellant. The error in admitting the report is not one that warrants setting aside the conviction and ordering a fresh trial.
  3. [31]
    The appellant also complained of matters which he submitted made Senior Constable Cook’s evidence unreliable.[46]In essence he rehearsed the same matters referred to above that were said to undermine the usefulness of the video footage. For the reasons already given, these are matters that would go to the weight to be afforded to the evidence rather than admissibility. A review of the evidence shows that while various possibilities were raised none were explored to an extent that raised a real doubt about the evidence. The appellant had no obligation to prove matters, but if there was no evidence on which it might properly be concluded that the evidence was unreliable it was open to the trier of fact to accept the evidence. Merely listing possibilities does not provide a basis for concluding the evidence was affected by error to such a degree that it could not be accepted.
  4. [32]
    The balance of the objection to the evidence of Senior Constable Cook proceeded on the basis that he was offering opinion evidence as an expert. The appellant dedicated considerable effort toward an exploration of the principles applying to expert opinion evidence. None of that matters. The measurements Cook made at the scene were matters of objective fact and he was qualified to prepare and interpret the scale plan. His reliance on the opinion of Woodcock as to the time interval was an assumption, not an opinion, by Cook. He did not “interpret” the still frames taken from the video. He identified locations he could see in the images and measured the distance between those locations from measurements he took at the scene itself. (To the extent that Cook determined distance from the scale map he was qualified to do so.) In effect, Cook provided measurements of distances based upon the assumption that the motorcycle was in a particular position on the road. He demonstrated his assumptions through the images of frames 884 and 929. It was then for the trier of fact to consider the images and the video, determine where the motorcycle appeared to be, and to decide what weight, if any, to give to the measurements of Cook. If the trier of fact decided the motorcycle was in the same location identified by Cook they might be inclined to give the measurements significant weight. If not, the measurements might be of little or no weight.
  5. [33]
    Similarly, if the assumption made by Cook that the time interval was 1.8 seconds was incorrect that would have undermined his opinion about the average speed of the motorcycle. Cook appeared to proceed on the basis that each frame represented Ring v Commissioner of Police [2019] QDC 32 of a second. Mr Woodcock’s evidence does not support a conclusion this precise. But Mr Woodcock’s evidence was clear that for each 25 frames of footage one second passes. It must follow as a matter of common sense that when considering such a short piece of video footage – 45 frames – the possibility that the time interval was longer or shorter than 1.8 seconds to an extent that materially affects the calculation of speed can be excluded. There was no ground of appeal that challenged Woodcock’s evidence. It was open to accept his calculation of the time interval as proving the assumption made by Cook.
  6. [34]
    The appellant sought to rely upon R v Banhelyi [2012] QCA 357, a case where an expert “collision analyst” gave evidence about whether a car’s indicator or brake lights were on based upon his viewing of video footage. It was conceded this was inadmissible opinion as the witness was in no better position than the jury to determine what could be seen on the video.[47]Banhelyi was a different case. In the present case, Senior Constable Cook was not in truth offering an opinion about what he saw in the images as a means of proving the fact of where the motorcycle was. He was identifying the assumptions that underpinned the measurements he took. It was then for the trier of fact to determine if the assumptions were correct based upon their own perception of the images. No error of the kind identified in Banhelyi occurred.

Did the Magistrate misunderstand the onus of proof?

  1. [35]
    As I understand this ground, the appellant complains that the Magistrate erred by not accepting the descriptive evidence of various witnesses to the effect that the appellant was not speeding. The Magistrate was entitled to act upon this evidence. While it might in one sense be said to be an expression of opinion, such evidence has long been acknowledged as being admissible.[48]But the Magistrate was not bound to accept the evidence, especially in the face of the logical and persuasive evidence of the calculation of the speed of the motorcycle referred to above. There is no merit in this ground.

Conclusions having reviewed the properly admissible evidence

  1. [36]
    Having considered the appellant’s grounds of appeal I have determined that the Magistrate erred in admitting the video footage of a police car driving along Caloundra Road and also erred in admitting, and relying upon, the assertions of fact and opinion in the report of Senior Constable Cook. It is necessary then to consider the evidence properly admitted to determine the outcome of the appeal. As I have previously indicated, I am satisfied on that evidence of the guilt of the appellant.
  2. [37]
    I accept that the measurements of distance at the scene developed by Senior Constable Cook were accurate. I have watched the video recording of the appellant’s motorcycle being ridden along Caloundra Road and considered the still images of the frames identified as 884 and 929 in which the appellant’s motorcycle can be seen.[49]I find that the appellant’s motorcycle was either at, or very close to, the locations used by Senior Constable Cook to derive his measurements. From this I am satisfied that the appellant’s motorcycle travelled a minimum distance of 42.6 metres over the course of frames 884 to 929. I accept that the time interval from frame 884 to frame 929 was 1.8 seconds, or so close to that as to make no difference. To cover 42.6 metres in 1.8 seconds the motorcycle must have had an average speed of just over 85 kilometres per hour.
  3. [38]
    70 kilometres per hour equates to 19.444 m/s. Over 1.8 seconds an object moving at 70 kilometres per hour will travel slightly less than 35 metres. If on the evidence there is a reasonable possibility that the motorcycle travelled less than 35 metres it would be impossible to say the appellant exceeded the speed limit. If there was a reasonable possibility the motorcycle travelled about 35 metres it would be unsafe to conclude the appellant exceeded the speed limit. But there is in my mind no reasonable possibility that the distance travelled was significantly less than 42.6 metres. I am comfortably satisfied, even allowing for some error in the exact position of the motorcycle, that the distance travelled was not significantly less than 42.6 metres. It follows as a matter of physics that the average speed of the appellant’s motorcycle was more than 70 kilometres per hour.
  4. [39]
    I am satisfied beyond reasonable doubt, on evidence properly admitted, that the appellant is guilty of the offence. It follows that despite errors in the trial at first instance the appeal should be dismissed.

Orders

  1. [40]
    The appeal is dismissed. As the respondent seeks his costs of the appeal there will also be an order that the appellant pay the respondent the costs of the appeal, not to exceed the scale amounts in Schedule 2 of the Justices Regulation 2014.

Footnotes

[1] Galileo Galilei is usually said to be the first to measure average speed in this way as part of his work on the physics of falling bodies: Hewitt, Conceptual Physics, (Pearson Addison Wesley, 2006), p.42.

[2] The formula is given legislative effect in s 120A of the Transport Operations (Road Use Management) Act 1995, in force since 1 April 2010.

[3] Allesch v Maunz (2000) 203 CLR 172 [22]-[23].

[4] (2016) 90 ALJR 679, 686 – 687; [2016] HCA 22 [43] (footnote references omitted).

[5] [2017] QCA 255; [2018] 2 Qd R 612.

[6] T.1-85.27-T.1-86.17.

[7] T.1-86.35.

[8] T.1-87.35-45.

[9] T.1-89.10-T.1-90.11.

[10] T.1-91.1.

[11] T.1-91.39-T.1-92.13.

[12] T.1-92.25-29.

[13] T.1-93.37-T.1-94.25.

[14] T.1-22.30- T.1-24.6.

[15] T.1-25.35-40.

[16] T.1-9.10-T.1-10.41.

[17] T.1-9.36-46; T.1-18.37-40.

[18] T.1-10.25; T.1-19.45. Whether or not they were strictly admissible does not matter for this appeal. The matters recorded in the notes do not incriminate the appellant.

[19] T.1-11.8-T.1-11.31.

[20] T.1-70.18-22; T.1-71.1-12.

[21] T.1-71.25-36.

[22] T.1-83.35.

[23] T.1-72.13-25.

[24] T.1-79.15-23.

[25] T.1-81.41-47; T.1-82.18.

[26] T.1-28.11-40.

[27] T.1-69.17-40. There was no suggestion that Lonergan had not accurately marked the relevant features.

[28] T.1-45.23-45.

[29] T.1-68.1-3.

[30] T.1-64.19-36.

[31] T.1-67.16-34.

[32] T.1-52.29-37; T.1-62.1-T.1-63.35.

[33] T.1-55.33-T.1-56.45. Senior Constable Cook was not asked to comment upon the size of any possible error, and it might be thought he lacked the expertise to so comment.

[34] T.1-59.1-15; T.1-67.T.1-68-3. Parallax refers to the difference in the apparent position of an object viewed along two different lines of sight.

[35] T.1-50.42-T.1-51.15.

[36] R v Sitek [1988] 2 Qd R 284, 288 (Carter J), 292 (de Jersey J).

[37] BBH v The Queen [2012] HCA 9; 245 CLR 499; 86 ALJR 357; 286 ALR 89 [99]-[100] (Heydon J).

[38] R v Harbour [1995] 1 NZLR 440, 446. 

[39] Birks v Western Australia (2007) 168 A Crim R 350 [48]-[54].

[40] Magistrate’s reasons, 10 May 2018, at T.12.29-36.

[41] See [19] of these reasons.

[42] T.1-50.46-47.

[43] T.1-12.24, 32 (Transcript of submissions on 28 November 2017).

[44] Magistrate’s reasons, 10 May 2018, at T.8.11-12.

[45] Allesch v Maunz (2000) 203 CLR 172 [23]; Victorian Stevedoring & General Contracting Co. Pty Ltd v Dignan (1931) 46 CLR 73, 107 (Dixon J).

[46] Appellant’s outline of submissions filed 31 August 2018, [49].

[47] Banhelyi, [18].

[48] Sherrard v Jacob [1965] NI 151, 156 (McDermott LCJ):

[49] These images are contained in the report of Senior Constable Cook. While the assertions of fact and opinion in the report were not admissible, the images were properly before the court.

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Editorial Notes

  • Published Case Name:

    Ring v Commissioner of Police

  • Shortened Case Name:

    Ring v Commissioner of Police

  • MNC:

    [2019] QDC 32

  • Court:

    QDC

  • Judge(s):

    Cash DCJ

  • Date:

    21 Mar 2019

Appeal Status

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