Al Shakarji v Mulhern

[2010] QDC 476

DISTRICT COURT OF QUEENSLAND

CITATION:

Al Shakarji v Mulhern [2010] QDC 476

PARTIES:

MUSTAFA AL SHAKARJI
(Appellant)

AND

ROBERT MAXWELL MULHERN
(Respondent)

FILE NO/S:

MAG-00143106/09 (8); Appeal D11/10

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Bowen

DELIVERED ON:

8 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2010

JUDGE:

McGill DCJ

ORDER:

Appeal allowed; conviction quashed; matter remitted to the Magistrates Court at Bowen for retrial before a different magistrate.

CATCHWORDS:

VEHICLES AND TRAFFIC – Driving offences – speeding – detection device – effect of certificates – whether crossexamination unduly restricted.

EVIDENCE – Documentary evidence – statutory provisions – Australian standard – Google Earth photograph – need for formal proof

EVIDENCE – Documentary evidence – statutory provisions – certificate – effect of – related restriction on disputing matters – effect of restriction

Evidence Act 1977 s 49, s 65(1), s 101(3).
Transport Operations (Road Use Management) Act 1995 s 124(4)

COUNSEL:

The appellant appeared in person

J. Bray (Solicitor) for the respondent

SOLICITORS:

The appellant was not represented

Director of Public Prosecutions for the respondent

1. This is an appeal from a decision of a magistrate at Bowen who on 10 June 2010 convicted the appellant of one count of exceeding the speed limit.  The appellant was fined $200 plus costs of court of $71.50.  The appeal is brought against conviction on the grounds set out in the appellant’s outline of argument.  Summarising them as best I can, they are as follows:

1.          The magistrate erred in failing to reject the prosecution witness as unreliable in circumstances where he had fabricated a transcript of a conversation which was inconsistent with a recording of the conversation.

2.          The police witness had not tested the radar detection device in a particular way prior to using it on that day and had therefore not complied with police procedures or the requirements of the manufacturer of the device so that the device was not proved to have been operating reliably.

3.          The magistrate erred in failing to take into account in assessing the appellant’s credibility that he was of good character having no criminal history.

4.          The magistrate erred in being satisfied that the police witness had correctly identified his vehicle as the vehicle the speed of which was measured by the device, in circumstances where this depended entirely on the witness’s evidence and where the officer’s certificate that the device had been used in accordance with the particular Australian standard was not correct as the necessary tests had not been performed before and after the shift.

5.          The magistrate erred in failing to reject the evidence of a police witness that he showed the appellant the reading recorded on the device.

1. Broadly speaking, the appellant’s case was that on the evidence before the magistrate, the magistrate erred in failing to find that there was at least a reasonable doubt as to whether the appellant was exceeding the speed limit on that day, particularly in circumstances where the appellant had given evidence that he…