Aldrick v Findlater

[2010] QDC 320

[2010] QDC 320

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DORNEY QC
Appeal No 670 of 2010

MICHAEL RICHARD ALDRICK	Appellant
and
EWAN GORDON FINDLATER	Respondent
BRISBANE ..DATE 02/08/2010 ORDER

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HIS HONOUR: On 17 February 2010, the appellant and two

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co-accused, Mr Parker and Mr James, were convicted following a
summary trial of disobeying the speed limit. Acting

Magistrate Morrow fined the appellant $150.

The appellant has now appealed to the District Court against	10
that conviction by filing a notice of appeal in the District Court Registry at Brisbane on 2 March 2010.
The circumstances occurred on 20 June 2009 at approximately
2.50 p.m. The area in question had a speed limit of 100	20
kilometres an hour. It was on the Bruce Highway near Rockhampton.
There were two police officers called in the particular case
before the Magistrate. The first was a Constable Beasy; the	30
second was Senior Constable Round.
Constable Beasy was driving the marked police car and Senior
Constable Round was the front seat passenger in the police
car. The police car was heading in a southerly direction	40
along the Bruce Highway, approximately one kilometre south of the Burnett Highway turnoff.
Observations were made by both police officers of three
motorcycles travelling in their direction. Constable Beasy	50

gave evidence that he observed that the motorcycles appeared
to be travelling at excessive speed and therefore activated
the radar device fitted to the police car. I will go in a bit
more detail a little later to the evidence, but he said, in a 1-2 ORDER 60

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summary form, that the figures “127” appeared in the target

window of the device.

At trial, the device itself was not subject to any challenge

and all the relevant certificates with respect to the accuracy	10
of the device were tendered by the prosecution there. It is therefore not now open, certainly on this appeal, for the appellant to challenge the accuracy of the device on that particular day or the reading that was shown on it.
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The appellant, together with his co-defendants, gave evidence
at the trial before the Magistrate. The grounds of appeal
stated were five in number. I will briefly mention them,
although some of them, in fact, in the end, are not relevant
to the outcome of this appeal.	30
The first is the Magistrate failed to give significance to
both police witnesses changing their story; secondly, the
Magistrate failed to give significance to the fact that
neither witness could identify the order in which the	40
motorcycles were travelling; thirdly, the Magistrate erred in
convicting the appellant on the basis he was travelling in
close proximity to the first motorcycle; fourthly, the
Magistrate failed to give weight to the fact that none of the
persons charged were shown on the mobile radar device; and,	50

fifthly, the Magistrate failed to give weight to the evidence in regard to the location, time and identity of the offending vehicles. The grounds also state that no evidence was given 1-3 ORDER 60

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connecting the reading to the appellant's vehicle.

Before considering both the evidence and the reasons given by
the Magistrate, it is timely to observe that in an appeal of

this kind what has to be established by the appellant is some	10
kind of error. The error can be shown to be either in law or fact, or in the exercise of a discretion. But in determining that, the Court on appeal needs to review the case in full,
though giving full effect to the findings of the Court at
first instance, particularly in terms of credibility.	20
The Magistrate gave reasons in this particular case. In
general terms, he accepted the evidence led by the three
defendants, both about the position in which they were
travelling in formation towards the police vehicle when the	30
device was said to be activated and with respect to the traffic which was immediately in front of the police vehicle at the particular time.
It is clear that the Magistrate was in no doubt that their	40
evidence as to those matters was accurate and ought to be accepted. It must be borne in mind when noting that, that that was contrary to the evidence actually given by Constable Beasy and Senior Constable Round.
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Constable Beasy said in his evidence-in-chief that he did not recall as to whether there was traffic behind him, adding, “I am saying that there was no traffic in the immediate vicinity in front of us", and also adding that he was able to have a 1-4 ORDER 60

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clear vision of sight a lengthy distance down the road. traffic at the time in front of her as well.

It is therefore clear that, on this aspect, the learned	10
Magistrate has accepted the evidence of the defendants and rejected specifically those parts of the evidence of the police officers as to those particular matters.
It is also important to note that the learned Magistrate with	20
respect to Senior Constable Round found that her evidence was
rather defensive and at times evasive, especially when he
asked her questions which affected her credibility. In the
end, he remarked that he thought that she was a “poor
witness”.	30
What is important in considering these issues are two
particular things that I will deal with. The first is with
respect to the effect of the radar. Constable Beasy's
evidence was, in fact, that the radar simply picked up the	40
first of the motor vehicles in question. That police officer
gave evidence that the motorcycle that was picked up on the
radar as directed by him was in the centre of the laneway
which was approaching the police car from the opposite
direction.	50

If one takes that evidence, together with the evidence accepted by the Magistrate that there were vehicles immediately in front of the police car, one is presented with 1-5 ORDER 60

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the particular problem about how the radar device in the
police car could work in circumstances where there were
vehicles (and I find that the Magistrate concluded there was
both a semi-trailer and another car) with such vehicles

directly in front of it (that is, how the radar was able to	10
detect a motorcycle which was, in fact, on the centre line of
the roadway approaching it – a fact that was accepted at
trial). It may well have been the Magistrate was able, on the evidence before him, to distinguish the contrary evidence such that he could accept Constable Beasy's evidence: but there is	20
no analysis at all of how that could occur.
The police officer was asked in re-examination about the
effect of having a vehicle directly in front of him in his
lane when he was doing speed detection. The evidence he gave	30
with respect to that does not address the particular issue of
the line in which the radar signal would have travelled to
permit it to not pick up the vehicles immediately in front of
the police car and yet still could pick up the leading
motorcycle (which he said was in the centre of the roadway).	40
When one adds to that the evidence of Constable Round, herself
being knowledgeable in the use of this radar device, that all
three vehicles were in the beam of the unit, the unit
returning the same speed for all those vehicles due to the	50

proximity in which they are travelling, on appeal one is left
with the unsettling feeling that insufficient attention has
been paid at first instance to these discrepancies in light of 1-6 ORDER 60

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the evidence that the Magistrate has accepted.

In the reasons given by the learned Magistrate, he simply
states, with respect to the speed which was registered on the

device, that he accepted the evidence of Constable Beasy that,	10
when he looked at the front motorcycle, it had been, and it was, targeted (with a singular Doppler tone emitting from the device, indicating that it was operating properly) and that the device displayed the figures “127”.
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To me, that is an incomplete analysis of the discrepancies
that I have mentioned in the evidence. I am therefore led at
the end of the day to the conclusion that the reasons given by
the learned Magistrate do not really address the whole of the
evidence in a way that it was open to the Magistrate to have	30
accepted beyond a reasonable doubt that the actual operation of the device on that occasion by Constable Beasy was sufficient to have detected the lead motorbike in question.
It, therefore, with respect to the other grounds of appeal, is	40
irrelevant whether or not the police witnesses changed their story. If I might remark there, the police officers did not change their story. They merely indicated originally that
they had little recollection of any vehicles being in front of
them, although at the end of the day they both appear to have	50

been adamant that there were no such vehicles in front of
them.
The rest of the grounds are therefore of little significance, 1-7 ORDER 60

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although the last of those particular grounds relating to the
weight to be given to the evidence does have some impact on

the final decision.

Therefore, accepting the view that the Court must, on appeal,	10
undertake a complete review of the case in question, although
giving to the learned Magistrate at first instance all due
regard to the fact that he saw the witnesses in question, I
conclude at the end of the day that neither the evidence nor
the reasons disclose in a sufficient way a justification for	20
the finding that the particular speed which was detected on the radar could be found beyond reasonable doubt to apply to the first of the motorcycles in question.
Given that the defendant was not the first of those particular	30
motorcycles, it must necessarily follow that the speed which would be inferred to him from the accuracy of the device and the correct reading of the figure appearing on it must affect
the decision with respect to him as well.
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Therefore, I allow the appeal and set aside the decision of the Magistrate at first instance.

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