Baxter v Petrohilis
[2011] QMC 46
•12 August 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Baxter v Petrohilis [2011] QMC 46
PARTIES:
PAUL FREDERICK BAXTER
(complainant)
v
NICHOLAS PETROHILIS
(defendant)
FILE NO/S:
MAG55620/11(3)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint
ORIGINATING COURT:
Magistrates Court at Bundaberg
DELIVERED ON:
12 August 2011
DELIVERED AT:
Rockhampton
HEARING DATE:
4 August 2011
MAGISTRATE:
Morrow MT
ORDER:
Charge dismissed
CATCHWORDS:
TRAFFIC LAW – OFFENCES – Exceeding speed limit in school zone - whether prosecution proven legal time when school zone operating
TIME, WEIGHTS AND MEASURES - EVIDENCE IN LEGAL PROCEDINGS – time – legal scale of time of day - maintenance of Co-ordinated Universal Time (UTC) by National Measurements Institute – Time Dissemination Services
COUNSEL:
H Glover (senior constable) for complainant
Defendant on own behalf
SOLICITORS:
Queensland Police Service for complainant
Defendant on own behalf
Nicholas PETROHILIS is charged by way of complaint and summons with an offence under section 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 that on the 21st day of October 2010 at Bundaberg in the Magistrates Courts District of Bundaberg in the said State being the driver of a vehicle namely a Ford motor car drove at a speed over the speed limit namely 40 kilometres per hour applying to that driver for that length of road namely Maryborough Street Bundaberg where the said driver was driving. Various other matters are alleged and the one of significance is that Maryborough Street is a road as defined in schedule 4 of the regulations.
The issue in this case is whether the defendant was speeding when the school zone was operating.
The burden of proof lies with the prosecution to prove each and every element of the offence and the standard of proof is beyond reasonable doubt. It is for the prosecution to satisfy the Court that not only is guilt a rational inference that could be drawn from the proved facts, but it is the only inference. [1] This means that the prosecution is required to exclude any reasonable hypothesis consistent with innocence.[2]
[1] Shepherd (1990) 170 CLR 573 at 578
[2] Perera (1986) 1 Qd R 211 at 217 and also see R v BBU [2009] QCA 385 at [55]
The prosecution has called Constable Troy Bennett and Senior Constable Andrew Powis to give evidence on their behalf; and in relation to the defence Mr Petrohilis gave evidence as well as David Wilson.
The defendant does not have to give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence. That he has done so does not mean that he has assumed a responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence and that of his witnesses is added to the evidence called for the prosecution. As I have said, the prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.
Now, in relation to this particular case, I have considered the whole of the evidence and because I do not state matters doesn't mean I have disregarded them nor not given them sufficient weight, nor because matters I do state have been stated it doesn't follow I have given them undue weight.
In relation to witnesses, I make the following observations.
With regard to witnesses, they being human they often vary greatly in memory, recall, expression, personality and demeanour and this variation of witness performance may have nothing to do with accuracy or honesty.
Contradictions between witnesses does not imply that one is honest and the other dishonest. Either or both might be dishonest, mistaken, have poor memory or have merely reconstructed the facts unconsciously. A consequence of a witness not being believed is not that the opposite has been proved.
There is no general presumption that a witness will be more or less truthful because of background or religion or occupation. The creditworthiness of any witness must be determined without reference to such generalities. A police officer’s evidence is to be given no greater credence or relevance than any other witness. They are to be treated as equals until such time as a person has reason not to accept such evidence.[3]
[3] See Kempe v Bailey (2003) 174 FLR 460; [2003] ACTSC 13 at [22]: “Magistrate’s belief that it was unlikely that “a police officer” would pull over a vehicle without telling the driver why he had done so, did not relieve him of the obligation of considering the evidence that Constable Bailey had, in fact, done so on this occasion. There is, of course, no established principle that judicial notice may be taken of a proposition that police officers, unlike other mortals, always behave reasonably or that they always act in a particular way in particular circumstances.”
In relation to this particular matter I have, during the course of the trial, had an opportunity of listening to and observing the demeanour of the witnesses that have given evidence. This has assisted me in assessing credibility, although I accept that there is a need to keep the appearance and demeanour of a witness in perspective and the weight of that aspect in the light of the other more objective considerations.
Often enough cases are described as ones of “word against word”. In a criminal trial it is not a question of making a choice between the evidence of the prosecution’s principal witness, and the evidence of the defendant and his witnesses. The proper approach is that the prosecution case depends upon accepting that the evidence of the prosecution’s principal witness was true and accurate beyond reasonable doubt, despite the sworn evidence by the defendant and his witnesses; so I do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.
Where there is defence evidence, usually one of three possible results will follow:
(a) the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so, the defendant would be not guilty; or
(b) although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was. If so, the defendant will be not guilty; or
(c) the defence evidence should not be accepted. However, that is not an automatic conclusion of guilt. If the defence evidence is unconvincing, it is set to one side, and consider whether such evidence as I accept I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.
The Law
Sections 20 and 23 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 provide:
20 Obeying the speed limit
A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.
Maximum penalty—40 penalty units.
23 Speed limit in a school zone
(1) The speed limit applying to a driver for any length of road in a school zone is the number of kilometres per hour indicated by the number on the school zone sign on a road, or the road, into the zone.
(2) A school zone is—
(a) if there is a school zone sign and an end school zone sign, or a speed limit sign with a different number on the sign, on a road—that length of road; or
(b) if there is a school zone sign on a road that ends in a dead end and there is no sign mentioned in paragraph (a), on the length of road beginning at the sign and ending at the dead end—that length of road.
What the prosecution is obliged to prove to make out the offence charged is simply that the defendant exceeded the speed limit that applied to the particular length of road where the offence is alleged. [4]
[4] Roads and Traffic Authority of New South Wales v Hugh [2008] NSWSC 1426 at [11] and approved in The Roads and Traffic Authority of NSW v Lian [2009] NSWSC 146
That is for an offence under section 20; it must be proven the speed limit that applies to the particular length of road where the offence is allegedly committed.[5]
[5] Roads and Traffic Authority of New South Wales v Parvez (2009) 52 MVR 576; [2009] NSWSC 274
For example speeding in a school zone, section 23 does not create a separate offence to section 20. The function of section 23 — speed limit in a school zone is to provide that the speed limit applying to a driver for any length of road in a school zone is the number of kilometres per hour indicated by the number on the school zone sign on a road or the road into the zone.[6]
[6] See the comments in Roads and Traffic Authority of New South Wales v Hugh [2008] NSWSC 1426 and Roads and Traffic Authority of New South Wales v Ahmed (2009) 52 MVR 570; [2009] NSWSC 273
To this end, the prosecution tendered a number of certificates as evidence as well as testimony from two police officers.
A certificate was tendered indicating the radar device had been tested on 21 June 2010 and states the laser-based speed detection device was tested in accordance with Australian Standard for testing the device and found to be producing accurate results which is prima facie evidence of the accuracy of the device and also is evidence under section 124(1)(pa) of the Transport Operations (Road Use Management) Act 1995 (TORUM) that the device was producing accurate results when so tested and for 1 year after the day of testing.
Section 124(1)(pa) of TORUM provides the “Commissioner” may certify the matters contained in s 124(1)(pa) and “Commissioner” is defined in Schedule 4 – Dictionary as the “commissioner means the commissioner of the police service”. Pursuant to section 4.10 of the Police Service Administration Act 1990 the commissioner may delegate powers of the commissioner under any other Act to a police officer or staff member.
The consequences of a delegation by the Commissioner are by no means insignificant. It arms a police officer with power to provide prima facie proof of an offence merely by signing a certificate which s 124(1)(pa) of TORUM otherwise requires to be signed by the Commissioner: Dixon v LeKich [2010] QCA 213 per Fraser JA.
An Instrument of Delegation No. D 25.14, exhibit 4, was tendered signed by the Commissioner on 11 January 2008 giving the power to issue a certificate under section 124(1)(pa) stating, amongst other things, a laser-based speed detection device has been tested and found to produce accurate results. This delegation indicates, inter alia, the person for the time being appointed to or acting in the office of Officer in Charge of a Police Station of or above the rank of Sergeant may issue a certificate. Erwin Hoffman, a Senior Sergeant, who signed the certificate holds the appointment as Officer in Charge Police Station Bundaberg.
Proof of delegation by this mode is provided in the Acts Interpretation Act 1954 (Qld), Subsection 27A(13) which provides that a writing purporting to be a delegation is evidence of the delegation. Pursuant to ss 27A(14) and (15) a certificate signed by the delegator is evidence of anything stated in the certificate in relation to the delegation and a document purporting to be such a certificate is taken to be one unless the contrary is established: Dixon v LeKich [2010] QCA 213 per Fraser JA.
Another certificate under section 124(1)(pb) of TORUM was tendered that officer Bennett used the speed detection device in accordance with the Australian Standard.[7]
[7] Section 112 of the TORUM Act provides a police officer must when using a radar speed detection device, if there is an Australian Standard, comply with it. Section 49 of the Evidence Act 1977 relates to the proof of Australian Standards.
The issue in this case is the time when the incident occurred.
All agree the school zone operates between 2:30pm and 4pm.
The prosecution says the incident occurred at 2:37pm and the defendant says between 2:20 and 2:24pm.
Time
Accurate time is essential in modern life for broadcasting, electricity distribution, mobile technology, computer networks, satellite navigation, electronic transactions and timestamping.
For police, an accurate time would be essential for an image of a vehicle taken by a point-to-point speed camera system. That system works by comparing the distance between two points and the time it would take to travel that distance legally. As I understand the system, vehicle details (including image and time) are recorded at each point and are later correlated at a central point to determine the average vehicle speed.
Accurate time is determined by reference to the National Measurements Act 1960 (Cth), section 8AA which provides:
The Chief Metrologist is to maintain, or cause to be maintained, Co‑ordinated Universal Time (UTC) as determined by the International Bureau of Weights and Measures.[8]
[8] UTC replaced Greenwich Mean Time as the international time standard in 1972.
This function is performed by the National Measurements Institute (NMI) who maintains an array of caesium atomic clocks one of which is designated the Australian realisation of UTC(AUS). These atomic clocks maintain Australia’s legal scale for time of day.
NMI provides a precise time dissemination service including GPS time-transfer service, Network Time Protocol (NTP) servers and telephone dialup services for synchronising computers.
For example, NTP is an Internet Standard Recommended Protocol for communicating the UTC from special servers called time servers and synchronising computer clocks on IP networks via the internet. It is used by major commercial, government and educational organisations as timestamping can be important for establishing precedence of electronic commercial transactions especially when many such transactions occur in different places at almost the same time.
Telstra’s 1194 time service (commonly known as “George the speaking clock”) also provides a traceable and accurate time. Informatel has powered the service for Telstra and was designed with NMI and its time system is traceable to NMI.
I accept no evidence of any of this has been provided by either the prosecution or the defendant. The information can easily be located via a Google search on the internet.
There is no evidence watches or clocks witnesses observed have been set against the NMI’s atomic clocks, or evidence their mobile phone or computers are connected through either a GPS time-transfer service or NTP server to the atomic clocks.
In the end, no one has provided evidence of the legal time when the defendant was travelling at 53kph.
The Evidence
The evidence of Constable Troy Bennett is that on 21 October 2010 he was performing duties between 2pm and 10pm with Constable Andrew Powis.
He is qualified to use LIDAR and Decatur radar unit.
At start of the shift at about 2:24 he calibrated the LIDAR device.
They decided to do speed detection in Maryborough Street in the school zone at Bundaberg High School. Powis drove to that location and they drove along Maryborough Street where he observed the school zone speed signs at the beginning and end of the zone.
Photographs taken were shown to Bennett. Photographs 1 and 2 indicate the commencement of the school zone when travelling towards the Hinkler shopping centre. Photograph 3 depicts the bottom end of school zone. Bennett indicates they were standing somewhere near the 60kph sign. Photograph 4 indicates the area where they set up the LIDAR at a position before the bike sign and facing towards the PCYC and away from Hinkler Shopping Centre.
He checked that it was after 2:30pm with his watch and against the police car clock.
He then commenced LIDAR operations. Approximately 20 cars came through doing 40 kilometres or under. He then observed a gold sedan coming towards him and appeared to be going faster than other vehicles. He put the LIDAR laser on the front number plate area of the vehicle and the device showed a speed of 53. He intercepted the vehicle and directed the driver to pull to the side of the road.
Bennett introduced himself as Constable Bennett, Bundaberg Police to the driver and asked if he knew the speed limit on that road; Petrohilis told him it was 70; Bennett explained it was a school zone. Bennett told Petrohilis he was doing 53 in 40 kilometre zone; asked him if had a lawful or emergent reason for speeding.
Petrohilis questioned the school zone time with Bennett. Bennett states Petrohilis did however state to him it was 2:34 by his car clock. Bennett told him it was 2:37 and he was going to issue him with a traffic infringement notice for speeding for doing 53 in a 40kph zone.
Bennett checked the time and correlated with his watch, mobile phone, the police car clock and also asked Powis. All had the same time. He then wrote and issued traffic infringement notice.
At the time this took place he noticed students leaving the school and students walking down the footpath.
Later Bennett testifies the vehicle was approximately half way into the school zone approximately 250 metres way when he first saw it. He targeted the front number plate of vehicle. The measuring device on LIDAR indicated the vehicle 205 metres when the speed was locked.
He testifies the school zone operates between 2:30 and 4pm.
He also testifies at the beginning and the end of the shift tests performed on the LIDAR indicated the device was accurate.
In cross examination Mr Petrohilis put to Bennett he jumped out of the car and he couldn’t have checked 20 vehicles from 2:30 to 2:37.
Bennett did not agree. Bennett indicated no other vehicles impeded the LIDAR device and that no other vehicle at the time was directly in front of Petrohilis.
Petrohilis put that there was no students in the area at that time.
He further put that after doing the licence check and everything else that he told Bennett his car clock indicted 2:34 and that his clock was 10 minutes fast and did not agree with school zone time.
Petrohilis put that he said the speed limit was 60 or 70 and he was doing under the speed limit. Bennett said Petrohilis said 70.
Further, Bennett states they left the Police Station at 2:24 and drove 1 to 2 kilometres to Maryborough Street. They do not go through traffic lights as they went out the back of the station. They drove up Maryborough Street and then back down, set up the LIDAR which takes about 1 minute, and at approximately 2:30pm started operating the LIDAR. He checked his watch which indicated it was 2:30pm.
It was further put that Bennett had jumped out of the car and that Petrohilis was the first vehicle Bennett checked. Bennett denied this.
In re-examination Bennett indicates tests performed at the Police Station on LIDAR took less than a minute and the time was noted in Powis’s notebook.
Further, Bennett indicates Petrohilis had no passenger in the car.
Senior Constable Andrew Powis testifies he was on 21 October 2010 working a 2pm to 10pm shift with Constable Bennett.
They started the shift at about 2:24pm and he undertook tests on the police car and Bennett tested the LIDAR. He recorded the time in his police notebook from the time on his watch.
They drove to Maryborough Street to the High school. That took a matter of minutes. They drove up and down Maryborough Street past the High school. That took only minutes to do. He observed the school signs and parked at the end of the school zone on left side of the high school.
After being shown photograph 4 indicates he parked just prior to the push bike sign.
They both got out of the police vehicle, he opened the boot and Bennett started operating the LIDAR. He did not take a note of the time.
He stood at the rear of the vehicle and Bennett stood close to the road. Again he stated he made no notation of when Bennett started using the LIDAR.
He observed a gold coloured car coming into Bundaberg and appeared to be going faster than cars that had previously gone past that location.
Bennett stopped the vehicle and it pulled over. Bennett went to the vehicle. Powis could not hear what was said.
Powis does not recall talking to Petrohilis. He remembers Bennett came back to the police car but cannot remember any conversation with Bennett. Nor can he say how long they had been stationery at that site but thinks it was about 5 minutes.
Powis does not know what time the vehicle was intercepted.
In cross examination it was put the police car was parked in another spot.
It was also put that Bennett jumped out of the police car and used the LIDAR. Powis denies it happened that way as both officers were at the back of the police vehicle.
Petrohilis put that Powis was seated in the police vehicle at the time which he denied.
Powis indicates the police vehicle was parked facing Hinkler Shopping Centre.
He testifies Petrohilis was driving towards them towards Hinkler place. He indicates they were operating the LIDAR within 1 ½ to 2 metres from the vehicle and that the boot was up.
It was also put that the officers couldn’t get from the police station to the site and set up in 6 minutes. Powis indicated he did not know how long it took but it could be done in 6 minutes.
He produced his notebook which indicates the time the tests were done at 2:24.
It was put that the offence was committed at 2:24 but Powis says that was when he was performing checks at the station.
When the Court asked Powis how does he know if his watch is correct he indicates he does not know if it is.
Nicholas Petrohilis testifies on 21 October 2010 he was driving down Maryborough Street. The car clock indicated 2:24 and he was driving cautiously.
He had a client in the car and was coming through Maryborough Street towards Hinkler shopping centre and was almost at the end of Maryborough Street where the school sign finishes. He saw a police officer jump out of the left passenger side car and point the radar gun at them. He pulled over and Police officer said “you know what time it is”. He then says later the Police officer first said “know what speed you are doing” and Petrohilis said “I do under speed limit.” The officer said you know the speed limit here and he replied “60 or 70, I do under” because he knew he was doing 53 k’s.
Petrohilis testifies the school zone times were 2:30 to 4 o’clock. He always has his clock set 10 minutes fast to get to his appointments and indicates his clock at that particular time said 2:24. That would make the actual time 2:14.
The officer asked for his licence, asked if he had been drinking and the officer issued a ticket.
Petrohilis indicates he went and spoke to people (builders) across the road at 36 Maryborough Street and came back to the officer to dispute the ticket.
After he received no satisfaction he drove to his office, left his client there and went up to the police station to complain and was told to put the complaint in writing. He then went back to his office.
In cross examination Mr Petrohilis indicates he picked up a client from his office at 210 Bourbong Street at about 11 or 11:30. He was a passenger all the time in his vehicle.
At 2:00pm he was at Ace Fabrications where he bought some items and then was on his way back to his office. He was at the shop for 6 or 7 minutes and bought some dyna bolts.
His client was with him, David Wilson, a friend of his for 30 years.
He says he was probably in the car at 10 past 2 according to the car clock which would be 2pm.
He then drove up to Maryborough Street, nearly 3 kilometres which took about 6 or 7 minutes.
He indicates his car clock is 10 minutes fast because he checks it with his computers always but can’t say when he last checked the clock before the date in question.
The drive took 6 to 7 minutes before he pulled up behind the police vehicle. He says Bennett was at the front passenger side and Powis was sitting in the car.
He indicates he first saw Bennett 30 to 40 metres away from the police vehicle when Bennett got out of the vehicle and pointed the LIDAR. The police vehicle boot was down.
He says he did not have to brake heavily to stop. He then indicates Bennett may have been 50-60 metres away and when he got out of the car was 30 metres away.
He denies he was 205 metres away when his speed was checked.
It was put he said the time was 2:34 and denies saying that. He says he told the officer it was not 2:30 and he never said anything then to the officer about what the time was.
He believes the time was about 2:20 or 2:24pm when he was intercepted but can’t give an exact time but definitely was not 2:30pm or after.
David Edgar Wilson testifies he was a passenger in Mr Petrohilis’s car when Police pulled Nicholas up. They had been driving around and were on their way back to Nick’s office.
They were on Maryborough Street near the high school with very little traffic on the road when a policeman jumped out in front of them. The police were down from the high school opposite 36 Maryborough Street.
Mr Wilson wasn’t paying much notice until the officer jumped out in the middle of the road and says he thinks the time was about 2:20 just before half past as he saw no school kids around.
He didn’t look at the clock and never had a watch and does not know exactly what the time was.
He indicates the police vehicle was parked on the left side of the road before the creek facing towards town.
He saw one officer come from the left side of the car into the middle of the road. They pulled up on the left hand side a few feet back from the police car.
The policeman spoke to Nick but he took not notice of the conversation. He saw the policeman go back to the police car and come back and issued a Notice.
Nick then went over to the building site and spoke to the builders. They then went back to the office in Bourbong Street. He is unsure if Nick left or stayed at the office.
In cross examination he indicates he did not think the police vehicle’s boot was up and thought it was down. He says Bennett was standing at the back and there was another officer standing at the back.
He saw the first officer about 100 to 150 metres away and they did not have to brake heavily and had plenty of time to stop.
He did notice the clock in the car after they had been stopped for a little while and it showed 2:34. He then says they were stopped quite a while when he looked and noticed the clock said 2:34. He says they had been pulled up quite a few minutes before and thought this was borderline as they had been pulled up a few minutes.
Later he noticed the clock was a bit fast as he checked it days later and noticed it was fast.
When put that it was 2:34 when they were intercepted answered “No” as they had well and truly stopped and had been talking.
Discussion
The onus remains upon the prosecution throughout to prove beyond reasonable doubt that the defendant was driving at a speed in excess of the speed limit.
In this case there is a challenge to the accuracy of the evidence of the police officer who read, recorded and reported the time of the speed. In so far as issues such as whether the time was correct, the onus remains upon the prosecution.
In adducing any evidence that the defendant did not exceed the designated speed limit at the relevant time, it is not necessary for the defendant to show the legal time when the offence allegedly occurred.
The defendant can adduce evidence to persuade the Court that he was not exceeding the speed limit at the relevant time. For example, Mr Petrohilis and other witnesses may give evidence on oath that they are able to assert positively that the time of the incident was before the school zone operated. If that evidence is accepted or I do not know what time the incident occurred then Mr Petrohilis has created a reasonable doubt. There is a need to adduce cogent evidence. Mere assertions may not be sufficiently cogent.
As I have said, a police officer’s evidence is to be given no greater credence or relevance than any other witness. All witnesses are to be treated as equals until such time as a person has reason not to accept such evidence. I have listened carefully to the evidence that has been placed before me and I have listened to the way in which and observed the manner in which each witness stood up to the cross-examination.
I believe the Police witnesses gave forthright and honest evidence doing their best to be fair in the circumstances.
I would think it possible for the officers to conduct their tests, drive from the police Station to the high school in Maryborough Street and set up the LIDAR in 6 minutes in the manner they describe. There is no evidence to suggest it can’t be done.
I would also find it highly improbable an officer would jump out of the front passenger seat of the car and operate the LIDAR over the back of the Police vehicle. It would make sense to operate the LIDAR from the rear of the vehicle which Wilson seems to suggest where the officers were standing and the only person who says they weren’t is Petrohilis.
I would also think it possible that within 7 minutes an officer could target 20 vehicles with the LIDAR if operated as described by Bennett and there is no evidence to suggest it can’t be done.
There are inconsistencies in the Prosecution and defence cases.
Bennett says Petrohilis had no passenger in his vehicle at the relevant time yet Wilson clearly was a passenger in Petrohilis’s vehicle.
Petrohilis’s evidence of the distance when he first saw the Police of 30 to 40 metres away is not possible considering even his own witness Wilson says he saw the officer 150 metres away and had plenty of time to stop. Petrohilis could not stop without heavy braking if the distance was 40 metres because he would be travelling at about 14.7 metres per second when travelling at 53 kph and it takes approximately 1.5 seconds to react before applying the brakes.
I accept the LIDAR locked onto to the speed of Petrohilis’s vehicle at 53kph, which is not disputed, 205 metres away.
Mr Petrohilis denies speeding because he says the incident occurred before the school zone was operating and denied it when pulled over by officer Bennett.
As to conversations between Bennett and Petrohilis, there is a dispute regarding the accuracy to parts of the conversation given in evidence by each witness. No recording or contemporaneous notes were tendered and considering the length of time since the event and trial date, one or both may be mistaken.
Mr Petrohilis was at times unconvincing in his evidence. He seems unsure exactly when the time of the incident took place, but is adamant it was before 2:30pm.
I do accept that if Petrolihis was intercepted at 2:37pm he could not have had time to speak to the workers across the road, return to his office and then driven to the Police Station and be there at 2:50pm. Accepting the time when he was at the police station was 2:50pm then the time he was intercepted may have been earlier than 2:37pm.
Wilson’s evidence at times was vague and uncertain. In his evidence in chief Wilson said he didn’t look at the clock or have a watch on. It was only in cross examination that he mentioned he noticed the car clock which supports to some extent Petrohilis’s version as he testifies he looked at the clock in the car which he believes is running fast and noted the time was 2:34 and they had been stopped for some time.
The defence version is not convincing but also is not fantastic and unreal that it should not be regarded as a source of reasonable doubt.
This case depends upon the assessment of evidence called by the prosecution as opposed to evidence called by the defendant and if the Court is left in doubt as to where the truth lies, the verdict should be not guilty.
In this case there is not a large discrepancy in times and we are talking about minutes rather than hours. The case has ended up being “word against word”.
I am unable to conclude that I am satisfied beyond reasonable doubt that the prosecution's version that the offence occurred at 2:37pm should accepted as there is no evidence of the legal time, only assertions as what people consider the time to be.
In the end I have a doubt as to the actual time when the incident occurred other than to find it occurred somewhere between 2:14pm and 2:37pm.
I find the defendant not guilty.
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