Bendells v Lilley

[2001] QDC 79

DISTRICT COURT OF QUEENSLAND

CITATION:

Bendells v Lilley [2001] QDC 079

PARTIES:

Karin Michelle Bendels  (Appellant)
and
Malcom Robert Lilley  (Respondent)

FILE NO/S:

Appeal 3 of 2000

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Maroochydore Magistrates Court

DELIVERED ON:

17 May 2001

DELIVERED AT:

Maroochydore

HEARING DATE:

11 May 2001

JUDGE:

Dodds DCJ

ORDER:

I order the appeal be dismissed. I further order the appellant is convicted of the charge before this court.

CATCHWORDS:

APPEAL – whether prosecution proved charge beyond reasonable doubt – whether evidentiary material was sufficient to discharge onus – whether appellant required to give the prosecution notice of challenge.

Statutes judicially considered:

Traffic Regulation 1962
Traffic Act 1949
Transport Operations (Road Use Management) Act 1995

COUNSEL:

Mr J Farrell for the appellant

SOLICITORS:

Office of the DPP - Mr A Starke for the respondent

1. This is an appeal from a Magistrate’s decision convicting the appellant of an offence of exceeding the speed limit on a road.

1. The appellant was charged:

·     That on the 17^th day of January 1999 at Caloundra in the Magistrates Court District of Maroochydore in the State of Queensland, (she) did drive a motor vehicle, namely a motor car on a road, namely Caloundra road Caloundra, at a speed greater than the speed limit applying to the said Caloundra road, namely 60 kilometres per hour being the speed limit indicated by the number of kilometres per hour as shown on the speed restriction sign;

·     and it is averred that the said Caloundra road is a road;

·     and it is averred that the said 60 is the prescribed speed limit indicated by the number of kilometres per hour as shown on the speed restriction sign;

·     and it is further averred that the said speed restriction sign is an official traffic sign ;

· and it is averred that the said Karin Michelle Bendels is a person to whom the provisions of section 44(q) of the Traffic Act 1949 apply.

1. The motor vehicle driven by the appellant was allegedly detected exceeding the speed limit by a radar speed detection device and photographed by a photographic detection device (a speed camera). The equipment was operating on Caloundra Road, consisting of two lanes outbound, which was the direction of travel of the appellant’s motor vehicle. The photograph taken by the speed camera shows a motor vehicle registered number “MAV 05” in the lane closest to the centre island and another motor vehicle in the lane to its left and slightly to the rear of it: see Exhibit 6.

1. The appellant appeared by counsel. The prosecution case consisted entirely of documentary material. No oral evidence was put before the court. The appellant challenged none of the prosecution evidence and adduced no evidence in her case. Defence counsel then submitted that the prosecution had not proved its case beyond a reasonable doubt. The gravamen of the submission was that it had not been proven which of the two motor vehicles in the photograph had been doing the alleged speed, namely 79 kilometres per hour.

1. What had to be proved by the prosecution were the elements of the charge. It was not in dispute the appellant was the driver of motor vehicle, registered number “MAV 05”. It was in dispute and remains in dispute whether the evidence was capable of proving beyond reasonable doubt that motor vehicle, registered number “MAV 05”, was the motor vehicle detected travelling at 79 kilometres per hour by the radar speed detection device and which activated the speed camera.

1. Exhibit 8 before the Magistrate was an infringement notice issued pursuant to the State Penalties Enforcement Act 1999. It containing a completed statutory declaration by the owner of motor vehicle MAV 05 and was evidence that the appellant was in charge of the motor vehicle when the offence referred to in the notice was committed (see sections 17 and 19 of the State Penalties Enforcement Act 1999). The notice contained the particulars required by section 15 of that act. They included that the offence was committed at 1524hrs on 17 January 1999 by Holden sedan registered number “MAV 05” on Caloundra Road, Caloundra.

1. Exhibit 1 before the Magistrate went to proof of service of the infringement notice on the appellant.

1. Exhibits 3 and 4 before the Magistrate went to proof that the photographic detection device and radar speed detection device in question, which caused production of the photograph accompanying the infringement notice were tested in accordance with Australian Standard 2898 and found to be producing accurate results.

1. Exhibit 5 went to proof that at 3.24pm on 17 January 1999 that radar speed detection device was used in accordance with Australian Standard 2898.2 in force at that time.

1. Exhibit 6 went to proof that the photographic detection device used to photograph the two vehicles in the photograph was used upon Caloundra Road, Caloundra at 1524hrs on 17 January 1999 at location code 509102.

1. Section 120 of the Transport Operations (Road Use Management) Act 1995 (“the Act”) had the effect that the photographic image in Exhibit 6 and on Exhibit 8 was evidence that:

·     the image was taken at the specified location and time;

·     the accuracy of the image;

·     the things depicted in the image;

·     any requirements prescribed by a regulation about the operation and testing of a photographic testing device were complied with for the specified device at all material times.

1. The Magistrate gave very brief reasons for his decision to convict the appellant. He found that the prosecution could rely upon the documents tendered as “prima facie evidence of the truth”. In that regard he referred to sections 118, 119 and 120 of the Act as supporting a presumption that the documents were correct unless a challenge was made to them in a timely manner. He then referred to section 124(4) of the Act and noted that no written notice of a challenge to the matters referred to therein had been given. He went on to record that he was satisfied “that when tested the documents as per the certificate were found to be in accordance with the Australian Standard 2898. I am certainly satisfied and do so find the documents are proof and factual as they represent themselves before this court. There has been no compliance by the defendant in relation to the provisions of section 124(4) of the Transport Operations (Road Use Management) Act 1995 and accordingly I find for the prosecution. I find – I have discharged the onus of proof and I convict the defendant of the charge before the court.” Essentially, he found that the documentary material admitted into evidence together with the provisions of the legislation had discharged the prosecutions duty of proof.

1. Section 116 of the Act provided that a notice, complaint or summons served on a person such as the appellant for an offence such as that with which the appellant was charged must be accompanied by certain written information. That included information about the right to examine and challenge an image from a photographic detection device under section 118 of the Act. There was no suggestion this was not done.

1. Section 118 of the Act provided that it applied to a person such as the appellant who wanted to examine a copy of the image from a photographic detection device on which the offence was based. It continued:

“(2) the person must ask the commissioner at least 21 days before the charge is heard to make a copy of the image from a photographic detection device available for examination ---

(4) if the person intends to challenge an image from a photographic detection device at a hearing the person must give the commissioner written notice of the intention at least 7 days before the day fixed for the hearing.”

Section 124 of the Act provided that:

“(4) a defendant who intends to challenge –

(a)     the accuracy of a radar speed detection device or vehicle speedometer accuracy indicator; or

(b)     the time at or way in which the radar speed detection device was used;

at the hearing and determination of the charge against the defendant under this Act must give written notice of the challenge to the prosecution;

(5) the notice must be –

(a)     signed by the defendant; and

(b)     given at least 14 day before the day fixed for the hearing.”

1. The production of the photographic image (Exhibit 6 and Exhibit 8) provided evidence of the time and place it was taken, of the things shown in it, that any requirements prescribed by a Regulation about the operation and testing of the photographic detection device, which took the photograph, were complied with, and of the accuracy of what was shown in it. It shows two motor vehicles. It also contains a data block produced by the equipment containing certain information including the speed recorded by a vehicle in the photograph. It constitutes evidence that either motor vehicle shown caused the recording of the speed of 79 kilometres per hour.

1. The effect of the legislation, in particular section 118(4), is that if the owner or driver of a motor vehicle in the image is charged and the matter proceeds to a hearing, the person charged is required to give prior notice of a challenge to the image, in particular, that aspect of it which the person contends does not prove what the prosecution contends for. The intent of the legislation is that the prosecution may then call evidence, if available, to prove the aspect of the image which is challenged.

1. It is not necessary that there be cross-examination of prosecution witnesses or objection to the tender of prosecution evidence for there to be a challenge to the image relied on in the photographic image. There is a challenge to the image relied upon if it is contended the evidentiary content of the image relied upon by the prosecution is absent. The effect of the legislation is that if the hearing proceeds to a conclusion without prior notice of a challenge to the image relied upon, the evidentiary content of the image relied upon is such that it is open to the Magistrate to find the charge proven beyond reasonable doubt.

1. In my view the Magistrate was correct in relying upon the evidentiary material before him to find that the prosecution had proved the elements of the offence charged beyond reasonable doubt.

1. The appeal is dismissed.