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…