Buchanan v Rust
[2014] VCC 1576
•19 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. AP-14-0623
IN THE MATTER of an appeal from the Magistrates’ Court at Ringwood
BETWEEN
| PHILLIP BUCHANAN | Appellant |
| v | |
| GRAEME RUST | Respondent |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12 & 15 September 2014 | |
DATE OF JUDGMENT: | 19 September 2014 | |
CASE MAY BE CITED AS: | Buchanan v Rust | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1576 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords: Appeal from Magistrates’ Court against conviction on one charge of exceeding speed limit of 80 km/h (121 km/h) – charge found proved.
Legislation Cited:
Cases Cited:
Judgment:
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Connell | Nancy Elsaidy |
| For the Respondent | Mr P Moran | Office of Public Prosecutions |
HER HONOUR:
1 This is an appeal by Phillip Buchanan (“the appellant”) from an order of the Magistrates’ Court at Ringwood which, on 17 March 2014, found him guilty of an offence of driving in excess of a speed limit of 80 kilometres per hour pursuant to Rule 20 of the Road Safety Road Rules 2009.
2 The offending is alleged to have occurred on 2 March 2013 at Healesville on a section of the Maroondah Highway known as “The Black Spur”, between the 69 kilometre post and the 71 kilometre post, as one drives in a northerly direction out of Melbourne. It is alleged that, on that day, the appellant was detected driving at a speed of 123 kilometres per hour by a police officer, Leading Senior Constable Lardner, who was using a Pro Laser III speed detection device. The alleged speed is 121 kilometres per hour due to a legislative recognition of a margin of error for the laser speed detection device of plus or minus two kilometres per hour. According to the evidence of the informant, Leading Senior Constable Rust, Victoria Police Command have indicated that two kilometres per hour should be taken off in favour of the motorist.
3 The case for the prosecution/respondent comprised viva voce evidence from three police officers and a number of exhibits which were tendered. On 2 March 2013, the three officers were engaged in an operation in the Black Spur area called “Surreptitious V”. According to the evidence of Leading Constable Lardner, this was the fifth year of this operation in that particular area, which was a known black spot for traffic accidents. It is a narrow and winding stretch of highway, and the operation was funded by the Transport Accident Commission in an endeavour to reduce injuries and deaths caused by traffic accidents involving speeding drivers on the Black Spur.
4 Leading Senior Constable Lardner gave evidence that he had been an officer with Victoria Police since 1993 and had been involved in general policing work over the years, which involved intercepting speeding motorists, but had been specifically focused upon intercepting speeding motorists since joining the Yarra Ranges Highway Patrol, operating out of Lilydale Police Station, some two years ago.
5 On 2 March 2013, he was authorised to operate various speed detection devices, including the Pro Laser III. A copy of such authorisation was tendered as Exhibit “B”. The Pro Laser III speed detector which he was using on that day was number PL154. A certificate was tendered pursuant to the Road Safety (General) Regulations 2009, that this detector had been tested in accordance with the Regulations on 23 July 2012, and the test confirmed that the device was operating correctly in accordance with the requirements of those Regulations, and had been properly sealed in accordance with the Regulations. (Exhibit “A”)
6 Leading Senior Constable Lardner gave evidence that, on the day in question, he was working with Leading Senior Constable Ian Whitehall on the Surreptitious V operation. He said that they were in an elevated position in the bush on the right hand side of the Maroondah Highway as one leaves Melbourne, wearing plain clothes. They were approximately 50 metres (or perhaps up to 80 metres) from the side of the Maroondah Highway on a hill at a point between the 69 and 71 kilometres posts (which indicate the distance from Melbourne). He stated that they had an elevated view of traffic travelling in both directions along the Maroondah Highway on a straight section of road which was approximately 400-450 metres in length. There were uniformed police members at both northern and southern points from where they were, whose role was to intercept speeding motorists. The northern interception point, which was manned by the informant, Leading Senior Constable Rust and others, was approximately 1.4 kilometres north of the end of the 400-450 metre long, straight section of road. At the southern interception point, some six or seven kilometres from the northern interception point, there were also uniformed police officers.
7 Leading Senior Constable Lardner described the roadway of the Black Spur, which they were watching, as being a single lane in either direction with a bitumen surface and visible signs indicating the speed limit to be 80 kilometres per hour. At the relevant time, the road was dry and the weather was fine with good visibility, and the traffic was sporadic. He stated that the section of the straight, as one travels from Melbourne, has a solid white line down the centre and, partway down the straight, it becomes a broken white line to permit overtaking. He stated that he and Leading Senior Constable Whitehall had a clear, uninterrupted view of the straight. His role was to operate the laser detection device. Also, a video camera had been set up on a tripod and was focused on the road. The role of that video camera was not necessarily to catch a speed, but to assist with the identification of cars and drivers.
8 Leading Senior Constable Lardner stated that by about 9.30am, the video and the laser device were set up. The role of his off-sider, Leading Senior Constable Whitehall, was to observe the straight by using Canon high-powered binoculars with image stabilised control and to communicate by radio with uniformed officers at the interception points. He stated that the laser device has two seals, one on the front and one on the back, and he checked those to be intact and also checked that the battery was working. He stated that the Pro Laser he was using on that day was in working order.
9 He stated that, at approximately 11.23am, they heard vehicles coming towards the straight from the Melbourne direction. This was before they came around a bend in the road as they headed away from Melbourne. He hit the button on the video device so it would commence filming and saw one white Toyota four-wheel drive enter the straight travelling north. He observed a small red-orange sports car (the appellant’s vehicle) enter the straight approximately two car lengths behind the white four-wheel drive, and observed the brake lights of the appellant’s car go on and off a couple of times. He formed the view that the appellant appeared to be wanting to overtake the white Toyota four-wheel drive vehicle.
10 He observed a vehicle travelling south in the opposite direction and stated that the appellant’s vehicle did not overtake until that vehicle passed. As he anticipated that the overtaking was about to take place, he aimed the reticle of the laser at the back of the appellant’s vehicle and started to track it with the laser, as that vehicle went out to its right over the solid white line and overtook the four-wheel drive and then came back in front of it at quite a rate of speed.
11 He stated that the speed surprised him. He described the overtaking as fast and sharp, like a racing car manoeuvre, done very quickly, and all on the solid white line, just before the broken white line began.
12 He stated that he had obtained an initial speed of 107 kilometres per hour as the appellant’s vehicle was to the right hand side of the four-wheel drive, overtaking it. Once the appellant’s vehicle had moved back in front of the four-wheel drive, it was still accelerating, and that was when the top speed of 123 kilometres per hour was displayed on the laser device. The laser machine was at a distance of 360.6 metres from the appellant’s vehicle when this top speed was obtained. To his observation, the four-wheel drive did not appear to be over the speed limit of 80 kilometres per hour.
13 He stated that he thought that three or four seconds elapsed between using the laser to detect the 107 kilometre per hour speed and using it to detect the 123 kilometre per hour speed. He described the appellant’s vehicle as being under very heavy acceleration and stated that he could see that it was going to be in excess of the 80 kilometre per hour limit as it overtook.
14 Video footage of the overtaking manoeuvre by the appellant, as Leading Senior Constable Lardner used the laser device to measure his speed, was tendered as Exhibit “C”. Leading Senior Constable Lardner stated that the point at which he had measured the appellant’s speed at 123 kilometres per hour was shortly after it had disappeared from the range of the video camera. He described the appellant’s vehicle as having been travelling downhill until the last point at which it is seen on the video screen, shortly after which the road rises.
15 He stated that he aimed the reticle of the laser at the back of the appellant’s vehicle and he had uninterrupted tracking of it and could see the appellant’s vehicle as it accelerated away from them. He stated that he relayed the speed information to Leading Senior Constable Whitehall who, in turn, radioed it to the northern intercept team. This was because speeding drivers needed to be caught before they headed into the bends of the Black Spur, where interception becomes unsafe.
16 Under cross-examination, it was put to Leading Senior Constable Lardner that when a vehicle is 300 metres from the laser device, the beam of the laser has a diameter of 1.2 metres. He stated that that sounded right and agreed that, if the distance was 360 metres, then the diameter of the beam would be greater than 1.2 metres. He said it was possible that it might be 1.5 metres. He agreed with the general principal that the further the object being tracked was from the laser, the larger the margin for error, because of the spread of the beam. He agreed that the spread of the beam was fundamental to the reading he had obtained.
17 It was put to Leading Senior Constable Lardner in cross-examination that once the appellant’s vehicle had overtaken the four-wheel drive, he did not have a clear line of sight of it. He disagreed. He stated that the appellant’s vehicle was continuing to accelerate and he had the reticle focused on the rear of the appellant’s vehicle. He understood that the appellant would say that after completing the overtaking manoeuvre he decelerated, but that was not his observation. He understood, from what had been said by the appellant in the Magistrates’ Court hearing, that he had overtaken in order to get away from the white four-wheel drive vehicle, which he described as having driven dangerously. He did not observe any such behaviour on the part of the four-wheel drive, as his first observation of it was when it came around the corner onto the straight. It was only about a second or so after that, that he observed the appellant’s vehicle come into view about two car lengths behind it and then come up behind the four-wheel drive and brake and overtake it.
18 It was put in cross-examination that the laser device was not infallible and the reading obtained by it in this case may have been a combination of the appellant’s car and the four-wheel drive that he passed. Leading Senior Constable Lardner stated that the laser device either reads or does not read and, in his experience, he had never known it to give a double reading or to give two measures of speed of two vehicles which might happen to be within the 1.5 metre diameter of the beam of the laser. He also rejected the proposition put to him that the laser device might give a reading of a car which was being tracked and a stationary item in the field. Leading Senior Constable Lardner said it must be a moving object in order to get a speed measurement.
19 He considered that the concepts which were put to him in cross-examination as being potential deficiencies of the laser device, might refer to the reflection and shadow deficiencies of a radar device, but these did not have application to the Pro Laser III device. He rejected the proposition put to him that the reading from the laser might be of one car going in one direction and of another car going in another direction. He stated that it was true that the point at which he announced on the video recording that he had measured a speed of 123 kilometres per hour was at a point when the appellant’s vehicle was no longer visible on that recording. He stated that the purpose of the video recording was not to measure speed but for the purposes of identification and, at the point that he announced that he had obtained a reading of 123 kilometres per hour, he had the reticle of the laser on the rear of the appellant’s vehicle. He commented that the width of the beam at that point would be only half a lane wide and the appellant’s vehicle was the only one he was focused upon.
20 He stated that he was not qualified to speak about the technique of how a laser worked. His experience in operating the device is that it works well and he had not had it fail in two years of using it. He said that, if the battery went flat, that would show up on the screen and one would change the battery. He stated that the laser device would not give a speed reading if there was more than one car within its beam. He had tried, on occasions, to use the laser device in school zones where there were several cars coming around a bend, and it would not give a reading if it cannot focus on just one car. He stated that he had no recollection of any oncoming vehicle at the time that he focused the reticle on the appellant’s vehicle for the second time to obtain the reading of 123 kilometres per hour, but he would not exclude that there may have been one.
21 Leading Senior Constable Lardner stated that the appellant was never shown the reading from the laser device and there was no legal requirement to do so. The appellant was intercepted about 1.4 kilometres further on from the straight, and he was still operating the laser device some 50 metres or so back from the straight in the bush, so it was not practicable to do so. He stated that, sometimes, if an officer had the laser with him at the time a motorist was intercepted, then he might, as a courtesy, show the driver the displayed reading. In any event, the intercepting officer, Leading Senior Constable Rust, dealt with another vehicle after the interception of the appellant, so the displayed reading of the appellant’s speed would no longer have been available to show him.
22 Under re-examination, the witness stated that, when the laser locks onto a vehicle, a clear audible tone is emitted, which is a constant sound. Prior to a lock on a vehicle being achieved, it can emit a broken sound. He stated that the device would not give a reading at all unless it was locked on one vehicle only.
23 Evidence was called from Leading Senior Constable Whitehall, who was also with the Yarra Range Highway Patrol, and was present with Leading Senior Constable Lardner, on the side of the hill in the bush off the Maroondah Highway on 2 March 2013, observing the section of straight road.
24 Leading Senior Constable Whitehall stated that, from their elevated position, they could see vehicles coming from either direction along the straight section of road which is 400-450 metres in length. As one travels from Melbourne, one comes around a left hand bend into the straight and then, after that section of 400-450 metres, the road dips and then rises up and curves to the right. He stated that he observed the white four-wheel drive come onto the straight heading north, and the appellant’s vehicle was behind it and gaining on it, and travelling faster than the four-wheel drive. He saw the appellant’s vehicle brake and indicate twice and it then crossed the unbroken white line approximately 40-50 metres before the line becomes a broken white line.
25 He stated that he heard a clear audible tone from the laser operated by Leading Senior Constable Lardner, who announced a speed of 107 kilometres per hour. He then saw another two flashes of the indicator of the appellant’s vehicle, which returned to the correct side of the road, just after the solid white line changed to become a broken white line. The appellant’s vehicle continued to accelerate and he, again, heard the laser device emit an audible sound and heard Leading Senior Constable Lardner announce a speed of 123 kilometres per hour. He continued to observe the appellant’s vehicle with his own eyes and it continued to accelerate to a speed, which he estimated to be about 130 kilometres per hour. He regarded his estimate as consistent with what Leading Senior Constable Lardner had indicated after he heard the second audible tone of the laser. He estimated that he had the accused’s vehicle in sight for approximately another 200 metres after it returned to the correct side of the road and he had had it in his view for the full length of the straight.
26 Leading Senior Constable Whitehall stated that, since the beginning of February 1989, he has specialised in traffic law enforcement within Victoria Police and, through experience, had gained expertise in assessing the speed of vehicles. He said his capacity has been tested and been found to be accurate to within plus or minus five kilometres of speed measured by mechanical devices. Under cross-examination he said that in his statement he referred to the estimated speed of 130 kilometres as his expert opinion because he does regard himself as an expert in estimating speed. He said it is part of his role as an observer to estimate the speed to see whether it is consistent with that obtained on the laser device. If he is in any doubt about whether what he personally observed and estimated is consistent with the speed obtained by the laser device, he would not even radio ahead to the interception team.
27 He said, although he was trained in the operation of the laser device, he is not an expert on the ins and outs of that device, which is a very technical instrument. He stated that, if the laser device is not held correctly, or is not focused upon a direct target, it will not give a speed. If it does not emit a clear audible tone it will not give a speed. Provided the device had been tested as required by the regulations, and it had the seals intact and emitted a clear audible tone, as it had done prior to Leading Senior Constable Lardner calling out each of the speeds, then you could be satisfied that it was working correctly.
28 Under cross-examination, he initially indicated that there was probably one second or one and a half seconds between Leading Senior Constable Lardner indicating the speed of 107 kilometres per hour and him indicating the speed of 123 kilometres per hour. However, when he viewed the video footage (Exhibit “C”) and it was put to him in cross-examination that there was one to 1.5 seconds on that video between the announcement of the speed of 107 kilometres per hour and the announcement of the speed of 123 kilometres per hour, he stated that he disagreed. He stated that there was a break between when the first speed check finished and the second speed check started. He stated, on his observation of the footage, the tone for the first speed check finished at about 11.24.46 seconds and the second tone finished at about 11.24.49 seconds so that there was a break of about three seconds in between.
29 He agreed that, when Leading Senior Constable Lardner called out the speed of 123 kilometres per hour, the appellant’s vehicle was out of view of the video recorder (which was set up for identity purposes, and did not cover the entirety of the straight), but stated that he never lost sight of the appellant’s vehicle, which continued to accelerate after it had completed its overtaking manoeuvre. It was put to him that the estimates of speed by the laser device were from a distance of 360 metres away, as the appellant’s vehicle was travelling away from him. He stated that the estimates commenced earlier than that, that distance would have been the last estimate. It was put that he was looking at the appellant’s vehicle on an angle and, as it was going up an incline, it would give the perception that it was going faster as it gets further away, from the four-wheel drive vehicle. He stated that he was basically looking straight down the road and to agree with any such perception would depend on whether the vehicles were trawling at the same speed and how steep the hill was.
30 The final witness for the prosecution was the informant, Leading Senior Constable Rust. He gave evidence that, on 2 March 2013, he was part of the Surreptitious V operation to detect speeding and other offences by drivers on the Black Spur. He was part of the Northern Interception Team who received radio messages from the laser team. He did not observe the alleged speeding by the appellant, but was situated some 1.5-1.8 kilometres further on from where the laser device was being used. He received a radio message from the laser team about 11.25am and intercepted the appellant shortly thereafter.
31 He stated that, on this day, he was wearing a microphone on him because a film crew from Greenstone Productions were filming an episode of a television series called “Highway Patrol”. The conversation which he had with the appellant following interception was radio-linked back to a police vehicle in which the film crew were recording. He stated that his statement made on 3 February 2014 (Exhibit “E”) was produced once he knew that the matter was to come before a court. He obtained a video recording from Greenstone Productions, which showed his conversation with the appellant, and, from that recording, he produced as best he could a transcript which constituted his statement.
32 Leading Senior Constable Rust intercepted the appellant and told him that, as he was dealing with another motorist ahead of him, he would come back and explain fully why he had been stopped. He later returned and, in essence, told the appellant that, back on the straight, his vehicle had done a late overtake, where the speed limit was 80 kilometres per hour, and his speed had been checked at 123 kilometres per hour. He gave evidence as best he was able as to what took place in the conversation between himself and the appellant, as taken from the film company recording.
33 He handed the appellant an infringement notice and further discussion took place, which he set out as best he was able in his statement, again taken from the film company recording. He mentioned to the appellant that he had mistakenly handed the appellant’s drivers licence to the previous driver with whom he had been dealing, and said he would correct his mistake and return his licence to him. After this, the appellant returned to his car and drove south on the Maroondah Highway.
34 Leading Senior Constable Rust stated that he was notified at 12.09pm by Leading Senior Constable Whitehall that the appellant had stopped his vehicle on the straight where their laser speed detection was being conducted. Leading Senior Constable Rust attended and asked the appellant to move. He stated that, at about 12.44pm, the appellant returned to the intercept point and he had a further conversation with him, which again was detailed as best he could by way of transcribing the film company footage.
35 It became apparent from Leading Senior Constable Rust’s evidence that the film company recording was really the best evidence. In cross-examination, Mr Connell, on behalf of the appellant, pointed out that, in Leading Senior Constable Rust’s statement, there was a particular part of an answer of the appellant which he had described as “indecipherable”. There was also a question by him of the appellant, “Why is it entrapment?”, when there appeared to be no mention in the statement of the appellant having said that it was entrapment. In these circumstances, I directed that, as a matter of fairness, the recording should be obtained. Accordingly, a DVD of Greenstone Productions’ filming on 2 March 2013 was produced by the prosecution and tendered as Exhibit “F”.
36 I will not here quote the entirety of Exhibit “E”. Suffice to say that it states that Leading Senior Constable Rust had completed dealing with another motorist and returned to speak with the appellant for the second time. During this second conversation, he detailed the allegation of overtaking and exceeding the speed limit, and that his speed had been checked at 123 kilometres per hour. He transcribed the appellant as responding:
“Indecipherable…Completely illegal, every corner he went around he’s like a metre over the line. He’s putting everyone else in danger. I go and do, I go out and try to get past him as quick as I can”.
37 Leading Senior Constable Rust responded that, in essence, the appellant was not entitled to exceed the 80 kilometres per hour speed limit while overtaking. He stated, amongst other things, “Wait, pull over if you’re so annoyed by the vehicle in front, but by exceeding the speed limit up to 123 km/h you’ve risked your licence alright.” He cautioned the appellant and asked if he had any justified reason for exceeding the speed limit. The appellant responded, “No. To attempt to get out from behind a dangerous driver”.
38 The conversation continued, and the appellant later stated:
“Surely you’ve got to tell them to make them broken lines double lines because unless someone was doing 15 kilometres per hour there is nowhere to overtake under 80 there”.
39 Shortly thereafter, Leading Senior Constable Rust stated, “Why is it entrapment, why is it entrapment?” and the appellant responded:
“Because it’s the only place where you can overtake and as if you’re not going to look after yourself and try and get around the car as quick as possible”.
40 Leading Senior Constable Rust stated, “That’s where a reasonable and prudent driver would say, ‘I can’t get around’.”, and the appellant stated:
“The car I went around, he was reasonable and prudent was he? A metre over either side of the lines, jacked up six inches”.
41 Under cross-examination, Mr Connell put to Leading Senior Constable Rust that, after he had detailed to the appellant that his speed had been checked at 123 kilometres per hour, the appellant was incredulous. He essentially suggested that, where Leading Senior Constable Rust had recorded the response “indecipherable”, that the appellant had expressed disbelief that the speed could be 123 kilometres per hour.
42 Leading Senior Constable Rust responded:
“My general opinion of what he appeared to be on about was that he couldn’t have been doing that type of speed but he was also very much on the fact that the four-wheel drive was driving dangerously and he needed to overtake that vehicle to get away from it”.
43 This was his answer prior to the DVD from the film production company (Exhibit “F”) being produced and tendered.
44 After the adjournment, which had taken place in order to produce Exhibit “F”, but before viewing Exhibit “F”, Leading Senior Constable Rust agreed that his mention of entrapment was not in answer to anything that the appellant had said. He said that it was obviously his opinion as to what the appellant thought the police officers were doing in the bush.
45 It was put to him by Mr Connell that, before lunch, he had agreed that the appellant was incredulous that his speed could be 123 kilometres per hour, and he stated that, before lunch, he had said that that may have been the case but he did not say “incredulous”, that was not his word. He said:
“I’m not sure that I’ve got a word to describe his attitude but his view was that he did a manoeuvre, he was going as quickly as he could to get around a dangerous driver and disagreed with what the police were doing.”
46 It was put to him by Mr Connell that the appellant had never accepted that he was doing 123 kilometres per hour. The witness stated that the appellant had never mentioned he was doing that speed, but rather that he was driving as quickly as he could to attempt to get away from a dangerous driver and attempt to get away as soon as possible.
47 It was put to him that the appellant would say that, after he was told of the speed of 123 kilometres per hour, he stated, “No way – that is just unbelievable. It’s just crazy”, and the witness responded, “I have no recollection of that”.
48 After listening to and viewing the DVD (Exhibit “F”) as part of re-examination, Leading Senior Constable Rust stated that he had picked up for the first time on the film that, as he was approaching the appellant, he heard him mutter something about entrapment. He said that explained why he had recorded in the statement his own words, “Why is it entrapment?”. He had earlier stated that he had formed the opinion that that is what the appellant thought, but it was only when listening to the DVD here in court that he picked up those words muttered by the appellant.
49 The appellant, Mr Buchanan, gave evidence. He stated that, in performing the overtaking of the four-wheel drive vehicle, he was attempting to get in front of that vehicle, which had been driving erratically through corners. He stated that the peak speed he reached, whilst overtaking, was 107 kilometres per hour. He had not been aware of that speed measurement taken by the police on 2 March 2013. He did not learn of it until he attended the Magistrates’ Court hearing and evidence was given of it by Leading Senior Constable Lardner. He claimed that the footage of Exhibit “C” was shown in the Magistrates’ Court, but there was no sound attached to it (a matter disputed by the prosecution).
50 The appellant stated that his peak speed of 107 kilometres per hour was when he was level with, or at the front of, the four-wheel drive vehicle he had overtaken, and he then released the accelerator as there was a corner approaching and he intended to get back to 80 kilometres per hour. He claimed that he had looked at this section of the roadway on a Google map, and the corner that was approaching was a sharp corner at the end of the straight, almost a 90 degree bend.
51 He said his partner of 18 years, Kate Ashton, had been a front seat passenger in the vehicle during the subject driving. He stated that he was upset when he was intercepted and given the Traffic Infringement Notice because the speed of 123 kilometres per hour did not make sense to him and he felt it was unfair because the driver whom he had passed was a danger to oncoming traffic and to himself (the appellant). He knows the Black Spur area, as he has driven it frequently, and he knows that the speed limit is 80 kilometres per hour. He said he asked the police to be shown a copy of the laser reading because he found it difficult to believe that he could have been travelling at 123 kilometres per hour. It did not make sense to him. It was only when he heard Leading Senior Constable Lardner’s evidence in the Magistrates’ Court about the laser reading of 107 kilometres per hour when he was overtaking, that it all made sense, and he stated that he now says that 107 kilometres per hour was the maximum speed at which he had travelled.
52 Tendered through the appellant were four still photographs which were taken from Exhibit “C”, the video of the overtaking manoeuvre. These four photographs are Exhibit “1”. The appellant stated that the fourth of those photographs, which bears a time of 11.24.46, depicts his vehicle pulling in front of the four-wheel drive. He stated, “At that stage I would have released from the accelerator and been coasting to safely negotiate the bend, which was about 100 metres away”.
53 The appellant stated that he twice requested to see the laser reading. The first occasion was when Leading Senior Constable Rust gave him the infringement notice, and the second occasion was when he returned to where he had been intercepted by Leading Senior Constable Rust, after he had been up and parked at the straight and had spoken to his barrister, and Leading Senior Constable Rust had stated that it was impracticable to provide it.
54 The appellant stated that he had felt a need to see the equipment set up because the speed did not make sense to him, and he discussed those issues with his partner at the scene. He said that as he had been driving for 30 years, he knows the difference between travelling at a speed of 107 kilometres per hour and 123 kilometres per hour.
55 Under cross-examination, the appellant agreed that on 2 March 2013 he was driving his new sports car on the Black Spur and that it had been registered three days earlier on 28 February 2013. He said that he had been behind the white four-wheel drive for about three kilometres before he overtook it. When he was intercepted by the informant, the only speed mentioned by the officer was 123 kilometres per hour and there was an exchange between them as to whether two or three kilometres should be deducted from that measured speed.
56 He agreed that Leading Senior Constable Rust had stated that the two kilometres per hour was given in his favour, but if it were used to boost the speed of 123 kilometres per hour up to 125 kilometres per hour, his vehicle would be impounded there and then for a period of 30 days and that he answered, “Oh, what the hell. I have to park it for six months don’t I?”.
57 He agreed that at no time when he was driving did he observe the top speed that he had reached. Mr Moran, counsel for the respondent, put to the appellant that the truth is that the appellant did not know what his speed was and the appellant answered, “Exactly correct”.
58 He claimed that when he was first pulled up by the police he said, “No way was I doing 123”. He believed his speed had been about 105 kilometres per hour. He stated that he believed he discussed with his partner, Ms Ashton, at some stage while standing around on the side of the road, that he could not have been doing more than 110 kilometres per hour. He believed this discussion was before he had been issued with the infringement notice.
59 He said he was unsure of the exact details of what he discussed with his partner because he was in an upset state. He agreed that the primary reason for his upset state was the unfairness of him being intercepted when the driver whom he regarded as having been driving dangerously was permitted to drive on without being intercepted.
60 It was put to him by Mr Moran, that when Leading Senior Constable Rust intercepted him, the question of his speed did not come into that conversation. The appellant claimed that, yes, it was mentioned and where in Leading Senior Constable Rust’s statement his response is described as “indecipherable” (that is, inaudible), what could not be heard was that he used a swear word. He agreed that that conversation continued with complaints about the four-wheel drive and there was no later questioning by him of the speed of 123 kilometres per hour. The appellant stated that he was upset, and he felt that he had been forced into a passing manoeuvre by a dangerous driver.
61 He stated that, “The reading of 107 is the point at which I took my foot off the accelerator”, and he had strong beliefs about why the alleged reading of 123 kilometres per hour was erroneous, but he believed he was not permitted to say anything about that (a reference to the objection taken by the prosecution that no expert witness statement had been served, which was upheld by me).
62 I personally drew to the appellant’s attention that, on Exhibit “F”, after receiving the infringement notice from Leading Senior Constable Rust, he is seen and heard speaking with the film crew. I pointed out to him that he had complained to them about what he alleged to be the dangerous driving of the driver of the four-wheel drive, but did not dispute the speed of 123 kilometres per hour. The relevant statement by the appellant to the film crew is as follows:
“You know, seeing as you try to do the right thing and pass some idiot on the road there’s a jacked up, jacked up Hilux who was taking every corner a metre inside to two metres inside, quite scary, at some point he’ll collect someone. But he won’t get caught by that laser or anything like that, he won’t get caught by anyone. It’s jacked up, they won’t pull him up, can’t handle around the corner. He’s doing like 35-40 kilometres into corners, going out wide around the corners. He can’t see what’s coming, so I decided to get past him. Brand new car, 80 kilometres on the clock, so I just go around to pass him. All I think about is getting around him safely before I come up to the next one, bang, it’s reasonably quick, goes up to 123, these guys think they’re doing the right thing, they’re saving everyone’s life doing that and it’s just absolutely ridiculous, it defies logic.”
63 In response to this, the appellant stated, “I was under the impression that I was clocked at 123 and I was just reiterating what was written on the ticket.” When I asked him why, if he was so clear that he could not have been doing 123 kilometres per hour, he did not mention it to the film crew, he stated that he was upset that this other car was able to drive dangerously through the Black Spur, but he was picked up and his focus on the issue of speed was lesser. He agreed that the potential inaccuracies of the speed measuring laser device were only raised with police later, after he had spoken to his barrister.
64 I also drew to the appellant’s attention that, on my hearing of part of the conversation between himself and Leading Senior Constable Rust on Exhibit “F”, the officer stated, “So you’re telling me it’s acceptable to do 120 or whatever it was you were doing to overtake him?”, and the appellant had answered, “To overtake him – most definitely”. I asked the appellant whether he disputed that he had said that, and he answered, “I don’t dispute that”.
65 The appellant stated that he was not asked at any stage if he was doing 123 kilometres per hour, and what he had said to the film crew was based upon his belief that police had detected his speed at 123 kilometres per hour at the apex of him passing the other car. He agreed that it was a “wow moment” when, in the Magistrates’ Court, he heard Leading Senior Constable Lardner give evidence that his speed was detected at 107 kilometres per hour when he was overtaking. This was because he had always been of the belief that he could not have been doing 123 kilometres per hour while passing a vehicle doing 75 kilometres per hour.
66 The appellant stated that he believed that, during the overtaking manoeuvre, his speed had been 107 kilometres per hour and, other than that, he was driving at 80 kilometres per hour. He stated that, in discussions with his partner, Ms Ashton, at the side of the road, he would definitely have mentioned that there was no way he could have been doing 123 kilometres per hour, as well as mentioning the dangerous driving of the four-wheel drive.
67 Ms Ashton gave evidence on behalf of the appellant. She stated that on 2 March 2013, she was a front seat passenger in the appellant’s car on the Black Spur. She said she was observing the road and the scenery, “It’s a windy, narrow road”, and they were, “Behind a white ute which didn’t seem to be driving very well”. There was a little space for the appellant to overtake after a vehicle travelling in the opposite direction went past. She said the appellant indicated and quickly overtook and went back onto the correct side of the road and went back to the normal speed limit.
68 She stated that the maximum speed that the appellant was doing was during the overtaking and, once he had completed that, he went back to a normal speed. The vehicle he overtook, she considered, was doing less than 80 kilometres per hour. She stated that the appellant overtook and went back into his lane and then around the corner, where the police pulled them over. She thought it may have been about 100 metres to go before the turn and he had decelerated as soon as he finished overtaking. She said it all happened very quickly, and he would have been pulled up by police about 200 metres after he completed the overtaking.
69 Ms Ashton stated that she and the appellant were both astounded at the alleged speed of 123 kilometres per hour, although the appellant definitely knew that he had been speeding when he had overtaken. She said she has been driving for 23 years and travels about 30,000 kilometres every year in the course of her occupation as a landscape designer.
70 Ms Ashton stated that, prior to overtaking, she and the appellant were discussing how the four-wheel drive in front of them was wavering all over the road “like it had a few drinks”, and the appellant said to her that he was concerned because he did not think this was safe and he wanted to overtake him because he did not feel that he wanted to be behind the four-wheel drive. (The appellant had disagreed that he indicated this intention to Ms Ashton.) She stated that the appellant did not mention any speed that he had got to as he accelerated past the four-wheel drive, and she certainly did not see the speedometer of the appellant’s car.
71 She thought that, when the he was intercepted, his agitation was due to the speed that the police alleged. She did not hear him quote to the police a speed that he thought he was doing. He was just disagreeing with the speed that was put to him, and he certainly wanted to see the reading. It was put to her in cross-examination that the appellant made no complaint about the alleged speed to the film crew, and she said that she was not sure what he said to the camera crew, but he did complain to her about the alleged speed.
72 Ms Ashton stated that she had not given evidence in the Magistrates’ Court. When asked by me, she stated that the first time she had to focus her mind on what she remembered was when the appellant told her that he was going to appeal from the Magistrate’s decision, and she said, “Maybe I should come to court with you”, so it was in about April 2014. She also agreed that, earlier on this year, when the hearing of the appeal was not reached in the County Court, she had seen the footage comprising Exhibit “C”, and that helped her remember what happened on that day, although it was only a short little video.
73 After evaluating the whole of the evidence before me, I am satisfied, beyond reasonable doubt, of the following:
(i) Exhibit “C”, the video film taken of the appellant’s overtaking manoeuvre, demonstrates the following:
(a) 11.24.40 – the white four-wheel drive vehicle ahead of the appellant comes into vision on the film;
(b) 11.24.41 – the appellant’s orange vehicle comes into vision travelling at an apparently faster speed than the four-wheel drive in front of it and drives up very close to the rear of the four-wheel drive. The brake lights appear on the rear of the appellant’s vehicle;
(c) 11.24.42 – an oncoming dark coloured vehicle passes the white four-wheel drive and the appellant’s orange vehicle;
(d) 11.24.42 to 11.24.43 – the appellant’s vehicle indicates and moves rapidly out onto the incorrect side of the road over an unbroken white line to commence overtaking the four-wheel drive;
(e) 11.24.43 to 11.24.45 – the appellant’s orange vehicle is seen on the film on the incorrect side of the road overtaking the white four-wheel drive;
(f) 11.24.45 – the appellant’s vehicle commences to cross back onto the correct side of the road just as the broken white dividing line begins;
(g) 11.24.46 – the appellant’s vehicle is fully back on its correct side of the road;
(h) 11.24.47 – the voice of Leading Senior Constable Lardner calls out a speed of 107 kilometres per hour while the appellant’s vehicle is still visible on the film;
(i) 11.24.48 – the appellant’s vehicle disappears from vision but, immediately before it does so, a distance is detectable between the appellant’s vehicle and the four-wheel drive;
(j) 11.24.50 – the voice of Leading Senior Constable Lardner calls out a speed of 123 kilometres per hour;
(k) 11.25.29 – the first oncoming vehicle appears on the video film after the appellant’s overtaking manoeuvre.
(ii) On 2 March 2013, the Pro Laser III speed detection device was operating correctly, as certified by Exhibit “A”, and by the uncontradicted evidence of Leading Senior Constable Lardner. I accept that Leading Senior Constable Lardner was able to focus the reticle of the laser on the rear of the appellant’s vehicle. Leading Senior Constable Lardner stated that it is apparent when the laser has locked onto a vehicle because there is a continuous audible beep. While viewing and listening to Exhibit “C”, I hear a continuous audible beep which commences as the appellant’s vehicle begins to overtake the white four-wheel drive, and it ceases at approximately 11.24.46, once the appellant’s vehicle has returned to its correct side of the road. It is one second after this that Leading Senior Constable Lardner’s voice calls the speed of 107 kilometres per hour. A short time later, at approximately 11.24.49, there is again a continuous audible tone which stops, and, then, at 11.24.50, Leading Senior Constable Lardner’s voice is heard to call the speed of 123 kilometres per hour. The evidence of Leading Senior Constable Whitehall supports that a clear audible tone sounded on each occasion before Leading Senior Constable Lardner called each speed. I am satisfied that each of those beeps or tones indicate the period during which the reticle of the laser was focused on the rear of the appellant’s vehicle.
(iii) The appellant is intercepted by Leading Senior Constable Rust at the northern intercept point, which he states is approximately 1.5 metres from the point where the appellant overtook the white four-wheel drive. Thereafter, the sequence of events is that Leading Senior Constable Rust speaks briefly to the appellant, then goes to deal with another driver he had already intercepted, and then returns to speak to the appellant. He issues an infringement notice for speeding, which he gives to the appellant.
After the appellant has been issued with an infringement notice for speeding, he then returns to the straight on the Black Spur where he had overtaken the four-wheel drive. Exhibit “F” reveals, in accordance with the evidence of Leading Senior Constable Rust, that after he is contacted by radio, Leading Senior Constable Rust attends the point where the appellant has stopped his vehicle in the area of the straight. He asks the appellant to move from that area so that he does not hinder their operation. This is at approximately 12.09pm. The appellant, at this stage, asks whether he is permitted to see the device that caught him and Leading Senior Constable Rust states that it has already been used for other checks, so he would not be able to see his speed, and there is no requirement for police to show him. The appellant indicates that he proposes to ring his barrister.
At approximately 12.44pm, the appellant returns to the point where Leading Senior Constable Rust had initially intercepted him. He indicates that he has spoken to his barrister, who is an expert in the Road Safety Act 1986, and has been informed that the courts have ruled that there are six different ways that a laser speed detection device can be wrong, and had been advised that he should have been shown the speed reading on the device. Leading Senior Constable Rust indicates that the barrister is entitled to his opinion, but it is impracticable to show the device to the appellant.
(iv) The appellant did not question the accuracy of the alleged speed of 123 kilometres per hour when it was first put to him after being intercepted by Leading Senior Constable Rust. Contrary to what was put by Mr Connell, in cross-examination of Leading Senior Constable Rust, the appellant did not give evidence that upon being told of the alleged speed, he said, “No way. That is just unbelievable. It’s just crazy”. Although the appellant initially claimed in cross-examination that he told police, “No way was I doing 123”, he later seemed to say that, when the speed of 123 kilometres per hour was mentioned, he indicated his disagreement by swearing, and this was the portion of Exhibit “F” which was transcribed by Leading Senior Constable Rust as “indecipherable” (meaning inaudible).
I have listened carefully to Exhibit “F”, and there is only four or five seconds between the time when Leading Senior Constable Rust finishes detailing the reason that the appellant has been intercepted with the words, “Your speed was checked at 123 kilometres per hour” and the appellant’s words, “Completely illegal, every corner he went around he’s like a metre over the line. He’s putting everyone else in danger. I go and do, I go out and try to get past him as quick as I can.” During that four or five seconds, the only words which I am able to hear the appellant say is “jacked up”. This is the same expression which is used later in the conversation with Leading Senior Constable Rust by the appellant when he says, “The car I went around, he was reasonable and prudent was he? A metre over either side of the lines, jacked up six inches”. It is the same expression which the appellant used repeatedly when he was speaking to the film crew after Leading Senior Constable Rust had given the infringement notice to him. This is the passage which I have previously quoted.[1]
[1]Paragraph 62
Whilst I accept that, in that conversation with the film crew, the appellant was relying upon what the police had told him, which was the detected speed of 123 kilometres per hour, the fact of the matter is that he did not tell the film crew he took issue with that alleged speed to reflect his or Mr Connell’s suggestion that the appellant’s use of the word “ridiculous” is a reference to the scenario where he, rather than the person whom he regarded as a dangerous driver, had been intercepted.
The appellant then goes on to allege that what the police are doing is revenue raising. He says, amongst other things, “Someone safely tries to get around a pathetic driver on the road and who copes it”. He later states, “Well, I’ll get a bit fitter. I’ll be riding my bike to work each day. At the minute, luckily it’s not going to affect me significantly coz I don’t live too far from work.” The latter is a clear reference to the six month suspension of licence which he has incurred in the infringement notice.
(v) The reason for the appellant’s agitation when he was intercepted by Leading Senior Constable Rust was that he felt it was unfair that the driver of the white four-wheel drive, whom he considered had been driving dangerously, had been permitted to continue his journey while he, the appellant, who was simply trying to get away from him by overtaking, had been intercepted and booked for speeding. This is the same matter which he ventilated with the film crew.
If the appellant seriously believed at that time that the speed of 123 kilometres per hour could not possibly be correct, it makes no sense that his complaint concerning it should be confined to the first four or five seconds of his conversation with Leading Senior Constable Rust. This is in stark contrast to this lengthy complaint about the driver of the four-wheel drive and the time he spent arguing with Leading Senior Constable Rust as to whether three rather than two kilometres should be deducted from the detected speed of 123 kilometres per hour.
It is also in contrast to the amount of time spent by the appellant addressing Leading Senior Constable Rust as to why the length of the broken white line should be extended to allow a longer distance for overtaking. I thus find that the appellant raised no issue concerning the accuracy of the reading until after he had been back to the straight where he had been intercepted and was trying to identify where the operator of the laser was situated. That he was trying to see where the device was operating from is consistent with him earlier having indicated to Leading Senior Constable Rust that he considered that the police operation was some form of entrapment.
I accept that Leading Senior Constable Rust, upon listening to Exhibit “F” during re-examination, did identify the point at which the appellant referred to entrapment, and that is why he responded by asking, “Why is it entrapment? Why is it entrapment?”. The appellant responded, “Because it’s the only place where you can overtake and, as if you’re not going to look after yourself and try and get around the car as quick as possible”.
I am satisfied that it was only after the appellant had spoken with his barrister that he first raised the issue that the reading on the laser speed detection device could be wrong. By that stage, he was aware that he had incurred a fine of $599 and six demerit points, and that his licence would be suspended for six months.
In this context, I note that Ms Ashton gave evidence that the appellant certainly wanted to see the laser reading. She seemed to be saying that this request was made by him shortly after he was intercepted by Leading Senior Constable Rust and told the alleged speed of 123 kilometres per hour. I find that she is mistaken as to the time that the appellant’s request to see the laser reading was made.
Overall, I place little weight on the evidence of Ms Ashton. She conceded that the first occasion upon which she had had to focus her mind upon what had happened on 2 March 2013 was over one year later, in or about April 2014, once the appellant had decided to appeal from the magistrate’s order. I consider it is not believable that, after that time, she, having been a passenger, would specifically recall that the appellant had decelerated as soon as he ceased his overtaking manoeuvre or that, when he completed the overtaking, it was only about 100 metres before the right hand curve in the road. Further, she conceded that viewing the footage had helped her remember what happened that day, and I find it is most likely that the footage, rather than her own recollection, is the basis of her description of the overtaking manoeuvre. Her recollection that, very soon after the appellant went back to his lane after overtaking, he went around the corner and they were pulled up by police only about 200 metres after he had overtaken, is plainly incorrect. The officers involved in Operation Surreptitious V would know how far from the interception point the laser device was being operated, and that evidence is that it was approximately 1.5 kilometres, not 200 metres.
Whilst it is possible that the appellant and Ms Ashton did discuss whether the alleged speed could be accurate while they were on the side of the road, I am not satisfied that this was shortly after interception, when the appellant was told of the reading of 123 kilometres per hour. Consistent with what is viewed on Exhibit “F”, if any such discussion occurred later on, it took place after the appellant went back to the straight where he had overtaken, following which he sought advice from his barrister.
(vi) The evidence of the good character of the appellant should be given little weight in determining whether this offence is found proven.
Mr Connell urged that the court should take into account the good character of the appellant in determining whether the court is satisfied, beyond reasonable doubt, that he committed this offence. Although Leading Senior Constable Lardner had been asked by Mr Connell in cross-examination whether he was aware that, in the last 17 years, the appellant had not even received one traffic infringement, and the witness answered that he was not aware of this, no evidence was called to this effect. The appellant stated that he had been driving for 30 years. His partner stated of his character, “He’s very honest and trustworthy and a good guy”. This is the extent of the character evidence.
The law is that, if a person charged with an offence is accepted to be of good character, then that may be used in assessing his credibility in denying the prosecution case, and it may also be used in determining the likelihood of whether such a person would commit the offence charged. The evidence of good character is solely from the appellant’s long-term partner. It does not mean that I must find the appellant not guilty. The mere fact that he may hitherto have been of good character cannot alter proven facts. It is always possible for a person of good character to commit a crime for the first time, and, indeed, the appellant’s position now is that he maintains that he was exceeding the speed limit albeit by 27 kilometres per hour (that is, travelling at 107 kilometres per hour), rather than by the alleged 41 kilometres per hour (that is, travelling at 121 kilometres per hour). Further, as is apparent from Exhibit “F”, the appellant conceded to Leading Senior Constable Rust that he considered “most definitely it was acceptable to drive at the alleged speed of 120 – whatever it was (he) was doing” to overtake the four-wheel drive.
(vii) The appellant drove around a right hand curve in the road, rather than a bend of almost 90 degrees, shortly before he was intercepted by Leading Senior Constable Rust.
It was submitted by Mr Connell that I should take “judicial notice” of Google maps to determine that it was a sharp right hand bend, as described by the appellant, and, hence, conclude that that factor made it more likely that he decelerated after overtaking and was not travelling at the speed of 123 kilometres per hour allegedly detected by the laser device. No Google map was tendered. I consider it unlikely in the circumstances that I can take judicial notice of a Google map, especially where my attention has not been specifically directed to any particular Google map or any particular section of the roadway shown on a Google map.
Moreover, it had not been put to any of the police witnesses that it was a sharp, almost 90 degree, bend, and all of them described it as a right hand curve rather than a bend. I accept their evidence, as all three officers had experience in being involved with this Surreptitious V Operation on the Black Spur and were well-acquainted with the section of road which had been a trouble spot for transport accidents which had caused injuries and fatalities for some time. Indeed, it was such a notorious stretch of road for accidents, that the Transport Accident Commission had funded the Surreptitious V Operation (in its fifth year) to try to catch speeding motorists to reduce the road toll.
For this reason, I also do not accept the appellant’s estimate that it was only approximately 100 metres after the overtaking manoeuvre that he needed to negotiate this right hand curve. The police witnesses acquainted with this straight estimated it to be 400–450 metres in length. The appellant commenced his overtaking manoeuvre almost immediately upon entering into the view of the video camera focused on the beginning of the straight.
(viii) I find that Leading Senior Constable Whitehall had the appellant in view for approximately 200 metres after he completed the overtaking manoeuvre.
(ix) The speeds of both 107 kilometres per hour and 123 kilometres per hour detected by the Pro Laser III are reliable. I find no evidence to cause me to have a reasonable doubt about those readings.
Leading Senior Constable Whitehall had well in excess of two decades of experience estimating the speed of vehicles in the course of road patrol. It is clear that s79(1) of the Evidence Act 2008 recognises that a person may be an expert entitled to give evidence of an opinion by reason of specialised knowledge based on experience.
Under cross-examination, Mr Connell did not explore the way in which Leading Senior Constable Whitehall arrived at the speed of 130 kilometres per hour, which he estimated before the appellant’s vehicle was lost to his view. Mr Connell simply asserted that Leading Senior Constable Whitehall had relied upon the speeds called out by Leading Senior Constable Lardner in arriving at his own estimation. I accept Leading Senior Constable Whitehall’s evidence that the whole purpose of having a second officer with the operator of the laser is to attempt to confirm the speed which is detected by the laser device. I accept that both he and Leading Senior Constable Lardner observed the appellant’s vehicle continue to accelerate after it had overtaken the four-wheel drive. In all the circumstances, I find that Leading Senior Constable Whitehall’s estimation of 130 kilometres per hour, shortly after Leading Senior Constable Lardner had called the speed of 123 kilometres per hour, is consistent with the speed of 123 kilometres per hour, which was obtained by the laser device some three seconds after the speed of 107 kilometres per hour was obtained by it.
In arriving at the conclusion that the laser readings of speed can be relied upon, I am very considerably assisted by the video and audio footage of the overtaking manoeuvre (Exhibit “C”). Although the appellant’s vehicle had disappeared from the view of the video camera at 11.24.48, as I have previously stated, after the first audible beep of the laser ceased at 11.24.46, and the speed of 107 kilometres per hour is announced, there is another audible beep which ceases at 11.24.49, and one second later Leading Senior Constable Lardner announces the detected speed of 123 kilometres per hour. He is also heard to say on the recording, “Overtaking solid. Back on dotted. Jeez he was quick. Had some acceleration”. I regard this as powerful contemporaneous evidence in support of the charge.
(x) The appellant did not dispute the alleged speed of 123 kilometres per hour when Leading Senior Constable Rust told him of it. On this matter, I am assisted by Exhibit “F”. The appellant is shown to be a voluble and aggressive person in his dealings with the police. He is not backward in coming forward about his grievance concerning being picked up for overtaking when, in his view, the vehicle he overtook was being driven dangerously. He is not backward in coming forward about his opinion that the broken lines on the straight need to be extended to allow a greater distance for overtaking. He is not backward in coming forward in arguing with Leading Senior Constable Rust that three rather than two kilometres per hour should be deducted from the speed of 123 kilometres per hour, which was said to have been detected by the laser. When he then speaks to the film crew, he is forthright in his criticism of the police, alleging that they are not concerned about the road toll, so much as revenue-raising for the government.
The appellant states that he was upset when he spoke to police when he was first intercepted, and this, effectively, is why he did not focus more on disputing the speed at that time. His state of upset did not stop him from giving his views about all these other matters to which I have referred. I simply cannot accept that, if he really was so astounded at the reading of 123 kilometres per hour, and thought that it must be inaccurate, that he would not have voiced his concern about it stridently and vehemently, as he did in relation to those other matters.
Of course, it is not up to the appellant to disprove the case against him. However, the way in which his case was presented, and the way the appellant gave his evidence, gave me a very strong impression that the appellant had reconstructed events in his favour. He raised potential inaccuracies in the laser reading only after speaking to his barrister. Notwithstanding that he agreed that he has no idea what speed he was doing (save that he knows the difference between travelling at 107 kilometres per hour and 123 kilometres per hour) he maintained that, since the Magistrates’ Court hearing, he has chosen to adopt a position that the maximum speed he was doing was 107 kilometres per hour. Although, at other stages in his evidence, he mentioned 105 kilometres per hour or 110 kilometres per hour.
74 For the foregoing reasons, I find that the evidence of the appellant and Ms Ashton, and the matters put in cross-examination of the police witnesses, do not raise a reasonable doubt that the charge against the appellant is proved.
75 Mr Moran, on behalf of the prosecution, while still submitting that the charge was made out, stated, “I concede that Mr Buchanan seriously and consciously believes that he was not doing 123 as he stands here now” (my emphasis). That is a generous concession, which may be considered by some to be rather too kind a characterisation of the appellant’s evidence. I say no more than that, save that I do not accept the appellant’s evidence as accurate and reliable. I do accept the evidence of the prosecution witnesses, supported by Exhibits “C” and “F”, to be truthful, accurate and reliable.
76 Accordingly, I find the charge that the appellant drove his vehicle in excess of the speed limit of 80 kilometres per hour, namely, at a speed of 121 kilometres per hour (after allowing the two kilometre deduction as indicated by Victoria Police Command) to be proven.
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