Caswell v Commissioner of Police

[2012] QDC 309

[2012] QDC 309

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE REID

No 1039 of 2012

ANGELA CASSWELL	Appellant
and
COMMISSIONER OF POLICE	Respondent

BRISBANE

..DATE 24/08/2012

JUDGMENT

HIS HONOUR:  On the 21st of February 2012 the appellant was convicted after a summary trial in the Magistrates Court of one count of disobeying a speed limit which offence was said to have occurred on the 11th of April 2011.  The learned Magistrate found the appellant guilty and convicted and fined her $333 and ordered she pay $74.35 by way of costs of Court.

The appellant appealed her conviction by notice of appeal filed on the 19th of March 2012.  She and Miss An, who appeared for the Commissioner of Police, have both filed written outlines of submissions.  In the appellant's outline she relies primarily on two grounds of appeal. 

The first relates to a certificate of the relevant police officer pursuant to section 124(1)(pb) of the Transport Operations (Road Use Management) Act (hereinafter TORUM) that he used the device in accordance with relevant Australian standards.

At the trial of the matter it became apparent that due to a typographical error the certificate referred to the operation of the device in accordance with the relevant Australian standards on the 11th of April 2010.  In fact the alleged offence occurred on the 11th of April 2011.  The certificate was under the hand of the officer giving evidence and he was an authorised officer for the purposes of giving that certificate.  In the circumstances the Magistrate allowed him to amend the certificate to reflect the actual date, that is, the 11th of April 2011, on which, according to his oral evidence, he operated the LIDAR device in accordance with relevant Australian standards. 

The appellant also referred to two other facts which she said were omissions or errors and reflected adversely on his credit. The infringement notice records her address as number 39 rather than the actual number, 99, in the street where she lives.  The other error to which she pointed was that in the brief of evidence there was no reference to his being an instructor in LIDAR but that he gave oral evidence that he was. 

In my view no criticism could be made of the Magistrate for allowing the amendment to the certificate. The other matters to which I have been referred do not, in my view, indicate that the Magistrate ought to have rejected the police officer's evidence because of those matters.

The more substantial basis for the appellant's appeal was that the Magistrate was in error in accepting, beyond reasonable doubt, the evidence of the police officer that he had properly targeted the vehicle being driven by the appellant when he detected a vehicle travelling at 81 kilometres per hour in the 60 kilometre per hour zone. 

The evidence of the police officer was that the vehicle was some 328 metres from him when he used the LIDAR device to detect its speed.   He conceded in evidence that there was another vehicle about 100 metres from him but said that otherwise the road traffic was relatively light.  There was no specific evidence contrary to this given by the appellant at the trial and, before me, she was unable to recall details of other traffic.  She did refer to a  photographic exhibit tendered at the trial, Exhibit 4, which was of the speed signs near to where the offence was committed.  That photo was taken on another day and shows a significant number of vehicles using the road.   Be that as it may, and in the absence of evidence from the appellant about other traffic there seems to me no reason why the Magistrate ought not to have accepted the police officer's evidence about the traffic on the road at the time.  The evidence he gave was uncontradicted.

The appellant was also critical of the Magistrate in accepting the police officer's evidence that he was experienced in the use of LIDAR, and was indeed a trainer in it in circumstances where he did not produce a certificate that he was a trainer.
It may be that if he had been asked specifically to do so he may have been able to produce such a certificate but that is purely speculation.  He was not, it seems, asked to produce any such certificate. 

In any case, the Magistrate had the advantage of seeing and hearing both witnesses.

In my view no appellable error could be shown by the appellant in the Magistrate's acceptance generally of the evidence of the police officer involved, Senior Constable Flannery.  Senior Constable Flannery gave evidence that he was a traffic police officer of longstanding and had used the LIDAR device on an almost daily basis for a significant number of years.

The other factor that the Magistrate appeared to rely on in coming to the conclusion that he accepted beyond reasonable doubt the evidence of Senior Constable Flannery was that the appellant told the police officer that she, "Didn’t know where she was" indicating, as the Magistrate quite fairly found, that there may have been some confusion because of road works in the general vicinity, though not the immediate zone, of where she was picked up on radar.

On an appeal such as this the matter is determined by way of rehearing but in accordance with well known authority a Judge sitting on the appeal is required to give appropriate weight and deference to the finding of the Magistrate below.   In my view there is no reason on the basis of the evidence given and the submissions made to think that the Magistrate made an appellable error in concluding, as she did, that she preferred the evidence of Senior Constable Flannery to that of the appellant, and was satisfied beyond reasonable doubt that the appellant had been speeding. 

In my view in the circumstances of this case there is no reason to overturn the conviction.

In the circumstances the appeal is dismissed.  I make no order as to costs.

-----