Clancy v. Superintendent of Traffic

DISTRICT COURT OF QUEENSLAND

CITATION:

Clancy v Superintendent of Traffic [2008] QDC 73

PARTIES:

JERROD AIDEN CLANCY

Appellant

V

SUPERINTENDENT OF TRAFFIC

Respondent

FILE NO/S:

Appeal No.  150/05    

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED ON:

4 April 2008

DELIVERED AT:

Southport

HEARING DATE:

19 March 2008

JUDGE:

Newton  DCJ

ORDER:

Verdict set aside, new trial ordered before a Magistrate other than the Acting Magistrate who heard the case originally. Respondent pay appellant’s costs of the appeal.

CATCHWORDS:

CRIMINAL LAW – appeal and new trial – driving offences – retrial - driving in excess of speed limit – appeal against conviction – whether Acting Magistrate erred in law in employing method of reasoning which had effect of reversing onus of proof – whether decision of Acting Magistrate was against the weight of evidence.
Justices Act 1886 as amended
Hunter v Friedman [1994] QCA 475 - referred to
The Queen v G [1993] QCA 267 - referred to
McMaster v Compton [1996] QCA 098 – referred to

COUNSEL:

Mr B. Reilly for the appellant

Mr R. Falconer for the respondent

SOLICITORS:

Buckland Criminal Lawyers for the appellant

Director of Public Prosecutions (QLD) for the  respondent

1. The appellant, Jerrod Aiden Clancy, was convicted on 4 March 2005 after a trial before an Acting Magistrate sitting at Southport of an offence of driving a motor vehicle at a speed in excess of the speed limit.  The offence was alleged to have occurred at about 6.40pm on 12 September 2003, on Ashmore Road at Molendinar.  Mr Clancy was convicted and fined $900.00 and ordered to pay costs of $62.10 and witness expenses of $100.00.  In default of payment, a period of 21 days imprisonment was ordered.  

1. Mr Clancy appeals against the conviction on the following grounds:

1.          that the learned Acting Magistrate erred in law in employing a method of reasoning which either had the effect of reversing the onus of proof or which was indicative of such a reversal;

2.          that the decision of the learned Acting Magistrate was against the weight of evidence, contrary to compelling inferences that arose from the evidence and one no court acting reasonably could have reached upon that evidence.

1. Two witnesses were called for the prosecution, namely Senior Constable John Clark and Senior Constable Christopher McLoughlin.  The officers were conducting a mobile radar patrol on the evening of 12 September 2003, with Clark driving the police vehicle and McLoughlin seated in the front passenger seat. 

1. In his evidence in chief Clark stated that at around 6.40pm police were patrolling and checking speeds of vehicles using a mobile radar device on Ashmore Road at Molendinar.  At that time they were travelling in a northerly direction.  He observed two vehicles travelling in a southerly direction slightly in excess of the speed limit to the south of the entrance to the Trinity Lutheran College.  He then observed a third vehicle probably 100 metres to the north of the entrance to the college, travelling, in his opinion, well in excess…