Commissioner of Police v. Adams
[2008] QDC 181
•30 July 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Commissioner of Police v Adams [2008] QDC 181
PARTIES:
COMMISSIONER OF POLICE
(Appellant)
V
PAUL ADAMS
(Respondent)
FILE NO/S:
DC 220 of 2007
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Southport
DELIVERED ON:
30 July 2008
DELIVERED AT:
Southport
HEARING DATE:
2 May 2008
JUDGE:
Newton DCJ
ORDER:
Appeal allowed. Decision of Magistrate set aside. New trial ordered before Magistrate other than that who heard matter originally. No order as to costs.
CATCHWORDS:
Vehicles and traffic – offence – driving motor vehicle at excessive speed – whether evidence of improper operation of radar camera was properly raised before Magistrate – s20 Transport Operations (Road Use Management - Road Rules) Regulation 1999.
COUNSEL:
Mr M Mitchell – appellant.
Mr P Adams – respondent in person.
SOLICITORS:
Director of Public Prosecutions Office Southport – appellant.
Mr P Adams – respondent in person.
The respondent Paul Damien Adams, was charged under s20 Transport Operations (Road Use Management - Road Rules) Regulation 1999, that on 23 December 2005 at Mudgeeraba in the Magistrates Court district of the Gold Coast he being the driver of a Land Rover station sedan motor car drove at a speed over the speed limit namely 100 kilometres per hour applying to him for the length of road namely the Pacific Highway Mudgeeraba.
The appellant provided particulars that the speed was 111 kilometres per hour in a hundred kilometres zone; that the incident occurred at 4:59am; that the vehicle bore New South Wales registration number PDA 002; and that reliance was placed on the averment that the Pacific Highway Mudgeeraba is a road as defined in schedule 4 of the Transport Operations (Road Use Management- Road Rules) Regulation 1999 [“the Act”].
The respondent pleaded not guilty to the charge and the hearing proceeded at the Southport Magistrates Court on 5 April 2007.
The prosecutor handed up a number of documents under the evidentiary provisions of the Act. These included:
§a certificate under the hand of John McCombe, an authorised delegate of the commissioner verifying that the relevant radar camera was tested in accordance with Australian Standards;
§an associated certificate confirming that the relevant camera was producing accurate results when it was tested at the relevant time;
§a statement of the police officer operating the device Sergeant Ian Birkbeck, verifying that the camera was operated correctly by him in accordance with Australian Standards at the relevant time;
§a certificate under the hand of Sergeant Birkbeck as to his testing of a LIDAR device verifying the accuracy of measurements and set up of the camera at the relevant time;
§an associated certificate under the hand of Sergeant Birkbeck that the LIDAR device he used was operated within the manufacturer’s specifications.
Mr Adams represented himself at the hearing in the Magistrates Court (as well as in this Court in relation to the appeal). He did not dispute that the radar camera was operating properly and that it had been set up in accordance with all relevant guidelines and procedures by Sergeant Birkbeck.
The submission of the respondent to the learned Magistrate was simply that there may have been some minor angular error in the operation of the camera sufficient to contribute to an inaccurate reading notwithstanding compliance with all appropriate technical and operational requirements by Sergeant Birkbeck. This suggestion allied with an assertion by Mr Adams that his speedometer was reading 100 kilometres per hour at the relevant time formed the basis of his defence that he believed he was not travelling at a speed in excess of the speed limit. No certificate as to the accuracy of the speedometer was produced by Mr Adams. Nor was any evidence placed before the Magistrate in respect of a GPS device in Mr Adams’ vehicle which allegedly supported the speedometer reading.
When the Magistrate expressed surprise that Mr Adams had not had his speedometer checked, the respondent stated:
“I just simply haven’t had the opportunity to do so… I can only offer you the evidence that I gave you, that that’s what I did and the evidence that the GPS in terms of me claiming that when I’ve been at work myself with my own radars and my own LIDARS, and it is dead accurate and that is the speed that I looked at and I saw momentarily before, in a second, before intercepting the radar beam and I can’t account to be honest…for how it detected me at 111. I simply wasn’t speeding I had no reason to be. I certainly wasn’t on the brakes…”.
Mr Adams at the time was a New South Wales police officer and experienced in the use of radar detecting equipment of the type relevant to this matter. His evidence was that:
“I was driving north on the Pacific Highway at Robina in my blue Land Rover which is PDA 002 as depicted in the photograph. I have a secondary employment in the Ashmore area, where I travel there at least once a week, if not more often. I’m familiar with the section of highway relevant to these offences. I’m also aware that this particular location is one where the camera has been on a number of occasions. As I drove near – underneath the Robina overpass, I did notice that the camera was there and looked at my speedometer. The speedometer of the vehicle showed almost exactly 100 kilometres an hour. I also had a global positioning system, a GPS system fitted in the vehicle at the time and I looked at that as well, ‘cause it has a Speedo function in it and it showed me 96.5 kilometres an hour, I drove through the camera. I didn’t notice any flash. I didn’t notice anything untoward and I continued on. Got to work on time and did what I was doing on that particular day. About a couple of weeks later in early January, I received the infringement notice attached and elected to defend the matter from there. In relation to the evidence that I’ve heard today, I would – I have no doubt in my mind that the camera was actually operating correctly. That’s why I didn’t want the camera experts here and I know that the police – Queensland Police Service will have had the camera and the radar certified, as they are supposed to and that was my meaning behind accepting the certificates, even unbelievable extension to suggest that possibly there’s been some minor error in the set up of the camera in terms of the alignment and that’s what’s accounted for the marginal speed. Certainly something I wasn’t doing deliberately and in fact actually made a conscious check of at the time and I’m certain that I was not doing that speed, your Honour.”
Mr Adams gave evidence about “co-sign angles”. He stated that:
“the co-sign angles change the speed at which the vehicle is detected. Generally speaking, they can occur in favour of the motorist, so they actually reduce the speed detected, as opposed to the speed being travelled at. But, particularly when using a slant-type radar, which is one which shoots, as this one does, at an angle of 20 degrees across the roadway, it uses some calculation based on co-sign error based on the fact that it assumes there’s a 20 degree error. If there are other errors – if there is other angles involved, then unfortunately the speed changes based on …how much area there is in that angle. And the only thing that I could put this down to was the fact that the angle that was set up on this occasion – and I’d be the first to admit, not deliberately, but would have to be out for me to be [detected] as speeding.”
The reference to “co-signs” in the transcript, I venture to suggest, should be “co-sines”.
The learned Magistrate in her reasons found that objectively the evidence satisfied her that Mr Adams was speeding, that is that he was exceeding the speed limit. That finding reflects her acceptance of the evidence of Sergeant Birkbeck that the equipment had been properly tested and operated in accordance with the relevant specifications and standards.
Notwithstanding her Honour’s finding, she proceeded to accept that Mr Adams’ was doing his best to maintain a constant speed, in accordance with the speed limit, and concluded her reasons by stating:
“I do find he has satisfied me that there is a possibility that there was a margin of error with the equipment and in the circumstances I find him not guilty of the offence.”
Leaving aside the question of a possible reversal of the onus of proof inherent in her Honour’s concluding remarks, it would appear that the finding of a possibility of a margin of error with the equipment, has its basis in an earlier passage of her Honour’s reasons:
“However, I do have the evidence that Mr Adams is a police officer. He travels this road regularly. He knows that it is an authorised site for the measuring of speed and for cameras to be there. He sees the speed camera there regularly. He was conscious of his speed and trying to obey the law. He had been maintaining a vigilant observation of his speedometer and it was at roughly 100 kilometres per hour. He had not had his speedometer checked but there was nothing that indicated to him objectively that his speedometer was inaccurate.
Those set of facts lead me to the conclusion that based on that objectively it would be reasonable to assume that even if Mr Adams was trying his best to maintain a constant speed of 100 kilometres per hour, that given all of the factors involved in the process of driving and keeping your vehicle at a constant speed you may have, in fact, been doing 105 or 106 kilometres per hour. The question is and there may have been an error in the operation or an error of some degree in the methods used including all the technology and the human factors in setting up and operating the equipment that might have led to the speed being recorded at 111, whereas, in fact, bearing in mind co-signs and every other technical aspect of the equipment he was, in fact, at that stage doing 106 kilometres per hour.”
The difficulty is that having apparently accepted the prosecution evidence as to the correct testing and operation of the camera, the learned Magistrate appears to have (quite inconsistently with such acceptance) found an error in the manner in which Sergeant Birkbeck operated the equipment. Furthermore, there would seem to be no evidentiary basis to support any such finding. The evidence of Mr Adams on this point really amounts to little more than supposition and conjecture. There is no evidence that the methodology adopted by Sergeant Birkbeck in operating the camera was inappropriate, or that the equipment was not functioning properly.
Although I hesitate to overturn a finding of not guilty by a Magistrate, I can discern no basis for such a result in this particular matter. There must, therefore, be a fresh hearing before a different Magistrate, should the prosecuting authorities deem it appropriate to continue with this prosecution.
The orders I make then are, that the appeal is allowed and the decision of the learned Magistrate set aside and further, that the matter is to be remitted to the Magistrates Court for hearing by a Magistrate other than that who heard the case originally. I make no order as to costs.
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