Day v Grice - [2011] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION:

Day v Grice [2011] QCA 178

PARTIES:

DAY, Stewart Rohan

(applicant/appellant)
v
GRICE, Ian Colin
(respondent)

FILE NO/S:

CA No 1 of 2011
DC No 1925 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2011

JUDGES:

Margaret McMurdo P and Atkinson and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal granted;1.

Appeal allowed;2.

Set aside the orders of the District Court of 16 December 2010;3.

Appeal to the District Court dismissed.4.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT – GENERALLY – where the respondent was charged with exceeding the speed limit – where the speed of the respondent’s vehicle was measured by a mobile radar device – where the respondent challenged the way the radar device was used, the stated ground being ‘the officer has to prove the reading came from my vehicle’ – where the respondent was convicted and fined in the Magistrates Court – where the respondent’s appeal to the District Court was successful – whether the grounds relied upon by the respondent in the appeal to the District Court were available to him – whether the District Court Judge erred in allowing the appeal – whether leave to appeal should be granted

TRAFFIC LAW – TRAFFIC REGULATION – SPEED-LIMITS – where the respondent was charged with exceeding the speed limit – where the speed of the respondent’s vehicle was measured by a mobile radar device – where the respondent challenged the way the radar device was used, the stated ground being ‘the officer has to prove the reading came from my vehicle’ – effect of statutory restriction on right to challenge accuracy of mobile radar device and certain other matters

District Court of Queensland Act 1967 (Qld), s 118
Justices Act 1886 (Qld), s 222, s 223

Transport Operations (Road Use Management) Act 1995 (Qld) (reprint 11C), s 112, s 124, s 124A

COUNSEL:

D C Boyle, for the applicant/appellant
The respondent appeared on his own behalf

SOLICITORS:

Director of Public Prosecutions (Queensland) for the applicant/appellant
The respondent appeared on his own behalf

MARGARET McMURDO P: I agree with Peter Lyons J's reasons for granting the application for leave to appeal; allowing the appeal; setting aside the orders of the District Court; and instead dismissing the appeal to the District Court.

ATKINSON J: I agree with the orders proposed by Peter Lyons J and with his Honour’s reasons.

PETER LYONS J: On 22 December 2009, a traffic infringement notice was issued to the respondent, alleging that he had travelled at a speed of 117 km per hour on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Day v Grice

Details

AGLC: Day v Grice [2011] QCA 178
Case: [2011] QCA 178
Decision Date: 29 July 2011

CaseChat Overview and Summary

The case of Day v Grice involved a dispute where the respondent was charged with exceeding the speed limit. The speed of the respondent's vehicle was measured by a mobile radar device. The respondent contested the validity of the radar reading, asserting that the officer had to prove that the radar reading originated from his vehicle. The respondent was initially convicted and fined in the Magistrates Court, but subsequently succeeded in his appeal to the District Court. The primary issue for the court was whether the grounds for the appeal could be raised and whether the District Court judge was correct in allowing the appeal.

The legal issues in the case centered on the limitations of challenging the accuracy of a mobile radar device, particularly in light of statutory provisions that restrict the scope of such challenges. The court had to determine whether the respondent's grounds for appeal were permissible under the applicable legal framework. Additionally, the court considered whether the District Court judge erred in allowing the appeal, given the points raised and the statutory constraints on the respondent's ability to challenge the radar device's accuracy.

The court concluded that the grounds for the appeal were not available to the respondent due to the statutory restrictions on challenging the accuracy of mobile radar devices. The court found that the District Court judge erred in allowing the appeal because the statutory provisions precluded the respondent from raising the challenge he did. Consequently, the court granted leave to appeal, allowed the appeal, set aside the District Court's orders, and dismissed the appeal to the District Court. The court's decision emphasized the importance of adhering to statutory limitations when challenging the use of mobile radar devices in traffic law proceedings.

Orders

Orders of the court

Application for leave to appeal granted;1.

Appeal allowed;2.

Set aside the orders of the District Court of 16 December 2010;3.

Appeal to the District Court dismissed.4.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Day v Grice [2011] QCA 178
PARTIES:	DAY, Stewart Rohan (applicant/appellant) v GRICE, Ian Colin (respondent)
FILE NO/S:	CA No 1 of 2011 DC No 1925 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	29 July 2011
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2011
JUDGES:	Margaret McMurdo P and Atkinson and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal granted;1. Appeal allowed;2. Set aside the orders of the District Court of 16 December 2010;3. Appeal to the District Court dismissed.4.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT – GENERALLY – where the respondent was charged with exceeding the speed limit – where the speed of the respondent’s vehicle was measured by a mobile radar device – where the respondent challenged the way the radar device was used, the stated ground being ‘the officer has to prove the reading came from my vehicle’ – where the respondent was convicted and fined in the Magistrates Court – where the respondent’s appeal to the District Court was successful – whether the grounds relied upon by the respondent in the appeal to the District Court were available to him – whether the District Court Judge erred in allowing the appeal – whether leave to appeal should be granted TRAFFIC LAW – TRAFFIC REGULATION – SPEED-LIMITS – where the respondent was charged with exceeding the speed limit – where the speed of the respondent’s vehicle was measured by a mobile radar device – where the respondent challenged the way the radar device was used, the stated ground being ‘the officer has to prove the reading came from my vehicle’ – effect of statutory restriction on right to challenge accuracy of mobile radar device and certain other matters District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 222, s 223 Transport Operations (Road Use Management) Act 1995 (Qld) (reprint 11C), s 112, s 124, s 124A
COUNSEL:	D C Boyle, for the applicant/appellant The respondent appeared on his own behalf
SOLICITORS:	Director of Public Prosecutions (Queensland) for the applicant/appellant The respondent appeared on his own behalf