Haskett v Bowman

[2007] QDC 292

[2007] QDC 292

DISTRICT COURT
CIVIL JURISDICTION

JUDGE McGILL SC

No BD4770 of 2007

JONATHAN DAVID HASKETT	Appellant
and
GARY DENNIS BOWMAN	Respondent
BRISBANE ..DATE 12/06/2007
ORDER

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HIS HONOUR: In relation to the preliminary matter, I do not	1
think that there is anything which needs to be done prior to the hearing of the appeal. Prima facie an appeal under section 222 is by way of rehearing and that is a rehearing on the original evidence in the conventional sense, and that is

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what is established now by section 223(1).

The District Court give leave to adduce fresh additional or substituted evidence but it does not appear that the appellant is actually seeking to adduce fresh additional or substituted

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evidence. Rather the appellant is seeking to have, in effect, a rehearing de novo by the District Court, asking the District Court to make up its own mind about the matter unaffected by
findings about credibility of witnesses in relation to a

particular matter.

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There is now the power to order a hearing de novo, or rehearing rather, before the Magistrates Court under section 225 of the Act, but it seems to me that there is no longer a mechanism by which the District Court would hear de novo

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either the whole of an appeal under section 222 or any
particular factual issue.

However, the effect of an appeal by way of rehearing on the evidence is that if there is something unsatisfactory about

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the reasons of the Magistrate or if the appellant shows that some other findings on the evidence ought to have been made, then the Appeal Court does substitute its own view of the

evidence and its own findings and conclusions.
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Ultimately in an appeal by way of rehearing the Appeal Court	1
has to make up its own mind about the matters, the main difference being that the appellant carries the onus of showing that the decision given by the Magistrate was wrong, and the fact that there is appropriate recognition for such

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advantages as a Court conducting a trial, hearing a trial and
seeing the witnesses has because of those circumstances, but
the mere fact that the appellant has the disadvantage of
having had findings in relation of credibility made against

him is not a reason to depart from the scheme for an appeal by

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way of rehearing specified by the legislature.

It might be of assistance to the appellant to have an appeal de novo, by way of a hearing de novo, but that is not what is being provided for, and it is a matter for the appellant to

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bring his case within the established rules in relation to an
appeal by way of rehearing in order to show that the

Magistrate's decision was wrong.

The position essentially is that the appellant was driving a

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vehicle which, according to the evidence of a police officer,
had the vehicle's speed checked with a hand-held radar unit
and was found to be in excess of the speed limit. There was
another vehicle and, indeed, closer to the police officer than

the vehicle that was checked but the police officer's evidence

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was quite definite that it was the appellant's vehicle on
which the reading was obtained.
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The defendant and his witness, who was a passenger travelling	1
the vehicle, both said that on the basis of observations of the speedometer their vehicle was not speeding and that the vehicle had a speed alarm system fitted which would go off if
the speed went above the speed limit and that it had not gone

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off on this occasion.

In those circumstances essentially that there are three possibilities. The first is that the car was, in fact, speeding and the defendant and his witness were lying. That

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was the view accepted by the Magistrate. The second is that
the car was, in fact, speeding but the equipment in the
vehicle was defective and the defendant and his witness were

telling the truth.

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That might give rise to a defence under section 24. However, to some extent that defence was weakened by the evidence led by the defendant that the vehicle's speedometer had been checked subsequently by and found to be working properly.

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The third possibility is that the car was not speeding and that the defendant and his witness were telling the truth and the police officer either was mistaken in the way in which he operated the equipment or perhaps the equipment was defective.

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There may be limits on the extent to which some of these issues are open given the terms of the legislation. The incident is suppose to have happened on the highway at half past 8 at night and I must say I would have assumed that there 12062007 T04-05/IK(BNE) M/T 1/2007 (McGill DCJ) 4 ORDER 60

would have been difficulties, assuming the road is unlit, and	1
I do not know whether that is the case but I suspect there would have been difficulties in identifying vehicles positively in those circumstances anyway.

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But that is really a matter to be dealt with on the hearing of the appeal. The respondent has the benefit of a finding from the Magistrate that the first of the three possibilities was the correct one, and it is a matter for the appellant to show that that finding was inappropriate but that is a matter for

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the hearing of the appeal. However, the appeal has to be
heard in accordance with the framework laid down by the

Justices Act.

I do not think there is any power to order that a particular

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ground of appeal be dealt with on the basis of a hearing de
novo, and in any event there is, I think, no good reason why
the ordinary approach specified by section 223 should not be

followed.

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So, I will not make any special orders as sought but I think in the circumstances since both sides have filed outlines of argument and the respondent has filed a certificate of

readiness that the matter should be set down for hearing.

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...

HIS HONOUR: Well, I will dispense with the certificate of
readiness by the appellant and list the matter for hearing on
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the 20th of August 2007 at 10 a.m. and I will list that for	1
one day.

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