Heward v Commissioner of Police

[2013] QDC 35

[2013] QDC 35

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE RACKEMANN

No 2071 of 2012

STEVEN LIONEL HEWARD	Appellant
and
COMMISSIONER OF POLICE	Respondent

BRISBANE

..DATE 05/03/2013

JUDGMENT

HIS HONOUR:  This is an appeal against the appellant's conviction on a speeding offence.

The evidence relied upon by the Crown was based upon a speed camera mounted in one of the tunnels that now traverse Brisbane.

The appeal raised some grounds which were ultimately without much substance.  In particular, there was reliance on the fact that the data block in the photograph had a distance travelled indication of 10m and for a zero elapsed time, it then being suggested that it is impossible for a vehicle to have traversed a 10 metre distance in zero time, so as to call into question the accuracy of the instrument.

When one goes to the relevant regulations, one sees that the distance and time is a check between two points.  The photograph that was used was only one of the photographs and, obviously, the photograph at the start of the journey, so that, at that time, there had been no distance or time elapsed. The point really does not overcome the fact that the photograph shows that at a particular point the vehicle was travelling at a certain speed.

Notwithstanding the difficulties with some of the grounds of appeal, the respondent now concedes that the appeal should be allowed.  The reason for that is a point which the appellant had sought to raise at first instance after the reserved judgment had been given.  At that point, because the reasons had already been given, the learned Magistrate refused to hear the point and so he raised it on appeal.

The point was simply this, that there was a discrepancy between the evidentiary certificate with respect to the model number of the camera and the model number as disclosed on the data block of the photograph.  In particular, the model number as disclosed on the photograph had a “- P” appearing after the balance of the model number.

The addition of that “- P” and the discrepancy between that and the description of the model number on the evidentiary certificate raised a question on the evidence as to whether the camera which was used was, in fact, a camera of a model number which was authorised to be used. On the hearing of the appeal, the respondent acknowledged that this was a matter which raised a reasonable doubt on the evidence and that the appeal should therefore be allowed.

Initially it was submitted, however, that I should exercise my discretion to allow a retrial, so that the Crown could call evidence in order to clarify the discrepancy. After a further adjournment, however, the respondent changed its submission, such as to concede that it is appropriate not only that the appeal should be allowed but that the charge should be dismissed, rather than the matter going back for retrial.

In that regard, the Crown's new submission recognises what was said by Dawson J in King v. R [1986] 161 CLR 423 that: "It is well established that the discretion to order a new trial should not be exercised when the evidence in the Court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective. In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v. Wilkes."

I was told that evidence clarifying this issue is now called in cases where the discrepancy appears.  The failure to call such evidence in this case resulted in a deficiency in the Crown case and I agree with the Crown's concession that it would be inappropriate to exercise the discretion for the matter to go back to a retrial simply to enable the Crown to remedy a defect in the evidence which it could have, and should have, covered at the trial at first instance.

There was another point that was raised somewhat belatedly on the appeal by Mr Heward.  The point relates to the fact that the tunnel in which the offence was said to have taken place has variable speed limits.

It was pointed out that under section 210C of the Traffic Regulation, the digital speed camera system must be tested if a "relevant event" happens. What constitutes a "relevant event" is set out in subsection 2. A relevant event includes "a change to the maximum speed limit for the place at which the system's camera is located or being used."

The contention was that whenever the maximum speed limit is changed in a variable speed location such as the tunnel, the regulation requires the camera to be retested.  There was no evidence of any retesting at first instance.

It is unnecessary for me to reach a concluded view about that point, since the appeal is to be allowed on another ground but, obviously, it is a point which should be considered by the police in relation to their operation of speed cameras in areas where the maximum speed varies.

Accordingly, I allow the appeal.

I set aside the conviction.

The charge against the appellant is dismissed.

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