Humphrey v Ambrose

[2009] QDC 225

[2009] QDC 225

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE RAFTER SC

No 1026 of 2009

ROBERT HUMPHREY	Appellant
and
MARK AMBROSE	Respondent
BRISBANE ..DATE 20/07/2009
ORDER

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HIS HONOUR: The appellant was tried in the Magistrates Court at Caboolture on the 18th of March 2009 in relation to an offence of disobeying the speed limit. The offence was alleged to have occurred on 22 June 2008. The appellant was found guilty of the offence and fined $150 and ordered to pay costs of Court amounting to $71.45.

The appellant has appealed against the Magistrate's decision essentially on the ground that it was not reasonably open to the Magistrate to conclude that the offence had been

established. There was one prosecution witness. Constable conducting speed checks on motorists on Mount Mee Road, Delany Creek. He was using a laser speed detection device which had been tested by his officer-in-charge prior to commencement of the shift. Constable Davis said that he took up a position on Delany Creek School Road, which is a short road running off Mt Mee Road, at Delany Creek. He said that the speed limit in that location is 80 kilometres per hour.

That particular stretch of road contains a straight section
approximately 700 metres in length, according to the evidence given by Constable Davis. He said that at about 9.26 a.m. he firstly heard, and then saw, three motorcycles. They were
travelling in an east/north-easterly direction towards the
township of D'Aguilar on Mt Mee Road. Constable Davis said
that the three motorcycles were in the lane furthest from him
and that an old Holden utility, which was travelling slowly,

had gone past prior to the motorcycles. He said that the gap

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20072009 D.1 T(1)21-22/BW&SMA(BNE) M/T BRIS24 (Rafter DCJ)

between the old Holden and the motorcycles was approximately	1
75 metres.
Constable Davis' initial observation was that the motorcycles appeared to be exceeding the 80 kilometre per hour speed

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limit. He said that he targeted the rear motorcycle using the laser device and obtained a reading of 98 kilometres per hour. He said that he was approximately 180 metres from the
motorcycle when he used the laser device to obtain the

reading. He said that the three motorcycles were travelling

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in a line and there was a small gap of a few metres between
each of them. He said that the last motorcyclist was wearing
distinctive apparel. He said that the weather conditions were

dry and clear.

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He was using the laser device from inside the police vehicle through an open window. After obtaining the reading, Constable Davis followed the motorcycles for approximately two kilometres before he intercepted them. Constable Davis identified the appellant as the rider of the motorcycle that

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had been detected using the speed detection device. The

appellant was issued with an infringement notice.

The appellant gave evidence in his own defence. The

Magistrate preferred the evidence of the police officer. One

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of the appellant's complaints is that he was prevented from
pursuing certain lines of cross-examination. The reason for
that was that section 124(4) and (5) Transport Operations
(Road Use Management) Act 1995 provides that a defendant who
20072009 D.1 T(1)21-22/SMA(BNE) M/T BRIS24 (Rafter DCJ) 1-3 ORDER 60

intends to challenge the accuracy of a speed detection device	1
or the time at, or way in which the relevant device was utilised, must give a notice in the approved form. It is common ground that the appellant had not done that and so the cross-examination that was directed at those issues was

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correctly held by the Magistrate to be inadmissible in the

circumstances.

However, the appellant who presented his argument in this

Court this afternoon extremely well, maintains that it was not

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open to the Magistrate to accept the evidence of the police
officer. The appellant pointed to a number of factual issues
that he said meant that the police officer's evidence ought

not to have been accepted.

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An appeal pursuant to section 222 Justices Act 1886 is by way of rehearing on the evidence given before the Magistrates Court: see section 223(1). However, a Judge hearing an appeal must afford respect to the decision of the Magistrate and bear in mind any advantage the Magistrate had in seeing and hearing

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the witnesses give their evidence: see Fox v. Percy (2003)
214 CLR at paragraph 25, Rowe v. Kemper [2008] QCA 175 at
paragraph 5, and Mbuzi v. Torcetti [2008] QCA 231 at paragraph
17. Nevertheless, I am required to review the evidence and to

weigh the conflicting evidence and to draw my own conclusions.

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Having carefully considered the evidence given before the
Magistrate and the arguments presented by Mr Humphrey on the
hearing of his appeal, I have concluded that the Magistrate
20072009 D.1 T(1)21-22/SMA(BNE) M/T BRIS24 (Rafter DCJ) 1-4 ORDER 60

was entitled to reach the decision that he did. In my view,	1
no error is exposed in the Magistrate's reasoning. Moreover, on a review of the evidence, it is my view that the charge was correctly found to have been proven. Accordingly, I have concluded that the appeal should be dismissed.

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The order, therefore, is appeal dismissed.

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