Jacobson v Commissioner of Police

[2011] QDC 42

DISTRICT COURT OF QUEENSLAND

CITATION:

Jacobson v Commissioner of Police [2011] QDC 42

PARTIES:

IAN WAYNE JACOBSON

(Appellant)

v

COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

93/2010

DIVISION:

Appellant

PROCEEDING:

Appeal for Magistrates Court

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

8 April, 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

4 February 2011

JUDGE:

Dearden DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

LEGISLATION:

APPEAL – appropriateness of testing and certification of LIDAR laser device

Transport Operations (Road Use Management Act) 1995 (Qld)

Transport Operations (Road Use Management Act – Road Rules) Regulation 1999 (Qld)

COUNSEL:

The appellant appeared self-represented

Mr M Lee (solicitor) for the respondent

SOLICITORS:

The respondent appeared self represented

Director of Public Prosecutions for the Respondent

Introduction

1. The appellant seeks to appeal against the decision of the learned magistrate at Beenleigh convicting him for an offence of disobeying the speed limit[1] on 23 April 2010.  The appellant was fined $400, and ordered to pay costs of summons of $65.40.

   [1]Transport Operations (Road Use Management Act – Road Rules) Regulation 1999 s. 20.

Circumstances of the Offence

1. This summary draws from the respondent’s Outline of Argument which I acknowledge gratefully.[2]

   [2]Outline of argument on behalf of respondent pp. 2-3.

1. At about 8.10 pm on 6 March 2009 the appellant was intercepted by police on Logan River Road, Beenleigh for exceeding the road’s speed limit.  The speed limit in this area is signed as 60 kmh.  The appellant was detected travelling at 82 kmh.

1. Sergeant Peter Bylett was conducting patrols in the area, parked perpendicular to the road and on its northern side approximately 370 metres east of the intersection of Harburg Drive and Logan River Road.  He was checking the speed of vehicles travelling in an easterly direction along the road.  When Sergeant Bylett observed a motorcycle being ridden by the appellant turn left out of Harburg Drive and then started travelling towards him, Sergeant Bylett formed the opinion that this vehicle was travelling in excess of the speed limit.  Sergeant Bylett used a LIDAR laser speed detection device and determined the appellant’s speed to be 76 kmh.  Sergeant Bylett heard the motorcycle continue to accelerate and targeted the motorcycle again, and this time recorded a speed of 82 kmh which he locked into the LIDAR laser device.

1. Sergeant Bylett gave evidence that at the time of detection, there were no vehicles between himself and the motorcycle, that there were no vehicles to the rear of the motorcycle for over 100 metres, and that there were no vehicles travelling in a westerly direction along the road (away from Sergeant Bylett).

1. After stopping the appellant’s motorcycle, Sergeant Bylett activated an audio recording device and a conversation with the appellant during which an infringement notice was issued. 

1. Sergeant Bylett gave evidence that he is an authorised operator of the LIDAR laser speed detection device, and that prior to commencing his duties that day and at the conclusion of his duties that day, he tested LIDAR device serial no. UX021119 in accordance with Queensland Police Service Policies and Guidelines and found the device to be operating correctly on both occasions. 

1. Certificates tendered during the summary trial included an instrument of delegation/authority from Robert Atkinson, Commissioner of the Queensland Police Service dated 11 January 2008, which delegated “the power to issue a certificate stating a particular stated induction loop speed detection device, laser-based speed detection device, piezo strip speed diction [sic] device or radar speed detection device has been tested and found to be producing accurate results pursuant to ss. 124(1)(pa) of the Act [Transport Operations (Road Use Management Act) 1995] “to any person for the time-being appointed to or acting in the office of”: Assistant Commissioner, Commissioned Officer, Officer in Charge of a police station of or above the rank of Sergeant.[3] 

   [3]Trial Exhibit 3.

1. Trial exhibit 4 was a certificate by Senior Sergeant David Clarke, a Superintendent of Traffic, Officer in Charge of Beenleigh Police and authorised delegate of the Commissioner of the Queensland Police Service, certifying that laser speed detection device serial no. UX021119 was tested at 9.20 am on 20^th day of November 2008 and was found to produce accurate results at the time of testing and for one year after the day of testing; and “that such laser speed detection device was tested in accordance with Australian Standard 4691.1 currently in force.”[4] 

   [4]Trial Exhibit 4.

1. The certificate of Sergeant Peter Bylett certified that the laser-based speed detection device serial no. UX021119 was used by him at 8.10 pm on the 6^th day of March 2009 in accordance with “the appropriate Australian standard as in force on the day of use.”[5]

   [5]Trial Exhibit 2.

Appellant’s submission at trial

1. The appellant chose neither to give nor to call evidence.  During the course of his cross-examination and in oral submissions to the learned magistrate, the appellant challenged the charge on three grounds:-

(1)       that Sergeant Bylett may have mistakenly targeted a different vehicle;

(2)       that Sergeant Bylett was not able to target the appellant’s motorcycle; and

(3)that the Australian standard under which the LIDAR device had been certified was the incorrect standard.

Issues on appeal

1. In the applicant’s Outline of Argument, the applicant asserts that the testing and certification of LIDAR device UX021119 was simply not possible for operational police to perform.  The appellant argues that the relevant standard is not AS4691.1 but AS4691.2.

1. The testing procedures referred to in trial exhibit 4 (the certificate from Senior Sergeant David Clarke) referred to Australian Standard 4691.1, which is the appropriate standard in respect of testing (AS4691.2 refers to operational procedures).  In my view the certificate produced was a valid certificate pursuant to Transport Operations (Road Use Management) s. 124(1)(pa). It was a certificate issued by Senior Sergeant Clarke, who was a person authorised to issue such a certificate pursuant to the instrument of delegation of the police commissioner dated 11 January 2008.[6]  The relevant certification is proof of the accuracy of the LIDAR laser speed detection device for a period of 12 months from 20 November 2008 (the offence is alleged to occurred on 6 March 2009).  In the absence of evidence to the contrary, the magistrate was clearly not in error in accepting the effect of trial exhibits 3 and 4.

   [6]Trial Exhibit 3.

1. The appellant asserts that the learned magistrate failed to consider critical evidence which in effect (the appellant asserts) establishes that Sergeant Bylett may have missed his intended target and accidentally hit another vehicle going in the opposite direction.

1. In that respect, Police Officer Bylett has produced a certificate attesting to his use of the laser based speed detection device serial no. UX021119 on 6 March 2009 in accordance with the appropriate Australian standard (which would appear to be AS4691.2).  The appellant was unable to establish by cross-examination (nor did he give or call any evidence) that the LIDAR device was not operated in accordance with the Australian standard in force at the time.  It is irrelevant whether or not the witness Bylett had a record on tape or writings of dealings with the appellant.

1. The appellant also asserts that the lack of corroborative evidence from the device itself meant that the claim of Sergeant Bylett to be able to target the appellant’s motorcycle was “pure speculation”.  With all due respect for the appellant’s argument, in the absence of any admissible evidence to the contrary, the evidence from Sergeant Bylett that he accurately and proficiently operated the relevant device, together with the certificate under his hand[7] is evidence that the device was properly and appropriately operated. Sergeant Bylett’s oral evidence that the appellant’s speed was 82 kms per hour therefore remains uncontradicted.

   [7]Trial Exhibit 2.

Conclusion

1. To find that appellant guilty, the learned magistrate had to be satisfied, beyond reasonable doubt, in respect of each of the elements of the offence of speeding.  In my view the learned magistrate was more than entitled to reach such a conclusion, based on the admissible evidence placed before him.

1. Accordingly the appeal is dismissed.