Klaus v Commissioner of Police

[2012] QDC 114

DISTRICT COURT OF QUEENSLAND

CITATION:

Klaus v Commissioner of Police [2012] QDC 114

PARTIES:

FRANK KLAUS
(Appellant)

v

COMMISSIONER OF POLICE
(Respondent)

FILE NO:

4968/2011

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Pine Rivers

DELIVERED ON:

24 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2012

JUDGE:

Shanahan DCJ

ORDER:

Appeal dismissed.  No order as to costs.

CATCHWORDS:

COUNSEL:

Mr Klaus appeared on his own behalf
Mr M Le Grand for the respondent

SOLICITORS:

Director of Public Prosecutions for the respondent

1. This is an appeal from a conviction for an offence of exceeding the speed limit contrary to s 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 1999.

1. The appellant was charged that he was exceeding the speed limit of 100 km per hour by travelling at 114 km per hour on 30 December 2010 on the Bruce Highway, Mango Hill.  A summary trial, at which the appellant represented himself, occurred on 14 November 2011.

1. The grounds of appeal are stated to be “not guilty, see attached outline of argument”.  In his outline of argument, the appellant basically argued that the prosecution had failed to prove its case to the required standard.  The appellant argued that the learned magistrate fell into apellable error in relation to a number of matters:-

1.        The learned magistrate did not properly take into account the appellant’s previous good character and driving history.

2.        The learned magistrate convicted the appellant solely on the testimony of the police constable who operated the laser detection device in the absence of any corroborating evidence.

3.        The learned magistrate placed too much weight on the Constable’s experience in operating that device when compared to the appellant’s driving experience.

4.        The learned magistrate did not properly take into account two New South Wales decisions as to the accuracy of the laser devices which were reliant on the skill of the operator and inherently vulnerable to human error.

5.        The learned magistrate placed too much emphasis on the fact that the laser device had been properly calibrated when the matter in issue was the accuracy of the operator.

1. There was one witness called by the prosecution on the trial.  Various certificates were tendered as to the compliance of the radar device with Australian Standards.  That was not made an issue.

1. Constable L Hearn gave evidence that he was performing traffic duties at 7.59 am on 30 December 2010.  He was using a laser speed detection device.  He observed a vehicle travelling on the highway in the fast lane which he measured as travelling at 101 km per hour in the 100 km per hour zone.  He observed another vehicle approximately 100m behind the first which was “visibly catching up to that vehicle” (T1-6).  He targeted the second vehicle using the laser device.  That device had a fixed scope and he targeted the device by placing the red aiming dot between the vehicle’s headlights (T1-7).  It returned a reading of 114 km per hour.  He intercepted the vehicle and the appellant was the driver.  He recorded the conversation that occurred and it was produced to the court and played (Exhibit 4).  The measurement occurred on a curved section of the highway and there was no obstructions in the line of sight, certainly not from the vehicle in front (T1-7).  The learned magistrate accepted in submissions that the distance between the police officer and the appellant’s vehicle at the time of the reading was 225m (decision 1-4) although there was no evidence to that effect.

1. Constable Hearn gave evidence that he had been performing traffic duties for three and a half years with traffic matters taking 90 per cent of each shift.  Previous to that time he had used the radar device “fairly extensively” but it was not his primary role (T1-7).  He was not cross-examined about any training in using the device or any marksmanship training.  He was adamant under cross-examination that he had targeted the appropriate vehicle (T1-9) and did not accept there was any possibility that there were other vehicles around that could have interfered with the reading (T1-10).

1. The appellant neither gave nor called evidence.  In his submissions he stated that he had been travelling at the speed limit because he was using cruise control and that he had a good character and driving history that the magistrate should take into account.

1. On the appeal hearing, the appellant argued that he had not really understood the restrictions on his arguments caused by not giving evidence and that that was an unfairness he suffered.  However, I am satisfied that the learned magistrate was at pains to explain to the appellant the trial process and the difference between calling evidence and stating facts from the bar table (T1-2-4; 1-11).  In any event, the learned magistrate seemed to take into account the appellant’s claimed good character in his reasons (decision 1-2).  In my view, there was no unfairness in the conduct of the trial.

1. The issue at trial was clearly the accuracy of the aiming by the police officer (T1-3).

Grounds of appeal

1. The appellant’s principal argument on appeal is that the learned magistrate should not have accepted the evidence of the police officer, particularly as it was not corroborated in any way.  This was especially the case where the laser device did not produce any photograph or other document indicating the correct vehicle was targeted.  The accuracy of the operator left room for human error and the evidence was not sufficient to prove the case against him beyond a reasonable doubt.

1. The appellant relied on statements in two New South Wales cases where adverse comments were made on the fallibility in the operation of the radar device because of human error.  However each case must depend on the specific evidence led and tested on that case.

1. The appellant also argued on appeal that the evidence of the police officer should not have been accepted because there was no documentary or corroborative evidence of his marksmanship skills with the device and that therefore there must be a doubt as to his accuracy.

1. Those arguments were all placed before the learned magistrate.  The learned magistrate accepted the evidence of Constable Hearn that he had clearly targeted the appellant’s vehicle and that there was no issue with the accuracy of the laser device.  He accordingly convicted the appellant.

The appeal

1. This is an appeal pursuant to s 222 Justices Act 1886.  Section 223(1) provides that such an appeal is by way of rehearing on the evidence given in the proceedings before the magistrate.  An appeal judge must bear in mind the advantage the learned magistrate had in seeing and hearing the witnesses give evidence.

1. My view is that the evidence given by Constable Hearn was clear and precise.  He was adamant he had placed the red dot between the headlights of the appellant’s car.  He was unshaken in cross-examination when he denied the possibility of error and that there were no other obstructions to the reading.  He also had significant experience in the operation of that device.  That evidence, coupled with the Constable’s evidence that he observed the appellant’s vehicle gaining on a vehicle that he had just previously measured as travelling over the speed limit, was sufficient to enable the learned magistrate to find the charge was proved to the required standard.

1. Even if evidence of the appellant’s good character had been properly admitted, it is difficult to see that that would make it unlikely that the appellant had committed the offence (Melbourne v R (1999) 198 CLR 1). In any event, there was no such evidence before the learned magistrate.

1. In my view, there was also no unfairness in the way the trial was conducted involving an accused who represented himself.  There is no basis in any of the grounds of appeal.

1. The appeal is dismissed.  There is no order as to costs.