Koch v Winston

[2010] QDC 371

[2010] QDC 371

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE RAFTER SC
No 3255 of 2009

BAREND JACOBUS KOCH	Appellant
and
GLEN ROBERT WINSTON	Respondent
BRISBANE ..DATE 13/09/2010 JUDGMENT

1-1

HIS HONOUR: On 6 March 2007, the appellant was tried in the Magistrates Court at Petrie for speeding contrary to section 20, Transport Operations (Road Use Management - Road Rules)

Regulation 2009.

The charge was as follows: that on 9 April 2006 the appellant, being the driver of a vehicle, namely a motorbike, drove at a speed over the speed limit, namely 80 kilometres per hour applying to the driver for the length of road, namely Northbrook Parkway, Dundas, where the said driver was driving and it was averred that Northbrook Parkway was a road as defined in the Act.

The complaint contained further particulars of the alleged offence, namely that it occurred at about 4.47 p.m. and that the appellant was the driver of a motor vehicle detected by police exceeding the speed limit, travelling at 99 kilometres per hour in a 80 kilometre per hour speed zone.

The appellant was found guilty. He was convicted and fined
$150 and ordered to pay costs of Court of $67.80. He was also

ordered to pay professional costs of $3,122.

On 29 March 2007, he filed a notice of appeal in this Court. Constable Herburg, Senior Constable Smith, and an expert witness, Mr Mulcare, who was an expert in the use of mobile radar devices. The appellant had indicated his intention to challenge the operation of the speed detection device. 1-2 JUDGMENT

That appeal was abandoned on 5 October 2007. Later, on
16 November 2009, he filed a notice of appeal and a notice of
application for extension of time. On 16 December 2009, the
Court granted the extension of time.

The appellant gave evidence in his own defence. He denied speeding.

At the trial, there were two certificates tendered certifying that the speed detection device number EE38074M had been tested in accordance with the applicable Australian Standard.

It is accepted by Mr Kimmins for the respondent that the certificates were inadmissible because Constable Herburg said in evidence that he was using mobile radar E38049M. There is a slight variation between the serial number on the certificates and the device referred to by Constable Herburg. Mr Kimmins' concession that the certificates were inadmissible appears to be correctly made in the circumstances.

Notwithstanding the inadmissibility of the certificates, the evidence of the police officers was sufficient to support the conviction. Alternatively, he submitted that there should be a retrial.

Mr Hansen for the appellant submits that the evidence of the police officers is insufficient to support the conviction and he submits that the conviction should be quashed and no new trial ordered. 1-3 JUDGMENT

In the course of giving his reasons, the Magistrate said as follows: "The other thing, too, is these speed devices are very useful and accurate but you can't negate years of

experience as a police officer. When you look at the combined
effort (sic) of the two policemen and their experience in the
traffic branch one would assume that they could tell at a
glance whether a vehicle is exceeding the speed limit. As it
transpired both of them picked up the bike simultaneously and
both of them formed their view, it would appear on their
evidence, that the bike was travelling in excess of the posted
speed limit. In order to confirm that they activated the
device and it registered the 99 kilometre speed.”

The police and the defendant's motorcycle were travelling in opposite directions. The police officers’ view may have been obscured to a degree by trees and the period of observation seems to have been reasonably brief. Their opinion as to the appellant's speed is admissible. It was not objected to. It has been recognised that a suitably experienced layperson may give evidence of the speed of a motor vehicle: see for example, South Sydney Junior Rugby Leagues Club Limited v. Gioia & Ors [2000] NSWCA 249 at paragraph 20.

It is my view that the Magistrate would inevitably have been influenced by the 99 kilometre speed displayed on the speed detection device. His assessment of the whole of the evidence would have been affected by that. I must bear in mind that the defendant gave evidence denying speeding. 1-4 JUDGMENT

Mr Kimmins also placed reliance on a conversation between Constable Herburg and the defendant. The Magistrate referred to that in his reasons as follows: The conversation was to the following effect: the police officer said, ”Your speed has been picked up 99 in the 80 zone here.” The appellant's reply was, ”99 in the 80 zone?” The police officer said, ”Yeah. Any emergency or reason for speeding?” The appellant said, ”No, none in particular." He was then asked for his driver's licence. The appellant asked for a look at the speed that was shown on the speed detection device.

Mr Kimmins submits that the effect of the conversation is that the appellant admitted to the speeding offence.

Mr Hansen for the appellant submits that that conversation is inadmissible. He referred in particular to the evidence that the police officer was using a digital voice recorder.

Afterwards, he downloaded the digital file created by that recorder onto his own computer where it was stored until required.

Mr Hansen submits that the recording was inadmissible because
it failed to comply with the requirements of section 95 of the

Evidence Act.

The recording was admitted without objection. The Magistrate therefore did not have the occasion to consider the admissibility of the recording pursuant to section 95 of the Evidence Act and it is not entirely clear that that applied in any event. 1-5 JUDGMENT

There was absolutely no suggestion in the course of the trial that there was any inaccuracy in the recording, having been received as an exhibit without objection.

In my view, it was clearly admissible. Whether it should be led at any further trial is a matter for the parties and for the Court to determine, particularly having regard to the fact

that the conversation referred to the speed displayed by the
speed detection device, the certificates pertaining to that
device having been accepted as inadmissible on this appeal.

In my view, the conviction should be set aside because, as I have said, the Magistrate almost certainly would have been influenced by the reading shown by the speed detection device.

However, the opinion evidence of the police officers may be sufficient to sustain the charge and, for that reason, a new trial should be ordered.

Mr Hansen sought costs. Mr Kimmins for the respondent did not oppose that.

Costs are limited to those set out in the Regulation which amounts to $1,800 for today's hearing. There was, evidently, an earlier appearance before the Court on 24 March 2010 for which Mr Hansen submitted a fee of $250 should be awarded. Mr Kimmins did not oppose that. 1-6 JUDGMENT

Therefore, the total award of costs is $2,050.

It was not suggested by Mr Hansen that the case was especially difficult, complex or important such as to give rise to the discretion to award a higher amount of costs.

I would therefore make the following orders:

(1) Allow the appeal.

(2) Set aside the conviction and orders made by the

Magistrates Court at Petrie on 6 March 2007.

(3) Remit the matter to the Magistrates Court at Petrie for

rehearing before another Magistrate.

(4) The respondent pay the appellant's costs of the appeal appellant's solicitors.

fixed at $2,050, to be paid to the Registrar of the District

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1-7 JUDGMENT