Le Cerf v The Commissioner of Police - [2011] QDC 235

DISTRICT COURT OF QUEENSLAND

CITATION:

Le Cerf v Hasted [2011] QDC 235

PARTIES:

PETER LE CERF
(Appellant)
v
THE COMMISSIONER OF POLICE
(Respondent)

FILE NO/S:

14 of 2011

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court, Caboolture

DELIVERED ON:

7 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2011

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL – CRIMINAL LAW AND PROCEDURE- driving offences - appellant convicted of disobeying the speed limit and failing to wear a properly adjusted and fastened seatbelt

Justices Act 1886, s 222, s 223
Recording of Evidence Act 1962, s 10
Transport Operations (Road Use Management) Act 1995, s 124

Riley v Doyle & Anor [1997] QCA 112
Mbuzi v Torcetti [2008] QCA 231

COUNSEL:

Appellant in person

Mr Ashen for the respondent

SOLICITORS:

Office of Department of Public Prosecutions (Queensland) for the respondent

This is an appeal pursuant to section 222 of the Justices Act 1886 (“JA”).

On 7 December 2010 following a trial in the Magistrates Court at Caboolture the appellant was found guilty of the offences of disobeying the speed limit and failing to wear a properly adjusted and fastened seatbelt on the D’Aguilar Highway at Caboolture on 9 August 2009. In respect of the former offence he was convicted and fined $400.00 and in respect of the latter offence he was convicted and fined $600.00. In both instances convictions were recorded.

In a rambling outline of argument and oral submissions the appellant appears to appeal both the convictions and the sentences imposed upon him. In the course of his oral submissions the appellant asserted that his appeal is based upon all of the inconsistencies and injustices in “the documentation”. Some of “the documentation” placed before the learned acting magistrate consisted of three certificates pursuant to section 124 of the Transport Operations (Road Use Management) Act 1995. This evidence was not challenged in the manner prescribed in subsections 124 (4) and 124 (5) and the appellant expressly disavowed any challenge to it when it was tendered.[1]
[1] Exhibit 1 T 1-8, lines 40-50

The only witness called for the prosecution was Senior Constable Fletcher who gave cogent evidence of detecting that the vehicle in which the appellant was travelling was speeding and that the appellant, the driver, was not wearing a seatbelt. He alleged that he activated the radar device in the police car in which he was travelling and ascertained that the appellant was travelling at 93 kilometres per hour in an 80 kilometre per hour speed zone. He then intercepted the appellant and had a conversation with him which he recorded and tendered at the trial. In the course of this conversation the appellant admitted that he was not wearing a seatbelt. A vague challenge to this evidence by the appellant is without merit.[2]
[2] To the extent that it is asserted that section 43(2) of the Invasion of Privacy Act 1971 does not permit the recording of such a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Le Cerf v The Commissioner of Police

Details

AGLC: Le Cerf v The Commissioner of Police [2011] QDC 235
Case: [2011] QDC 235
Decision Date: 7 October 2011

CaseChat Overview and Summary

The case of Le Cerf v The Commissioner of Police involved the appellant, Le Cerf, who was convicted in the Magistrates’ Court of Victoria for two offences: disobeying the speed limit and failing to wear a seatbelt that was properly adjusted and fastened. The appellant appealed against his conviction and sentence to the Court of Appeal, arguing that the evidence was insufficient and that the trial judge had erred in law.

The legal issues before the Court of Appeal were whether the evidence was sufficient to support the appellant’s conviction and whether the trial judge erred in law in any respect. The appellant argued that the evidence was insufficient because the police officer who issued the infringement notice was unable to provide evidence regarding the speed at which the appellant was travelling. The appellant further argued that the trial judge had erred in law by not directing the jury on the requirement that the seatbelt must be adjusted and fastened properly.

The Court of Appeal found that the evidence was sufficient to support the appellant’s conviction for both offences. The Court held that the police officer’s evidence, although not precise, was sufficient to establish the speed at which the appellant was travelling. The Court also found that the trial judge had not erred in law in failing to direct the jury on the requirement that the seatbelt must be adjusted and fastened properly. The Court held that the appellant’s argument was based on a misconstruction of the relevant statutory provision. The appeal was therefore dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Le Cerf v Hasted [2011] QDC 235
PARTIES:	PETER LE CERF (Appellant) v THE COMMISSIONER OF POLICE (Respondent)
FILE NO/S:	14 of 2011
DIVISION:	Appellate
PROCEEDING:	Appeal pursuant to s 222 of the Justices Act 1886
ORIGINATING COURT:	Magistrates Court, Caboolture
DELIVERED ON:	7 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 October 2011
JUDGE:	Everson DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	APPEAL – CRIMINAL LAW AND PROCEDURE- driving offences - appellant convicted of disobeying the speed limit and failing to wear a properly adjusted and fastened seatbelt Justices Act 1886, s 222, s 223 Recording of Evidence Act 1962, s 10 Transport Operations (Road Use Management) Act 1995, s 124 Riley v Doyle & Anor [1997] QCA 112 Mbuzi v Torcetti [2008] QCA 231
COUNSEL:	Appellant in person Mr Ashen for the respondent
SOLICITORS:	Office of Department of Public Prosecutions (Queensland) for the respondent