Ledger v Brindle

[2008] QDC 167

[2008] QDC 167

ROSS WILLIAM LEDGER	Appellant
and
MICHAEL BRINDLE	Respondent
BRISBANE ..DATE 28/04/2008
)

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE SAMIOS

No 3675 of 2007

ORDER Magistrate at Sandgate of having driven a motorcycle in excess of the speed limit. It was alleged this occurred on the 16th of January, 2007. The evidence before the learned Magistrate was that the speed limit was 60 kilometres per hour, and the appellant was alleged to have been travelling on his motorcycle at a speed of 83 kilometres per hour. After a summary trial before the learned Magistrate, the appellant was found guilty of the offence and was fined $450 and $110.90 for witnesses expenses and Court costs.

The appellant appeals against the learned Magistrate's decision. The issues in the appeal are referred to as identified by the appellant before me this morning in the certificate of readiness. The main issue is the alleged speeding on 16 January 2007. There are six issues:

"Firstly, the large margin for error on users' ability to hit a moving target at 400 metres distance, nothing to do with clause 124.4 of the Road Movement Act.

Secondly, no physical evidence presented to connect the alleged reading with my vehicle.

Thirdly, not debating the accuracy of the device, but the operator's ability to hit a small, moving object over a long distance with a hand-held, pistol sized device that does not have a telescopic scope. Definitely not like a sniper rifle, it is short-barrelled.

Fourthly, the device also has an inner-spreading beam and is not target-specific, but gives a reading on whatever it hits in its beam. So, in peak hour traffic, it can not isolate a small, moving target like a motorbike over such an extreme distance.

Fifthly, the officer also wears glasses and is ageing, which will impair his ability over a long range.

2   ORDER

)

Sixthly, both sets of photos provided by both parties are almost identical. Photos of the exact same location, yet the Magistrate accepted the police photos but rejected

the explanation and clarity that my photos displayed were
taken from where the police officer was standing."

The evidence before the learned Magistrate showed that, on that date, the police were conducting speed checks at the Deagon Deviation, Brighton. When I refer to the "police", I am referring to Senior Constable Brindle. He gave evidence about his experience in operating the hand-held radar device, and his experience overall in performing duties of this kind. When cross-examined about these issues, he said, transcript 20, line 40, that when he checked the appellant's speed, he had come around the corner and there was nothing else in view south-bound. Further, there was nothing between the appellant and the police.

Also, at transcript 21, at line 10, he said that there was nothing in front that was obscuring his view of the appellant. He also said that, as the appellant came around the corner, there was nothing behind him. He entered the motorcycle after he formed the opinion that it was in excess of 80, he checked the speed of the motorcycle and confirmed it at 80, and then it increased to 83 the second time. He disputed the distance between the two as doubting the accuracy of what he was doing.

Later, at page 30, line 40, he said that the motorcycle could
be isolated from other vehicles, and it is not a radar to
laser, and there is nothing in front of the appellant to
interfere with him aiming at his motorcycle. He also disputed
)
that he could not target one vehicle at a time, that is at
transcript 31, line five. 3 ORDER

The learned Magistrate, in coming to his conclusion, recognised that there was a conflict of evidence between Senior Constable Brindle and the defendant and, on the issue of credibility, the learned Magistrate indicated that there were some issues not in dispute. For example, the defendant was riding his bike in the relevant area at the relevant time, but acknowledged that the appellant denied that he was exceeding the speed limit.

In the end, the learned Magistrate accepted the evidence of Senior Constable Brindle. He accepted his evidence as to speed, operation and distance and, in particular, that there was no mistake made by Senior Constable Brindle and that he zeroed in on the appellant and the appellant's vehicle at the relevant time, and that he was confident in that view by his own observations of the vehicle prior to zeroing in on it.

In relation to the appellant's evidence, he rejected the
appellant's evidence in relation to the speed that he was
doing and the circumstances under which he was travelling at
the place and in the time in question. He found that the
appellant was the rider of the motorbike at the relevant time
and place, and it was being driven by the appellant at a speed
over the speed limit, which was 83 kilometres per hour in the
60 kilometre per hour zone which applied to that length of
road known as the Deagon Deviation at Brighton. He made the
)
relevant finding as to the identity of the appellant with the
rider of the motorbike, and the appellant does not dispute
that before me today. 4 ORDER

The appellant does, though, in his outline of submissions, seek to rely on two certificates relied upon in other proceedings: a media release; a report of Dr Gilmour dated 19 December, 2006, relied on in other proceedings. I do not accept these documents into evidence as they clearly were documents that could have been obtained with reasonable diligence for use before the learned Magistrate or the contents of them and the arguments in them, and even the factual matters referred to in them, may have been traversed at the trial, but did not occur. Therefore, I do not allow the appellant to rely on those documents attached to his outline of argument.

In my opinion, the gravamen of the appellant's argument is that the learned Magistrate could not have been satisfied beyond reasonable doubt that Senior Constable Brindle could target his vehicle at the distance, and that there was uncertainty as to what the result may have been in attempting to target the appellant's vehicle over such a long distance and in the circumstances in which this type of radar operates. That is not an entire statement of the appellant's argument, but reflects what I consider to be the crux of it.

Senior Constable Brindle clearly indicated that the appellant's vehicle could be isolated from other vehicles, and

5 ORDER
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there was nothing in front of the appellant's vehicle to
interfere with his aim. There was evidence that the area
between the appellant's vehicle and the police was clear, and
that this particular device can only target one vehicle at a
time, contrary to the argument being advanced by the
appellant.

In those circumstances, it was, in my opinion, open to the learned Magistrate to accept the evidence of Senior Constable Brindle and reject the evidence of the appellant. The issues raised on the appeal are responded to by the evidence of Senior Constable Brindle, and there is no error, in my opinion, in the approach taken by the learned Magistrate, even to the two sets of photographs, in relying upon the police photographs in the end for the conclusions he was prepared to reach.

I therefore dismiss the appeal. I make no order as to costs.

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6   ORDER