Mayberry v Ostman
[2014] QDC 84
•Ex tempore 7 April 2014
DISTRICT COURT OF QUEENSLAND
CITATION: | Mayberry v Ostman [2014] QDC 84 |
PARTIES: | JUSTIN DONALD MAYBERRY (Appellant) v JOHN ALAN OSTMAN (Respondent) |
FILE NO/S: | 23/2013 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court |
DELIVERED ON: | Ex tempore 7 April 2014 |
DELIVERED AT: | Maryborough |
HEARING DATE: | 7 April 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. Appeal dismissed |
CATCHWORDS: | APPEAL AND NEW TRIAL – SPEED CAMERA CONVICTION – where a Police Officer by use of a lidar radar detected the Appellant’s vehicle allegedly travelling at 94 kilometres per hour in an 80 kilometres per hour zone – where the learned Magistrate found the Appellant guilty of exceeding the speed limit – whether the learned Magistrate’s decision should be set aside Legislation Justices Act 1886 (Qld) s 222(1), s 223(1) Transport Operations (Road Use Management) Act 1995 (Qld) Cases Allesch v Maunz (2000) 203 CLR 172 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Lim v The Queen (Unreported, District Court of New South Wales, Ellis J, 7 October 2011) R v Coles (Unreported, District Court of New South Wales, Ellis J, 15 February 2010) |
COUNSEL: | Mr JD Mayberry for the Appellant (self-represented) No appearances by Counsel for the Respondent |
SOLICITORS: | Mr JD Mayberry for the Appellant (self-represented) Ms AC Schooth of the Office of the Director of Public Prosecutions for the Respondent |
HIS HONOUR: This is an appeal against the decision of the learned Magistrate who found the Appellant guilty of exceeding the speed limit on 23 April 2013 at Tinana. The speed limit was 80 kilometres per hour applying to the length of the road, namely, the Bruce Highway, where the Appellant was detected. The speed alleged against the Appellant was 94 kilometres per hour. The Appellant appeals against that decision. The notice of appeal says the ground of appeal is that the Magistrate did not have judicial notice of how lidar, l-i-d-a-r, works, and ruled on verbal claims of the Police witness with no corroborative evidence from the device to substantiate or prove the claim.
In addition to the ground of appeal stated in the notice of appeal, the Appellant has filed an outline of argument. Summarising the outline, there are four issues he raises on the hearing of this appeal, namely, (1) case law was not put before the Court, but should have been, (2) the Magistrate’s acceptance of the Police Officer’s evidence, particularly as it related to his ability to aim the speed detection device, was wrongly preferred over that of the Appellant, (3) the accuracy of the device was unreliable given the distance between the vehicle and the device, and (4) contrary to the Police Officer’s evidence, the device would have captured other cars at the same time with the laser beam, meaning another car could have been speeding, and not the Appellant’s car.
This is an appeal pursuant to section 222, subsection (1) of the Justices Act 1886,[1] which provides that if a person feels aggrieved as a defendant by an order by the Magistrate hearing a complaint in a summary way, the appellant can appeal to a District Court Judge. Section 223, subsection (1) of the Act[2] provides that an appeal under section 222 is by way of rehearing on the evidence given in the proceeding before the justices, namely the Magistrate. With respect to an appeal by way of rehearing, it has been held in Allesch, A-l-l-e-s-c-h, v Maunz, M-a-u-n-z, (2000) 203 Commonwealth Law Reports 172,[3] at paragraph 23, as follows:
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate Court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate Court, the order that is the subject of the appeal is the result of some legal, factual, or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.
[1] Justices Act 1886 (Qld).
[2] Ibid.
[3] Allesch v Maunz (2000) 203 CLR 172.
Further, in Fox v Percy (2003) 214 Commonwealth Law Reports 118,[4] at paragraph 25, the Court held that in a case like this, the appellate Court is obliged to conduct a real review of the trial, and, in cases where the trial was conducted before a Judge sitting alone, of that Judge’s reasons. Further, that appellate Courts are not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions, though they should always bear in mind that they have neither seen nor heard the witnesses and should make due allowance in this respect.
[4] Fox v Percy (2003) 214 CLR 118.
And finally, reference should be made to Devries, D-e-v-r-i-e-s, v Australian National Railways Commission (1992 to 1993) 177 CLR 472[5] at page 479, where the majority said:
More than once in recent years, this Court has pointed out that a finding of fact by a trial Judge based on the credibility of a witness is not to be set aside because an appellate Court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial Judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.
[5] Devries v Australian National Railways Commission (1993) 177 CLR 472.
In the present matter, one witness was called, namely, the Police Officer. In his evidence he said that he was targeting vehicles exceeding the speed limit northbound on the Bruce Highway in Tinana in an 80 kilometre zone. He said on that day, he observed some vehicles – a pod of vehicles coming around the corner. He tracked the first vehicle and recorded its speed at 80 kilometres an hour with the lidar device. He said whilst he was observing that group of vehicles, another vehicle, which was Mr Mayberry’s vehicle, has come around the bend. He then targeted his vehicle with his laser device and recorded a speed of 94 kilometres an hour on it, and proceeded, then, to intercept Mr Mayberry. He said this occurred on the 24th of April 2013. He said that he performed checks that the lidar was in proper working order, and that he had confidence in using it. He was performing his duties in the afternoon, and Mr Mayberry came through, he believed, after 3 o’clock. He also checked the signage prior to going out and conducting his enforcement duties in that area to confirm the 80 kilometre per hour zone. He also said the conditions of the signs at the time were in good order and clearly visible.
He then gave some further evidence of what he did when he observed Mr Mayberry’s vehicle. He said what occurred, in this instance, is that a group of vehicles came around the corner and onto a straight that had a slight right-hand kink in it, and those vehicles grouped together and they continued on at the same pace towards him, and he’s continued to observe down the highway, and observed Mr Mayberry’s vehicle coming around the corner as well. He’s placed the lidar device on his vehicle, activated it and recorded a speed of 94 as he came around the corner. He stated he then observed the back of the device to confirm that the speed was there, and the distance that it was recorded. He walked out onto the roadway and stood there and waited for the pod of vehicles to close up to him. By that time, Mr Mayberry had closed up behind that group of vehicles. He indicated to Mr Mayberry that he wished him to pull over.
He said Mr Mayberry was polite and courteous. He showed him the speed on the lidar device and also the distance that he had recorded his speed. He said Mr Mayberry told him at the time he was using his GPS, and at that time there was a little bit of confusion, because a lot of people that the Police Officer had spoken to at the time had indicated that their GPS was telling them that it was a 100 zone – I think that should be, Mr Mayberry had spoken to, was telling them that the speed was a 100 zone. The Police Officer said, so they were using their GPS as a mechanism to understand where the speed zones were. However, Mr Mayberry then clarified with him that he was using it as a speed measuring device, and that his speed was being told by his GPS that it was 80 kilometres per hour.
In the Police Officer’s evidence, certificates were tendered, as well as photographs. There was also a tape of the conversation with Mr Mayberry tendered, however, nothing seems to turn in this appeal on what was said in the tape. The laser speed detection device certificate was tendered, that the device was used in accordance with the Australian standard in force on the day. Another certificate was tendered, that the device had been tested at Brisbane on the 4th of September 2012 in accordance with appropriate Australian standards, and was found to be producing accurate results at the time of testing. In accordance with the Act,[6] that would mean that it was producing accurate results for a period of 12 months after the 4th of September 2012. Another certificate was tendered showing that the Police Officer had attended an operator’s course in the year 2000, which he had completed satisfactorily, and he was authorised to operate the device. As I said, there were photographs also tendered. Again, nothing seems to turn on the photographs, other than what they depict as the distance between where the Police Officer was operating the device and the oncoming vehicles, that is, their position as they approached the Police Officer.
[6] Transport Operations (Road Use Management) Act 1995 (Qld).
During the course of the evidence of the Police Officer, he was cross-examined by Mr Mayberry and agreed that the device did not have a telescopic sight as such. However, the Police Officer said the sight is accurate. He did not agree that the traffic was heavy, and he did not agree that the device had a beam width of 1.8 metres at 300 metres and is ever spreading. He also did not agree that these devices will take a reading within the blink of an eye. He said it took a reading within four tenths of a second. He did not know how fast the blink of an eye is.
With regard to the question whether operating this device, you have to raise it, aim it and pull the trigger to get a speed reading, the Police Officer said, that depends on where the device is positioned on your body at the time that you’re recording the speed. He was also asked, would he agree that this particular device sends out an invisible laser beam that will take a reading on whatever it is pointed at in less than .8 of a second. He did not agree with that. With regard to the question of whether it was fair to say that the operation of a laser device is exactly the same as a firearm like a rifle or pistol, and the only difference is that it shoots a laser beam instead of a bullet, the Police Officer said it is a direct line of fire device; yes.
He agreed that the Police Officer would have to observe the vehicle and make an estimate of the vehicle’s speed before using the device. He agreed the speed would be recorded on the rear display screen. He also agreed that the device did not identify what the reading was taken on in relation to registration or colour or type of vehicle. He agreed that it would be fair to say that traffic density and relevant speeds of other traffic can influence the Police Officer’s estimate, or guesstimate, of speeding with the naked eye. He said, with respect to his experience in using the device and what degree of accuracy he had, he said it comes with experience over time.
With regard to this issue of marksmanship, the Police Officer said that what he did was based on experience which he had from service in the Australian regular army for 20 years and he was also a crossed rifles expert with an SLR and a Steyr. He was asked more questions about his aiming or marksmanship and he agreed, after learned Magistrate intervened, that the device – and he said the device did not take a date and time stamp, so the motorist would not know – I’ll rephrase that. He was asked by the Appellant did the device take a date and time stamp so the motorist knew the Police Officer was not using a reading taken beforehand on someone else. The Police Officer said, “No”.
He also agreed it did not confirm the location. He took the reading and he agreed – and the Police Officer said, “No”. He also said that it did not give identifying particulars such as size, shape, colour, registration or anything else on what it is taking a speed reading on. He agreed he wears glasses. A little later the Police Officer said at the time he targeted the Appellant’s vehicle and obtained a speed the bandwidth would have been 1.4 metres approximately. The Police Officer said that would not – it was not even half the width of the Appellant’s car. The Police Officer said the device is checked and they put a red dot on what they are targeting on. The Police Officer maintained it is accurate.
Later the Police Officer was asked by the Appellant as to how the Court would know that the Police Officer has never been tested for marksmanship exactly what he was hitting that day. The Police Office replied, “I was hitting your vehicle on that day because there were no other vehicles in the vicinity of your vehicle”. A little later the Police Officer said, “Okay, Mr Mayberry, in this instance the vehicle – the pod of vehicles that was in front of your vehicle was separate and it is optimum for the device to be in a dead straight line so that you receive a reading of the speed in a straight line. However, there is what we call a cosine effect and if you’re a couple of degrees off to the side then the speed is reduced and it’s in favour of the targeted vehicle.”
And then finally the Police Officer said in his cross-examination, “Mr Mayberry, the bandwidth, as I stated, was about 1.4 metres at the distance that I’ve recorded your vehicle’s speed, not half a football width, okay. The laser is very specific in its targeting process. It’s not - a radar beam may be that wide, however a laser beam isn’t.”
In coming to his decision, the learned Magistrate recognised that the onus of proof rested on the Prosecution at all times to prove each material element of the alleged offence beyond reasonable doubt. The learned Magistrate referred to the evidence of the Police Officer and also referred to the evidentiary effect of the certificates that have been tendered. It should also be said in these reasons that Mr Mayberry did not give evidence or call evidence. In coming to his decision, the learned Magistrate, referring to the effect of the certificates, referred to it having to be accepted that the device was operating accurately for a period of 12 months from the date of the certificate, unless the contrary was shown by relevant evidence and there was no contrary relevant evidence. He was also satisfied that the Police Officer did undertake what he described as a confidence test where the device was tested and found to be recording accurately.
The learned Magistrate said he was left in no doubt that a group of vehicles were travelling ahead of the vehicle driven by Mr Mayberry and that his vehicle could be clearly distinguished from that pod of vehicles, as described by the Police Officer. Further, the learned Magistrate said he was left in no doubt whatsoever that the laser speed detection device aligned with the vehicle of Mr Mayberry and that there were no other vehicles in the alignment of the laser device. Regarding marksmanship, the learned Magistrate said he was satisfied beyond reasonable doubt that the laser detection device was aligned with the vehicle of Mr Mayberry, being the motor utility driven in the northerly direction on the Bruce Highway, Tinana on the date and no other vehicle.
He said there was no evidence in the conversation between the Police Officer and Mr Mayberry indicating a statement that Mr Mayberry was following his GPS. Further, the learned Magistrate said there was no evidence to satisfy the Court the purported GPS device relied on by Mr Mayberry at the material time was in fact accurate. The learned Magistrate concluded by saying the Court finds upon the whole of the evidence adduced before it that the Prosecution has discharged the onus placed upon it and has proven each element of the alleged offence beyond a reasonable doubt. He therefore said he had no hesitation in finding Mr Mayberry guilty of the offence.
Mr Mayberry relies on two decisions of the New South Wales District Court in support of his argument that the learned Magistrate should not have concluded that the Police Officer had targeted Mr Mayberry’s vehicle, in particular because of the extensive distance between where the Police Officer was and where he said he had detected Mr Mayberry’s speed. In his submissions, Mr Mayberry said the beam spreads out like a torch beam and at 300 metres is a whopping 1.2 metres wide. It did not seem to be specifically established during the proceedings before the learned Magistrate, however I infer that the distance that the Police Officer said Mr Mayberry’s vehicle was targeted at was over 400 metres.
The New South Wales decisions – Mr Mayberry complains that the New South Wales decisions were not put up to the learned Magistrate by the learned Prosecutor. Nevertheless, I have read the two decisions and in my opinion they are distinguishable from the facts in the present case. In any event, each case does depend upon its own facts. The decisions in Coles[7] and in Lim[8] cannot be simply transposed to the present case before me. In addition, in Coles[9] a distinguishing feature is that in those proceedings there was evidence that the Appellant’s vehicle was fitted with a speed limiter device which made it impossible for his vehicle to travel at the speed recorded by the laser device. Mr Mayberry does not have the benefit of any such evidence in this case.
[7] R v Coles (Unreported, District Court of New South Wales, Ellis J, 15 February 2010).
[8] Lim v The Queen (Unreported, District Court of New South Wales, Ellis J, 7 October 2011).
[9] R v Coles (Unreported, District Court of New South Wales, Ellis J, 15 February 2010).
With respect to Lim,[10] this also is distinguishable from the present matter before me because in that case there was evidence of the Appellant’s good character. Although Mr Mayberry has referred to his good character, he gave no evidence before the learned Magistrate. His good character was not something that could just be assumed. In addition, in Lim[11] the Police alleged the Appellant’s vehicle was travelling at 153 kilometres per hour and was moving in and out of traffic. Apparently there was an in-car video which the Police could rely upon but that was not tendered in evidence before the learned Magistrate. Judge Ellis remarked that that also had a bearing on whether the learned Magistrate could come to the conclusion that the Appellant in Lim’s case[12] could be found guilty of exceeding the speed limit.
[10] Lim v The Queen (Unreported, District Court of New South Wales, Ellis J, 7 October 2011).
[11] Ibid.
[12] Ibid.
It was because of the presence of evidence of good character and the lack of the in-car video showing the Appellant’s vehicle doing what the Police said it was doing that led Judge Ellis to conclude that he had a reasonable doubt about the guilt of the Appellant in that case. Therefore, it can be understood that, in Lim,[13] Judge Ellis came to the conclusion that the Appellant should be found not guilty of the speeding charge.
[13] Ibid.
Having considered all the evidence and the submissions made in this case, I am satisfied that the learned Magistrate did not make any error in concluding that the Police Officer did target Mr Mayberry’s vehicle and that it was exceeding the speed limit. In particular, it is relevant that the evidence that was open to the learned Magistrate to accept from the Police Officer was to the effect that the pod of vehicles preceded Mr Mayberry’s vehicle and that Mr Mayberry’s vehicle was on its own, as it were. As the Police Officer said, there were no other vehicles in the vicinity of Mr Mayberry’s vehicle.
Therefore, in my view, there was nothing to demonstrate here any error in accepting the Police Officer’s evidence, notwithstanding the arguments raised by Mr Mayberry. In those circumstances, there being no error demonstrated by the learned Magistrate in reaching the conclusions he did, I dismiss the appeal.
Yes, anything else, Mr Mayberry?
APPELLANT: With the pod of cars, when I was pulled over, your Honour, there was a car in front of me that was pulled over at the same time.
HIS HONOUR: But he might have just been slowing down thinking that he had been targeted. That’s not uncommon that another vehicle might think that they were ‑ ‑ ‑
APPELLANT: There was – I was not far behind that car in front.
HIS HONOUR: Yes. Anyway, I’ve appealed – I’ve dismissed your appeal, Mr Mayberry. Ms Schooth, is there any other orders you seek?
MS SCHOOTH: No, your Honour.
HIS HONOUR: Yes, all right. Well, the only order I make then is appeal dismissed. Thank you.
MS SCHOOTH: Thank you.
HIS HONOUR: I have other matters to go on with.
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