McCallum v Dettori

[1996] QCA 568

COURT OF APPEAL	[1996] QCA 568
DAVIES JA McPHERSON JA DOWSETT J
Appeal No 1578 of 1996
MARIA BARBARA McCALLUM	Appellant
and
JOHN CECIL DETTORI	Respondent

BRISBANE
..DATE 26/11/96
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DAVIES JA: This is an order to review an order of a
Stipendiary Magistrate dismissing a summons charging the
respondent under section 19(1)(c) of the Traffic Regulations
with, in effect, failing to stop at a red light.

The prosecution case included and depended on evidence of the working of a photographic detection advice, this being a camera detector offence within the meaning of part 6(b) of the Traffic Act.

The relevant camera was installed at the intersection of Pechey and James Streets, Toowoomba. It was common ground that the respondent was driving a Toyota Camry sedan on James Street across the intersection on the night of 26 December 1994. The question before the Stipendiary Magistrate was whether he crossed the stop line in association with the red light facing him after that light had turned red.

Two photographs of the intersection were tendered duly certified under section 44W of the Act. Pursuant to that section they became evidence of the accuracy of the things depicted in them and that the requirements prescribed by regulation about the operation and testing of the photographic equipment were complied with.

Relevant evidence was also given in the prosecution case by Acting Sergeant Turner and some plans were tendered. The first photograph, Exhibit 3, was taken 1.2 seconds after the red light had come on. The second photograph, Exhibit 4, 261196 T10/DR M/T COA294/96

was taken one second later. Sergeant Turner estimated on the basis of looking at these photographs and the estimate, in my view, must have been reasonably accurate, that the distance travelled by the vehicle between the time when the first photograph was taken and the time when the second photograph was taken was a minimum of 17.4 metres and may have been as much as 20.4 metres. That gave the respondent's vehicle a speed of between 62.64 kilometres per hour and 73.44 kilometres per hour.

Sergeant Turner also estimated the distance between the stop line and the rear of the respondent's vehicle in the first photograph as 4.2 metres. He calculated that at the lower of the two speeds to which I have just referred. The respondent would have been 8.8 metres back from the stop line when the traffic light turned red, which it did, .5 of a second before the first photograph, Exhibit 3.

However, the respondent gave evidence that he was travelling at a much slower rate of speed but accelerated greatly as he came on to the intersection. If one accepts that he was so accelerating and was therefore travelling at a lower speed at the beginning and a higher speed at the end then he must have been even further behind the stop line than the distance estimated by the police officer when the light turned red.

The Stipendiary Magistrate decided the case, it seems,
partly, if not wholly, on the rejection of the first
photograph, Exhibit 3 because of the conclusion which I find
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difficult to follow, and certainly cannot accept, about the
instantaneous nature of that photograph. There was no
rational basis, in my view, for rejecting that photograph or
indeed the second photograph, Exhibit 4, and consequently no
rational basis for rejecting the estimates of speed and
distance which were given by Sergeant Turner.

That being so, the Stipendiary Magistrate was plainly wrong, in my view, in rejecting the evidence of speed and distance which was given which, as it was pointed out during the course of argument, was uncontradicted in terms of distances and was, when given, not challenged.

The conclusion therefore reached by the Stipendiary Magistrate was, in my view, plainly wrong and I would therefore make the order absolute. I would set aside the order dismissing the complaint. I would enter a conviction and I would remit the matter to the Magistrate to determine the appropriate penalty.

McPHERSON JA: I agree. The Magistrate appears to have been led to reject the evidence of the photograph, Exhibit 3, because she considered that the camera was not programmed, or shown to have been programmed, so as to satisfy the requirement of traffic regulation 209(c)(i) and (ii). She said that she had a reasonable doubt that the photograph upon which the prosecution case rested "...was taken instantaneously as the loop was activated". She appears to have treated the word "instantaneously" as being in some way related to or, as qualifying, the word "as" in the context 261196 T10/DR M/T COA294/96

as she stated it to be. In point of fact, regulation 209 does not use the word "as". It requires that the camera be programmed so that "while the loop is activated the camera instantaneously takes an exposure of the vehicle first passing over the loop". The expression is "while the loop is activated" and not "as it is activated"; and although we have not heard the matter fully argued before us, it seems to me to be reasonably clear that the expression "instantaneously" refers to the duration of the exposure and not to its relationship to the activation of the loop.

I agree with what Mr Justice Davies has said and with the order he has proposed.

DOWSETT J: I also agree.

MR BREWER: May I make an application for a certificate under the appeals costs fund? None of these points of course were taken in the Lower Court and the Crown wanted that point clarified. In other words, he never argued that the camera should have taken the picture instantaneously and-----

McPHERSON JA: Yes, but you should have lost it on basis of fact. We are concerned only with the question of whether the evidence of the camera should be believed as against the evidence of the witness. The Magistrate believed the witness. That was a question of fact and we have said that she was wrong in doing that. It's not a question of law, is it?

MR BREWER: Well, the Crown has put it as a question of law and in fact that's what the auditor review was granted on, that she didn't give enough weight to the certificates.

DOWSETT J: That's not a question of law, is it, not giving enough weight?

MR BREWER: But it would be my respectful submission that it might be a matter that Your Honours would consider granting an indemnity certificate in relation to it.

DAVIES JA: No, we won't do that, Mr Brewer.
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MR BREWER: Thank you.

DAVIES JA: The orders are as I have indicated.

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