McCollom v Kovarik

[2013] QDC 111

DISTRICT COURT OF QUEENSLAND

CITATION:

McCollom v Kovarik [2013] QDC 111

PARTIES:

STEVEN LIONEL MCCOLLOM

(Appellant)

V

GLENN KOVARIK

(Respondent)

FILE NO/S:

97/2012

DIVISION:

Appeal

PROCEEDING:

Appeal from dismissal of complaint.

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

17 May 2013

DELIVERED AT:

Beenleigh

HEARING DATE:

19 March 2013

JUDGE:

Dearden DJC

ORDER:

1.   Appeal granted.

2.   Remit the charge of speeding to the Beenleigh Magistrates Court for re-trial before another magistrate.

CATCHWORDS:

CRIMINAL LAW - APPEAL – appeal of dismissal of speeding charge – legal or discretionary error – delegations – evidence deemed inadmissible – decision set aside

LEGISLATION:

Acts Interpretation Act (Qld) 1954 s.27A(1)(b)

Evidence Act (Qld) 1977 ss.42 (1)(a),(b),(2)(e). s.116

Justices Act (Qld) 1886 s.222

Justices of the Peace andCommissioners for Declarations Act (Qld) 1991 s.29(2)

Police Service Administration Act (Qld) 1990 s.4.10

Transport Operations (Road Use Management) Act 1995 s.120(2)

CASES:

Bennett v McKay [2011] QMC 20

Commissioner of Police v Stehbens [2013] QCA 81

Dixon v LeKich [2010] QCA 2013

Moore v Queensland Police Service [2012] QDC 133

Van den Hoorn v Ellis [2010] QDC 451

COUNSEL:

E Kennedy for the appellant.

The respondent appeared unrepresented.

SOLICITORS:

Queensland Police Service solicitor for the appellant.

The respondent appeared unrepresented.

Introduction

1. The appellant, Steven Lionel McCollom (a Queensland police officer), appeals from the decision of the learned acting magistrate at Beenleigh on 26 June 2012, dismissing one charge of speeding against the respondent, Glen Kovarik.

The Law

1. I refer to and adopt my exposition of the relevant law applicable to an appeal under Justices Act (Qld) 1886 s.222, as set out in Moore v Queensland Police Service [2012] QDC 133 paras 2-4.

1. In this appeal, no further evidence has been lead on the appeal, and so to succeed, the appellant has to “establish some legal, factual or discretionary error”.[1]

   [1]Commissioner of Police v Stehbens [2013] QCA 81 para 26 (per Margaret Wilson J).

Appeal grounds

1. The appellant appeals against the dismissal of the complaint against the respondent, Glenn Kovarik on the following grounds:

1.          The learned magistrate (sic) erred in finding that there was no case to answer, and dismissing the compliant;

2.          The learned magistrate (sic) erred in not receiving into evidence, and considering as admissible evidence, the copies of the instruments of delegations sought to be relied upon by the prosecution.[2]

[2]Notice of appeal to a District Court Judge appeal no. D97/12 (filed 26 July 2012).

The Hearing

1. The trial commenced before the learned acting magistrate at the Beenleigh Magistrates Court on 26 June 2012, with the prosecutor seeking to tender a number of documents prior to calling witnesses.  After the prosecutor indicated that the first document sought to be tendered was a photograph of the alleged infringement, certified pursuant to Transport Operations (Road Use Management) Act 1995 (TORUMA) s.120(2) by a Senior Sergeant Stephen Embleton from the Traffic Camera Office (an authorised delegate from the Commissioner of the Queensland Police Service under Police Service Administration Act (Qld) 1990 s.4.10), the learned acting magistrate then…