McDonald v. Bishop

[2009] QDC 72

[2009] QDC 72

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE McGILL SC

No 2853 of 2008

PETER JOHN McDONALD	Appellant
and
DAMON EDWARD BISHOP	Respondent

BRISBANE

..DATE 09/03/2009

ORDER

This is an appeal against the decision of a magistrate who, on 15 September 2008, convicted the appellant of one charge of exceeding the speed limit on a particular road on 28 February 2008.

The circumstances of the offending were that a police officer was operating a laser speed detection device on the road in question.  He gave evidence that he had detected a vehicle travelling at particular speeds.  He referred to various speeds as the vehicle was accelerating towards him, and he says that he recorded a final speed of 71 kilometres per hour at a distance of 102.2 metres.  He said he then stepped on to the surface of road and indicated the vehicle to stop, and the vehicle pulled over, and he had a conversation with the driver of the vehicle which was recorded, and he produced a tape of that recording and a transcript.

The Magistrate accepted that it was the appellant who was driving the vehicle that was stopped, and accepted the police officer's evidence as to the speed at which the vehicle was travelling.  I should say that there were certificates tendered in relation to the device that was used, and as to the operation of the device, which had certain evidentiary effects, the practical effect of which, as I understand it, is that there was limited, if any, scope for the appellant to dispute the proper operation of the speed device.

In those circumstances, the question for the Magistrate was whether the elements of the offence had been made out,  firstly, that the appellant was driving the vehicle that was the particular vehicle at the time, and, secondly, whether that vehicle was exceeding the speed limit.  I have broken it up into the two parts there because there will be different evidence in relation to those matters.

There were a number of issues raised by the appellant.  Firstly, that the infringement notice had described the vehicle as white, whereas the vehicle was, in fact, yellow.  The Magistrate did seem to proceed on the basis that the description of the vehicle as white was an error.  That was a matter which could have affected the credibility of the police officer concerned, and would also have been relevant to the issue of whether there had been any mistake in the vehicle that was observed.  However, the evidence of the police officer was to the effect that it was the appellant's vehicle that was being observed, and it was open to the Magistrate to accept that evidence, notwithstanding the mistake about the colour and, in those circumstances, to be satisfied that the speed readings that the police officer said he obtained were obtained in reference to the vehicle the appellant was driving.

The mere fact that the wrong colour was recorded in the infringement notice was not fatal to the validity of the notice, nor, indeed, was it fatal to the validity of the prosecution.  Indeed, the infringement notice is not directly relevant to the prosecution, which proceeds by way of complaint and summons in circumstances where payment was not made on the infringement notice. 

It was then submitted that the complaint and summons was defective because the surname of the appellant was spelt incorrectly, and because the date of birth for the appellant, which is recorded in the form of the complaint and summons, gave the wrong year.  Ultimately, the Magistrate amended the complaint and summons to correct the spelling of the name and the date of birth. 

There was no dispute that the effect of the amendment was to change the complaint and summons so that it referred to the correct spelling of the appellant's name and the correct date of birth. There is power in the Justices Act to make an amendment of this nature, and, in circumstances where the effect of the amendment is to correct the document so as to bring it into line with the true spelling of the name and the correct date of birth, then the exercise of that power cannot be criticised. It was submitted that the appellant ought to have been re-served with the complaint and summons after the amendment was made, but whether or not re-service is required at a particular time was a matter within the discretion of the Magistrate, and in circumstances such as this, where it was the appellant who was before the Court, and given the formal nature of the amendment, the Magistrate was certainly entitled to take the view that no re-service of the complaint and summons was necessary. Accordingly, it is of no consequence that the amended complaint and summons was not re-served on the appellant. The essential function of the summons is to get the appellant before the Court, and to inform him of the substance of the charge against him, and those functions had been performed adequately by service of the document that had been effected.

It was also submitted that the Magistrate should not have admitted the evidence, or should not have acted on the evidence of the tape-recording of the conversation produced by the police officer in circumstances where the whole of the conversation was not audible.  It is clear that the Magistrate was not entitled to act on anything which he did not himself hear on the tape.  In circumstances such as this, it is the tape which is the evidence and the Court can only act on what the Court can hear said on the tape.  The Magistrate admitted a transcript of the tape as part of exhibit 1, with the express consent of the appellant, although the appellant was not legally represented.

It does appear, however, from the Magistrate's reasons, that reference had been made to the actual tape, and that the Magistrate was only acting on what his Honour could hear on the tape, and, in those circumstances, he was acting appropriately.  The fact that parts of the tape are unclear or inaudible did not make the entire tape inadmissible, and did not provide any justification for failing to act on those parts that were audible.  There was no error disclosed in the way in which the Magistrate dealt with the audio-tape.

The Magistrate said that the standard of proof was beyond reasonable doubt, and that that applied to all aspects of the charge, and that refers, of course, to all elements of the charge, and he found that he was satisfied that all elements of the charge had been proved.  The fact that there have been some formal deficiencies along the way does not necessarily mean that it was not open to the Magistrate to be satisfied of the elements of the offence, and the Magistrate was entitled to conclude that the charge had been proved beyond reasonable doubt, and to convict the appellant.

A point was also made about the age of the certificate, but the effect of the certificate is, as to the operation of the device, and the effect of the certificate under the legislation is that it restricts the capacity of someone in the position of the appellant to dispute that the radar unit, or the laser unit, was being properly operated, and, in those circumstances, there was no reason to think the Magistrate misunderstood the effect of the certificate, or gave it some incorrect effect.

In all the circumstances, it has not been shown that the Magistrate's conclusion was vitiated by any error.  It was also submitted in relation to sentence that the Magistrate had relied on a traffic history which was not shown to be the history of the appellant because it referred to the incorrect spelling, in the same way as on the complaint and summons.

The Magistrate said that he had only looked at what he described as the last page of the traffic history, but that it was not a good history.  The response from the appellant, according to the transcript, was that he had never had a ticket in this car, and, that, as a taxi driver, he did a very large mileage, and that this put him at a disadvantage in terms of the operation of the points system.  It seems that the Magistrate took that into account in not imposing any disqualification on his driver's licence, but he did impose a fine which was a little above the amount in the penalty notice, which suggests that, to some extent, he did take into account the traffic history, or at least what was on the last page of the traffic history.

It does not appear, from the transcript, that there was any dispute before the Magistrate that the history which was produced and relied on by the Magistrate in this way was the traffic history of the appellant, and in those circumstances it is too late for the appellant to raise any issue about that for the first time on appeal.  What matters is whether the particular history recorded in the document relates to the appellant, not in itself whether the name was correct.

So, in all the circumstances, therefore, it has not been shown that the decision was vitiated by any error, and the appeal is dismissed.

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