Police v Lancashire
[2011] QMC 18
•13 July 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Lancashire [2011] QMC 18
PARTIES:
POLICE
(prosecution)
v
JOHN FRANCIS LANCASHIRE
(defendant)
FILE NO/S:
MAG32332/11(1)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint
ORIGINATING COURT:
Magistrates Court at Warwick
DELIVERED ON:
13 July 2011
DELIVERED AT:
Warwick
HEARING DATE:
13 July 2011
MAGISTRATE:
Thacker AC
ORDER:
Complaint dismissed and defendant discharged
CATCHWORDS:
TRAFFIC LAW – OFFENCES – SPEEDING - speed detection device use – compliance for use
COUNSEL:
Wiggan (Sgt) for prosecution
SOLICITORS:
Prosecution appeared on their own behalf
The Defendant was charged that on 29 May 2010 at Braeside in the District of Warwick he was driving a motor vehicle on the New England Highway at a speed over the speed limit which was 100 kilometres per hour. It was alleged against him he was travelling at 122 kph on the highway. He was detected at that speed by a radar device fitted to an unmarked police car driven by S/C Cremasco.
The Defendant pleads not guilty to the charge and represents himself. Today I have heard evidence from S/C Cremasco to support the prosecution case conducted by Sgt Wiggan.
S/C Cremasco gave evidence that he was travelling northbound on the New England Highway well within the 100kph speed zone. He saw a vehicle travelling towards him in a southbound direction. He formed the opinion that this vehicle was exceeding the speed limit. He then activated the speed detection device fitted to his police car which displayed a target speed of 122kph. He saw the patrol speed on the radar was 98kph. He also checked and confirmed that 98kph showed on the speedometer in his police car. He tracked this for some 2 -3 seconds before he locked the detection device at 122kph. There were no other vehicles in the vicinity. He activated his emergency lights, performed a u-turn and intercepted the vehicle and introduced himself to the defendant who was driving the intercepted vehicle. He also activated a digital tape recorder and recorded the conversation which was played to the Court in the course of the Senior Constable’s evidence.
Also, the prosecution case relied, in the usual way, on certificates tendered by the Prosecutor. The first of the certificates marked Exhibit One is titled Statement of Attendance. It was issued to S/C Cremasco for attending the “Speed Detection Operator’s Course held at Warwick on 2 & 3 June 2006 for 16 hours total instruction from the manufacturer/s agent and QPS facilitator regarding use of the speed detection device called Decatur Genesis_II Select Mobile Radar as a “Conversion Course QCO 410”. It is signed by Inspector G. Morrow dated 19 September 2006.
S/C Cremasco also gave evidence that he has been a Queensland Police Officer for 22 – 23 years ie since 1989 and that he has operated speed detection devices for the majority of that time. He stated he has been authorised to operate the speed detection device he used since he completed the course in 2006. I understand his evidence there to be relying on the Statement of Attendance tendered as the first document in Exhibit One already referred to above.
Without more I would be of opinion that I have no alternative but to accept the police officer was properly authorized to operate the speed detection device used by his attendance at the course referred to in the Statement of Attendance. However, the case Grice v Day [2010] QDC 490 (16 December 2010) takes the matter further. From this case it appears settled that the QPS Traffic Manuel manages who is and who is not able to operate speed detection devices, taking as its authority to do so from section 4.9 Police Service Administration Act 1990 through delegation from the Commissioner of Police. S/C Cremasco’s Statement of Attendance then has two flaws:
1. The Statement of Attendance merely says he attended the course and not that he successfully completed the course or that he is authorized to operate the device in accordance with the requirements of the QPS Traffic Manuel; and
2. In any event, the Statement of Attendance is out of date by some 48 months.
It has not been put to me that S/C Cremasco is qualified and / or authorised by any other mechanism to properly operate the speed detection device on 29 May 2010 against the Defendant.
At the conclusion of the prosecution case the Defendant elected to make a statement to the Court by way of submission. He did not elect to give evidence under oath.
As I understand the Defendant’s case he challenges the radar detection device could properly or accurately detect the speed at which it is alleged he was travelling. In essence, the Defendant’s case is that the presence of Armco railing at the vicinity where S/C Cremasco operated the radar detection device would have caused interference with the proper operation of the device so that the reading of 122 kph was not a proper or an accurate reading.
Immediately after he was intercepted, the Defendant raised with S/C Cremasco the question of any impact of Armco railing on the speed detection device. Listening to the audio recording of their conversation tendered to the Court (Exhibit 3) confirms that S/C Cremasco could not answer that question and could only refer the Defendant to make inquiries about it elsewhere. In his evidence today the best explanation S/C Cremasco could give about the matter revolved around his belief that Armco railing was not within the relevant Australian Standards description of “large numbers of reflective surfaces” such as some traffic signs, telephone booths, or large colour bond fences having some impact on proper operation of the radar detection device.
In his evidence to the Court S/C Cremasco did not give any evidence of his understanding of the operation of radar detection devices in the vicinity of Armco railings or whether he learned anything about this in his 16 hour course undertaken in 2006. He did not give evidence of any other learning he has undertaken for using the device or anything he knew from his experience.
Armco railings are a type of metal fencing commonly used in road infrastructure around Queensland and Australia and so I am surprised that they are not specifically mentioned in the Australian Standards one way or the other.
There was little contention about exactly where the S/C detected the Defendant speeding and the area does have significant Armco railing on each side of the highway at the general vicinity where the S/C used the speed detection device. Further, given the Armco railing was also continuous I am not sure whether or not it would therefore come within the description. It certainly could given it is metal and reflective and at least on horizontal or flat angles, a significant surface area.
The Transport Operations (Road Use Management) Act 1995 (“the Act”) Section 112 manages use of speed detection devices and provides that
When using a radar speed detection device or laser-based speed detection device, a police officer must comply with—
1. the appropriate Australian Standard for using the device, as in force from time to time; or
2. if there is no appropriate Australian Standard for using the device in force at the time of the use—the manufacturer’s specifications for the device.
In combination these matters I have earmarked weigh against me being satisfied that S/C Cremasco was complying with section 112 of the Act by complying with the appropriate Australian Standard for using the device. This is particularly so given his Statement of Attendance was so far out of date. In these circumstances I am not able to be satisfied beyond a reasonable doubt that S/C Cremasco could properly and accurately detect the Defendant was travelling at 122 kph using the speed detection device as alleged against him.
That is not an end to the matter however as the Complaint against the Defendant does not particularise that the Defendant was travelling at any particular speed. Rather the Complaint states merely that the Defendant was “the driver of a vehicle namely a motor vehicle and drove over a speed over the speed limit namely 100 kilometres per hour applying to the driver for the length of road” etc.
Again I turn to the evidence revealed during the course of the trial. From the evidence of S/C Cremasco I understand that he formed the view that the Defendant was travelling “in excess of 100 kph” – he did not go into any further detail than that - and so activated the radar device.
Listening to the audio recording of the road side conversation between the parties tendered to the Court (Exhibit 3) it is clear that the S/C was relying entirely on the reading produced by the detection device and immediately the Defendant responds with “Um I think one twenty-two is a bit high – it certainly wasn’t going that fast-“
The conversation continues:
The S/C asks “Oh, what speed do you think you were travelling at?”
The Defendant answers “Ahm, at the limit -”
The S/C “- which is?”
The Defendant “The limit is supposed to be the one hundred along here”.
The S/C “So you’re saying you were only doing one hundred kilometres an hour?”
The Defendant “I usually keep a fairly good eye on the speedo.”
The Defendant by his plea of not guilty is still maintaining he was not travelling in excess of 100 kph.
In all of the circumstances I have outlined there is not sufficient certainty that the Defendant was in fact over the speed limit. I cannot be satisfied beyond a reasonable doubt that the Defendant was travelling at any speed over 100 kph.
I ORDER the Complaint is dismissed and the Defendant is discharged.
0