Prus-Butwilowicz v Winston - [2016] QDC 232

DISTRICT COURT OF QUEENSLAND

CITATION:

Prus-Butwilowicz v Winston [2016] QDC 232

PARTIES:

JERRY PRUS-BUTWILOWICZ

(Appellant)

and

GLEN ROBERT WINSTON

(Respondent)

FILE NO/S:

1717/14

DIVISION:

Appellate

PROCEEDING:

Appeal under s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

23 September 2016

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

12 September 2016, 19 September 2016

JUDGE:

Devereaux SC DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL - where the appellant was convicted, after trial, of disobeying the speed limit – where the appellant’s speed was detected with the use of a handheld LIDAR device – where the appellant submitted that the LIDAR device used had not been calibrated in accordance with the Australian Standards - where the appellant further submitted that the complainant was not authorised to bring the complaint – where it was submitted that the appellant had been denied procedural fairness – whether the appellant’s conviction ought to be set aside.

Legislation:

Justices Act 1886 (Qld)
Transport Operations (Road Use Management) Act 1995 (Qld)
Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld)

Cases:

ABC v Director of Public Prosecutions (Qld) & Anor [2007] QSC 134
Bell & Anor v Unimin Australia Pty Ltd(No. 3) [2012] QMC 16
Potts v Brooks ex-parte Potts [1983] 2 Qd R 48
Vakauta v Kelly (1989) 167 CLR 568
Webb and Hay v The Queen (1993-1994) 181 CLR 41

Whittaker v Turner [2004] QCA 191

COUNSEL:

The appellant appeared on his own behalf.

R J Marks for the respondent.

SOLICITORS:

The appellant appeared on his own behalf.

ODPP on behalf of the Commissioner of Police for the Respondent

The appellant appeals, under s. 222 of the Justices Act 1886, against his conviction for speeding. The charge was that he drove a car over the 100kph speed limit on the Gateway Motorway at Eagle Farm on 4 February 2011. The complaint was sworn and a summons issued on 28 September 2011 and required the appellant’s appearance on 1 November 2011. The trial was conducted over three days on 9, 10 and 11 December 2013. The learned magistrate, for reasons given orally on 3 February 2014, convicted the appellant. After submissions were made about costs, the learned magistrate made orders on 11 April 2014 with respect to the costs of the proceeding.

The Notice of Appeal was filed 9 May 2014. The hearing, set for two days, was to commence before me on Monday 5 September 2015. Without all the details, the appellant contacted the court by email, explaining that he was sick and could not appear. He telephoned the court when directed to do so. I adjourned the hearing to the following week. He again did not appear at the adjourned hearing on 12 September 2017 but emailed the court saying he was still unwell. On Monday 19 September 2015 I heard some submissions by telephone and ruled that I would decide the appeal on the materials filed.

There was some difficulty assembling the record from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prus-Butwilowicz v Winston

Details

AGLC: Prus-Butwilowicz v Winston [2016] QDC 232
Case: [2016] QDC 232
Decision Date: 23 September 2016

CaseChat Overview and Summary

The appeal heard by the court involved the conviction of the appellant, Prus-Butwilowicz, for disobeying the speed limit. The appellant's speed was detected using a handheld LIDAR device, and the conviction arose from this detection. The appellant contended that the LIDAR device was not calibrated according to Australian Standards, and further argued that the person who brought the complaint was not authorised to do so. The appellant also claimed procedural unfairness in the proceedings, and sought to have their conviction overturned.

The court was required to determine whether the appellant's conviction should be set aside due to the alleged non-compliance with Australian Standards, the lack of authorisation of the complainant, and the claim of procedural unfairness. The court examined the evidence provided and the relevant legal standards to assess these contentions. It considered the calibration of the LIDAR device, the authority of the complainant to bring the charge, and whether the appellant's rights to a fair trial were upheld.

In its reasoning, the court found that the calibration of the LIDAR device was not in question as it met the necessary standards, and the complainant was indeed authorised to bring the complaint. The court also determined that there was no procedural unfairness in the way the trial was conducted. Therefore, the court was satisfied that the conviction was lawfully obtained and that there were no grounds for setting it aside.

The appeal was dismissed, and the conviction stood as decided by the trial court. The court upheld the decision, finding no merit in the appellant's arguments regarding the LIDAR device, the complainant's authority, or procedural fairness.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Prus-Butwilowicz v Winston [2016] QDC 232
PARTIES:	JERRY PRUS-BUTWILOWICZ (Appellant) and GLEN ROBERT WINSTON (Respondent)
FILE NO/S:	1717/14
DIVISION:	Appellate
PROCEEDING:	Appeal under s 222 of the Justices Act 1886 (Qld)
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	23 September 2016
DELIVERED AT:	District Court at Brisbane
HEARING DATE:	12 September 2016, 19 September 2016
JUDGE:	Devereaux SC DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	APPEAL - where the appellant was convicted, after trial, of disobeying the speed limit – where the appellant’s speed was detected with the use of a handheld LIDAR device – where the appellant submitted that the LIDAR device used had not been calibrated in accordance with the Australian Standards - where the appellant further submitted that the complainant was not authorised to bring the complaint – where it was submitted that the appellant had been denied procedural fairness – whether the appellant’s conviction ought to be set aside. Legislation: Justices Act 1886 (Qld) Transport Operations (Road Use Management) Act 1995 (Qld) Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) Cases: ABC v Director of Public Prosecutions (Qld) & Anor [2007] QSC 134 Bell & Anor v Unimin Australia Pty Ltd(No. 3) [2012] QMC 16 Potts v Brooks ex-parte Potts [1983] 2 Qd R 48 Vakauta v Kelly (1989) 167 CLR 568 Webb and Hay v The Queen (1993-1994) 181 CLR 41 Whittaker v Turner [2004] QCA 191
COUNSEL:	The appellant appeared on his own behalf. R J Marks for the respondent.
SOLICITORS:	The appellant appeared on his own behalf. ODPP on behalf of the Commissioner of Police for the Respondent