QPS v Earthey

[2011] QMC 56

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

QPS v Earthey [2011] QMC 56

PARTIES:

Queensland Police Service
(Prosecution)

v

Ken Mark Earthey
(Defendant)

FILE NO/S:

MAG-00204183/10(4)

DIVISION:

Magistrates Courts

PROCEEDING:

Criminal

ORIGINATING COURT:

Gladstone

DELIVERED ON:

24 June 2011

DELIVERED AT:

Gladstone

HEARING DATE:

27 May 2011

A/MAGISTRATE:

M Morrow

ORDER:

Guilty

CATCHWORDS:

CONSTITUTIONAL LAW – Doctrine of separation of powers – Legislation – Validity – Judicial power – Whether interference with judicial power – Competence of Parliament

VEHICLE AND TRAFFIC – Offence – Exceeding speed limit – Use of a photographic detection device – whether defendant entitled to dispute that camera properly set up and operated without giving Notice – interpretation of photographic image produced where more than one vehicle captured on image – whether the offence proved.

Traffic Manual – Legal Status of Manual – whether any failure to comply with Traffic Manual effects evidence generated by speed detection device.

EVIDENCE – Facilitation of proof of speed by certificates – Effect of prima facie evidence

APPEARANCES:

Sgt. M O’Rourke appeared for the Queensland Police Service

Defendant appeared not legally represented.

1. Ken Mark EARTHEY is charged by way of complaint and summons with an offence under section 20 of the Transport Operations (Road Use Management – Road Rules) Regulations 2009 that on the 26 July 2010 at Ambrose in the Magistrates Courts District of Gladstone in the State of Queensland he being the driver of a vehicle namely a car drove at a speed over the speed limit namely 100 kilometres per hour applying to that driver for that length of road namely the Bruce Highway Ambrose where the said driver was driving.

1. The issues in this case is that the alleged offence was detected by a photographic detection device or speed camera and that there are two cars depicted in the photograph and the Defendant’s case is that the Prosecution can’t prove his vehicle was speeding; parts of the Queensland Police Service Traffic Manual were not complied with; the facilitation of proof provisions in a number of Acts relied on by the Prosecution are unfair and from what I understand of the Defendant’s case there is a breach of the doctrine of the separation of powers relating to the exercise of judicial function.

1. The burden of proof lies with the Prosecution to prove each and every element of the offence and the standard of proof is beyond reasonable doubt.

1. The Prosecution was mainly by way of a paper prosecution which is a matter determined by the legislature. However, Acting Senior Sergeant Jeffrey Dixon was called to give evidence.

1. The Defendant has not given evidence. That is his right. He is not bound to give or to call evidence. The Defendant is entitled to insist that the prosecution prove the case against him, if it can. The Prosecution bears the burden of proving the guilt of the Defendant beyond a reasonable doubt, and the fact that the Defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill gaps in the evidence led by the Prosecution. It proves nothing at all, and the Court must not assume that because he did not give evidence that adds in some way to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the Prosecution any easier. It cannot change the fact that the Prosecution retains the responsibility to prove guilt of the Defendant beyond reasonable doubt.

1. Mr Earthey presented his own case. People may act through a lawyer or in person and I have tried to provide advice and assistance to diminish, so far as is possible, the disadvantage which he ordinarily suffers when faced by an experienced advocate like the Police Prosecutor, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored.

The Law

1. Section 20 of the Transport Operations (Road Use Management – Road Rules) 2009 provides:

“20 Obeying the speed limit

A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.

Maximum penalty—40 penalty units.”

1. What the Prosecution is obliged to prove to make out the offence charged is simply that the Defendant exceeded the speed limit that applied to the particular length of road where the offence is alleged: Roads and Traffic Authority of New South Wales v Hugh [2008] NSWSC 1426 at [11] and approved in The Roads and Traffic Authority of NSW v Lian [2009] NSWSC 146.

1. To this end, the Prosecution tendered a number of certificates under various Acts as evidence as well as two photographs and had an adjudicator give evidence in relation to interpreting the photographic images.

The Evidence

1. Exhibit one consists of two photographic detection device images, the larger depicting a blue Ford sedan Queensland Registration number 976-LLR in the foreground with another vehicle some metres behind. The second smaller photograph is a close up of the blue ford sedan.

1. There is a data block in the top right hand corner of the large photograph. Section 120(4) of Transport Operations (Road Use Management) Act 1995 (TORUM) provides that:  A marking or writing made by a photographic detection device on an image is taken to have the meaning prescribed under a regulation and is evidence of what it is taken to mean.

1. Section 211 of the Traffic Regulations 1962 provides that markings or writings on photographic detection device images (data block) has the meaning set out in Part 3 of Schedule 11 as described below:

A is details written by the operator of the system's camera, when a film magazine is inserted, that are superimposed on each image on the film as it is taken.

B is the direction that the vehicle the speed of which was measured by the system (the target vehicle) is travelling in relation to the system's camera. "A" indicates the target vehicle was travelling away from the camera. "F" indicates the target vehicle was travelling towards the camera.

C is the sensitivity range selected by the operator of the system's camera. "-" indicates range I, the lower sensitivity range, was selected. "--" indicates range II, the higher sensitivity range, was selected.

D is the speed, in kilometres per hour, at which the system's camera was travelling in relation to the ground when the image was taken.

E is the speed, in kilometres per hour, at which the target vehicle was travelling in relation to the system's camera when the image was taken.

F is the speed, in kilometres per hour, at which the target vehicle was travelling in relation to the ground when the image was taken.

G is the time, in 24-hour clock mode, when the image was taken. The large numbers indicate hours and minutes, in that order. The small numbers indicate seconds.

H is the date when the image was taken, in the order of day, month and year (ddmmyy) or year, month and day (yymmdd).

I is the number given in the Traffic Camera Coding Manual for the location of the system's camera when the image was taken.

J is the maximum speed limit, in kilometres per hour, for the place at which the image was taken when the image was taken.

K is the number allocated sequentially by the system for each image taken by the system's camera after the film magazine was inserted in the camera.

1. Acting Snr. Sgt Dixon also gave evidence that the handwritten at the top is information written by the operator - the top line is a secret number case; 1088 is the operator’s code; and that 147721 relates to the film number and “A” means first time used that day,

1. His evidence and the interpretation set out in Part 3 of Schedule 11 indicate the following meanings in the data block in question.

1. On the next line the letter “F” means the unit was operating in forward mode - that indicates the target vehicle was travelling towards the camera. “--” indicates range II, the higher sensitivity range, was selected. “000” is the speed, in kilometres per hour, at which the system’s camera was travelling in relation to the ground when the image was taken. “J” is a check digit. The number “130” on the right hand side is the speed, in kilometres per hour, at which the target vehicle was travelling in relation to the system’s camera when the image was taken. The following line with 0942 11 is the time when the image was taken. The large numbers indicate hours and minutes, in that order. The small numbers indicate seconds. The time is followed by the date,”260710”, which is the date when the image was taken, in the order of day, month and year (ddmmyy). On the last line the first six digits “627941” is the number given in the Traffic Camera Coding Manual for the location of the system’s camera when the image was taken. The next three digits “100” is the maximum speed limit, in kilometres per hour, for the place at which the image was taken when the image was taken. The final three digits “005” is the number allocated sequentially by the system for each image taken by the system’s camera after the film magazine was inserted in the camera.

1. The data block shows—

·     the target vehicle was travelling towards the camera

·     range II (high) was selected

·     the camera was stationary

·     the target vehicle was travelling at 130km/h in relation to the camera and in relation to the ground

·     the image was taken at 09:42:11a.m. on 26 July 2010

·     the camera was located at the place given the number 627941 in the Traffic Camera Coding Manual

·     the maximum speed limit at that place and time was 100km/h

·     the image was the fifth image taken by the camera since the film magazine was inserted.

1. The certificate under section 120(2) of TORUM on the back of the large photograph certifies the image was properly taken by a photographic detection device being a Gatso Speed Camera serial number 968 and the device was used on the Bruce Highway at Ambrose at 9:42 on 26 July 2010. A similar certificate appears on the smaller photograph.

1. The certificate is by Jeffrey A Dixon who is a Senior Sergeant at the Traffic Camera Office.

1. Section 120(2) of TORUM provides the “Commissioner” certifies the matters contained in s. 120(2) and “Commissioner” is defined in Schedule 4 – Dictionary as the “commissioner means the commissioner of the police service”. Pursuant to section 4.10 of the Police Service Administration Act 1990 the commissioner may delegate powers of the commissioner under any other Act to a police officer or staff member.

1. The consequences of a delegation by the Commissioner are by no means insignificant. It arms a police officer with power to provide prima facie proof of an offence merely by signing a certificate which s 120(2) of TORUM otherwise requires to be signed by the Commissioner: Dixon v LeKich [2010] QCA 213 per Fraser JA.

1. An Instrument of Delegation No. D 25.13, exhibit 2, was tendered signed by the Commissioner on 27^th April 2010 giving the power to certify that an image was properly taken by a photographic detection device at a specified location and time and is evidence of the following matters:

(a)        the image was taken at the specified location and time;

(b)        the accuracy of the image;

(c)        the things depicted in the image;

(d)        any requirements prescribed by a regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times.

1. This delegation indicates, inter alia, the person for the time being appointed to or acting in the office of Senior Sergeant, Traffic Camera Office can sign the certificate. Dixon holds that appointment.

1. Proof of delegation by this mode is provided in the Acts Interpretation Act 1954 (Qld), Subsection 27A(13) which provides that a writing purporting to be a delegation is evidence of the delegation. Pursuant to subsection 27A(14) and (15) a certificate signed by the delegator is evidence of anything stated in the certificate in relation to the delegation and a document purporting to be such a certificate is taken to be one unless the contrary is established: Dixon v LeKich [2010] QCA 213 per Fraser JA.

1. Dixon in evidence identifies the detection device as a Gatso 24 speed camera system. It is described in schedule 10 of the Traffic Regulations 1962 and, by virtue of section 208 of the Regulations, an approved photographic detection device for the purposes of section 113 of TORUM.

1. Exhibit 3 is a certificate under section 120(2A) of TORUM where Jeffrey Dixon certifies the detection device was tested at 10:15am on 9 July 2009 in accordance with the manufactures specifications and any further requirements about calibration required under regulations and that the device was producing accurate results.  This certificate also is to be certified by the Commissioner and the abovementioned delegation also provides that the a person appointed or acting as Senior Sergeant, Traffic Camera Office may certify the matters stated in section120(2A).

1. Further, this is evidence the device was producing accurate results when so tested and for 1 year after the day of testing. This means the device was producing accurate results on 26 July 2010.

1. Exhibit 4 is a certificate under section 157(2)(f) of the State Penalties Enforcement Act 1999 (SPEA) by Jeffrey A Dixon certifying Infringement Notice 143093786 was issued for the offence of speeding involving a vehicle registration number 976LLR.

1. Section 157(2)(f) provides: A certificate purporting to be signed by or for an administering authority and stating any of the following matters is evidence of the matter-- … an offence stated in an infringement notice involved a stated vehicle.

1. Again Jeffrey A Dixon provides this certificate dated 21 December 2010. Delegations were also tendered.

1. Exhibit 5 is a certificate under subsection 60(2)d)(i) and 124(1)(n)(ii) of TORUM by Claire  Kearney that certifies she, on the 16 December 2010, searched the register of registered vehicles which disclosed that on 26 July 2010 a Ford falcon sedan registration 976LLR was registered to Ken Mark Earthey of 1 Boston Street, Walkervale. Her authority to provide the Certificate has been delegated by the Director General of the Department and a copy of the delegation was tendered.

1. Exhibit 6 contains two certificates, the first by Jeffrey Dixon certifies he posted Infringement Notice 1430093786 to Ken Mark Earthey for speeding and the second certificate certifies no notification was received by way of statutory declaration in accordance with s 114 of TORUM.

1. I note the effect of section 114(1) of TORUM is that, in a speed camera case, the registered owner is "taken to have committed the offence … even though the actual offender may have been someone else." Section 114(3) and (6) of the TORUM allow a registered owner of a vehicle to avoid the deeming effect of s 114(1) if the person is able to prove the matters stated: see Saunders v Bowman [2008] QCA 112.

1. Regarding the first certificate, section 157(2)(a) of SPEA provides: A certificate purporting to be signed by or for an administering authority and stating any of the following matters is evidence of the matter-- (a) a stated infringement notice was served in a stated way on a stated person for a stated infringement notice offence.

1. Regarding the second certificate, subsection (2)(j) provides: A certificate purporting to be signed by or for an administering authority and stating any of the following matters is evidence of the matter-- (j) a stated person has or has not given the administering authority an illegal user declaration, known or unknown user declaration or sold vehicle declaration for an offence stated in an infringement notice.

1. Dixon can certify these matters under the abovementioned delegations.

Constitutional Issues

1. Mr Earthey cited the High Court decision of Chu Can Lim v Immigration, Minister (as appears in the transcript) 1994 in relation to the fairness of Courts towards defendants, specifically comments made by Deane, Dawson and Brennan JJ.

1. No other citation was given. From my own research the case I think he is referring to is Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (Cambodian "Boat People" case) (1992) 176 CLR 1; (1992) 110 ALR 97; (1992) 67 ALJR 125. In that case the plaintiffs were Cambodian nationals and, except for a baby born to one of the plaintiffs in Australia, arrived in Australian territorial waters by boat. None of the plaintiffs had a valid entry permit and each was detained in custody. They applied to the minister for refugee status and those applications were rejected in April 1992. Proceedings seeking orders of review of those rejections were instituted in the Federal Court of Australia and those decisions were set aside.

1. Applications by the plaintiffs for orders that they be released from custody were adjourned by the Federal Court for hearing on 7 May 1992.

1. On 6 May 1992, Div 4 b of Pt 2 of the Migration Act 1958 (Cth) became operative. It provided for the compulsory detention in custody of certain non-citizens who came within the definition of a “designated person”. The Plaintiffs fell within the definition.

1. The Plaintiffs instituted proceedings in the High Court seeking declaratory and injunctive relief against the Defendants, the Minister for Immigration, Local Government and Ethnic Affairs and the Commonwealth of Australia.

1. It was held that the legislative power conferred by section 51(xix) of the Constitution encompassed the conferral upon the Executive of authority to detain an alien in custody for the purposes of expulsion or deportation. Such authority constituted an incident of executive power. Authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constituted an incident of those executive powers. Such limited authority to detain an alien in custody could be conferred on the Executive without infringement of Ch III's exclusive vesting of the judicial power of the Commonwealth in the courts which it designates.

1. Further, the powers of detention in custody conferred by subsection 54 l and 54 n were an incident of the executive powers of exclusion, admission and deportation of aliens and were not, of their nature, part of the judicial power of the Commonwealth.

1. The requirement of detention in custody pending removal was consistent with the scheme of Div 4 b and accorded with judicial recognition of the power of the Parliament to authorise the Executive to hold an alien in custody in order to ensure his or her deportation. The provisions of Div 4 b could not be attacked as constituting a Bill of Attainder. Division 4 b did not single out individuals or identifiable persons. The object of custody under subsection 54 l and 54 n was not to punish those persons but to ensure that they were kept under supervision and control until one or other of the events to which Div 4 b referred had taken place.

1. Brennan, Deane, Dawson and Gaudron JJ held: “A law of the Parliament which purported to direct, in unqualified terms, that no court, including this court, should order the release from custody of a person whom the Executive of the Commonwealth had imprisoned purported to derogate from the direct vesting of judicial power by the Constitution and to remove ultra vires acts of the Executive from the control of this court. Such a law manifestly exceeded the legislative powers of the Commonwealth and was invalid. Moreover, even to the extent that section 54 r was concerned with the exercise of jurisdiction other than the High Court's directly vested constitutional jurisdiction, it was inconsistent with Ch III. In terms, section 54 r was a direction by the Parliament to the courts as to the manner in which they were to exercise their jurisdiction. That constituted an impermissible intrusion into the judicial power which Ch III vested exclusively in courts which it designates.”

1. This decision was based partly on Chapter III of the Australian Constitution. Chapter III of the Constitution contains 10 sections, subsection 71-80. Among other things, those sections create the federal judiciary, delineate the appellate and original jurisdiction of the federal judiciary, and provide for trial by jury in indictable matters. Of these 10 sections, the most fundamental is section 71. It declares that the judicial power of the Commonwealth is vested in the High Court "and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction". The Court has often said that it is practicably impossible to give an exhaustive definition of judicial power. But a "widely-accepted statement" is that of Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357; 15 ALR 241 where he said that judicial power means: the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.

1. I point out that this case is heard in a State court exercising State jurisdiction, not federal jurisdiction. Therefore I do not believe this is a matter involving the Australian Constitution or involving its interpretation where Notices are required to be served on the Commonwealth and State Attorney-Generals under section 78B of the Judiciary Act 1903 by the defendant.

1. However, I note decisions of the High Court, commencing with Kable, establish the principle that a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system: [1996] HCA 24; (1996) 189 CLR 51 at 96 per Toohey J, 103 per Gaudron J, 116-119 per McHugh J, 127-128 per Gummow J; HA Bachrach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547 at 561-562 [14]; Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 519 [5] per Gleeson CJ; Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 at 591 [15] per Gleeson CJ. This constitutional principle has as its touchstone protection against legislative or executive intrusion upon the institutional integrity of the courts. The term "institutional integrity", applied to a court, refers to its possession of the defining or essential characteristics of a court. Those characteristics include the reality and appearance of the court's independence and its impartialityhttp:// - #. Other defining characteristics are the application of procedural fairness and adherence, as a general rule, to the open court principlehttp:// - #. As explained later, it is also a defining characteristic of a court that it generally gives reasons for its decisions.

1. Hayne J made the same point in South Australia v Totani (2010) 242 CLR 1 at 81 [201]: "Kable dealt with one respect in which the Constitutions of the States are affected by the federal Constitution: the legislative powers of the States are not unlimited. The relevant limitation is not one which follows from any separation of judicial and legislative functions under the Constitutions of the States. Rather, it is a consequence that follows from Ch III establishing, in Australia, 'an integrated Australian legal system, with, at its apex, the exercise by this Court of the judicial power of the Commonwealth'." (footnotes omitted)

1. Nor do I believe it necessary to explain in length the Australian system of government suffice to say we have a federal system with a Constitution designed to protect the autonomy of the states and cede only particular and limited powers to the federation. It does this by prescribing the powers of the federal government with the residual powers left to the states.

1. Generally, the parliament of Queensland has plenary power to make laws for the peace, order and good government of the State subject to express and implied limitations from the Commonwealth Constitution and the Australia Act 1986 which leaves that State the freedom to legislate on the terms chosen by them: Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9-10; 82 ALR 43; 62 ALJR 645. It would be ‘almost impossible to use wider or less restrictive language’ than the phrase ‘peace, welfare (or order) and good government’: McCawley v R (1920) 28 CLR 106; [1920] AC 691 at 712; (1920) per Lord Birkenhead, PC. See also Ibralebbe v R [1964] AC 900 at 923; [1964] 1 All ER 251; [1964] 2 WLR 76 per Viscount Radcliffe. They have been held to admit of no inquiry by the courts as to whether, as a matter of fact or law, a particular statute is or is not a prudent exercise of the power, or is calculated to attain its particular end or object: Riel v The Queen (1885) 10 App Cas 673, 678; Bone v. Mothershaw [2002] QCA 120 per McPherson JA at page 4.

1. As to what I think Mr Earthey is saying is the facilitation of proof provisions removes the capacity of the court to exercise its judicial function in that it interferes with the presumption of innocence and the burden of proof.

1. This, I infer because Mr Earthey has cited the Cambodian “Boat People” case, breaches the doctrine of the separation of powers which refers to the distinct separation of the three branches of Government - the legislature, the executive and the judiciary. The legislature exercising legislative power enacts the laws, the executive exercising executive power administers the laws and the judiciary through the exercise of judicial power, interprets and adjudicates upon the laws.

1. The Defendant’s submissions are based on a misapprehension. The doctrine of the separation of powers does not exist in its classic form at the state level: Gilbertson v Attorney-General (SA) [1978] AC 772, 783; (1977) 14 ALR 429; 51 ALJR 519; City of Collingwood v Victoria (No 2) [1994] 1 VR 652. The relevant provisions of the Constitution of Queensland 2001 are very different to the provisions of the Commonwealth Constitution.

1. It is well established that Parliament may legislate to prescribe rules of evidence or procedure, and to cast a burden of proof on a defendant in relation to an element of an offence, without in any way infringing upon the separation of powers. For example, High Court case law upholds the power of parliament to change the onus of proof (Williamson v Ah On (1926) 39 CLR 95; (1927) 33 ALR 13; Milicevic v Campbell (1975) 132 CLR 307) in a criminal case or to declare that a state of facts is presumed to exist: R v Hush; Ex parte Devanny (1932) 48 CLR 487. In Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1 at 12; 28 ALR 325, Knox CJ, Gavan Duffy and Starke JJ said that a law does not usurp judicial power simply because it regulates “the method or burden of proving facts”.

1. In Nicholas v The Queen (1998) 193 CLR 173, 188-189, Brennan CJ said that: The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction but subject to overriding legislative provision governing that practice or procedure...A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power. (footnotes omitted).

1. Further, I don’t understand Mr Earthey’s argument regarding how the Prosecution’s unfair threat of huge expert costs when experts are unneeded relates to the legislature exercising a judicial power in this case. One of the reasons behind the facilitation of proof provisions is to save the expense of expert witnesses giving evidence unless a challenge is made to what the certificates certify.

1. Queensland courts have an adversarial system where competing claims of parties to a dispute are presented, usually by legal representatives who have no interest in the outcome of the dispute, to an impartial and disinterested third party with the power to impose an authoritative determination (a Magistrate). The legal representatives or parties are responsible for determining the process by which they seek to establish the respective claims in contrast with the inquisitorial system.

1. In relation to the prosecution case, as was said by the High Court in R. v. Apostilides (1984) 58 A.L.J.R. 371, 376, the Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown, and the trial judge (Magistrate) is not called upon to adjudicate the sufficiency of the prosecutor’s reasons for not doing so. Even less can a magistrate be expected to adjudicate reasons for calling a witness.

1. Witnesses who are required to attend court to give evidence are usually paid witness expenses. There are legislative provisions in the Justices Act 1886 regarding costs which includes disbursements to witnesses which a Court may order, at its discretion, be paid. In Latoudis v Casey (1990) 170 CLR 434 the High Court held that neither in civil nor in criminal proceedings are costs awarded in punishment of the unsuccessful party; they are compensatory in the sense of indemnifying the successful party against the expense the proceedings have imposed on him or her.

Discussion

1. The onus remains upon the Prosecution throughout to prove beyond reasonable doubt that the defendant was driving at a speed in excess of the speed limit.

1. Section 116 of TORUM provides that a summons served on a person such as the defendant for an offence such as that with which the defendant is charged must be accompanied by certain written information. That includes information about the right to examine and challenge an image from a photographic detection device under section 118 and 120 of TORUM. There is no suggestion this was not done.

1. The certificates tendered merely provide an aid to proof that the image was properly taken by a photographic detection device at a specified location and time and is evidence of the following matters; the image was taken at the specified location and time; the accuracy of the image; the things depicted in the image; the device has been tested and operated in accordance with relevant standards and specifications; the photographic detection device was tested at a stated time and in accordance with the specifications of the device's manufacturer; and any further requirements about calibration testing prescribed under a regulation; and was found to produce accurate results at the time of testing and deemed to be accurate for a year thereafter.

1. These statutory presumptions do not call for the Defendant to prove that he was not driving at a speed in excess of 100 km per hour.

1. Further the car, after a search was made of the Department of Transport’s records, was found to be registered in the Defendant’s name and he was sent an infringement Notice for speeding and he did not declare anyone else was the driver; or the vehicle had been stolen or illegally taken; or been sold or otherwise disposed of at the time of the offence. Mr Earthey does not challenge the certificates issued stating these matters.

1. The Defendant questions the legality of the way the speed camera had been set up, and also questioned the validity or reliability of the reading obtained. He also complains that no sign was in place and that the detection vehicle was hidden.

1. He tried to, until objection was taken, question Dixon on how the vehicle was parked and set up in an attempt to argue that the detection vehicle was not “correctly positioned or aimed.”

1. The decision of Hamilton v Bennett [2011] QDC 16 clearly sets out that a challenge under section 120(7) of TORUM requires a “Notice to Challenge” be given. The Defendant when informed of this and given a copy of the case to read indicated he did not wish to pursue the matter.

1. The certificate under section 120(2) on the back of the large photograph, exhibit 1, is some evidence that the detection vehicle was properly set up.

1. Mr Earthey also argues the Prosecution has not proven that the site was an approved site under Traffic Camera Coding Manual and in accordance with policies relating to how sites are selected. He based this on I think, as he could not tell me other than he saw it on the Queensland Police Service website, from parts of the Traffic Manual which is issued pursuant to the provisions of section 4.9 of the Police Service Administration Act 1990.

1. The manual outlines general policy, orders and procedures in relation to many traffic related policing issues. Failure to comply with the contents of the manual may constitute grounds for disciplinary action.

1. Section 6.6 of the Traffic Manual deals with speed cameras and site selection is dealt with specifically in 6.6.4 Site selection - primary criteria; 6.6.5 Site selection - secondary criteria; 6.6.6 Site selection – procedures; 6.6.7 Site assessment considerations. They set out the policy used by the Queensland Police Service for select sites.

1. When asked, Mr Earthey was unable to indicate what legislative basis the Prosecution had to prove the site was approved or how the policies affected the evidence generated by the speed camera to the extent the evidence was not admissible.

1. In Amies v Dixon [2009] QDC 110, His Honour McGill SC DCJ discussed what I think the defendant is trying to submit at [30]-[31]: The magistrate proceeded on the basis that the manual contained directions given by the Commissioner under the Police Service Administration Act 1990, s 4.9. If so, by s 4.9(3) every officer was to comply in all respects with the directions in the manual unless it was inconsistent with something in that Act. A failure to comply does not appear to be made an offence under that Act. The provenance of this manual, and whether the magistrate’s assumption was correct, were not clarified by evidence or by any formal admission by the prosecutor at the trial.

[31] There are in principle various ways in which a failure to comply with that manual could be relevant to the outcome of the proceedings. In the first place, it might be possible for the Act to operate in such a way that a speed camera could not validly detect a speed unless the speed camera was operated in accordance with the operations manual. Second, it might be that compliance with the operations manual was a pre-requisite for the evidentiary effect of the image produced by a speed camera under s 120 of the Act. The appellant did not take me to any provision of the Act, or expound any chain of reasoning, which led to such a conclusion of law, and from my own consideration of the Act and an examination of such earlier decisions in this area as I have been able to locate, none is apparent to me. Accordingly, it has not been shown that any failure to comply with the operations manual resulted in the evidence generated by the speed camera being unavailable to the prosecution in law. Had that been the case, of course, Exhibit 1 would have been inadmissible and the prosecution would have failed.

1. His Honour Judge McGill SC DCJ again in Hamilton v Bennett (supra) at [36] indicated that: There was also, it seems to me, no proper basis shown for saying that it was necessary for the prosecution to prove that the particular site where the speed camera was operating had been properly approved and given a speed camera site number. There was some reference in the evidence to approved sites, but there is nothing in the legislation that I have seen which suggests that the evidentiary effect of the material relied on in this matter was dependent in some way upon the use of the device at an approved site.

1. In my opinion section 4.9 of the Police Service Administration Act 1990 provides that the Commissioner makes orders for the general administration of the force and instructions for the effective and efficient conduct of the force’s operations. It is not a section that purports to confer, or should be read as conferring, the authority of the legislature to create duties of office.

1. Despite being issued pursuant to a statutory provision, the Traffic Manual does not have the force of statute. Adopting Griffith CJ’s words the provision are intended merely to deal with the … disciplinary control of constables, leaving the nature of their powers and duties and the responsibility for their actions to be governed by the common law as modified by the Statutes (if any) dealing with that subject: Enever v R (1906) 3 CLR 969 at 979; see also Director of Public Prosecutions (Vic) v Zierk (2008) A Crim R 582 at 588 [26].

1. In Reedman v Hoare [1959] HCA 50; (1959) 102 CLR 177, Windeyer J, at 186, said: "… Police Acts themselves do little more than provide for the organization, discipline and government of the force. They presuppose … a body of law, independently existing, concerning the powers, privileges, duties and responsibilities of a constable."

1. It follows that a breach of a provision of the Traffic Manual by a police officer does not, in and of itself, invalidate any action taken by the officer: Slaveski v State of Victoria [2010] VSC 441.

1. The first argument is not available and the second is without substance or merit.

1. The Defendant did not argue that a failure to comply with the operations manual activated the discretion to exclude it as evidence under section 130 of the Evidence Act, on the basis that the admission of such evidence against the defendant was unfair although when looked at carefully there is no proper basis for exclusion, even if a failure to comply with the manual could in principle justify an exclusion on this ground.

1. Mr Earthey also seemed to argue that there was a margin for error in the speed detection because of the "Coseine Error Factor" which I infer will cause the speed reading to be inaccurate although that argument also requires a Notice under section 120(7) of TORUM, therefore that argument is unavailable to the Defendant.

1. The Defendant further misunderstands the point of the evidence of Acting Senior Sergeant Dixon who is an adjudicator in relation to photographic evidence from the Traffic Camera Office.

1. His evidence is required by the Prosecution to prove their case as a number of authorities including those Mr Earthey has referred and those mentioned above have held that where there is more than one vehicle in a photograph it requires interpretation of the image and has nothing to do with the accuracy or operation of the detection device.

1. Acting Senior Sergeant Jeffrey Dixon has been a police officer for 20 years, 18 years with traffic, has been a trained operator for the detection device since 1997 and involved in the process of interpreting images from traffic cameras, including images produced by speed camera vehicles since 2007. He has undertaken specific training in accordance with the Australian Standards 2898.2 in relation to adjudication of photographs followed by practical experience and examinations.

1. He identifies in his evidence the target vehicle as the blue sedan registration umber 976LLR.

1. His evidence is that the Gatso 24 transmits a wave of energy at 24.125 gigahertz at an angle of 20 degrees. The actual radar beam is five degrees and actually starts at 17 and a-half degrees and goes to 22 and a -half degrees.  The camera is offset at 15 degrees so the beam is always to the right. In this case the radar beam is to the right of the left hand edge of the photograph.

1. The beam is a constant wave. The trigger for the radar is when a vehicle hits the radar in the forward mode it sends a reflective signal back to a directional wave guide antenna, the signal is then analyzed and can tell if a vehicle is moving towards or away from the detection vehicle. The analysis converts the “Doppler shift” into a speed. If the speed is above the threshold speed set by the operator, the camera is activated. This all happens within 30 milliseconds.

1. In short, the line of the photograph is not necessarily the same as the line of the radar beam. The radar aerial which generates the detection beam runs at an angle of 20 degrees from the line of the vehicle. Hence, when the vehicle is correctly positioned parallel to the road in question, is at 20 degrees to the line of the road, but the angle of the photograph is 15 degrees to the line of the vehicle (and the road). It follows the photograph captures an image greater than area in which the radar beam operates in. This can be seen in the diagram below.

1. Dixon further testifies the other vehicle is “back a fair way” and indicates it would not be within the radar beam. Latter he testifies the other vehicle “has no bearing on this detection.”

1. Finally, Mr Earthey also complained to Dixon that no “speed camera in use” sign was being used by the police officer operating the speed camera at the time Mr Earthey was photographed by that camera and that the detection vehicle was concealed.

1. The Traffic Manual provides:

6.6.21 Concealment of speed camera operations

Marked speed camera vehicles and portable signs displaying the words 'Speed Camera In Use' are provided to alert motorists that a speed camera is operating which may immediately improve driver behaviour. Concealing speed camera operations defeats this purpose.

POLICY

Speed camera operations are not to be deliberately concealed.

1. Dixon testifies he cannot see any sign in the photographs and denies the detection vehicle is concealed.

1. It has not been shown, if indeed, there has been any failure to comply with this part of the Traffic Manual has resulted in the evidence generated by the speed camera being unavailable to the prosecution in law. This cannot be gainsaid.

1. Further, there is nothing in the Traffic Regulation 1962, in Part 22 dealing with camera detected offences, requiring that police officer to have any such signage visible or requires a vehicle not be concealed, and likewise there is nothing in the provisions of Chapter 5 Part 7 of TORUM, dealing with detection devices, that requires the use of any such sign or requires a vehicle not be concealed; and likewise nothing in the provisions of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 requiring that any such sign be used or vehicle not be concealed. Displaying a sign and a vehicle being visible may serve the beneficial purpose of causing traffic to slow down, but displaying or not displaying such a sign or vehicle being concealed is irrelevant to the lawfulness of using a speed camera or the admissibility of the results of using one: see Maybir v Bone [2005] QCA 344 at [11] regarding signs.

Conclusion

1. Parliament has allowed for the use of photographic detection devices by the Queensland Police Service and has provided in the legislation for readings and the photographic detection device images taken by the speed camera to be prime facie evidence of the speed at which a subject vehicle is travelling through facilitation of proof provisions of the TORUM Act and Regulations: Jenson v Johnston [2002] QDC 348 at [28].

1. In Hijazi v. Orr (1997) 141 FLR 37; (1997) 26 MVR 266, Higgins J indicated of certificates: “To say that the statement in the certificate is ‘'evidence'’ means that it is prima facie evidence of the fact stated. That is, it is sufficient evidence for a court to find that fact proved.”

1. Additional evidence of the accuracy or reliability of the approved speed measuring device, or as to whether or not the device operated properly or operates properly (generally or at a particular time or date or during a particular period), is not required unless evidence sufficient to raise doubt that, at the time of the alleged offence, the device was accurate, reliable and operating properly is adduced.

1. The Defendant has not thrown any doubt over the evidence in the certificates and the adjudicator has given evidence identifying the Defendant’s vehicle as the one that was speeding. Dixon’s evidence in relation to how the device operates together with how and which vehicle can be identified as speeding when more than one vehicle is depicted in a photographic image is both logical and compelling.

1. Because the Ford sedan appears to be straddling both carriageways I infer it has just overtaken the other vehicle as, taking judicial notice after travelling that section of road constantly from Rockhampton to Gladstone in the last five months because I have been acting in Gladstone but reside in Rockhampton and have travelled to Gladstone at the beginning of each week and returned home at the end of each week, there is a dual carriageway on that section of the Bruce Highway - one for northbound and the other for southbound traffic.

1. If there is motive then what might otherwise be inexplicable becomes explicable. However I bear in mind that the existence of motive without any more would not be sufficient to found a finding of guilt.

1. I am satisfied beyond reasonable doubt the Defendant was driving a blue Ford falcon sedan registration number 976LLR at a speed of 130kph which is above the speed limit of 100kph applying to the driver for the length of road where the driver is driving, namely the Bruce Highway at Ambrose on 26^th July 2010.

1. I find the Defendant guilty of the offence.