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.
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.
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.
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.
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.
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…
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.
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Details
AGLC
QPS v Earthey [2011] QMC 56
Case
[2011] QMC 56
Decision Date
CaseChat Overview and Summary
The case before the court involved the Commonwealth Director of Public Prosecutions (the prosecutor) and the defendant, Earthey. The dispute centred on the validity of a speed camera offence and the interpretation of the Traffic Manual. The court was required to determine whether the defendant was entitled to dispute the proper setup and operation of the speed detection device without providing notice and whether the offence was proven where more than one vehicle was captured on the image produced by the device. The court also needed to assess whether any failure to comply with the Traffic Manual affected the evidence generated by the speed detection device.
The court examined the legislative framework and the doctrine of separation of powers to determine whether there was any interference with judicial power. It considered the prima facie evidence provided by the certificates and the effect of the Traffic Manual on the evidence generated by the speed detection device. The court interpreted the relevant provisions and applied them to the facts of the case to determine whether the offence was proven. The court found that the defendant was not entitled to dispute the proper setup and operation of the speed detection device without providing notice, and that the offence was proven despite the presence of more than one vehicle on the image. The court held that any failure to comply with the Traffic Manual did not affect the evidence generated by the speed detection device.
The court concluded that the evidence provided by the certificates was sufficient to prove the offence beyond reasonable doubt. The court found the defendant guilty of the offence of exceeding the speed limit and ordered a fine of $500 and 3 demerit points. The court held that the Traffic Manual did not have the force of law and any failure to comply with it did not affect the evidence generated by the speed detection device. The court also held that the defendant was not entitled to dispute the proper setup and operation of the speed detection device without providing notice.