Queensland Police Service v Canavan
[2013] QMC 27
•18 December 2013
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Queensland Police Service v Canavan [2013] QMC 27
PARTIES:
QUEENSLAND POLICE SERVICE
(prosecution)
v
BRYAN MICHAEL CANAVAN
(defendant)
FILE NO/S:
MAG181440/13(9)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
18 December 2013
DELIVERED AT:
Brisbane
HEARING DATE:
28 November 2013
MAGISTRATE:
Springer BL
ORDER:
The defendant is found not guilty. The defendant is discharged.
CATCHWORDS:
TRAFFIC LAW – OFFENCES – EVIDENCE – Whether the data block was a writing or marking made by the photographic detection device – Whether a photographic detection device can also be a radar speed detection device or a laser-based speed detection device
Transport Operations (Road Use Management – Road Rules) Regulation 2009, s 20
Transport Operations (Road Use Management) Act 1995, s 120
COUNSEL:
LD Mills (sergeant) for prosecution
Defendant appeared on own behalf
SOLICITORS:
Prosecution appeared on own behalf
Defendant appeared on own behalf
Introduction
The defendant Bryan Michael Canavan is charged with an offence of exceeding the speed limit on 19 June 2013 on Alice Street, Brisbane City in contravention of section 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009. The alleged offence was allegedly detected by a photographic detection device (PDD), namely a LTI 20-20 TruCAM. The defendant pleaded not guilty to the charge. He appeared without legal representation. The defendant did not give or call evidence.
These reasons are given without the benefit of a transcript and are based on my notes of the evidence and submissions, although I have accessed the digital recording of the proceeding and listened to part of the proceeding.
The prosecution relied on several legislative provisions to allow the tender of multiple certificates to prove various things. Further, the operator of the TruCAM device on the relevant day, SC Kerr was called to give evidence.
Issues for discussion
The defendant’s challenge
A document completed by the defendant is dated 20 November 2013 and seeks to challenge matters relevant to the prosecution of the charge. It reads (with unnecessary words deleted):
“I hereby notify that I intend to challenge or dispute –
Grounds for this challenge are:
My grounds for this challenge or dispute are –
Data block information applied later
Data Block information relates only to one photo, not two.A Notice of Challenge is required because of section 120(7) of the Transport Operations (Road Use Management) Act 1995 (the TORUM Act):
(7) A defendant who intends, at the hearing of a charge against
the defendant under this Act, to challenge—
(a) the accuracy of a photographic detection device; or
(b) the image from a photographic detection device; or
(c) a marking or writing made by a photographic detection
device on an image; or
(d) a matter mentioned in section 120A(4)(a),(b) or (c);must give written notice of the challenge to the prosecution.
In the defendant’s Notice of Challenge, there was no specification of what matters listed in section 120(7) were to be the subject of challenge, despite there being a number of options which could have been indicated by a mark of some sort adjacent to the options provided in the printed form. There was no submission that I should regard the Notice of Challenge as invalid.
I have attempted to give some meaning to the Notice of Challenge by considering the ‘grounds’. They relate solely to the data block and not to the manner of use of the device on the day. I have construed the Notice of Challenge as intending to relate to the marking or writing made by a photographic detection device on an image, in other words the data block.
Evidentiary ‘shortcuts’
Section 120 of the TORUM Act is relevant to the proceeding. The section is in Part 7 of that Act, which is headed “Detection Devices”. Section 120 states:
120 Evidentiary provisions
(1) This section applies to a proceeding for an offence involving a
motor vehicle under this or another Act.(2) An image produced by the prosecution purporting to be
certified by the commissioner stating that the image was
properly taken by a photographic detection device at a
specified location and time 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 theoperation and testing of a photographic detection device
were complied with for the specified device at all
material times.
(2A) A certificate purporting to be signed by the commissioner
stating that a stated photographic detection device—(a) was tested at a stated time and in accordance with—
(i) the specifications of the device’s manufacturer; and
(ii) any further requirements about calibration testing
prescribed under a regulation; and(b) was found to produce accurate results at the time of
testing;is evidence of the matters stated and evidence the device was
producing accurate results when so tested and for 1 year after
the day of testing.(3) If an image produced under subsection (2) is one in a series of
images also produced under subsection (2)—(a) the image may be numbered; and
(b) the time it was taken may be identified by reference to
another image in the series.
(4) 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.(6) Evidence of the condition of the photographic detection
device is not required unless evidence that the device was not
in proper condition has been given.(7) A defendant who intends, at the hearing of a charge against
the defendant under this Act, to challenge—
(a) the accuracy of a photographic detection device; or
(b) the image from a photographic detection device; or
(c) a marking or writing made by a photographic detection
device on an image; or
(d) a matter mentioned in section 120A(4)(a),(b) or (c);
must give written notice of the challenge to the prosecution.(8) The notice must be in the approved form and must—
(a) be signed by the defendant; and(b) state the grounds on which the defendant intends to rely
to challenge a matter mentioned in subsection (7)(a), (b)
or (c) or section 120A(4)(a),(b) or (c); and
(c) be given at least 14 days before the day fixed for the
hearing.(9) In this section—
on, an image, includes adjacent to or associated with the
image.
There is no subsection (5) of section 120.
The prosecutor tendered to the Court the following documents to prove a number of matters, namely:
(a) certificates that the image (contained in photographs was “properly taken …” (exhibits 1 and 2);
(b) testing of the device, LTI20-20 TruCAM serial number TC001021 in accordance with the specifications of the device’s manufacturer and any further requirements about calibration testing prescribed under a regulation had been conducted (exhibit 3);
(c) certificate that part of Traffic Camera Coding Manual includes Alice Street, Brisbane as site number 170901 with a site speed limit of 40;
(d) certificates that the Infringement Notice related to vehicle QBC 59Z was sent by mail to the defendant and that he did not notify by statutory declaration within 28 days in compliance with section 114 (exhibits 9, 10 and 11 respectively);
(e) certificate that the register of vehicles under Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010) showed QBC 59Z related to a black 2011 BMW M3 coupe in the name of Bryan Michael Canavan (exhibit 7);
(f) 4 copy Instruments of Delegation to establish the powers of the makers of certificates to do so (exhibits 4, 6, 8 and 12).
Two photographs of the vehicle said to have exceeded the speed limit were tendered by the prosecution. They became exhibits 1 and 2. Exhibit 1 is the smaller image of the two and shows a dark coloured vehicle with a small red and white circle on or near the front number plate and with information in typeface to the right of the image. Exhibit 2 is a larger photograph of what appears to be a better quality image of the vehicle in exhibit 1. SC Kerr gave evidence about the red circle which appears on exhibit 1, namely that it shows where on the photographed vehicle the device has targeted. The certificate for each of those photographs is in identical terms and states:
I, BRETT A VINSON, occupy the office of Senior Sergeant, Traffic Camera Office. I am authorised delegate of the Commissioner of the Queensland Police Service under section 4.10 of the Police Service Administration Act 1990.
I certify that:
This image was properly taken by a photographic detection device being LTI Speed Camera System model LTI 20-20 TruCAM bearing the serial number TC001021
AND
the photographic detection device was used at a specified location namely Alice St, Brisbane at 11.12 on 19 June 2013.
From the wording of this certificate, it is clear that it was made under section 120(2) of the TORUM Act. That certificate means that there is evidence of the matters mentioned in section 120(2) in relation to the relevant image.
The evidence of SC Kerr
SC Kerr is a police officer of about 10 years standing. He has been in traffic enforcement for about 5 years. He gave evidence that he had obtained various qualifications including in relation to an Ultralite 20-20 device and the Tru-CAM device. That training in respect of the Tru-CAM device was undertaken quite recently, in March of this year. His evidence was that he uses that device fortnightly. There was no evidence that the training consisted of how to use the device in accordance with the manufacturer’s instructions or that his method of use on 19 June 2013 was in accordance with the manufacturer’s instructions, or in accordance with the requisite Australian Standard. Those matters would be relevant if the device is one to which section 112 of the Act is relevant. I shall return to that issue later in these reasons.
SC Kerr gave evidence about steps he took on 19 June 2013 before commencing his deployment in Alice Street, Brisbane. He chose a site from the speed camera schedule. He took possession of two devices; one was a LIDAR Ultralite 20-20 device and a TruCAM 001021 device. He checked the calibration date on the TruCAM device and made sure it was “in calibration”, which it was. He did a physical check of LIDAR device to make sure no damage and tested that laser device in accordance manufacturer’s specifications and QPS policy. These tests were done on the testing range at the police station. It seems that the Ultra-Lite is used as a means of calculating distance and speed against which the accuracy of the Tru-Cam is tested. He did various tests of both devices and both were found to be working correctly.
He gave evidence of driving both before his deployment at the site and afterwards the different routes which lead into Alice Street, Brisbane and observing the presence of visible speed signs indicating that Alice Street was 40 kmh. I accept his evidence on that point and find that the speed limit applicable to Alice Street, Brisbane at the relevant time on 19 June 2013 was 40 kmh.
SC Kerr described in detail the steps taken before he commenced using the device to target vehicles. He started a portable speed camera ‘record of operation’ sheet. That is a check list of various things required for proper operation. That was in his writing but was not signed (exhibit 13). He commenced filling out the form and put the TruCAM serial number and calibration date on the form. He then started the device by engaging trigger and the machine proceeded through a self test. He checked the “Heads up” display and ensured that all segments were displayed and they passed the test. He did that by using the checklist (ex 13) and ticked off each step as each aspect is checked. He gave evidence that some things you just check but do not need to change. The main things changed in preparing the device for use were the operator number and site code and the actual speed limit for the street and to ensure that the ‘capture speed’ was set to zero; he needed also to confirm the language was in English and the date and time were correct.
He also performed a series of checks, including a scope alignment test at least 70m away, and ensured that the scope was aligned with the laser and the camera aligned with the laser. He caused the device to take a photograph and performed a fixed velocity test. He was satisfied that there were no faults in either device. He also checked the clarity of the pictures the device was producing to ensure the number plates can be seen. He completed a site sketch setting out the traffic and lanes on Alice Street which comprised 4 lanes of traffic travelling in a south-west direction. He set a “capture speed” to greater than 40 kmh speed limit on Alice Street. He then commenced his deployment.
SC Kerr targeted vehicles heading towards him and away from. He was on foot. I accept his evidence that he stood still and targeted front or rear number plates of vehicles travelling along Alice Street. He did this by engaging the TruCAM’s trigger and if a speed greater than that capture speed was detected, he heard an audible tone and would review the picture on back of TruCAM and confirm in the heads-up display that it was the vehicle he targeted. The displayed vehicle would show a red and white ring where the cross hairs had locked on the vehicle and an electronic data block showing the speed of the vehicle, the distance away from him when he engaged the trigger, and the time and date.
Other than the speed at which the vehicle was travelling, the distance from him and the time and date, no other information was visible at that time although information that he had entered into the TruCAM device prior to commencement of the deployment was stored within the device. At least some of that other information appears on the block on the right hand side of the image that became exhibit 1.
His deployment at the Alice Street site lasted approximately 1.5 hours. He commenced finalising deployment and conducted tests on the devices as per manufacturer’s guidelines and specifications. Those included the same tests as done at the start and completed the appropriate parts recording those tests on checklist. He drove the block and checked the speed signs, which were exactly same as prior to his deployment.
He returned to Brisbane City station and completed tests as per manufacturer’s specification on the Ultralite LIDAR device. He then uploaded the deployment files using the TruCAM memory card to the QPS evidence file server. He did that by using his police access to log into the QPS system. At that time, he could review all shots or photographs, including test shots and each detection. In reviewing the images, the red and white circle is also visible with all of the information that he input into the TruCAM device, plus the data generated by the device and the GPS coordinates of (as I understood his evidence) the location at which the image was taken. He reviewed the images to check the clarity. He also finished the check list and uploaded that and transferred the deployment files. Once those steps have been taken, there is nothing left on the TruCAM memory card. He then put the memory card back into the TruCAM device.
I accept that he understands that there is no opportunity to change or deal with the images or the information once upload has occurred. He agreed that he had transferred data and somebody else had produced the photographs and the Infringement Notice that were before the court.
During cross-examination, SC Kerr in response to a question about the capacity of the TruCAM device to take still photographs, he replied that there were different options for use of the device, namely as a video, a video and still camera or as a still camera and that the QPS had decided to use only the still shot mode. He could not point to anything where the manufacturer had indicated that the TruCAM was for use as other than a video.
In response to questions about which of 2 different photos (exhibits 1 and 2) did the data block refer, he replied that the data block is electronic and the photos that he sees during the deployment are all within the device and he could see the images on the device.
It was suggested in Mr Canavan’s questioning of SC Kerr, that there were 3 different photos (exhibits 1, 2 and 14). He disagreed and said that the only difference is the red and white circle. He understood the computer program can produce high definition photographs and remove the red ring just in case that red ring was obscuring the number plate. The actual hardcopy photograph was not produced at the scene. He repeated his earlier evidence that he reviewed each photograph at the time of detection.
On my viewing of the 3 images, using common sense and reasonable vision, in my view the image which is the basis for all three images is the same, albeit larger or clearer or absent the red circle, but the same image.
Following the completion of SC Kerr’s evidence, the prosecutor sought an adjournment to call “back office” staff to give evidence. For reasons given at the time, the application was refused.
Mr Canavan asked questions and made submissions about why police did not intercept the defendant given the policy which he says the QPS have adopted to justify the use of speed devices at different locations (and about which there is no evidence). Those are not relevant for the issues the Court needs to determine.
I accept SC Kerr’s evidence about the TruCAM’s capability of producing the information which was visible to him through the ‘heads up’ screen when he reviewed each detected offence. That information was speed, distance away from him when he engaged the trigger on the device and the time and date. Other information that appears on the printed data block which is part of exhibit 1 includes the information that SC Kerr input into the device at the start of his deployment.
Consideration of grounds of challenge
There was no challenge to the accuracy of the TruCam device. The certificate that is exhibit 3 showed the Tru-CAM TC 001021 was producing accurate results at the time of testing and for one year later (see s 120(2A)). Accordingly, if there is evidence before the court of the speed of the subject vehicle as detected by that device, it would be open to find that the vehicle was at 11.12am on 19 June 2013 travelling at a speed of 53 kmh as alleged. Where then is the evidence of the speed of the relevant vehicle? It was not suggested either in questioning or submissions that the defendant was not driver of the subject vehicle or that the vehicle registration number Q BC 59 Z was in Alice Street at the relevant time and date. The absence of a statutory declaration nominating another person as the driver means that he, as the owner, is taken to be the driver of the subject vehicle.
Notice of challenge - ‘data block added later’.
Section 120(4) is an “Evidentiary provision” as may be discerned from the heading of the section and clearly is intended to facilitate the presentation of evidence in court proceedings without the need to call as many witnesses. That subsection makes a marking or writing made by a photographic detection device as evidence of what it is “taken to mean”. When section 211 of the Traffic Regulation 1962 is read, it becomes the clear that the expression “data block” means the marking or writing made by a photographic detection device. Section 211(1)(e) of the Regulation refers to an image of a vehicle taken by a digital speed camera system and requires the reader to look to Schedule 13 in the Regulation. Part 2 of Schedule 13 of the Regulation refers to images taken by LTI speed camera system model LTI 20-20 TruCAM. That would ordinarily mean where the marking or writing is made by a photographic detection device on an image, there is evidence of the speed limit and speed of the vehicle, among other matters, unless that evidence is otherwise rebutted. In this matter, there is other evidence provided by SC Kerr of the speed limit. I have accepted his evidence on that point.
Where, then is there evidence of the speed of the vehicle? It can only come from either the oral evidence of the operator, SC Kerr or the data block.
There is some evidence before me as to how, during the deployment, SC Kerr was able to view the images and see the information in the device which ultimately appears in the box adjacent to the photographic image in exhibit 1. He had no role in how that image was created and therefore cannot give evidence that the information contained in the data block in exhibit 1 was the same information that he viewed within the TruCAM device on 19 June 2013 during his deployment in Alice Street when the defendant’s vehicle was targeted. While I accept his evidence in its entirety, it did not extend to any personal recollection of the particular detection which is the subject of the current proceeding. Indeed, unless there had been something truly remarkable about the vehicle or the manner of driving, it would be unrealistic to expect any officer in the position of SC Kerr to have any independent recollection of one among 100s, if not 1000s of detections.
On my interpretation, the certificate on exhibit 1, which is the only photograph on which a data block appears, being a certificate under section 120(2) does not address that issue of the data block on exhibit 1 having been made by the TruCAM device TC001021. I draw the distinction between “the things depicted in the image” in section 120(2)(c) and “a marking or writing” in section 120(4); the different terminology must mean different things.
There is no legislative presumption or deeming provision or evidence that the “marking or writing” constituting the data block was “made by a photographic detection device”. If SC Kerr had given evidence that he had a particular recollection of the detection the subject of the current charge, and was able to produce the device showing the image and the information that the device had recorded during the detection, there would be evidence of the speed. Such a process is clearly not feasible.
I find that there is no evidence before the court that the marking or writing on the image was made by the TruCAM device. Accordingly, I do not need to consider the time at which the data block had been added.
There being no evidence of the making of the marking or writing on exhibit 1 was made by the particular TruCAM device, and there being no other evidence that the defendant’s vehicle at the time and place stated in the complaint was travelling at the alleged speed of 53 kmh, the prosecution has not proved the elements of the charge.
Although unnecessary for my decision, I note that the data block does not contain all of those matters that are set in Part 2 of Schedule 13 of the Traffic Regulation; for example, ‘location’ is not included, nor is ‘image number’. Section 211 does not mandate the data block to have all of the possible categories of information set out in Schedule 13 Part 2. I have construed the role of Part 2 of the Schedule to simply provide the explanation for the various categories of information. If it were necessary to decide, I would not regard the data block as defective merely because it does not include all possible matters set out in Part 2 of Schedule 13.
Data block information relates to only one photo, not two
Mr Canavan raised in his submissions the issue of there being no data block on the photograph that was sent to him. During cross-examination of SC Kerr, Mr Canavan tendered the Infringement Notice that had been sent to Mr Canavan (ex 14). Mr Canavan did not point to any legislative provision which requires that to occur. The provision of a photograph with the Infringement Notice is a courtesy. That is expressed to be so on the face of the Infringement Notice.
In following the usual practice of the prosecution providing the defendant with a brief of evidence prior to a hearing, one would normally expect a full brief of the evidence to be provided. That would include any image with the relevant data block included.
In the absence of a statutory obligation to do so, I do not accept that the Infringement Notice need include a data block. Nor do I accept that, prior to a hearing of a charge, there is an obligation (save for disclosure in a brief of evidence) for a photograph purporting to depict the offence to carry the information ordinarily contained within a data block.
As the data block is intended to provide evidence of various matters (relevantly here the speed of the vehicle) if an image is tendered in the hearing of the charge with a data block which the court is satisfied is made by the photographic detection device is tendered, and that evidence is not otherwise rebutted, there would be evidence of the vehicle’s speed and other matters. In my view, it is irrelevant that the Infringement Notice does not include it and also that another image might exist without a data block on it or in it.
Is section 112 relevant?
It is clear that the prosecution’s position is that the TruCAM device used in this matter is not a speed detection device, within section 112 of the TORUM Act, but rather a “photographic detection device.”
Section 112 states:
112 Use of speed detection devices
When using a radar speed detection device or laser-based speed detection device, a police officer must comply with—
(a) the appropriate Australian Standard for using the device, as in force from time to time; or
(b) 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 an earlier decision which was delivered on 17 October 2013 (QPS v Rouse) and published in writing, I stated the following:
I have been unable to locate a definition of what constitutes a ‘radar speed detection device or laser-based speed detection device’ as referred to in section 112. One should therefore look at the ordinary meaning of the words used. A “photographic detection device” is defined in section 113 as meaning “a device or system, that captures an image, of a type approved under a regulation as a photographic detection device”. The Traffic Regulation 1962 sets out in Schedule 10 various “approved photographic detection devices”. They include, relevantly to the matter before me, a “LTI speed camera system model LTI-20-20 TruCAM”. Thus, while by express definition, that particular device is a “photographic detection device” (PDD) (see Schedule 10, Part 5 of Traffic Regulation 1962), in my view, does not conclusively mean that it may not also be a speed detection device.
In that regard, I note that also included within the definition of a PDD are the “Gatso speed camera system models Radar AUS GS, RS-GS2 and RS-GS11” and the “Robot speed camera system models Multaradar CM, Multaradar SD 480 and Multaradar SD580”. Those other devices having ‘radar’ in their names were not used at the location where the defendant was allegedly found to be speeding.
I mention these other devices because of the reference to ‘radar’ within their names. Of course, the inclusion of that word may be entirely misleading and the device has no ‘radar’ component to it. There is no evidence before me that the “L” in the description of the TruCAM means laser. However, the names of the devices raise the issue that a photographic detection device may also be a radar speed detection device or laser-based speed detection device. The definition of PDD does not exclude that as a possibility. Nor is there a definition of the phrase “radar speed detection device or laser-based speed detection device” which specifically excludes those devices which are photographic detection devices.
In foreshadowing the raising of this information, the prosecutor in the current matter referred in his submissions to the amending Act which brought about changes to section 120, namely the Transport and Other Legislation Amendment Act 2010, and to the Explanatory Notes in relation to the Bill which formed the basis of the amending Act. I have had regard to those. That amending Act omitted the previous definition of ‘photographic detection device’ in the Act and substituted that for the definition that is now contained in the Act.[1] The prosecution notes that the word ‘system’ does not appear in section 112, whereas it does in section 113. Further that the evidentiary provision relating to those devices in section 112 is to be found in section 124, whereas the evidentiary provision relating to photographic detection devices is to be found in section 120, which is set out earlier in these reasons. Section 120 is placed within Part 7 headed ‘Detection devices’. Division 1 of that Part contains only one section, namely 112; Division 2 comprises sections 113 to 121. A reading of section 120 suggests that it relates only to photographic detection devices. Section 124 appears in Part 8 headed “Proceedings and evidence”. Both section 120 and section 124 apply to a proceeding for offences under the TORUM Act.[2]
[1] The new definition is: ‘photographic detection device’ means a device or system, that captures an image, of a type approved under a regulation as a photographic detection device.
Examples –
oA digital device
oA camera system the components of which may include multiple cameras, trigger mechanisms, data transfer capability and image processing.
The former definition of that expression was: photographic detection device means a device that captures an image, including, for example, a digital device, of a type approved by regulation as a photographic detection device.
[2] Section 120(1) reads: “This section applies to a proceeding for an offence involving a motor vehicle under this or another Act”. Section 124(1) which is headed “Facilitation of proof”, commences “In any proceeding under or for the purpose of this Act, the following shall apply …”.
In the Explanatory Notes to the Transport and Other Legislation Amendment Bill 2010 at paragraph 54, it recognises that Australian Standards exist for ‘radar and laser-based speed detection devices, but they only apply to devices with an operator present to use the device, not stand-alone cameras that do not require an operator’. The TruCAM device used on the 19 June 2013 as relevant to the matter before me was operated by a police officer, on foot while standing in Alice Street. The Explanatory Notes when read in full do not address the issue which I identified in the matter of Rouse, namely whether photographic detection devices may not also be a radar-based or laser-based detection device. The prosecutor referred me to a written decision of Magistrate Hodgins in Queensland Police Service v Morris delivered on 29 October 2013. That decision post-dated my decision in Rouse. I note Magistrate Hodgin’s reference to the decision of Judge McGill in the District Court in Crabbe v Queensland Police Service [2013] QDC 122, per McGill DCJ. When delivering my reasons in the Rouse matter, I was unaware of Judge McGill’s decision. At paragraph 24 of that decision His Honour stated:
[24] It was submitted for the respondent that this section [s. 112] did not apply, on the basis that the relevant detection device was a photographic detection device, which is within Division 2 of Part 7 of the TORUM Act, while s 112 is within Division 1 of Part 7. I am not at all sure this is correct. There is no statement in the Act that the divisions of Part 7 are mutually exclusive. Neither “radar based speed detection device” nor “photographic detection device” is defined, or at least the former is not defined in a way which would exclude the latter. It may be that the provisions of s 112 would be inapt in their application to a fixed photographic detection device, but it is not clear why they could not apply to a mobile device operated by a police officer. As far as I know, the Gatso speed camera system is in fact, or incorporates, a radar based speed detection device, and if so, on the face of it s 112 would apply. It is however not necessary to decide this.
I continue to hold the view that a photographic detection device may also be a radar speed detection device or laser-based speed detection device. I will not repeat my reasoning which is set out above, and which I indicated in my earlier decision in Rouse. Nothing in the evidence or the submissions in the current matter have altered my view on that point. Legislative clarification of the point is desirable to ensure certainty.
Accordingly, in the absence of evidence or a statutory definition that the LTI-20-20 TruCAM device is not a radar speed detection device or laser-based device, the obligation under section 112 of the TORUM Act would arise. There is no evidence of compliance with that obligation before me. The point was not specifically raised by the defendant, and certainly was not implicit in the Notice of Challenge. However, given that section 112 is couched in the mandatory term of ‘must’, noting that the defendant was not legally represented and that the prosecution addressed the issue in submissions (no doubt because of the view I had previously expressed in Rouse), I consider that I am entitled to and should deal with the point.
Mr Canavan during his submissions relied on earlier decisions from magistrates where defendants were found not guilty when charged as a result of detections by the TruCAM device, including a decision of mine in QPS v Rouse delivered 17 October 2013. While decisions from other magistrates are persuasive, they are not binding. The evidence will rarely be identical and will differ from case to case.
Conclusion
In summary, I find:
(a)the prosecution has not established beyond a reasonable doubt that the data block on exhibit 1 was made by the relevant TruCAM device and accordingly there is no speed of the defendant’s vehicle on the relevant date; and
(b)that compliance with section 112 of the TORUM Act has not been established beyond a reasonable doubt.
Accordingly, I find Mr Canavan not guilty of the charge of speeding on 19 June 2013 and discharge him in relation to that charge.