Roth v Williams

[2010] QDC 239

DISTRICT COURT OF QUEENSLAND

CITATION:

Roth v Williams [2010] QDC 239

PARTIES:

MANUEL GEORGE ROTH

(Appellant)

AND

STEPHAN WILLIAMS

(Respondent)

FILE NO/S:

No 3700 of 2009

DIVISION:

Appeals

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

11 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2010

JUDGE:

Reid DCJ

ORDER:

1.   Appeal dismissed

CATCHWORDS:

VEHICLES AND TRAFFIC – Offences – speeding – speed camera – evidentiary effect of certificates – whether offence proved

Justices Act 1886, s 222

Transport Operations (Road Use Management) Act 1995, s124

COUNSEL:

Applicant Self-Represented

G.P. Cash for the respondent

SOLICITORS:

Applicant Self-Represented

Office of the Director of Public Prosecutions for the respondent

1. On 1 December 2009 the appellant was convicted of a charge that on 13 April 2009 he drove a car at a speed of 101 kilometres per hour in a 60 kilometre zone on the Centenary Highway at Sumner. This is an appeal from that decision pursuant to section 222 of the Justices Act 1886.

1. In this matter, the Magistrate;

A.    Noted that the prosecution case relied not only on the speed recording obtained by the LIDAR device, but also on the evidence of Senior Constable Mialkowski. She gave evidence of her estimate of the speed of the vehicle;

B.     Said the defendant's evidence made it clear the appellant himself "had no idea what speed he was travelling at" and that he may have been travelling on his own evidence at between 60 and 80 kilometres per hour (as to this see P33 L24/26);

C.     Said that there was no evidence the LIDAR device was not operating properly and providing accurate results.

1. Before me, the appellant urged the view that the Magistrate had "ignored critical evidence that established ... Mialkowski (was) unauthorised to use a LIDAR speed detection device."  He asserted that "all police officers who use those varying devices must have attended the appropriate course, passed the course and carried a Queensland Police Service statement of authority certificate of attendance".  He submitted the speed reading was "completely unauthorised, illegal and (that) the (appellant) had no case to answer".  He further submitted that the prosecution at the trial was unlawfully allowed to tender new evidence, not provided to him during the discovery process.

1. In my view, these submissions have no weight.

1. On the trial, the prosecution relied on two certificates.

A. Exhibit 1 was tendered pursuant to section 124(1)(pb) of the Transport Operations (Road Use Management) Act 1995 ("the Act"). That subsection provides;

(1)     In any proceeding under or for the purposes of this Act, the following apply -- ...

(pb) a certificate purporting to be signed by a police officer stating a particular stated laser-based speed detection device or radar speed detection device was used by the officer at a stated time in accordance with--

(i) the appropriate Australian Standard for using the device, as in force on the day of use; or

(ii) if there is no appropriate Australian Standard for using the device in force on the day of use--the manufacturer's specifications;

is evidence of the matters stated;

B. Exhibit 2 comprised two documents, namely a further certificate tendered pursuant to the provisions of section 124(1)(pa) of the Act and a copy of a delegation number D25.14 wherein the Commissioner of Police delegated the function of signing such certificates to include officers of the rank of sergeant or above.

1. Section 124(1)(pa) provided;

“(1) in any proceeding under and for further of this Act, the following applies -

(pa) a certificate purporting to be signed by the commissioner and stating a particular stated induction loop speed detection device, laser-based speed detection device, piezo strip speed detection device or radar speed detection device--

(i) was tested at a stated time in accordance with--

(A) the appropriate Australian Standard for testing the device, as in force on the day of testing; or

(B) if there is no appropriate Australian Standard for testing the device in force on the day of testing--the manufacturer's specifications; and

(ii) was found to produce accurate results at the time of testing;

is evidence that the device was producing accurate results when so tested and for 1 year after the day of testing."

1. The certificate showed the LIDAR device was tested in accordance with the relevant standard on 5 February 2009 and is thus evidence it was producing accurate results at the time it was used to measure the defendant's speed on the day of the offence, namely 13 April 2009.

1. Furthermore, the evidence of Senior Constable Mialkowski was that she tested the device both before and after use on 13 April and was again producing accurate results.

1. The appellant complained before the Magistrate, and before me, that he had not seen a copy of the delegation authorising an officer such as Acting Senior Sergeant Tower, who in fact signed the certificate under section 124(1)(pa) until the day of the hearing. That may well be true, but in my view nothing turned on the timing of its production. In any case at the trial and before me the appellant disavowed any suggestion that the device was not accurate (see transcript P16 L12/16).

1. Rather the appellant's case was as I have said, that Senior Constable Mialkowski was not an authorised user of the device and that it was inherently improbable she could measure the speed of the appellant's vehicle from a distance of 278 metres as was the prosecution case.

1. Senior Constable Mialkowski's evidence was;

A.    That she had been performing traffic duties for 16 years (P6 L56 - P7 L12);

B.     That she saw the appellant's vehicle move from the left-hand lane to the right-hand lane of the roadway, and at that stage estimated its speed at about 100 kilometres per Hour (P8 L8/12);

C.     there were no vehicles between herself and the appellant's vehicle when she aimed the device at the number plate and front grille of the vehicle (P8 L16/22);

D.    the device measured the vehicle's speed at 101 kilometres per hour;

E.     in cross-examination, that although her statement makes no mention of her being an officer authorised to use the LIDAR device, (P14 L1/8) she in fact had such a certificate and had been an authorised operator since it came out in Queensland 12 years previously (P15 L10 - P16 L2);

F.   that she is required to renew her qualification with respect to the  LIDAR device every two days and had done so (P18 L34/42). The appellant himself called no contrary evidence with respect to the qualifications of Senior Constable Mialkowski and no evidence with respect to any particular difficulty an operator had when using it.

1. In that circumstance, the Magistrate was, in my opinion, perfectly entitled to accept the evidence of Senior Constable Mialkowski as he did.

1. Her evidence was significantly corroborated by Senior Sergeant Jenkins, but the Magistrate does not refer to her evidence in his reasons for judgment.

1. In my opinion, no error by the Magistrate has been demonstrated.  He was, in my opinion, entitled to come to the conclusion he did, namely that beyond reasonable doubt the prosecution had proved all of the elements of the offence.

1. In the circumstances, the appeal, for the reasons I have stated, is dismissed.