Thomas v James

[2009] QDC 353

[2009] QDC 353

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE BRABAZON QC

No 1095 of 2009

THERESE CHERYN THOMAS	Appellant
and
PAUL THOMAS JAMES	Respondent
BRISBANE ..DATE 19/10/2009
JUDGMENT

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19102009 D.1 T(4)02-03/LM(BNE) M/T BRIS29 (Brabazon DCJ)

HIS HONOUR: Now during the break I've had a chance to look	1
again at the evidence and the submissions of the parties.
The events took place on 9 September 2008 on the highway near Blackwater. The evidence would indicate that the country was

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rather flat and there was no suggestion of any particular

bends in the road that may have influenced this case.

The police officer alleged that Ms Thomas was travelling at

114 kilometres an hour in a 100 kilometre zone on the

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Cunningham Highway. The result was that he gave her a ticket for speeding in the amount of $150.

This is a case where the police officer used a radar system fitted to the patrol car. There has been no challenge to the

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accuracy of the equipment. That could not be done because evidence in the courtroom. That was during a trial held before the Magistrate in Blackwater on the 23rd of March of
appropriate notices weren't given within time to do so, but

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this year. The Magistrate accepted, in effect, the police
officer's evidence and convicted her of the speeding offence.

Ms Thomas was fined $200.

In this Court some respect is always given to the decision of

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the Tribunal below. One must keep in mind as always the
advantage that the Court below has in seeing the witnesses
give their evidence in person. However, this Court also has a
duty to review the evidence, to weigh the conflicting
19102009 D.1 T(4)02-03/LM(BNE) M/T BRIS29 (Brabazon DCJ) 1-2 JUDGMENT 60

evidence, and to draw its own conclusions on the basis of that	1
evidence.
The police officer here said that the other car which Ms Thomas was driving, that is a blue car, came under the

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attention of his radar when it was about 400 metres away and, as I say, at 114 kilometres an hour. He said that there were no other vehicles in the detection range though I think it is fair to say that what he meant by that was never fully
explained. In any event, he stopped Ms Thomas who asserted

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immediately, as she asserts here, that she was doing 100 cross-examined he did agree that his vehicle was behind a semi-trailer in front of him on the highway. Ms Thomas
kilometres an hour according to the cruise control in her car.

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suggested that the distance between them was only about
10 kilometres but he resisted that, saying it was something
like 25 metres behind. In any event, he maintained that he
had a view of her vehicle even when he was some distance

behind the semi-trailer.

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He explained that a vehicle going in the same direction in front of the police car was dealt with by the radar system which would, in effect, ignore it by concentrating on the

speed of the oncoming vehicle.

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It is common ground that the police officer turned his car
around, put on the flashing lights, and in that way got
Ms Thomas to pull over. They then had a conversation at the
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side of the road. I have no doubt that she protested her	1
innocence saying that she was travelling at the speed limit, according to the speed control. On his part he recalled the conversation but did not recall in any detail any protest by her about another car being in front of her. Unfortunately

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the tape recorder which ordinarily the police officer may have
had with him was not working at the time.

In all cases of this kind the only evidence that a radar reading applies to the particular vehicle is the evidence of

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the police officer, or perhaps two police officers if there
are two in the car. In this case there was only one. That is
to say, the reading on the radar device screen does not reveal
the identity of any oncoming vehicle but simply records the

speed which is captured by the police officer when he, as I

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understand it, presses a button on the device. So therefore,
in this case, like many others, the police officer's honesty
is the basis of the evidence of speeding. As he agreed there
was a question of his word about the speed appearing on the

radar screen. He did say also that he could see her vehicle

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clearly despite being some distance behind the semi-trailer.

Ms Thomas, not surprisingly, exercised her right to give evidence before the Magistrate. She explained that when she pulled out onto the highway from the town where she had been

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visiting in her hired car she pulled out behind a gold Falcon.
She explained that that car was travelling rather faster than
she was and drew away from her. She said that she saw the
19102009 D.1 T(4)02-03/LM(BNE) M/T BRIS29 (Brabazon DCJ) 1-4 JUDGMENT 60

police car about five minutes after going on the highway and	1
she maintained she was then doing 100 kilometres an hour.
She then, according to her, said to the police officer, "Why didn't you pull up the car in front of me?", that is to say

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the gold Falcon. According to her he responded in effect that
he did clock the speed of that vehicle but it was within the
speed limit. Unfortunately that particular exchange was not
put to him so it is difficult to know what he might have said

about it.

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Ms Thomas was cross-examined by the police prosecutor. She again referred to the gold car being 50 to 70 metres in front of her going somewhat faster.

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The learned Magistrate then had to give his decision. In effect, even though his words are not entirely clear in the judgment, I take them to mean that each witness gave evidence in a good manner. That is to say, the police officer in a professional manner, to which he referred, and Ms Thomas, I

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understand the judgment to mean that she was apparently
someone not skilled in courtroom matters but also gave

evidence in a similar fashion.

He was really swayed by her evidence about the gold Falcon.

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He was puzzled about its presence on the highway and how far
ahead in truth it would have been in front of Ms Thomas's car.
In the end he accepted the officer's evidence about the
question of the radar reading.
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It is apparent, of course, that if the gold Falcon was drawing away from her it must have been doing somewhat more than 100 kilometres an hour. If that's the case one might think it curious why it wasn't first stopped by the police and, as we

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know, that did not happen. One possibility is that in truth the gold Falcon did not exist at all, despite what Ms Thomas said, but to be fair to her that was not something suggested to her during the course of the hearing. Another possibility
is that it got some distance ahead of her, realised the

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approach of the police car, and was able to slow down, at
least for a time, to avoid detection of a speed limit which

was too high.

All of that is really speculative and uncertain, but on

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reflection it seems to me that it was open to the stipendiary
magistrate to find that her evidence about the position of the

Falcon cast some doubt over the rest of her evidence.

I say with some hesitation, because the matter is very

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uncertain, but bearing in mind the position, the rather more
advantageous position that the learned Magistrate had than
this Court has today, it seems to me that there should be no

interference with his views about that.

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Secondly, of course, and naturally enough there was no evidence that the cruise control was working properly in the hire car. There had been or would have been, if allowed, an 19102009 D.1 T(4)02-03/LM(BNE) M/T BRIS29 (Brabazon DCJ) 1-6 JUDGMENT 60

issue about the conclusive effect of the radar equipment but	1
likewise there was no scrutiny about the cruise control.
It is possible, of course, in the nature of things that Ms Thomas believed she was doing 100 kilometres an hour but in

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truth was doing rather more.

Finally, Ms Thomas complained that she had been convicted on the uncorroborated evidence of a single witness. That is indeed what happened but it needs to be kept in mind that the

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law has always been, and certainly in this State, that there
can be a conviction on the uncorroborated evidence of one
witness. Indeed in these Courts one sees, even in the most
serious matters resulting in long terms of imprisonment, there

can be convictions on the uncorroborated evidence of not just

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one person but indeed a child.

Therefore, in my view, there is no good reason to upset the decision of the Magistrate and so the appeal should be dismissed.

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...

HIS HONOUR: That's the order then.

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