Vidler v Commissioner of Police
[2014] QDC 67
•4 April 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
Vidler v Commissioner of Police [2014] QDC 67
PARTIES:
VIDLER, Brett Michael
(appellant)
V
THE COMMISSIONER OF POLICE
(respondent)
FILE NO/S:
DC No 4466 of 2013
DIVISION:
Criminal
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Caboolture
DELIVERED ON:
4 April 2014
DELIVERED AT:
Brisbane
HEARING DATE:
31 March 2014
JUDGE:
Devereaux SC DCJ
ORDER:
1. The Magistrate’s order is confirmed.
2. As to the costs of the appeal, I will receive written submissions filed by 17 April 2014.
CATCHWORDS:
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where appellant convicted of speeding – where LIDAR device used to track speed – whether there is proof beyond reasonable doubt of guilt where appellant gives evidence of other speeding cars on the road at the relevant time and place – where appellant appeals under section 222 of the Justices Act 1886 (Qld) – whether various grounds of appeal made out
Justices Act 1886 (Qld), s 222, s 223, s 225
Transport Operations (Road Use Management) Act 1995 (Qld), s 112, s 124
Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), s 20
R v Coles NSWDC Ellis DCJ, 15 February 2010
Lim v R Unreported NSWDC Ellis DCJ, 7 October 2011
Police v Corbett Magistrates Court, Caboolture 27 May 2013
COUNSEL:
The appellant appeared on his own behalf
A Honkisz for the respondent
SOLICITORS:
The appellant appeared on his own behalf
Director of Public Prosecutions for the respondent
On 13 January 2013, the appellant was issued with an infringement notice for driving at 114km/h when the speed limit was 100km/h, in breach of the Transport Operations (Road Use Management – Road Rules) Regulation 2009. He was convicted of the offence in the Caboolture Magistrates Court on 28 October 2013. He appeals against that conviction, pursuant to the Justices Act 1886 s. 222.
The grounds of appeal, as stated in the Notice of Appeal, are:
‘The verdict was against the weight of evidence.
Magistrate made an error in putting more weight on the evidence of Crown witnesses over my evidence.
Magistrate seemed to rely on police testimony and experience over the prosecution ability to provide corroborative evidence.’
In his written outline of argument, the appellant submitted:
- The magistrate wrongly failed to take his good character into account and ‘relied on the word of the police officer and his experience’, referring to Lim v R Unreported NSWDC Ellis DCJ, 7 October 2011.
- The magistrate did not understand the device used by the police officer. In a similar case, another magistrate dismissed the charge. Also, the officer was unlikely to have a ‘straight line/clear view’ of approaching cars and it was likely the officer aimed at a different vehicle. Reference was made to R v Coles NSWDC Ellis DCJ, 15 February 2010.
- Because there were two other vehicles on the road near the appellant’s car and because of the distance involved and the night-time conditions, there should be a doubt about the officer’s evidence that the device was targeted at the appellant’s car.
The evidence
Sergeant Wakerley gave evidence that on 13 January 2013 he used a LIDAR device to monitor southbound traffic on the Bruce Highway just south of an overpass. It is quite possible the officer was just north of the overpass. I am satisfied nothing flows from this uncertainty.
Before setting out from the Burpengary Police Station, Sergeant Wakerley tested the device according to the relevant Australian standard.[1] At trial, he tendered a certificate, under his own hand, confirming that he used the device in accordance with the appropriate Australian Standard. By s. 124(1)(pb) of the Transport Operations (Road Use Management) Act 1995, the certificate was evidence of its contents. The Prosecution also tendered a certificate under s. 124(1)(pa) of the same Act confirming the device was tested on 31 May 2012 in accordance with the appropriate Australian Standard and was found to produce accurate results.
[1] 1-5.8
Sergeant Wakerley said that at 8.15pm it was dark but a clear, fine evening. Road conditions were ‘light to normal’.[2] He noticed a dark coloured sedan heading towards him in the right-hand (fast) lane. He targeted it with the LIDAR device and then identified it as it passed him.
[2] 1-5.35
The sergeant caught up with and intercepted the appellant. He recorded their interaction. It was played to the court and became exhibit 1. I have listened to the recording. When asked how fast he thought he had been driving, the appellant said he presumed he was ‘probably going around the 110 mark’. The sergeant told the appellant, showing him the reading, that he was recorded at 114 km/h at a distance of 293 metres.
Under cross-examination, the officer agreed that two photos the appellant showed him showed the view of the highway the officer had. These and four other photos the appellant had at trial were not put in evidence but I received them (but not the writing on the pages under the photos) on the hearing of the appeal under subs. 223(2) of the Justices Act 1886. These the appellant relied on to support his central contention that the officer targeted another vehicle. The officer repeatedly rejected that contention.
The appellant gave evidence that he was returning from Bribie Island to Brisbane. He noticed and became concerned about the conduct of the drivers of two four wheel drive vehicles – one following him onto the highway, the other on the motorway partly obstructing his access. He accelerated to get away from these cars. The three cars came over a rise at the same time, heading south towards the Buchanan Road overpass. The other two vehicles were travelling faster than the appellant. They took the Buchanan Road exit. The appellant saw the officer standing at the bottom of the hill. The appellant did not believe he was speeding.[3] He believed the officer must have trained the device on one of the other vehicles.
[3] 1-32.35 – 1-33.15
The appellant did not admit he told the officer he presumed he had been driving at about 110 km/h. He recalled saying, ‘to the officer that I would’ve been surprised if I was around the 110 mark.’[4] He persisted with this evidence even after the recording was replayed.
[4] 1-37.32
The magistrate’s decision.
The only real dispute was whether the officer trained the device on the appellant’s car. The learned magistrate accepted the officer’s evidence that he did so. The incriminating reply the appellant gave at the roadside was consistent with the prosecution case. Insofar as his credit was relevant, the appellant’s denial of saying what one can hear on the recording told against him. Particularly in view of that statement, it was unsurprising that the learned magistrate found the appellant guilty. My own review of the record compels me to the same conclusion.
The decisions referred to by the appellant.
This is not the first appellant who has relied on the decision in Lim of Ellis DCJ of the New South Wales District Court in support of a submission that a defendant who demonstrates good character should be accepted when he says he did not speed. All that can be said is that the appellant in Lim raised his own good character and was described by the judge as ‘a professional man of good character’ who was not discredited in evidence. That was one matter the judge took into account in allowing the appeal.
The present appellant did not, during evidence, raise his own character. In any case, this was not a case simply of his word that he was not speeding against that of the officer who said that he was.
The other decision of Ellis DCJ of the New South Wales District Court that the appellant relies on is R v Coles 15 February 2010. In that case the appellant raised his own good character. The magistrate ‘was not critical’ of him as a witness. The appellant queried whether the device had been used correctly. The appellant gave evidence that he had set the speed of the car at either 100 or 80. The car could have been up to 500 metres from the officer targeting it with the device. The decision of another judge on appeal from a conviction based on facts different from the present case does not compel a decision in the appellant’s favour.
Finally, the appellant relied on Police v Corbett Magistrates Court, Caboolture 27 May 2013. This was simply a decision of a magistrate that on the evidence before the court there was a doubt that the officer correctly identified the speeding car. It decides no principle which could inform my decision on this appeal.
Pursuant to s. 225(1) of the Justices Act I confirm the magistrate’s order.
I will receive written submissions as to the costs of the appeal filed by 17 April 2014.
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