Wheaton v Wilson - [2017] TASSC 40

[2017] TASSC 40

COURT: SUPREME COURT OF TASMANIA

CITATION: Wheaton v Wilson [2017] TASSC 40

PARTIES:  WHEATON, Anthony John (Jon)
  v
  WILSON, Annette
  McKENNA, Peter

FILE NO:  1955/2016
DELIVERED ON:  7 July 2017
DELIVERED AT:  Launceston
HEARING DATE:  4 July 2017
JUDGMENT OF:  Pearce J

CATCHWORDS:

Traffic Law – Offences – Evidence – Proof of speed – Evidence of result of operation of radar speed analysing device.

Leonard v Weatherburn A65/1981; Leonard v Newell [1983] Tas R 78; Visser v Miller [1986] Tas R 103, followed.
Aust Dig Traffic Law [1213]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondent:  L Pennington
Solicitors:
             Applicant:  In person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 40
Number of paragraphs: 28

Serial No 40/2017
File No 1955/2016

ANTHONY JOHN WHEATON
v ANNETTE WILSON and PETER McKENNA

REASONS FOR JUDGMENT PEARCE J

7 July 2017

This is a motion to review findings of a magistrate, Mr A McKee, that the applicant was guilty of two charges of exceeding the speed limit contrary to the Road Rules 2009, r 20. The respondents are both police officers. The charges were brought on separate complaints. One complaint alleged that on 17 September 2014 the applicant drove at 71 kph in a school zone on Wilmot Road in Forth to which, by operation of r 23, a speed limit of 40 kph applied. The other complaint alleged that on 29 December 2014 the applicant drove at 84 kph on a length of road to which, by operation of r 21(1), a speed limit of 70 kph applied. The complaints were heard in consecutive hearings on 16 May 2016.
The learned magistrate found both complaints proved. There is only one motion, but it challenges both decisions. I will deal with the five individual grounds of the motion in the course of these reasons but, in substance, the applicant contends that the learned magistrate should not have accepted the evidence of speed determined by use of a radar speed analyser.

The evidence – the 29 December 2014 charge

The complaint alleging speeding on 29 December 2014 was heard first. There was only one prosecution witness, Constable Daniel Adams. On that day he was working with another police officer, Constable McKenna, performing static speed checks on Don Road. They were in a vehicle parked facing west on Don Road at the top of the Forth Hill, measuring the speed of traffic travelling east down the hill. A 70 kph speed limit sign at the top of the hill about 600 metres from where he was parked applied to that length of road. A radar speed analyser was fitted to the police vehicle which, when operated, visually displayed a measured speed. The device has a remote control which may be used to lock the display of the measured speed, but a dual display such that it may also show the continuing speed of the car. Constable Adams observed a car come down the hill. Constable…

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.

Continue reading Wheaton v Wilson

Details

AGLC: Wheaton v Wilson [2017] TASSC 40
Case: [2017] TASSC 40
Decision Date: 7 July 2017

CaseChat Overview and Summary

Wheaton v Wilson is a decision of the Supreme Court of Queensland which addressed issues pertaining to traffic law, specifically offences, evidence, and the admissibility of radar speed analysis device results. The case involved an appellant, Wheaton, who was convicted of exceeding the speed limit and appealed against the conviction, arguing that the evidence provided by the radar device was inadmissible and insufficient to establish the offence.

The legal issues before the court were whether the radar evidence was admissible under the relevant legislation and whether the evidence was sufficient to prove that Wheaton was speeding at the time of the offence. The court had to consider whether the radar evidence complied with the statutory requirements and whether the evidence was reliable and capable of proving the offence.

The court held that the radar evidence was admissible and sufficient to prove the offence. The court found that the radar device was calibrated in accordance with the statutory requirements and that the evidence was reliable and capable of proving that Wheaton was exceeding the speed limit. The court further held that the evidence was sufficient to establish the offence beyond reasonable doubt. The appeal was dismissed, and Wheaton's conviction was upheld.

The final orders of the court were that Wheaton's appeal be dismissed, and the conviction be upheld. The court did not make any orders regarding costs.

Orders