Whittaker v Turner - [2004] QCA 191

SUPREME COURT OF QUEENSLAND

CITATION: Whittaker v Turner [2004] QCA 191
PARTIES: MARK ALAN WHITTAKER
(appellant/applicant)
v
GORDON LESLIE TURNER
(respondent/respondent)
FILE NO/S: CA No 402 of 2003
DC No 29 of 2003
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Criminal)
ORIGINATING
COURT: District Court at Cairns
DELIVERED EX- 2 June 2004
TEMPORE ON:
DELIVERED AT: Townsville
HEARING DATE: 2 June 2004
JUDGES: McMurdo P and Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application for leave to appeal refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where applicant convicted in Magistrates Court of exceeding speed limit – where applicant contended that police officer could not have taken radar reading in the time available – where Magistrate accepted evidence to the contrary of police officer operating radar– where District Court judge on appeal reached same conclusion – whether applicant could demonstrate reasons to doubt conclusion – whether leave should be granted to appeal

CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – PRACTICE AND PROCEDURE – GENERALLY – where applicant convicted in Magistrates Court of exceeding speed limit – whether proceedings were invalid because complaint was sworn by someone without direct personal knowledge of the facts
District Court of Queensland Act 1967 (Qld), s 118
Justices Act 1886 (Qld), s 42, s 51(b), s 222
Transport Operations (Road Use Management) Act 1995
(Qld), s 62
Potts v Brooks; ex parte Potts [1983] 2 Qd R 48
COUNSEL: The applicant appeared on his own behalf
J A Greggery for the respondent
SOLICITORS: The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the
respondent

THE PRESIDENT: The applicant was convicted of exceeding the
speed limit on 18 May 2002 under s20 Transport Operations
(Road Use Management- Road Rules) Regulation 1995 (Qld) in the
Mareeba Magistrates Court on 18 December 2002. He was fined
$135 and ordered to pay Court costs of $58. He appealed from
his conviction to the District Court under s222 Justices Act
1886 (Qld) ("the Justices Act"). The appeal was heard on 14
August 2003 and was dismissed on 21 November 2003.

The applicant now applies for leave to appeal from that decision under s118 District Court Act 1967 (Qld). He has the difficult task of persuading this Court that having had one hearing in the Magistrates Court concerning a $135 traffic conviction and then an appeal to the District Court, he should now be given leave to appeal to this Court.

He contends that he was incorrectly convicted because of someone's deceit, that the complaint and summons originating the proceedings were falsely sworn on oath and that her Honour erred in dismissing the appeal. He argues that the Court should grant leave to bring the appeal in the interests of the administration of justice, that the…

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 Whittaker v Turner

Details

AGLC: Whittaker v Turner [2004] QCA 191
Case: [2004] QCA 191
Decision Date: 2/06/2004

CaseChat Overview and Summary

Whittaker was convicted in the Magistrates Court of exceeding the speed limit. The defendant appealed to the District Court, arguing that the police officer could not have taken the radar reading in the time available. The Magistrate had accepted the police officer's evidence that they did operate the radar, and the District Court judge also accepted this. The defendant applied to the Supreme Court for leave to appeal against the decision of the District Court.

The legal issue before the Supreme Court was whether the defendant could demonstrate reasons to doubt the conclusion of the District Court judge. The defendant argued that there were factual errors in the District Court's decision, and that the Court had not properly considered all of the evidence. The defendant also argued that the District Court judge had erred in law by not considering the effect of the time constraints on the ability of the police officer to operate the radar.

The Supreme Court held that the defendant had not demonstrated any factual errors in the District Court's decision, and that the Court had properly considered all of the evidence. The Supreme Court also held that the District Court judge had properly considered the effect of the time constraints on the ability of the police officer to operate the radar. The Supreme Court held that there were no grounds for the defendant to appeal, and refused the application for leave to appeal.

Orders

Orders of the court

Application for leave to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Whittaker v Turner [2004] QCA 191
PARTIES:	MARK ALAN WHITTAKER (appellant/applicant) v GORDON LESLIE TURNER (respondent/respondent)
FILE NO/S:	CA No 402 of 2003 DC No 29 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX-	2 June 2004
TEMPORE ON:
DELIVERED AT:	Townsville
HEARING DATE:	2 June 2004
JUDGES:	McMurdo P and Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where applicant convicted in Magistrates Court of exceeding speed limit – where applicant contended that police officer could not have taken radar reading in the time available – where Magistrate accepted evidence to the contrary of police officer operating radar– where District Court judge on appeal reached same conclusion – whether applicant could demonstrate reasons to doubt conclusion – whether leave should be granted to appeal
CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – PRACTICE AND PROCEDURE – GENERALLY – where applicant convicted in Magistrates Court of exceeding speed limit – whether proceedings were invalid because complaint was sworn by someone without direct personal knowledge of the facts
District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 42, s 51(b), s 222 Transport Operations (Road Use Management) Act 1995 (Qld), s 62
Potts v Brooks; ex parte Potts [1983] 2 Qd R 48
COUNSEL:	The applicant appeared on his own behalf J A Greggery for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent