Willrich v Queensland Police Service

[2010] QDC 109

[2010] QDC 109

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE MCGILL SC
Appeal No 337 of 2009

KURT WILLRICH	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent

CAIRNS
..DATE 25/03/2010
JUDGMENT
HIS HONOUR: This is an appeal from the conviction of the

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appellant on the 15th of October 2009 for an offence of
exceeding the speed limit, an offence under the Transport
Operations (Road Use Management) Act. The appellant was
proceeded against by a complaint and summons issued out of the

Magistrates Court in Cairns on the 2nd of June 2009.	10
It appears that on the first return date of the summons the appellant appeared in person, entered a plea of not guilty, and the matter was adjourned to the 5th of August 2009. There
were then further adjournments on that date to the 19th of	20
August 2009, and to the 2nd of September 2009.
On the 2nd of September there was a letter which had been sent
by fax to the Court seeking a further adjournment, and that
adjournment was granted to the 15th of October 2009, when the	30
matter was listed for hearing. The appellant did not actually appear on the 5th of August, the 19th of August, or the 2nd of September. The registry sent a notice to the appellant of the hearing on the 15th of October 2009.
40
Prior to the 15th of October the appellant now says that he attempted to apply for a further adjournment by sending material by fax to the Court but that fax was not transmitted successfully.
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The position was that the matter was on for hearing on the 15th of October 2009, and the appellant had notice of that date. It was a matter for the appellant to communicate

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effectively any request for an adjournment to the Court. The

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Court cannot act on any request which is not received.
Sending something by facsimile is acceptable as a means of
communicating with the Court only if the facsimile is actually
received, but the person who uses that method runs the risk

that if the facsimile is not received then the matter will not	10
in fact be communicated to the Court. Strictly speaking, the appellant should have appeared in person or through a lawyer or an agent on the 15th of October and applied for the adjournment. However, that was not done.
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In the absence of an appearance for the appellant on the 15th
of October, the Acting Magistrate did not deal with the matter
ex parte under section 142A of the Justices Act, but at the
police Prosecutor's request, the prosecution proceeded, that
is, the Prosecutor called evidence and led evidence from the	30
police officer to the effect that while he had been travelling
on the highway between Cairns and Port Douglas he had used a
speed-measuring device fitted to his car by which he recorded
the speed of the vehicle which the appellant was driving at
104 kilometres per hour. He then activated the police lights,	40
the defendant pulled off the road, the police car did a U-turn and pulled up near him, and there was then a conversation.
The evidence from the police officer was that the speed limit
a little further to the north was 100 kilometres per hour but	50
the speed limit had been reduced to 80 kilometres per hour
about one kilometre to the north of where he observed the
appellant's vehicle.

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On the evidence before the Magistrate it was open to him to be
satisfied beyond reasonable doubt that the charge had been
proved, and the Magistrate was so satisfied. I should mention
that, when giving his reasons for convicting the appellant,

the Magistrate began by referring to the matter as a quasi	10
criminal type of offence. That was an error. It was not. It
was a criminal offence, though he did correctly identify that
the onus rested on the prosecution and that the standard of
proof was proof beyond reasonable doubt. It follows that the
erroneous description of the matter as a quasi criminal type	20
of offence was of no practical consequence, and it is not, in itself, a matter which would justify allowing the appeal.
The appellant in his submissions relies on the proposition
that at the time his speed was measured his vehicle was	30
travelling around a curve and that that was something which
was inconsistent with police manual instructions and was
something which could interfere with the accuracy of the
measuring equipment. There was some mention of this,
indirectly, in the evidence given by the police officer at the	40
hearing where the police officer said that the point was raised with him at the time, and he said that any error arising out of the fact that the vehicle was travelling around a corner was an error which would favour the appellant.
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The appellant also submitted that there were boulders near the road which could have reflected the radar and interfered with the accuracy, and that the police officer did not have time to follow proper procedures. The police officer's evidence about 4 JUDGMENT 60

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what he did suggests that not very much time was involved.
Effectively, he saw the appellant's vehicle, decided to
measure its speed, activated the speed measuring device, and
recorded the particular speed which, I suspect, would not have

taken long, and he then activated the police lights. That, I	10
suspect, could easily have produced a result where it would have appeared to the appellant that the lights came on almost as soon as he saw the police vehicle.
In any event, these are matters which could and should have	20
been raised at a trial. None of them are matters which fall
within the fresh evidence rule as matters not reasonably able
to be put before the trial Court, and therefore could properly be put before the Court on appeal in accordance with the fresh evidence rule.	30
I should say that the appellant did apply for a reopening of the hearing apparently on the assumption that the matter had been dealt with under section 142A but that was correctly
rejected by another Magistrate. That is the reason why the	40
appeal was delayed and there was also an application for an
extension of time within which to appeal. Had it appeared
that there were some merit in the appeal it would have been
appropriate, in those circumstances, to grant an extension of
time within which to appeal, but the matters raised by the	50
appellant do not suggest that there is any merit in the appeal
against the conviction, which appears to me to have been
entirely regular.

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In relation to the question of the appeal against sentence, the appellant submitted that there were inaccuracies in the information recorded in the traffic history which was put

before the Magistrate for the purpose of penalty. However,

those inaccuracies do not appear to have had any particular	10
consequence in terms of penalty. The penalty imposed was a
fine of $250 which seems to have been entirely reasonable in
the circumstances. If there were those inaccuracies, it does
not seem to me that they had any consequence, or that they
produced any inappropriate result.	20
That the Magistrate was aware of the contents of a letter of the 26th of August 2009 from the appellant referring to some inaccuracies in relation to the recording of demerit points
for an earlier offence at the time when he dealt with the	30
issue of conviction is apparent from the reasons of the
Magistrate. No doubt this was because the letter was on the
file because it was relevant to an earlier application for an adjournment, and the Magistrate no doubt was concerned to see why the appellant had not turned up on the 15th of October.	40
However, it does not seem to me that that produced any undue prejudice to the appellant in the conduct of the trial. The Magistrate's attitude was that this had nothing to do with the
matter that he was dealing with.
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In those circumstances, there are no proper grounds or justification in giving an extension of time, so the application for an extension of time is refused, and the appeal is therefore formally dismissed technically on the 6 JUDGMENT 60

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ground that the appeal is out of time.

You are not seeking costs, Mr Crawfoot?

MR CRAWFOOT: No.	10
HIS HONOUR: All right. Thank you.

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