Mbuzi v Smith

(1) There was no evidence produced about the alleged offence.

(2) The Magistrate relied upon doctored tape-recording and transcripts.

(3) Certificates about the state of the radar were irrelevant and should not have been accepted.

[3] The police case was that at about 5.30 p.m. on 14 November 2003 an officer in a marked police vehicle using a mobile radar machine detected the Ford taxi driven by the appellant travelling at 96 kph in an 80 kph zone at Eatons Crossing Road between Eatons Hill and Yugar. The officer, Senior Constable Brindell, gave evidence that the taxi was travelling towards him and he flashed his headlights but the taxi continued without slowing. The police officer performed a U-turn and activated his lights and siren and came up behind the taxi at a red light at the intersection of Eatons Crossing Road and Queen Elizabeth Drive. The ensuing conversation between the police officer and the appellant was recorded and the recording and a transcript of it were played and produced during the trial.

[4] Otherwise the police case consisted of certificates tendered pursuant to s 124 of the Transport Operations (Road Use Management) Act 1995 which, under that legislation, became prima facie evidence that the speedometer of the police vehicle had recently been tested; that the mobile radar machine had, similarly, been tested and found to be producing accurate results; and, that the machine had been properly used by the officer.

[5] In his Outline of Argument filed 4 February 2005 the appellant alleged the speed recording device was not produced to him, and he did not see one; and, that no evidence of recording by a speeding device was produced to the court. It was also submitted the learned Magistrate was wrong to rely upon the evidence of the very police officer who originally apprehended the appellant.

[6] The Reasons given by the learned Magistrate show he carefully considered the question whether or not he should accept the uncorroborated evidence of the police officer. At pages 12-13 of the Reasons, he said:

"As I have said, a police officer's evidence is to be given no greater credence or relevance than any other witness. They are to be treated as equals until such time as a person has reason not to accept such evidence. I have listened carefully to the evidence that has been placed before me and I have listened to the way in which and observed the manner in which each witness stood up to the cross-examination. I have no hesitation whatsoever, and have no reason whatsoever to reject the oral evidence (of) Mr Brindell as to what he saw on the radar device."

[7] As to the allegation that the officer failed to produce the radar machine or evidence of its alleged reading at the scene, the legislation does not require that step to be taken and, in any event, the learned Magistrate was careful to ensure the appellant heard a tape-recording of the conversation at the scene in which he appears to decline an offer from the police officer to see the digital readout of his speed[1].

[8] In the face of that, and later evidence, it was clearly open to the learned Magistrate to find that the appellant had never sought to actually see the reading on the machine. In any event even if (as the appellant now appears to contend) the tape or transcript have been "doctored", the matter is irrelevant.

[9] During the hearing the question also arose as to whether or not there were vehicles between the police car and the oncoming taxi, and whether the road was straight or curved. The police officer's evidence was to the effect that he was familiar with the machine and had many years experience, and a noise it made meant he was able to ensure there was no interference with the "radar lock" on the appellant's vehicle. Again, the Magistrate cannot be said to have fallen into error in accepting this evidence.

[10] Even if the self-represented appellant is given the benefit of every doubt, no additional grounds for appeal appear to arise. The grounds which have been advanced do not indicate any appellable error, and the appeal is dismissed.