Muldabayev v Queensland Police Service [2025] QDC 104

[2] The trial proceeded over one afternoon. Mr Muldabayev represented himself. His Honour gave ex tempore reasons, which in my respectful view, were careful, comprehensive, and well-reasoned. That is not to say they could not be found to have been affected by error, but it was a particularly comprehensive and careful analysis for such a small matter.

[3] I have read the whole of the reasons, transcript of the proceedings and reviewed all the exhibits, including the important video evidence which was tendered at trial and involved film taken from a hat-mounted camera on the hat of the officer who used the speed radar gun and gave evidence at trial.

[4] I accept as accurate the following background given by his Honour:[1]

The defendant appears before me charged by way of notice to appear that on the 2nd day of February 2024 at Dutton Park in the central division of the Brisbane Magistrates Court district in the State of Queensland, he, being the driver of a vehicle, namely a car, drove at a speed over the speed limit, namely 40 kilometres per hour, applying to the driver for the length of the road, namely Annerley Road, Dutton Park, where the said driver was driving. And there are averments that the car is a vehicle and that Annerley Road is a road.

In relation to that charge, formally at the commencement of proceedings this afternoon the defendant entered a plea of not guilty, and the matters proceeded to trial today. I should indicate in relation to this matter the onus of proof is upon the prosecution throughout to prove each and every element of the offence. The standard of proof is beyond any reasonable doubt. There is no onus on the defendant at all. He merely has to raise a doubt based upon reasons to succeed, whether by direct evidence or in cross-examination. I do not propose to traverse by way of comment or to the evidence that has been given as this proceeding has been recorded this afternoon.

Now, it does appear from the evidence that there is no dispute as to many of the formal acts or elements of the offence. There is no dispute that on the 20th of February 2024 that the defendant was driving a car on Annerley Road, Dutton Park at or about 8.44 in the morning. There's also no doubt - not dispute at all that the speed zone at that time of day on that road was a 40 kilometre an hour speed zone. The real - the only main issue of contention is whether or not the vehicle that was detected at doing 52 kilometres an hour - whether that vehicle was the defendant's vehicle or some other vehicle in a group of what appears to be about five vehicles. So that is the main part where I'm going to turn my mind to. So in some respects you could say that this matter revolves around credit.

[5] His Honour was correct that the matter did revolve around credit (meaning, primarily, reliability). The same was true on the appeal.

[6] His Honour's reasons then recited the oral evidence given at the trial. There were only two witnesses. The police officer who gave evidence of recording the speed, and Mr Muldabayev.

[7] His Honour's summary was consistent with the evidence as set out in Reasons TS 1-3.15 to 1-4.24 and 1-5.8 to .27, being the evidence of Senior Constable Blackburn in chief.

[8] He then reviewed the cross-examination, again in a way I find accurate, and summarised Mr Muldabayev's evidence at Reasons TS 1-6.15 to .37.

[9] As I understand his case, there were two issues raised in the appeal by Mr Muldabayev.

[10] The first is that the police officer could not have observed his vehicle in the way that the officer testified because of issues of measurement and distance which Mr Muldabayev agitated at trial, and again on appeal.

[11] The second is that, if the police officer had obtained a recording of a speed of 52 kilometres per hour on his radar gun, that must have targeted a vehicle other than Mr Muldabayev's taxi because he was not speeding.

[12] Mr Muldabayev supported his contention relying on his evidence that he had been careful to ensure he stayed below the speed limit, and that a car in front of him had braked suddenly which caused him to break suddenly before he came within range of the gun, (making it more probable than not that he was under the speed limit). He submitted it may have been the car in front of him which the police officer identified as speeding with his speed gun.

[13] His Honour was careful to remind himself, in respect of Mr Muldabayev's evidence, that Mr Muldabayev did not have to prove anything. The question was whether his Honour was satisfied beyond reasonable doubt that the offence had been committed.

[14] His Honour took some time to review the footage. That footage, as I said was taken by a hat-mounted camera on the police officer's hat. His Honour concluded it therefore gave a reliable view of what the officer could see from time to time. I agree.

[15] I watched the footage a number of times. The relevant part only lasted about 45 seconds. I watched it with Mr Muldabayev's two contentions firmly in mind. Like his Honour, having listened to Mr Muldabayev's development of his arguments in the appeal today, I accept the video quite clearly supports the fundamental elements of the police officer's account. To the extent Mr Muldabayev cavils or disagreed with that account, at least in respect of what the police officer says he saw, not only was his Honour right to prefer the police officer's evidence, but he really had no other choice. Any other finding would be perverse.

[16] Therefore, the video confirms the police officer's account of observing Mr Muldabayev's vehicle moving relatively faster than cars in front of him and of observing, from a distance of about a hundred to 120 metres, a light bar on the top of the vehicle, which turned out to be the taxi sign on the top of Mr Muldabayev's car. It also tends to support the police officer's account that he took a speed gun measurement for that vehicle because it shows him holding the gun up at about the time that Mr Muldabayev's taxi appears in the video, and then the officer dropping it quite quickly as that vehicle passes around a bend, and comes closer to the officer.

[17] There is one aspect of this evidence which gave me cause for pause. I accept, watching the video, the police officer had a very short time to get a reading on Mr Muldabayev's car, and appeared to do so from a considerable distance. However, the video, like all footage, does not actually show what was able to be perceived by the naked eye, especially as to size, distance, perspective and proportion.

[18] In this respect, the case did turn on the reliability of the police officer's evidence that he could clearly identify Mr Muldabayev's car, and as the officer said, that he was "a hundred per cent certain" that he successfully targeted the taxi with his Lidar to get the speed of 52 kilometres per hour.

[19] Mr Muldabayev insisted that that part of the case was based on assumption and no evidence. That proposition is wrong. There was evidence from the police officer to that effect. Here, the police officer's account is corroborated entirely by the video, except for whether, when he took the reading, it was of Mr Muldabayev's taxi.

[20] This is, in my respectful view, a credibility and reliability finding. His Honour had the opportunity to see and hear the witnesses, particularly the police officer. His Honour seemed to me to be quite aware of the possibility there was a mistake by the officer about that matter. His Honour, nonetheless, being aware of these issues, accepted the police officer's evidence.

[21] As I explained to Mr Muldabayev during the hearing, in an appeal by way of rehearing the appellant must show error on the record below. However, an appeal court has to give a good deal of deference to findings which arise from the advantage the trial judge has had to see and hear witnesses.

[22] In that respect, it would be wrong on an appeal by way of rehearing to substitute my view on the credibility and reliability of that evidence for his Honour's view. I could do so, of course, if the finding was glaringly improbable. But not only is his Honour's finding not glaringly improbable, the officer's evidence is consistent with the video.

[23] Mr Muldabayev's evidence about what occurred, on the other hand, could be consistent with the officer's evidence if Mr Muldabayev was inadvertently and briefly in excess of the speed limit. In those circumstances, I would not substitute my view for his Honour's finding of fact that the speed gun did in fact register the speed of Mr Muldabayev's vehicle.

[24] There was nothing vexatious about Mr Muldabayev's appeal. I respect the fact that he considers the evidence was inadequate to convict. He did not challenge parts of the evidence for the sake of doing so. But in the end, it is a matter for me to decide the appeal according to law. And for the reasons I have given, I dismiss the appeal.