Toomer v Winston [2011] QDC 8

1. Bias against the appellant in the form of punitive conduct of the hearing. Four mention hearings and five adjournments. The court failed in its duty to deal with this matter expediently;

2. His Honour's interpretation of the Alexander Coles case was not objective, citing that it was not relevant as the distance was much greater than 345 metres and the judgment related to a speed limiting device on Mr Coles' vehicle;

3. His Honour did not give the same weight to the appellant's evidence as the policeman's, despite accepting the appellant's good character;

4. Late evidence from the prosecution was allowed;

5. His Honour said in his summation that he accepted that the police officer kept the appellant's vehicle in sight all the time while he crossed a busy two-lane highway to stop the appellant in the right-hand lane, with a truck in the left-hand lane. To keep the appellant in sight would have required x-ray vision;

6. Did not take into account in his summary the errors in the police evidence and the spin put on the diagrams i.e. eliminating the bend in the road and getting the distances wrong;

7. His Honour said the policeman had good eyesight in his summation despite the fact that the policeman wore glasses and was in his 60s;

8. His Honour did not take into account the obstacles between the policeman and the appellant's vehicle, consisting of crash barriers and several road signs.

[3] On behalf of the prosecution Senior Constable Brindell gave evidence. He has been a police officer since 1974. He said he was also qualified in every type of speed detection device used past and present in Queensland since 1978. On 1 May 2009 he attended at the Deagon Deviation location. He set up a tripod with the laser attached to it with the number UX4442 and was detecting the speeds of vehicles travelling northbound through the 800 metres of 60 kilometre per hour zone towards his location. He said the tripod gave a more solid base for detection purposes. He said at the commencement of the shift he tested the laser in relation to the Australian Standards. After several detections about 2.03 pm he noticed several vehicles approaching him in the left hand lane. The last vehicle had no traffic behind it and a fair gap in front of it. In his opinion this vehicle was exceeding the speed limit. He then used the laser on the tripod and targeted this white car as it gained on the vehicles ahead on two separate occasions. He aimed at the number plate in the front of the vehicle which he said was the premium target. On the first occasion it was 84. He checked it a couple of seconds again later and saw it was still doing 81 kilometres an hour 345.1 metres from his location. He then observed that vehicle continually until he intercepted it. It was the vehicle being driven by the appellant.

[4] He said that he had the appellant's vehicle in full observation at the times it was intercepted. He also had no doubt it was the appellant's vehicle.

[5] He said at the end of the shift he tested the laser in accordance with the Australian Standard and it was still operating correctly and giving true readings.

[6] He said again he had no doubt at all it was the appellant's vehicle he had targeted.

[7] Through Senior Constable Brindell a number of certificates were tendered. These are not in issue in the appeal.

[8] During cross-examination by the appellant Senior Constable Brindell was challenged about his marksmanship. That is his ability to target the appellant's vehicle over the distance between Senior Constable Brindell and the appellant's car.

[9] Senior Constable Brindell agreed that the result depends upon the accurate pointing of the laser at the target vehicle. Senior Constable Brindell said that operators are re-qualified every two years, checked by an instructor so they know how to use it. They also have on-line computer based training as well. He said it was part of their training and part of the course what to aim at and what not to aim at basically.

[10] When challenged again in cross-examination about the ability to hit a moving target in traffic and behind eight other vehicles at a range of 345 metres Senior Constable Brindell said that the beam of the laser comes out about the size of a 50 cent piece. 330 metres away the beam is a metre wide so it is a better chance of hitting the car with the laser than it is with a bullet. Regarding his marksmanship skills, Senior Constable Brindell said he only had his experience and his observations which he had given in evidence.

[11] When the appellant gave evidence he said when he entered the 60 kilometre per hour zone he was in the right hand lane and there were two vehicles behind him, another white sedan and a UDL van. The white sedan was tailgating him and he pulled over to the left and it went past and so did the UDL van. At the best of his recollection this was around the start of the 60 kilometre per hour zone. There were a number of cars. He was in a queue of cars slowing down for the traffic lights at the start of the bridge. He noticed the random breath test unit and he remembers thinking that the traffic was stopping for random testing. He also remembers noticing that both lanes were open and as there were (he thought) about eight cars of in front of him he pulled over to the right lane and then he noticed the officer who was crossing the inside lane and stopping the traffic come out and stopped his vehicle. He said there was a conversation between him and the officer. His recollection of the conversation was that he said there had been a mistake and that he had picked up the other white sedan that had passed him. The officer had disagreed with that.

[12] Further the appellant said, he was in normal traffic following the normal speed. As he had not checked his speed at that time he was unable to recall or remember what his actual speed was but given the fact that he was doing the same speed as the other traffic and there was two vehicles past him he thinks it was a genuine mistake.

[13] In arriving at his decision to find the appellant guilty of the offence the learned magistrate accepted the evidence of Senior Constable Brindell even though he accepted the appellant at all times had given honest evidence. The learned magistrate said he did not accept that the appellant's evidence was sufficiently reliable for him to say that a doubt existed as to the evidence given by Senior Constable Brindell. The learned magistrate was satisfied beyond reasonable doubt that Senior Constable Brindell was able to identify the defendant's vehicle at all times and he locked on to the appellant's vehicle by aiming the laser at the appellant's vehicle's number plate and took a reading of 84 and then subsequently a reading of 81. The learned magistrate referred to the issue made by the appellant about the distance the vehicle might have travelled during this procedure. However, it seemed to him that if Senior Constable Brindell locked on to the vehicle some distance away but took the accurate 81 reading at 345.1 metres that more than sufficient time would have existed for him to do so and that he kept an eye on the appellant's vehicle all the way until he intercepted it and that no other vehicle interfered with the accuracy of the reading.

[14] It is a normal attribute of an appeal by way of rehearing that "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellant court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error...At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance." On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of appeal. (See Muir JA Teelow v Commissioner of Police (2009) QCA 84 para 4 citing Allesch v Maunz (2000) 203 CLR172 at 180-181, 181).

[15] As far as ground of appeal number 1 is concerned, I have examined the proceedings and I am satisfied there was no bias whatsoever on the part of the learned magistrate. There was no form of punitive conduct of the hearing. There may have been four mention hearings and five adjournments, but it must be borne in mind that the matter commenced with the complaint and summons sworn on 8 September 2009 and apparently the principal witness of the prosecution, Senior Constable Brindell had been on extended sick leave due to major surgery for a period of four months. Clearly in those circumstances there is a reasonable excuse for the proceedings not moving more expeditiously. Once the matter commenced on 1 April 2010, there were other adjournments. However, those adjournments were to allow the appellant to determine what he wished to do regarding an error on the part of the prosecution in not giving him documents in the brief and to obtain a copy of the decision of Coles from the New South Wales District Court.

[16] Therefore, in my opinion, ground of appeal number 1 has no basis to it.

[17] As far as ground of appeal number 2 is concerned, this does involve the Coles case. The full reference is R v Peter Francis Coles (2009/267729) decision 15 February 2010 District Court New South Wales criminal jurisdiction.

[18] In that case the appellant had been convicted in the local court of exceeding the speed limit by more than 30 kph. Evidence had been given on behalf of the prosecution. Evidence was also given by Mr Coles. His Honour Judge Ellis in the Coles case noted that the magistrate was never critical of Mr Coles as a witness, as she certainly did not draw any adverse inference that he was either gilding the lily or telling untruths. His Honour Judge Ellis's reading of the material led him to the view that Mr Coles was a person who was endeavouring to tell the truth. His Honour Judge Ellis noted that his arguments were that he did not dispute the ability of Lidar Radar to accurately access speeds but he questioned whether it had been used correctly in the sense that there was a question about whether or not it was his vehicle which the Lidar unit had focused on, and to support his argument there was evidence that his vehicle was fitted with a speed limiting device as distinct from a cruise control device.

[19] Mr Coles' case was that he had set his speed limiting device on either 80 or 100. He was unable to say which, however, he certainly was not doing the 117 which is the speed that the police officer said the Lidar unit detected.

[20] The police officer's evidence was to the effect that he had made his first observations of the car when it was in excess of 600 metres away. He agreed there were a number of vehicles, at least three on the road, two in the kerb-side lane, and Mr Coles' vehicle in the centre or median strip lane. It was also clear on his evidence that when the Lidar machine locked on to the vehicle, it was at least 300 metres from where he was and that it is likely that during the process of aiming it, the vehicle was between 400 and 500 metres away.

[21] His Honour Judge Ellis accepted that a Lidar beam was a single beam but nevertheless 400/500 metres was a long way away and it was conceivable that while the officer believed he was hitting the vehicle being Mr Coles' vehicle, that indeed the Lidar unit might have locked on to another vehicle because the Lidar unit does not identify onto which vehicle it has locked.

[22] The other factor noted by his Honour Judge Ellis was that there is some possibility that what the Mr Coles said was accurate, that the vehicles which were in the kerb-side lane all at some point in time have crossed the line of sight, as it were, used by the Lidar unit between the police officer, who was in the breakdown lane, and Mr Coles' vehicle.

[23] As the Crown had the obligation to prove its case beyond reasonable doubt, his Honour Judge Ellis said effectively that means he would need to dismiss the evidence of Mr Coles in order to be so satisfied beyond reasonable doubt. In his view, Mr Coles was a witness of truth and on that basis his vehicle was either doing 80 or it was doing 100, but it was not doing 117 and therefore could not have been the vehicle onto which the Lidar unit had locked.

[24] Accordingly the appeal was upheld, as Judge Ellis was not satisfied beyond reasonable doubt and the conviction and orders of the local court were quashed.

[25] In the present matter the learned magistrate distinguished the Coles case on the ground that in Coles the appellant had a speed limiting device which fixed a speed either at 80 or 100 kph and not 117 kph, and in the present case the appellant did not know what his speed was.

[26] Even so, both in the Coles case and the present case there was a substantial distance between the police officer operating the laser and the approaching vehicle. Further there was the possibility of other vehicles in the vicinity of the "target" vehicle. I accept Senior Constable Brindell said there was no traffic behind the appellant's vehicle and a fair gap in front of it. However, the appellant whom the learned magistrate accepted at all times had given honest evidence said two vehicles at one stage had been behind him and then went past him.

[27] In my opinion the substantial distance involved between the laser held by the police officer and the appellant's vehicle and the presence of other vehicles made it possible Senior Constable Brindell locked onto another vehicle. The learned magistrate noted the laser was an aim reliant device. In my opinion this makes it possible a mistake occurred in the present matter. I say that despite Senior Constable Brindell stating he had no doubt he targeted the appellant's vehicle.

[28] In the circumstances in my opinion the learned magistrate ought to have had a reasonable doubt that the appellant's vehicle had exceeded the speed limit and ought to have dismissed the charge.

[29] In the circumstances the appeal succeeds on ground of appeal number 2.

[30] As far as ground of appeal number 3 is concerned, the learned magistrate did accept the appellant at all times had given honest evidence. However, he did not accept the appellant's evidence was sufficiently reliable for him to say that a doubt existed as to the evidence given by Senior Constable Brindell.

[31] In my opinion there was nothing unreliable about the appellant's evidence. He may not have known what speed his car was travelling at. However, that does not make his evidence unreliable. Even so there is no dispute the distance between Senior Constable Brindell and the appellant's vehicle was 345.1 metres when he says he locked onto the appellant's vehicle. Further, even Senior Constable Brindell said there were other vehicles on the road, even though he said there was a gap between those vehicles and the appellant's vehicle.

[32] As far as ground of appeal number 4 is concerned, there was the introduction of late evidence by the prosecution.

[33] Apparently the brief was incomplete when delivered to the appellant.

[34] This was detected on the hearing on the first day.

[35] However, in my view the learned magistrate gave the appellant ample opportunity to determine his position and to decide whether to proceed or not at a later date.

[36] An adjournment was granted and the appellant was able to choose what course he was prepared to take.

[37] I see no injustice to the appellant in the course that was followed by the learned magistrate.

[38] Therefore there is no basis to this ground of appeal.

[39] As to ground of appeal number 5, Senior Constable Brindell said from his experience and from his observations he was able to target the appellant's vehicle and kept it under observation at all times. However, there was in my opinion the possibility that a mistake was made in this case.

[40] As to ground of appeal number 6, the question of the bend in the road and the distances alleged by Senior Constable Brindell in his evidence were all relevant to whether the learned magistrate was satisfied beyond reasonable doubt in this case the appellant had exceeded the speed limit.

[41] As to ground of appeal number 7, the mere fact that the police officer wore glasses and was in his 60s does not mean necessarily he could not make observations that in other circumstances may lead to satisfaction on the part of the court that an offence has been committed. However, in this case in my opinion a mistake may have occurred.

[42] As to ground of appeal number 8, the presence of crash barriers and several road signs, were relevant, just as the bend in the road and distances alleged were relevant, to the decision of the learned magistrate.

[43] In this case for the reasons I have already given it is my opinion the learned magistrate could not be satisfied beyond reasonable doubt the appellant exceeded the speed limit.

[44] Finally, on the hearing of the appeal, the appellant referred to the decision of Grice v Day [2010] QDC 490.

[45] In Grice v Day the appellant referred to s 6.3.5 and 6.9.2 of the "Queensland Police Regulations". These sections relied upon by the appellant appeared to come from the Traffic Manual of the Queensland Police Service. These sections are directions from the Commissioner to police officers the Commissioner considers necessary or convenient for the efficient and proper functioning of the police service pursuant to s 4.9 of the Police Service Administration Act 1990. These sections provide for the authorisation of speed detection device operators.

[46] The appellant in the present matter relied on this decision for an argument that the prosecution should fail because it did not tender as an exhibit a certificate of authorisation to operate the radar device.

[47] It is correct that a certificate of authorisation to operate the radar device was not tendered as an exhibit in these proceedings.

[48] However, in Grice v Day the prosecution set out to prove authorisation to operate the radar device by the production of a certificate. I held in that case that what was produced was inadequate. For that reason in that case the prosecution failed.

[49] I am not persuaded a certificate of authorisation is required in all cases.

[50] Furthermore senior constable Brindell in the present case gave evidence of being requalified every two years, checked by an instructor so they still know how to use the laser. He also said there was online computer-based training as well.

[51] In my opinion, from that evidence it can be inferred Senior Constable Brindell was an authorised operator at the time and had undergone reassessment within the preceding 36 months (Traffic Manual Queensland Police Service ss 6.3.5 and 6.9.2).

[52] Therefore, in the present matter I do not accept the prosecution fails because a certificate of authorisation to operate the radar device was not tendered as an exhibit in the proceedings before the learned magistrate.

[53] Therefore I allow the appeal. I set aside the orders of the learned magistrate made on 8 July 2010. I find the appellant not guilty.