Akermanis v Commissioner of Police [2025] QCA 35

SUPREME COURT OF QUEENSLAND CITATION: Akermanis v Commissioner of Police [2025] QCA 35 PARTIES: AKERMANIS, Jason Dean (applicant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: CA No 146 of 2024 DC No 43 of 2023 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Ipswich – unreported, 31 May 2024 (Power KC DCJ) DELIVERED ON: Date of Order: 11 March 2025 Date of Publication of Reasons: 21 March 2025 DELIVERED AT: Brisbane HEARING DATE: 11 March 2025 JUDGES: Mullins P, Brown JA, Bradley J ORDER: Date of Order: 11 March 2025 Application for leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was convicted of disobeying the speed limit after trial in the Magistrates Court – where the applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) – where the District Court Judge dismissed the appeal – where the applicant applies for leave to appeal from the District Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether the applicant has shown that the District Court Judge erred – whether there is a substantial injustice District Court of Queensland Act 1967 (Qld), s 118(3) McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, cited COUNSEL: P O’Donnell (sol) (pro bono) for the applicant M A Gawrych for the respondent SOLICITORS: No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent -- 1 of 4 -- 2 [1] THE COURT: On 11 March 2025 the Court refused leave to appeal in this matter and stated it would subsequently provide its reasons for its decision. These are those reasons. [2] The applicant was convicted by the Magistrate for exceeding the applicable speed limit of 100 kilometres per hour by more than 40 kilometres per hour on 22 May 2022 at Mutdapilly after a hearing for the best part of a day. The Magistrate provided fairly detailed reasons with his findings as to why he was satisfied the applicant was guilty of the offence beyond reasonable doubt. He was fined $1,500.00. [3] The applicant appealed the conviction pursuant to s 222 of the Justices Act 1886 to the District Court. On 9 February 2024, the District Court Judge dismissed the appeal made against the conviction. The applicant now seeks to leave to appeal that decision pursuant to s 118(3) of the District Court of Queensland Act. [4] While the Court of Appeal’s discretion to grant or refuse leave to appeal is unfettered, leave to appeal will not be given lightly given that the applicant has already had the benefit of two judicial hearings. Error must be shown but that of itself is not ordinarily sufficient to justify the granting of leave to appeal. Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.1 [5] In the event that leave is granted, the appeal is an appeal in the strict sense such that the Court of Appeal’s sole duty is to determine whether error has been shown on the part of the District Court on the basis of the material before the District Court.2 [6] According to the grounds of the application, the applicant contends: “The judge does not take into account some material consideration, or the sentence is plainly unjust. The sentence should be reviewed on the ground that a substantial wrong has occurred.” [7] The application further contends that an error has been made and the court should grant leave on the basis that “an error has been made in exercising the discretion”. [8] The applicant’s outline of submissions on the application for leave to appeal sets out three grounds: (a) that it is not possible to draw an inference that Senior Constable Olsen correctly operated the Lidar. It is simply speculative as to whether he did. It follows that evidence was incapable of proving that Mr Akermanis’ Toyota Kluger was travelling at 141 kilometres (ground 1); (b) more weight should have been given by the Magistrate at the hearing and at the appeal in the Ipswich District Court concerning the effect of evidence of poor weather on the accuracy of the Lidar advice (ground 2); (c) expert evidence – a miscarriage of justice, which appears to be a complaint that the Magistrate and District Court Judge did not act on the expert evidence of Professor Nebot (ground 3). 1 McDonald v Queensland Police Service [2018] 2 Qd R 612 at 625 [39(c)] – [39(d)]. 2 McDonald v Queensland Police Service [2018] 2 Qd R 612 at 625 [39(e)]. -- 2 of 4 -- 3 [9] These grounds differ from the grounds of appeal raised before the District Court on appeal which were set out in paragraph 3 of the District Court Judge’s reasons.3 While that could be significant, given this is an appeal in a strict sense, nothing turns on it for the purpose of these reasons. [10] The applicant has failed to identify any error in his written outline or oral argument in the decision of the District Court. [11] The District Court Judge conducted a rehearing, reviewing all of the evidence that was before the Magistrate and the Magistrate’s decision. [12] As to ground 1 the question was thoroughly canvassed in evidence of both the police officer concerned, certificates as to the working order and the appropriate use of the Lidar which was used to measure speed and expert evidence in the hearing. The Magistrate in his reasons made his findings based on his assessment of the evidence. The finding that the Lidar accurately recorded the speed within a small margin of error was not a matter of speculation. There was positive evidence that the officer had operated the Lidar correctly from the Officer supported by Mr Hayes’ evidence. [13] The District Court Judge referred to the evidence particularly of the police officer in relation to both the certificates that were tendered as exhibits certifying that the Lidar had been tested within 12 months of the offence and found to produce accurate results and that an appropriate Australian standard for using the device had been followed by Senior Constable Olsen. His Honour also stated those evidentiary aids, while relied upon by the prosecution, were not the sole evidence in this regard and that there was other evidence capable of showing that the device gave a correct speed reading for the applicant’s car. In particular, his Honour observed that Mr Hayes, who was the senior designer for the company which manufactured the Lidar device and called by the prosecution gave evidence. Mr Hayes had been provided with prosecution and defence evidence and had opined that there was nothing to suggest that the device had not operated correctly in measuring the speed in the conditions that existed when the measurement was made. [14] Further as his Honour observed, the applicant’s own evidence supported the fact that he had been speeding, given he had accepted when he looked down at his speedometer after he had seen the police and slowed down it recorded he was doing 115 kilometres per hour. Relevantly at the time that the officer pointed the speed camera at the applicant’s car, he was overtaking two other cars. Mr Akermanis’ evidence at trial was that he did not know what speed he had been travelling at the time the police officer measured his speed. [15] As to the second ground and the complaint as to insufficient weight being given to the weather, the weight given to evidence was a matter for the Magistrate and does not demonstrate error. Further the District Court Judge in his review of the evidence observed that Mr Hayes had not been swayed in cross-examination. Mr Hayes had rejected the propositions put in cross-examination that the colour, proximity or number of cars, the officers distance from the cars or the weather at the time would have negatively impacted on the accuracy of the Lidar measurement. [16] As to the third ground there was competing expert evidence from Mr Hayes called on behalf of the prosecution and Professor Nebot called on behalf of the applicant. It 3 Akermanis v Queensland Police Service, unreported, District Court of Queensland, Power KC DCJ, D43/2023, 31 May 2024. -- 3 of 4 -- 4 was beholden on the Magistrate and the District Court Judge to assess that evidence and determine which evidence to accept. The applicant has not identified any error in that assessment. The District Court Judge in his review of the evidence, considered the evidence of Professor Nebot and noted that the overall effect of his evidence was that the presence of the other cars and the distance over which the Lidar was operating created the risk that: (a) another car speed could have been measured, or (b) that “wrong information” could result. His Honour noted that with respect to (a) self-evidentially that could not assist the applicant’s case as it was accepted at trial and on appeal that the applicant’s car had been overtaking all other cars and hence was travelling faster than those cars. Had the speed reading come from another car it necessarily would have understated the applicant’s cars speed. As to (b) his Honour stated that Professor Nebot did not give any explanation of how it was that “wrong information” could result from the presence of other cars. His Honour noted that to the extent he opined that there was doubt that the Lidar’s reading was accurate, his evidence was in conflict with Mr Hayes’ evidence in that regard and that it was open to the Magistrate to accept Mr Hayes’ evidence. [17] The District Court Judge also considered the question of whether the Magistrate gave too much weight to the evidence of the prosecution expert, Mr Hayes, and too little weight to the evidence of the defence expert. He conducted a review of the evidence and concluded that the Magistrate had not given too much weight to Mr Hayes’ evidence and found that it was open to the Magistrate to have accepted Mr Hayes’ opinion evidence in preference to that of Professor Nebot. His Honour additionally found having conducted a review of all of the evidence at trial, that “the evidence adduced at trial proved beyond reasonable doubt that the speed of the applicant’s car exceeded 140 kilometres per hour (even if only to a small degree)”.4 The applicant has not demonstrated error in his Honour’s finding. [18] The applicant did not show any arguable error in the decision of the District Court Judge, let alone that a substantial injustice has been caused by the decision below. The application for leave was therefore refused. 4 Akermanis v Queensland Police Service, unreported, District Court of Queensland, Power KC DCJ, D43/2023, 31 May 2024 at [36]. -- 4 of 4 --