Cooper v Commissioner of Police [2017] QDC 214

DISTRICT COURT OF QUEENSLAND CITATION: Cooper v Commissioner of Police [2017] QDC 214 PARTIES: SCOTT RONALD COOPER (Appellant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: 641/17 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Caboolture Magistrates Court DELIVERED ON: 23 August 2017 DELIVERED AT: Brisbane HEARING DATE: 23 June 2017 JUDGE: Richards DCJ ORDER: Appeal dismissed. CATCHWORDS: TRAFFIC LAW – OFFENCES – PARTICULAR OFFENCES – EXCEEDING PRESCRIBED SPEED LIMITS – DEFENCES – whether the evidentiary provisions of Transport Operations (Road Use Management) Act 1995 have been complied with Police Service Administration Act 1990, s 4.10 Traffic Regulation 1962, schedule 10 Transport Operations (Road Use Management) Act 1995, ss 113A, 114, 120 COUNSEL: The applicant appeared for himself C.M. Fraser for the respondent SOLICITORS: The applicant appeared for himself The Office of the Director of Public Prosecutions for the respondent [1] The appellant was convicted in the Caboolture Magistrates Court on 24 January 2017 of exceeding the speed limit on the Bruce Highway at Elimbah on 29 May 2016. The -- 1 of 6 -- 2 matter was a speed camera offence and the speed camera was a Vitronic Poliscan model FM1. [2] The appellant appeared for himself. In his written submissions he submitted that because her Honour said she had little experience in traffic matters that she should have recused herself. There is no basis for an appeal to be allowed on this ground. Magistrates deal with many different pieces of legislation, some of which they are more familiar than others, but because of their training they are nonetheless equipped to read and assess and interpret the legislation and make decisions accordingly. [3] The second submission is that there was no proof of intent to exceed the speed limit and that that was never taken into consideration during the hearing. While many offences do have an element of intent, this particular offence does not and the fact that the appellant may not have intended to exceed the speed limit does not excuse him from liability as this is an offence of strict liability. There is no substance in that submission. [4] The appellant has also submitted that the evidence required a certificate of usage to Australian standards from the operator of the speed camera at the time of the incident. He said in the absence of such a certificate the case was fatally flawed and the magistrate should not have accepted any of the other certificates in proof of the speed at which Mr Cooper was travelling. Mr Cooper, in support of that argument, cites s 120 of the Transport Operations (Road Use Management) Act 1995. Unfortunately, it seems that he has misconstrued the effect of s120 of the Act. [5] Division 2 of Part 7 of the Transport Operations (Road Use Management) Act 1995 deals with photographic detection devices. A photographic detection device is defined in s 113A(1) and that section states: “113A Photographic detection device defined (1) A photographic detection device is a device or system, that captures an image, of a type approved under a regulation as a photographic detection device.” [6] Schedule 10 of the Traffic Regulation 1962 deals with approved photographic detection devices and Part 5 of that Regulation refers to digital speed camera systems under approved photographic detection devices. Included as part of the digital speed -- 2 of 6 -- 3 camera systems are the Vitronic speed camera system models Poliscan Speed, Poliscan Speed M1HP and Poliscan FM1. This particular speed camera was a Vitronic Poliscan model FM1. This particular speed camera is captured under photographic detection devices. [7] Section 114(1) states: “114 Offences detected by photographic detection device (1) If a prescribed offence happens and the offence is detected by a photographic detection device, a person is taken to have committed the offence if the person was the person in charge of the vehicle that was involved in the offence at the time the offence happened even though the actual offender may have been someone else. Section 120 of the Act then applies to proceedings for an offence under the Act and subsection (2) provides: “120 Evidentiary provisions … (2) An image produced by the prosecution purporting to be certified by an official stating that the image was properly taken by a photographic detection device at a specified location and time is evidence of the following matters— (a) the image was taken at the specified location and time; (b) the accuracy of the image; (c) the things depicted in the image; (d) any requirements prescribed by a regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times.” Subsection (9) states: “(9) In this section— -- 3 of 6 -- 4 official— (a) generally—means the commissioner or the chief executive; and (b) in a proceeding for an offence against section 84A(1)—includes a toll officer within the meaning of section 166A.” [8] By virtue of the instruments of delegation being Exhibit 8 and Exhibit 2, the Senior Sergeant of the Traffic Camera Office was given the power pursuant to s 4.10 of the Police Service Administration Act 1990 to certify that an image was properly taken by a photographic detection device. Pursuant to s 120(2) of the Transport Operations (Road Use Management) Act 1995, the senior sergeant of the Traffic Camera Office was at the time Steven J. Embleton and as such he was authorised under the Act to issue the certificate. The effect of that part of the Act is that in the absence of a written notice of challenge to the prosecution that there was some problem with the delegation or some problem with the way in which the device was set up, the certificate is conclusive evidence of the matters stated in the certificate and photograph. The photograph shows the date of the offence, the vehicle and the speed of the vehicle. [9] The appellant did submit a notice of challenge pursuant to s 120 of the Transport Operations (Road Use Management) Act 1995. In that notice he stated that he intended to challenge the image and the photographic detection device on the grounds that: “The vehicle is a 1994 model and complies with ADR 18-02 before that rule was repealed in 2015. As that ADR has not been replaced with any rule stating it now has to comply with later model 1% tolerant speedometers. The existing 10% error factor still applies and has not been taken into consideration in the issuance of this notice. Please see 3rd Edition ADRS – Regulation 20.” [10] The appellant argued that his speedometer had a 10% error and therefore he should have been given that 10% margin of error and he would not have been speeding. This of course does not take into account the fact that the speed was 13 kilometres over the limit rather than 10 and therefore a 10% error would not have saved him from a speeding conviction. In any event, the appellant did not proffer any evidence that his -- 4 of 6 -- 5 speedometer was not working accurately. He said he was unable to find someone who could test it but the fact remains that he did not offer evidence from an expert that in relation to the operation of the speedometer. [11] His other submission was that the photograph taken did not comply with the Vitronic manual which I have admitted and marked as Exhibit A and that there was an error in the photograph which would have rendered it inadmissible. The appellant has shown me the error that he says has occurred and it seems as though there is an arguable problem with the photograph if one compares it to the manual. However, the appellant, when he raised this issue before the magistrate, was unable to lead the evidence because he did not give the proper notice of challenge under the Act. Although he indicated that he was challenging the image, the grounds on which he was challenging the image was on the basis of the 10% error for margin in his vehicle speedometer, not on the basis that the image did not comply with the Vitronic manual. In those circumstances, the provisions of s 120(7) and (8) were not complied with and the prosecution rightly objected to the evidence. The magistrate did offer the appellant an adjournment so that he could lodge a formal challenge and this matter could be tested but the appellant indicated that he did not want to have the matter adjourned. [12] Her Honour stated:1 “Bench: Under the circumstances, I will – now there is the power to adjourn the hearing to a time, and on the terms as to costs, as the court considers appropriate. Defendant: I can’t afford any of that; I’m an old age pensioner. Again, this is where it’s most unfair on the defendant. Bench: Well, so you don’t seek an adjournment? Defendant: No, your Honour.” 1 T-117, L 5. -- 5 of 6 -- 6 [13] In those circumstances, the magistrate can hardly be blamed for not receiving the evidence when the appellant specifically stated he did not want the matter to be adjourned so that this matter could be properly explored at a later time. [14] In those circumstances, failing the challenge to the image, the evidentiary provisions of the Act were properly complied with and the case was proven beyond reasonable doubt. There is no merit in this appeal and the appeal should be dismissed. -- 6 of 6 --