Field v Dance [2013] QDC 175

1 DISTRICT COURT OF QUEENSLAND CITATION: Field v Dance [2013] QDC 175 PARTIES: GRANT ANDREW FIELD (appellant) v MARK BARRY DANCE (respondant) FILE NO: D177/12 DIVISION: Appellate jurisdiction PROCEEDING: Appeal against conviction ORIGINATING COURT: Magistrates Court at Ipswich DELIVERED ON: 5 July 2013 DELIVERED AT: Ipswich HEARING DATE: 1 July 2013 JUDGE: Bradley DCJ ORDER: The appeal is dismissed. Orders of Magistrate confirmed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – appellant convicted of disobeying the speed limit – whether there was insufficient evidence before the trial Magistrate of the operator of the Lidar device’s expertise – whether there was insufficient evidence for satisfaction beyond reasonable doubt that the Lidar device was correctly aimed at the appellant’s vehicle. CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where the appellant was given the opportunity to call or give evidence of own good character and chose not to - whether the Magistrate gave insufficient weight to the appellant’s good character. Justices Act 1886 (Qld) s 222 Transport Operations (Road Use Management) Act 1995 (Qld) s 124 Federated Carters & Drivers Union of Australia v Motor Transport Association of Australia (1912) 6 CAR 122. Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267 -- 1 of 6 -- 1 Aldrich v Ross [2001] 2 Qd R 235 Mott v Mott [1929] QWN 38 R v Howard Lim, unreported, District Court of New South Wales, Ellis DCJ, D215/11, 7 October 2011 The Commissioner of Police v Toomer [2011] QCA 233 R v Peter Francis Coles, unreported, District Court of New South Wales, Ellis DCJ, 213/10, 15 February 2010 COUNSEL: The appellant appeared on his own behalf S Cantatore (sol) for the respondent SOLICITORS: The appellant appeared on his own behalf Office of the Director of Public Prosecutions for the respondant -- 2 of 6 -- __________________________________________________________________________________ 2 JUDGMENT HER HONOUR: Thank you. Now this is an appeal against a conviction in the Ipswich Magistrates Court. What I’m going to do is read into the record my reasons for my decision but my decision is that the appeal should be dismissed. So, Mr Field, I’ll read those reasons into the record now. That will be transcribed though 5 and, in due course if you want to; you can get a copy of those reasons. Do you understand what’s going to happen? APPELLANT: Yes. I do. 10 HER HONOUR: Okay. All right. On the 19th of November 2012 in the Magistrates Court at Ipswich, the appellant was convicted of a charge of disobeying the speed limit. The offence was committed on the 18th March 2012 on the Centenary Highway, Purga, when the appellant’s vehicle was detected travelling at 99 kilometres per hour in the 60 kilometre per hour zone. The speed was detected by 15 a police officer operating a hand held Lidar, laser-based speed detection device. The appellant appeals against that conviction. The appellant represented himself in the Magistrate’s Court and in this appeal. He drafted written submissions rather than precise grounds of appeal however at the hearing of this appeal he confirmed, as correct, my summary of his grounds of appeal. 20 They were: (1) there was insufficient evidence before the Magistrate of the operator of the Lidar device’s experience, expertise, ability and capacity to operate the device; (2) the Magistrate gave insufficient weight to the appellant’s good character; (3) the evidence was insufficient for the Magistrate to be satisfied, beyond reasonable doubt, 25 that the Lidar device was correctly aimed at the appellant’s vehicle; and (4) there was no evidence that the police officer operating the Lidar device had ever been tested for accuracy in using the device, in other words, for his, “marksmanship”. Only one witness gave evidence at the trial; Mark Barry Dance, a Senior Constable 30 of Police, attached to the Ipswich District Traffic Branch. His evidence was that he’d been a member of the Queensland Police Service for 32 years and a member of the Traffic Branch for about 30 years. He’s qualified to operate and instruct, with respect to all types of radar and laser devices used within the Queensland Police Service. He gave detailed evidence as to how the Lidar device works and how he 35 operated it on the day in question. He tested the device at the beginning and at the conclusion of his shift on that day and was satisfied that it was recording accurate results. He positioned himself about 30 metres to the east of the intersection of the Centenary 40 Highway and the Ipswich-Boonah Road. He had a clear view of traffic approaching from the east. At about 3.12 pm he observed the appellant’s vehicle approaching his location from the east. He observed the vehicle come around a sweeping left-hand bend and when it straightened up he estimated its speed to be about 100 kilometres per hour when compared to other vehicular traffic. He targeted the front grille area 45 of the vehicle with the Lidar device and saw the figures 99 appear in -- 3 of 6 -- __________________________________________________________________________________ 3 JUDGMENT the screen at a distance of 213.1 metres. He intercepted the vehicle and had a conversation with the appellant, which he taped. I have listened to that tape. In that recording, Senior Constable Dance apparently shows the appellant the reading on the Lidar device. The appellant replies, “Yeah, that’s – what’s the speed limit?” 5 He expresses obvious surprise when told it is 60 and says he, “didn’t see it”, when told of the 60 kilometres per hour road signs he had passed. In cross-examination, Senior Constable Dance said there were no other vehicles on the Centenary Highway when he targeted the appellant’s vehicle and, in particular, none between him and the appellant’s vehicle in the lane in which the appellant was travelling. He conceded 10 there may have been another vehicle in the lane to the right of the appellant’s vehicle, some distance ahead of the appellant. But there were no vehicles, that he could recall, travelling faster than the appellant’s vehicle in the other lane of traffic travelling towards him. 15 Senior Constable Dance was questioned by the appellant, as to what marksmanship testing he had undergone with the Lidar device. His answer was, “There is now a marksmanship test in relation to the operation of a laser. I’ve been an operator of a laser ever since they’ve been introduced in Queensland. I was one of the first police officers that undertook an instructor’s course in the late nineties. And we received 20 instructions from the distributor and the representative of the manufacturer from America. And we were issued certificates to our competency in operating and instructing the device. And, in those tests is a – we had to do a series of tests, as I outlined, to ensure the device is operating correctly and we do those tests every day, prior to and at the end of the shift.” 25 It was Senior Constable Dance’s evidence that the laser device he was using has a beam width of one metre at 330 metres and that the beamwidth at 213.1 metres (the distance between him and the appellant’s vehicle) would have been about 700 millimetres. Certificates were tendered pursuant to the Facilitation of Proof section - 30 section 124 of the Transport Operations (Road Use Management) Act 1995, to the effect that the laser-based speed detection device used was producing accurate results and that it was used in accordance with the appropriate Australian Standard on the 18th of March 2012. Despite being advised in some detail of his right to give evidence, and that evidence could only be given from the witness box and not the bar 35 table, the appellant chose not to give or call evidence at his trial. An appeal to this Court, pursuant to section 222 of the Justices Act 1886, is “by way of re-hearing on the evidence given in the Magistrates Court”. After being advised by me of his right to apply to do so, the appellant did seek leave to adduce new 40 evidence in this appeal. The evidence sought to be adduced was in relation to his good character and evidence which might suggest Senior Constable Dance targeted the wrong vehicle with the Lidar device. That evidence was evidence which the appellant could have given at the trial and, in fact, he clearly was advised of his right to do so. He chose not to do so and to allow such evidence to be adduced on appeal 45 now would not be fair to the respondent and I therefore refused his application. -- 4 of 6 -- __________________________________________________________________________________ 4 JUDGMENT I must therefore make my own determination of the issues on the evidence before the Magistrate, “giving due deference and attaching a good deal of weight to the Magistrate’s view”, (Federated Carters & Drivers Union of Australia v Motor Transport Association of Australia (1912) 6 CAR 122, Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267; Aldrich v Ross [2001] 2 Qd R 235 and Mott v 5 Mott [1929] QWN 38). The appellant relied on two judgments of Judge Ellis in the District Court New South Wales, R v Peter Francis Coles, unreported, District Court of New South Wales, Ellis DCJ, 213/10, 15 February 2010, and R v Howard Lim, unreported, District Court of New South Wales, Ellis DCJ, D215/11, 7 October 2011. 10 In each of those cases, convictions for speeding offences detected by laser-based speed detection devices were quashed on appeal. The facts in this case can, however, easily be distinguished from the facts in the two New South Wales cases. In R v Peter Francis Coles, the appellant gave evidence that his vehicle was fitted with a speed limiting device, which would have prevented it travelling at the 117 kilometres 15 per hour, alleged. Other vehicles were in the adjacent lane and the device was aimed at the appellant’s vehicle from a distance of four to 500 metres. In R v Howard Lim, the appellant gave evidence contrary to that of the police officer, who had operated the device, which raised a reasonable doubt about the prosecution allegations. 20 The Commissioner of Police v Toomer [2011] QCA 233 is a case where the laser based speed detection device was alleged to have been locked onto the appellant’s vehicle at a distance of 345.1 metres, and, it was the police evidence that there were other vehicles on the road at the time. Nevertheless, the Trial Magistrate, in that case, convicted the appellant. The Court of Appeal held there was a reasonable basis 25 for the Magistrate’s findings. There are a number of reasons, therefore, why this appeal must fail: (1) The appellant was properly and carefully advised by the Magistrate of the 30 nature of evidence, the purpose of cross-examination (indeed he was significantly assisted by the Magistrate in cross-examining Senior Constable Dance), his right to give or call or adduce evidence and the implications of the section 124 certificates. 35 (2) In spite of that advice, the Appellant chose not to give or call evidence. (3) Senior Constable Dance gave clear and, in fact, uncontested evidence as to his lengthy experience in using laser based speed detection devices and how he used it in relation to the appellant’s vehicle that day. 40 (4) Senior Constable Dance gave evidence of his “marksmanship” which was not contradicted in any way. (5) As the Magistrate found, it is apparent from the recorded conversation that 45 Senior Constable Dance had with the appellant, that the appellant was not aware that the relevant speed limit was 60 kilometres per hour. -- 5 of 6 -- __________________________________________________________________________________ 5 JUDGMENT (6) There is no suggestion in the appellant’s responses to Senior Constable Dance’s question, that he was surprised at or disbelieving of the fact that his speed was recorded at 99 kilometres per hour. (7) Although there is no suggestion that the appellant has anything other than a 5 good character, that is of no real significance when he did not give evidence and give a version of events contrary to that of the police officer. Finally, it seems that the original traffic infringement notice, given to the appellant, incorrectly stated that he was travelling in an 80 kilometre per hour 10 zone. That notice was subsequently cancelled and a new one issued, stating the relevant zone was one of 60 kilometres per hour. Nothing of significance turns on this in relation to the issues in this appeal. There was ample evidence before the Magistrate to support his finding of guilt. Indeed there was no evidence before him contradicting the police allegations. The Magistrate’s decision must 15 therefore be confirmed and the appeal is dismissed. ______________________ -- 6 of 6 --