Brosnan v Embelton [2013] QDC 34

1-1 [2013] QDC 34 DISTRICT COURT APPELLATE JURISDICTION JUDGE RACKEMANN No 3068 of 2012 GRANT BROSNAN Appellant and STEPHEN JOHN EMBELTON Respondent BRISBANE ..DATE 04/03/2013 JUDGMENT -- 1 of 5 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal against the conviction of the appellant in the Pine Rivers Magistrates Court on 14 November 2011 for an offence of exceeding the speed limit, under section 20 of the Transport Operations (Road Use Management - Road Rules) Regulation 1999. The appellant was fined $200 and ordered to pay Court costs of $78.50. The case against the appellant was based upon an analogue speed camera which showed that a vehicle in the relevant photograph was travelling in a forward direction towards the camera at a speed of 76 kilometres per hour in a 60 kilometre per hour zone. The primary issue was as to which vehicle was the one detected doing that speed. The relevant photograph shows two forward facing vehicles, side by side, with a two-toned vehicle, which is not the appellant's vehicle, appearing a little closer, if anything, to the camera operator than the defendant's vehicle, which was in the other forward facing lane. At trial, the prosecution led evidence from a police officer to endeavour to prove that it was the appellant's vehicle rather than the two-toned vehicle which was detected by the camera. The evidence of the officer had not been reduced to a statement provided to the appellant in advance of the trial and objection was taken to the evidence being led. -- 2 of 5 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 The learned Magistrate, however, allowed the evidence on the basis that it was simply being called to "assist the Court in the interpretation of the photographs". In reality, the interpretation of the photograph can be done by reference to the traffic regulation. No oral evidence was needed simply to interpret what was contained in the photograph. What the officer's evidence really went to was the way in which the camera is set up, and matters of geometry, to express an opinion upon the detection zone within the photograph and to express an opinion as to which of the vehicles was being focused upon for the purposes of the photograph. Without that evidence, the Crown really had no case. His evidence was more than simply to assist the Court in the interpretation of the photograph. As the respondent concedes, his evidence ought to have been reduced to writing and provided to the appellant in advance before the trial at first instance. Accordingly, the appellant was not afforded procedural fairness at trial and the respondent concedes that the appeal should be allowed on that basis. The respondent also concedes that there is another basis upon which the appeal should be allowed. That is that the evidence of the police officer was itself subject to some difficulty. In his evidence, he said that the two-toned car was not the car targeted because "essentially this vehicle has not entered -- 3 of 5 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 the detection area yet. It's too far away. It's further down the road." In fact, if one looks at the photograph, if anything, the two-toned vehicle appears to be closer to the camera operator than the appellant's vehicle. Further, while he gave some description of the area of detection, it was not marked on the photograph and it is impossible from reviewing the transcript and viewing the photograph to know where the witness was indicating the detection area was. In the circumstances, the respondent concedes that the evidence called by the officer did not prove the case beyond a reasonable doubt and, for that reason, too, the appeal must be allowed. In conceding that the appeal should be allowed, the respondent submitted that evidence of the kind led in this case was capable of proving a charge, even though the evidence was not by the person who actually operated the camera at the time. Reliance was placed upon the decision of McGill DCJ in Hamilton v. Bennett [2011] QDC 16. It is unnecessary for me to express any view about that, however, given that, for the reasons which have already been stated, the appeal should be allowed. Accordingly, I allow the appeal. -- 4 of 5 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 I set aside the conviction and I order that an acquittal be entered. ... ----- -- 5 of 5 --