Cooper v Queensland Police Service [2011] QDC 332

1-1 [2011] QDC 332 DISTRICT COURT APPELLATE JURISDICTION JUDGE ROBERTSON No 51 of 2011 SCOTT RONALD COOPER Appellant and QUEENSLAND POLICE SERVICE Respondent MAROOCHYDORE ..DATE 01/07/2011 ORDER -- 1 of 8 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: On the 24th of February 2011 after a trial, the appellant, Mr Cooper, was convicted of driving on the North Shore Connection Road at Pacific Paradise on the 13th of August 2010, over the speed limit for the road, namely, at 97 kilometres per hour in an 80 kilometre per hour speed limit zone. Mr Cooper now challenges his conviction on appeal, essentially on the basis that on the evidence, his Honour should have had a reasonable doubt about the fact that it was the defendant's vehicle that, according to the evidence of Senior Constable Michael Ward of the Sunshine Coast District Traffic Branch, was detected travelling at that speed by use by the police officer of a speed detection device used by traffic police, namely, a laser LTI20-20 Ultralite 20/20. Senior Constable Ward was an authorised operator of the device in accordance with the certificate tendered as Exhibit 1 before his Honour. The police officer gave lengthy evidence, accepted by his Honour, that on the 13th of August 2010, he performed a number of required competency tests on the device before and after use, which satisfied him that it was operating correctly. He gave evidence that he positioned his vehicle on that road so that he had an uninterrupted vision of between 270 and 280 metres of vehicles travelling towards him in a westerly direction. He gave evidence that at approximately 1.19 p.m., he observed a white and black sedan travel up behind a number -- 2 of 8 -- 1-3 ORDER 1 10 20 30 40 50 60 of vehicles in the left lane, which vehicle then changed lanes to the right lane and commenced overtaking those other vehicles. As the vehicle came off the bend, he targeted the vehicle with the device, depressed the trigger and the device recorded the speed at 96 kilometres per hour. As he thought from his own observation that the vehicle was still accelerating, he targeted it again and depressed the trigger and the device recorded a speed of 97 kilometres per hour. The device also recorded that when the vehicle was doing that speed, it was 224.1 metres away from the operator. Senior Constable Ward said he then stepped into the carriageway and stopped the appellant's vehicle. There is no dispute that it was Mr Cooper who was driving the vehicle. Senior Constable Ward gave evidence that when he used the device, there was one further vehicle in Mr Cooper's lane but it was 100 to 150 metres in front of Mr Cooper's vehicle. He also gave evidence about three other vehicles travelling in the other lane. Certificates were tendered certifying that the laser-based speed detection device used by Senior Constable Ward at 1.19 p.m. on the 13th of August 2010 was used in accordance with the appropriate Australian Standard then in force. Other certificates were tendered indicating that the device had been independently tested and found to be accurate prior to this date. Mr Cooper did not challenge those certificates, either -- 3 of 8 -- 1-4 ORDER 1 10 20 30 40 50 60 at trial or now. On appeal, as at trial, Mr Cooper's main argument is that his Honour should have had a reasonable doubt because the police officer may have taken the speed of another vehicle, and in particular, the Mazda travelling in front of him, which Mr Cooper admitted in the tape-recorded conversation he had with Senior Constable Ward at the scene, was approximately 100 metres ahead in his lane. He also said in that interview that he saw the 80 kilometre per hour sign, that his speedo was flickering, and he said in cross-examination, that his speedometer was actually faulty and he was actually driving the vehicle to be repaired. The difficulty with Mr Cooper's argument on appeal is that his Honour Magistrate Killeen had the opportunity of hearing and observing Senior Constable Ward give evidence and be cross- examined, and accepted his evidence that, indeed, using the device, the police officer had locked onto the defendant's vehicle with the device on two occasions and not the Mazda or any other vehicle. In my opinion, there is no basis on the evidence to find that this conclusion was unreasonable and against the weight of the evidence. Mr Cooper also relies on some evidence from the police officer who said, in cross-examination, that he'd never been tested or assessed "for his marksmanship" with the device. I agree with the argument made by the prosecution that this point mistakes -- 4 of 8 -- 1-5 ORDER 1 10 20 30 40 50 60 the evidence in that Senior Constable Ward said there was no specific test for marksmanship as opposed to all the many other tests he was obliged to take, of which he gave evidence and to which there was no challenge. Mr Cooper refers today and to Mr Killeen to a decision of a single Judge of this Court in Toomer v Winston [2011] QDC 8, in which the appellant was successful on appeal on the basis that his Honour held that, in the circumstances of that case - that is, the appellant's vehicle was 345.1 metres away when the speed was calculated by the device which was supported by a tripod and behind about eight cars in front of him (as the Magistrate accepted on the evidence of the appellant), a mistake could have occurred, and a reasonable doubt found on all the evidence. In this case, the distance is much less and it is common ground that the only other vehicle travelling in the appellant's lane was approximately 100 metres in front of him, and the other vehicles were in the left lane. It is an entirely different factual scenario, and his Honour Magistrate Killeen was entitled to accept the evidence of the police officer that, using the device, he locked onto the defendant's vehicle, as he swore. Mr Cooper also makes some criticisms of his Honour's judgment, suggesting that because his Honour said mistakenly on a number of occasions that the device was a radar speed detection device, to quote Mr Cooper, "His Honour does not know the -- 5 of 8 -- 1-6 ORDER 1 10 20 30 40 50 60 difference between a radar-driven speed camera ... or a LIDAR speed detection device". His Honour delivered an ex tempore judgment. Mr Cooper has selectively quoted from the judgment, ignoring the fact that on many occasions, his Honour refers to the device as a laser detection device, and it was clear on a reading of his reasons, that he was dealing with the device the subject of the hearing. That was not an issue in any event, at the trial, and Mr Cooper's comments amount to I think, a quite unfair slur on an experienced Magistrate. His complaint about a failure by his Honour to give him a fair trial, by preventing him from tendering documents, is not borne out at all by a reading of the whole of the Court transcript of the trial. He was allowed to cross-examine Senior Constable Ward about the Australian Standard and the police rules and was given every opportunity to fairly present his case. He produced documents which comprised a copy of the Standard and what Mr Cooper said were the police manual rules for setting up intercept sites. As far as I can tell from the Court transcript, his Honour did not actually make any definitive ruling against their admission. He allowed Mr Cooper to use them, as he saw fit, to cross-examine the police officer and told him if he wished, he could tender them or apply to tender them when he gave evidence. He did not seek to tender them when he gave evidence, and seemed to be happy to use them as he did in his final address. -- 6 of 8 -- 1-7 ORDER 1 10 20 30 40 50 60 There was no evidence of breaches of police procedures or rules. These were submissions raised by Mr Cooper in his address which his Honour did not accept as there was no evidence to support the submissions. Mr Cooper makes further complaints in a further outline filed on the 23rd of May 2011, in response to the filing of the respondent's submission on the 29th of April 2011. The Office of the Director of Prosecutions did not comply with the relevant practice direction, as Mr Cooper correctly observes, nor did it serve as it should have, its outline of argument upon Mr Cooper. He had the sense to go to the Registry and they gave him a copy from their file. Although his complaint about the failure of the Office of the Director of Public Prosecutions to comply with the practices direction is sound, it is not a ground on which the appeal should be allowed, as he does not allege any prejudice as a result. Indeed, he has made a full and robust response to Mr Stark's argument, and I excuse the non-compliance under the rules. In his supplementary argument, he refers to the photographs tendered before his Honour and says that, "One can see that the lead vehicle would not just have blocked the path or aim of the LIDAR device, that vehicle would have appeared several times larger ...". In my opinion this is pure speculation, as those photographs were taken on the road after the event. As I have said, the Magistrate accepted the police officer's -- 7 of 8 -- 1-8 ORDER 1 10 20 30 40 50 60 evidence that the device locked onto Mr Cooper's vehicle, not to the lead vehicle or any other vehicle, and try as Mr Cooper might, he cannot make the facts of this case fit with the facts of Toomer. He raises a new ground to the effect that intent is somehow an element of the offence. It is not, as a matter of law. The appeal is dismissed. Mr Stark, you asked for costs, but in the circumstances, I'm not inclined to allow costs. Do you still ask for costs? MR STARK: Sorry, did you - you're inclined to allow? Yes, I still ask for costs, your Honour. HIS HONOUR: Yes, well, I won't award costs in the circumstances. ----- -- 8 of 8 --