Costello v Peake [2010] QDC 331

1 [2010] QDC 331 DISTRICT COURT APPELLATE JURISDICTION JUDGE KOPPENOL No 1386 of 2010 SCOTT DAVID COSTELLO Appellant and GARTH WILLIAM PEAKE Respondent BRISBANE ..DATE 23/08/2010 JUDGMENT -- 1 of 3 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: In this matter the appellant was convicted in the Magistrates Court of exceeding the speed limit, specifically travelling at 88km/h in a 60km/h zone. The appeal before me alleges that the Magistrate was biased in that at the end of his reasons he said: "Due to time constraints I have come up with this decision off the cuff because of lack of evidence." To the contrary, the Magistrate actually said, relevantly: "I don't need you to comment on my decision because I have already given my decision, which has been basically been given off the cuff, because of the limited time that has been made available here today." There was no reference to “lack of evidence”. The appellant's point seems to have been that because of that comment, the Magistrate was, in effect, reversing the onus of proof so that the onus of proving that he was not speeding was upon the defendant. The alleged statement, "because of lack of evidence", was not expressed by the learned Magistrate and I think that there is nothing in that first point. The balance of the appellant's argument centered upon what was said to be the absence of proof by the investigating police officer as to his ability to select one particular vehicle from a line of traffic or a large number of other cars in the -- 2 of 3 -- 3 JUDGMENT 1 10 20 30 40 50 60 vicinity of the alleged offending vehicle. The Magistrate heard the evidence of the police officer who operated the speed gun and also the evidence of the defendant. The Magistrate preferred the evidence of the police officer and found the charge proven. Having read the relevant passages of the transcript which related to the police officer’s actions, namely 1-7 to 1-9, I am not satisfied that the appellant has demonstrated any error in the Magistrate's approach or in the way in which the Magistrate heard and determined the matter. Accordingly the appeal will be dismissed. ------ -- 3 of 3 --