Drake v Winston [2010] QDC 66

1-1 [2010] QDC 66 DISTRICT COURT APPELLATE JURISDICTION JUDGE CLARE SC No 1912 of 2009 JOHN-PAUL DRAKE Appellant and GLEN ROBERT WINSTON Respondent BRISBANE ..DATE 15/02/2010 ORDER -- 1 of 9 -- 1-2 ORDER 1 10 20 30 40 50 60 HER HONOUR: John-Paul Drake filed an application for an extension of time in which to appeal against a conviction for speeding. He filed written submissions and signed the certificate of readiness for the hearing. He did not, however, appear today to argue the appeal. I have read the material and I am satisfied that an appeal would have no merit. The prosecution case rested upon the evidence of Constable Herburg and a certificate attesting to the accuracy of Officer Herburg's speedometer. Constable Herburg had been on the road side booking two motorbike riders when he saw Mr Drake's Lamborghini and a Mazda sports car come out of the winery near Mount Nebo Village. The cars were driving in an unsafe way for the winding mountain road and Constable Herburg decided to speak with the drivers. He took up the pursuit of the cars about 5 to 10 seconds after they had passed him in a 50 kilometre per hour zone. The Officer approached the Lamborghini on a straight stretch of road in an 80 kilometre per hour zone. Although, by that stage the police car had accelerated to 110 kilometres per hour, the Lamborghini was still accelerating away from it and continued to do so over a distance of 300 to 500 metres. Constable Herburg estimated that the Lamborghini must have been travelling at 115 kilometres per hour to do this. -- 2 of 9 -- 1-3 ORDER 1 10 20 30 40 50 60 Mr Drake appeared for himself at the trial. He cross-examined the police officer as to why he did not use the radar device in the car. The answer was that the follow-on speed was the more accurate measure of speed for the conditions. Constable Herburg was the only witness. Mr Drake elected not to testify. He did, however, dispute the follow-on on distance with the police officer and he produced some measurements from Google Earth to suggest that the portion of the pursuit from the winery to the top of the hill was a shorter distance of only 110 metres. The Officer had measured that distance with a calibrated laser to be in excess of 300 metres. Mr Drake sought to challenge the reliability of the follow-on speed calculation by stressing that the police car did not follow at a consistent speed for an extended distance. Constable Herburg replied, "The fact that I'd accelerated up to 110 and you were still pulling away from me indicated to me that you were doing in excess of 110." The accuracy of Constable Herburg's speedometer was evidenced by a calibration certificate in conjunction with an instrument of delegation, as well as a recording of Mr Drake admitting to speeding. When Mr Drake had been pulled over the police officer asked him why he had been doing at least 115 kilometres per hour in an 80 kilometre per hour zone. Mr Drake's answer was that he had, "No reason, none at all." He was also asked how fast he thought he had been going, his -- 3 of 9 -- 1-4 ORDER 1 10 20 30 40 50 60 answer was, "Well, I watched the road - well, like, around 100," and Mr Drake then queried the Officer's estimation of speed at 115 kilometres per hour. At trial Mr Drake indicated to the Magistrate that he was disputing any speed above the 80 kilometre speed limit. The Magistrate convicted Mr Drake of speeding at 110 kilometres an hour on the basis that his actual speed above 110 could not be determined. Mr Drake's written outline complained about the validity of the calibration certificate, the credibility of Officer Herburg and the reliability of the admissions that Mr Drake had made at the time. Because an appeal under section 222 of the Justices Act is by way of re-hearing on the evidence pursuant to section 223, the Appellate Court must review the evidence, weigh the conflicting evidence and draw its own conclusions. The review should also take account of any advantage that the Magistrate had in seeing and hearing the witness give evidence. The certificate tendered in evidence was to the effect that the digital speedometer fitted to Officer Herburg's car had been tested and found to be accurate on the 4th of June 2008, which was two months prior to the incident with Mr Drake at Mount Nebo. The certificate was signed by Lawrence Rucker, who was identified as, "A delegate of the Commissioner of Police Service pursuant to section 4.10 of the Police Service Administration Act." Section 124 subsection (1)PC of the -- 4 of 9 -- 1-5 ORDER 1 10 20 30 40 50 60 Traffic Operation Road Use Management Act is an evidentiary provision for certificates issued by the Police Commissioner stating a vehicle’s speedometer has been tested and found to be accurate. In such circumstances the certificate is deemed to be evidence that the speedometer was producing accurate results up to six months after the test. Section 4.10 of the Police Service Administration Act allowed the Commissioner to delegate his powers under the Act - or, under an Act. The signature on the Commissioner's delegation is enough to prove the delegation. Section 4.12 of the Police Service Administration Act, requires the Court to take judicial notice of the Commissioner's signature on a document made for Court proceedings. The legislative effect was that the certificate of the accuracy of Officer Herburg's speedometer issued by the Commissioner's delegate was evidence that the speedometer was recording the vehicle's speed accurately at the time of the present charge. Mr Drake could have challenged that evidence by giving written notice to the prosecution at least 14 days prior to the trial pursuant to section 124 subsection (4), or by getting leave of the Court consistent with sections 124A subsections (3) and (4). Mr Drake, however, did not give evidence and he made no attempt to challenge the evidence at trial. If notice of a challenge had been given or if an application for leave to challenge had been made below, the prosecution, then would have been entitled to call evidence that to -- 5 of 9 -- 1-6 ORDER 1 10 20 30 40 50 60 establish that the speedometer had been working properly. Mr Drake now wishes to challenge the accuracy of the speedometer on appeal, notwithstanding the issue was not an issue at trial, and notwithstanding the absence of any new evidence about that matter. the written submissions however referred to previous decisions in the Magistrates Court, particularly, Ferris and Mills. Mills was an example where advance notice of a dispute of a challenge was actually given, and both cases are different from the present in that they were considering radar equipment, not speedometers. The TORUM legislation expressly requires testing in accordance with Australian standards for radar and laser speed detection devices. Section 112 is the relevant section, "When using a radar speed detection device or laser based speed detection device a police officer must comply with the applicable Australian standard." There is no equivalent requirement in the Act for speedometers. It is clear that the legislation imposes that requirement for testing in accordance with Australian standards in respect of radar and laser speed detection devices but not in respect of speedometers. The different requirements for proof of the accuracy of the different speed monitoring instruments is confirmed in the evidentiary provision, section 124. Section 124(1)PA provides for a certificate for laser based speed detection devices and radar detection devices to certify that the equipment was tested in accordance with Australian standards. -- 6 of 9 -- 1-7 ORDER 1 10 20 30 40 50 60 On the other hand section 124(1)PC, which concerns a specified vehicle speedometer accuracy indicator, enables a certification that it was tested and found to be accurate. There is no reference in that subparagraph to the Australian standards because compliance with Australian standards is not required for that instrument. The present certificate is taken to be signed by the Police Commissioner because it was issued by an officer who has the Commissioner's delegation. The certificate otherwise complies with section 124(1)PC. Its currency covered the period of the charge. It follows by virtue of section 124(1)PC that the certificate was evidence that the speedometer was reading accurately at the time of Mr Drake's driving. Officer Herburg's evidence that the follow-on speed was displayed at 110 kilometres per hour is evidence that the police car was in fact travelling that fast. A finding that Mr Drake had gone equally fast or faster depended upon acceptance of Officer Herburg's oral testimony. On appeal Mr Drake attacked the credit of the Police Officer. The Officer's evidence had not been contradicted by any sworn evidence. His evidence was internally consistent and plausible. It was corroborated by Mr Drake's own admission that he had been speeding. That admission was taped. The Magistrate had the advantage of observing the witness give his evidence. His Honour found him to be a credible witness. His conclusion was not an unreasonable one on the evidence. -- 7 of 9 -- 1-8 ORDER 1 10 20 30 40 50 60 Mr Drake had emphasised the conflict between a Google map he had put to the witness and the witness's evidence of the distance he had followed behind the Lamborghini. The reliability of the distances indicated on the Google map was not proved. The witness did not accept the map as showing what Mr Drake said it did or otherwise disagreed with it. Officer Herburg's evidence was that he had measured the distance with a scientific instrument and he did not shift from his original position under cross-examination. Mr Drake has never disputed that he made the admissions recorded at the road side, but in his written submissions he sought to neutralise that evidence by an unsworn explanation that he was in a state of shock at the time. This is the first time that claim has been made. Putting aside the weight to be given to it, it does not make the admission unreliable. The Magistrate was entitled to rely on the admission at trial in support of the prosecution case. No unfairness has been demonstrated. I am satisfied that there was sufficient evidence for the Magistrate to find that the speedometer indicator was working accurately and that it was read properly, and that Mr Drake was travelling at at least 110 kilometres per hour in an 80 kilometre per hour zone. The application for extension of time was only eight days late. It was said to have been delayed by late receipt of the transcript. It is apparent, however, that there is no -- 8 of 9 -- 1-9 ORDER 1 10 20 30 40 50 60 substance in the grounds of appeal. Mr Drake has no reasonable chance of succeeding. In those circumstances the application for extension of time is refused on the merits. ----- -- 9 of 9 --