Bevacqua v Wykes [2009] QDC 137

DISTRICT COURT OF QUEENSLAND CITATION: Bevacqua v Wykes [2009] QDC 137 PARTIES: SHARON RAE BEVACQUA (Appellant) v RONALD LAWRENCE WYKES (Respondent) FILE NO/S: Appeal 270/09 DIVISION: Appellate PROCEEDING: Criminal Appeal ORIGINATING COURT: Magistrates Court Pine Rivers-Strathpine DELIVERED ON: 27 May 2009 DELIVERED AT: Brisbane HEARING DATE: 18 May 2009 JUDGE: Samios DCJ ORDER: Appeal allowed CATCHWORDS: VEHICLES AND TRAFFIC – speeding offence – radar device – admissibility of certificates to prove offence Traffic Operations (Road Use Management) Act 1995 section 124(1)(pa), section 124(1)(pb), section 124(4) Teelow v Commissioner of Police (2009) QCA 84 applied Lekich v Dickson (2009) QDC 116 followed Amies v Dixon (2009) QDC 110 followed COUNSEL: The appellant appeared in person Ms Litchen for the respondent SOLICITORS: The appellant was not represented Director of Public Prosecutions for the respondent [1] The appellant was found guilty of the offence of speeding by the learned magistrate. This is the appellant’s appeal to the District Court against the Learned Magistrate’s decision. -- 1 of 9 -- 2 [2] The charge against the appellant was that on the 26 th day of April 2008 at Mango Hill in the State of Queensland she drove a motorbike at a speed over the speed limit. Particulars of the charge were that this occurred about 2:02pm and the appellant as the driver detected by police exceeded the speed limit travelling at 160km/hour in the 100km/hour speed zone. [3] The prosecution case relied upon the evidence of Senior Constable Wykes and 3 Exhibits. [4] Exhibit 1 is a photograph showing the location where Senior Constable Wykes was parked on the day and showing 3 lanes heading south and 3 lanes heading north on the Bruce Highway. [5] Exhibit 2 is as follows: -- 2 of 9 -- 3 [6] Exhibit 3 is as follows: [7] The appellant represented herself before the learned magistrate and again on the hearing of this appeal. [8] The appellant did not give evidence. However, she told the Magistrate at the end of the case she maintained she was not guilty of the offence and that she was not travelling at the speed that the officer alleges the reading was of her vehicle. [9] In his evidence SC Wykes said that at approximately 2:02pm on 26 April 2008 he was performing traffic duties and was checking vehicle speeds travelling on Mango Hill in the southbound direction. He was in a marked police vehicle parked on Boundary Road on the ramp facing south targeting traffic travelling south on the Bruce Highway. He was using a Lydar device Serial Number UL002790. He had -- 3 of 9 -- 4 tested that device prior to leaving the station and again after he returned to the station before termination of the shift. At about that time the traffic was light to moderate. He saw two yellow gold motorcycles travelling in lane two or the middle lane of the Highway at a very fast rate of speed which he estimated at 150K to 160K mark. He aimed the Lydar at the first motorcycle and got a speed of 160 which showed up in the display of the Lydar. He then targeted the second motorcycle which was travelling very close to the rear of the front motorcycle and also got a speed of 160 showing in the display function of that Lydar. At that stage both motorcycles were still travelling in lane two. He then put the Lydar on the front passenger seat of the car and started to follow the motorcycles. They were still travelling at that speed. Further up the road he noticed they had slowed down. He activated the lights and siren of the police vehicle. They pulled over. He walked up to the appellant who was riding the second motorcycle and introduced himself and claimed he had a report of her speed at 160 kilometres in a 100 kilometre zone. He also said the rider of the front motorcycle walked back to him and he said to him “got you first at 160 and then got her at 160, there’s the reading” to which the driver of the first motorcycle replied, “You’ve got the wrong people, we were only doing 104”. [10] During SC Wykes’s evidence, the Learned Magistrate told the appellant that it was a radar device being used and to challenge the operation or accuracy of the device she had to give notice to the police as required by s124(4) of the Transport Operations (Road Use Management) Act 1995 (TORUM). That section provides: “(4) A defendant who intends to challenge: -- 4 of 9 -- 5 (a) the accuracy of a speed detection device or vehicle speedometer accuracy indicator for which a certificate is given under subsection (1); (b) the time at, or way in, in which the relevant device was used; at the hearing and determination of a charge against the defendant under this Act must give written notice of the challenge to the prosecution.” [11] There is no dispute the appellant had not given the required notice to the prosecution. The effect of this was to lead the Learned Magistrate to rule the appellant could not cross-examine SC Wykes about his handling of the device. That is, one of the issues in these proceedings raised by the appellant is that notwithstanding she did not give the required notice, s124 of subsection (4) did not prohibit her from cross-examining the Senior Constable about his handling of the device and particular whether he was panning, which is in breach of the Australian Standard and his capacity as a marksman to aim the device at the appellant’s vehicle. [12] Another issue on this appeal is whether the Learned Magistrate ought to have accepted the certificates as evidence in the following circumstances: (a) The certificates refer to s124(1)(pd) and s124(1)(pe) respectively whereas those sections no longer exist and have been replaced by s124(1)(pa) and s124(1)(pb) respectively; (b) There was no identification that Mr Bray as the certifier of Exhibit 2 was a member of the Queensland Police Force to be properly authorised by the Commissioner. -- 5 of 9 -- 6 (c) The certificate Exhibit 2 claims to be by a person as an authorised delegate of the Commissioner. There was no evidence of the delegation. [13] Section 4(10) of the Police Service Administration Act 1990 provides: “4.10 Delegation (1) The commissioner may delegate powers of the commissioner under this Act or any other Act to a police officer or staff member. (2) Without limiting subsection (1), the commissioner may also, under subsection (1), delegate powers of the commissioner to discharge the prescribed responsibility.” [14] Other issues raised on the appeal are: (a) The speed reading was not proven by any other evidence connecting it to the appellant’s vehicle and no questioning of the witness was permitted to show that he could not have taken an accurate reading on that day; (b) The prosecution was allowed to tender photographic evidence which had not been provided to the appellant before the hearing; (c) The photograph shows that the officer did not have a straight line of sight on the traffic and would have panned the device to take the reading which is unlawful and exaggerates the speed of the target vehicle. The certificate was wrongly issued in the circumstances. (d) The police witness omitted parts of his conversation with the appellant in his evidence. -- 6 of 9 -- 7 (e) The evidence of the police officer’s tape recorder being broke is improbable. (f) The evidence of the police officer gave regarding his interception and detection of both vehicle was impossible and ridiculous. (g) The Magistrate demonstrated bias in the conduct of the hearing. (h) The elements of the charge were not proven. [15] It is a normal attribute of an appeal by way of rehearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellant court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of appeal. (See Muir JA Teelow v Commissioner of Police 2009 QCA 84 citing Allesch v Maunz (2000) 203 CLR172 at 180-181, 181). [16] In my opinion as the appellant had not given notice as required by s124(4) of TORUM, the Learned Magistrate was correct to rule that the appellant was not entitled to cross-examine the Senior Constable about the way he “used” the device. That would include questions about whether he panned as he aimed at the motorcycle and his expertise in marksmanship. The evidence of SC Wykes could also satisfy the learned Magistrate that the speed reading was connected to the appellant’s vehicle and there was nothing impossible or ridiculous regarding his interception and detection of both vehicles. -- 7 of 9 -- 8 [17] Regarding the certificates the fact each referred to sections 124(pd) and (pe) did not in my opinion make the certificates inadmissible. The references to the sections of TORUM at the top of the certificates were not essential parts of the certificates. It was clear to the learned Magistrate these were errors. The certificates certified what the law required to be certified and were not therefore invalid on this basis. [18] As to the Certificate Exhibit 2 this did not show who Mr Bray was. That is the certificate did not show he was a police officer. SC Wykes said in evidence the certificate was signed by a superintendent of traffic. In my opinion, therefore there was evidence identifying Mr Bray as a police officer. Therefore, the certificate Exhibit 2 was not invalid on this basis. [19] However, there was no evidence Mr Bray had been delegated by the Commissioner to give the certificate. [20] The learned Magistrate held proof of delegation was not required. In Lekich v Dickson 2009 QDC 111, paragraph 21 and 38 McGill DCJ held proof of delegation was required. See also Amies v Dixon (2009) QDC 110 per McGill DCJ. I am of the same view. [21] SC Wykes did say in his evidence he tested the device before and after he used it but he did not say what was the result of his testing the device. [22] Therefore, Exhibit 2 was not admissible against the appellant. Therefore there was no admissible evidence that the device used by SC Wykes was producing accurate results. [23] The learned Magistrate accepted it was only fair not to proceed on the oral evidence of the Senior Constable as to his opinion of the speed in this case. Without Exhibit -- 8 of 9 -- 9 2 and what it purported to prove, in my opinion the learned Magistrate could not have been satisfied beyond reasonable doubt the appellant committed the offence charged. [24] As to other issues on the appeal, in my opinion they amount to complaints by the appellant as to the conduct of the hearing in the context of having been precluded from cross-examining the Senior Constable notwithstanding she had not given notice as required by s124(4). [25] There was no error by the learned Magistrate ruling the appellant could not cross examine the Senior Constable. There was in my opinion absolutely no bias on the part of the Learned Magistrate in the conduct of the proceedings. He gave the appellant every courtesy and a full explanation of procedures. [26] While the appellant complains about the photograph having been given late to her she nevertheless relies upon it to demonstrate her point. She could have brought her own photographs along if she was going to make a point about these issues. [27] There is no basis for any other complaints by the appellant about the proceedings. [28] Therefore, I allow the appeal. I set aside the orders of the Learned Magistrate made on 6 January 2009. The appellant is found not guilty of the charge. -- 9 of 9 --