Amies v Dixon [2009] QDC 110

DISTRICT COURT OF QUEENSLAND CITATION: Amies v Dixon [2009] QDC 110 PARTIES: BRIAN WALTER AMIES Appellant AND JEFFREY ARTHUR DIXON Respondent FILE NO/S: Appeal 3061/08; MAG 00007433/08(5) DIVISION: PROCEEDING: Criminal Appeal ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 8 May 2009 DELIVERED AT: Brisbane HEARING DATE: 9 March 2009 JUDGE: McGill DCJ ORDER: Appeal dismissed. CATCHWORDS: VEHICLES AND TRAFFIC – Offences – speeding – speed camera – whether challenge to image – interpretation of image – whether offence proved. Traffic Operations (Road Use Management) Act 1995 ss 118, 120. COUNSEL: The appellant appeared in person K Overell for the respondent SOLICITORS: The appellant was not represented Director of Public Prosecutions for the respondent [1] On 5 October 2007 a speed camera was operating on Old Northern Road, Everton Park. At about 9.15 am the appellant drove his motor vehicle past the camera. As a result, on 22 September 2008 he was convicted of exceeding the speed limit contrary to s 20 of the Traffic Operations (Road Use Management – Road Rules) Regulation 1999, and a fine was imposed. He appeals from that conviction, on the grounds that the magistrate failed to consider crucial evidence and failed properly to consider fundamental evidence. -- 1 of 12 -- 2 Course of proceedings [2] The trial began on 29 July 2008, when the prosecution tendered the certified image produced by the camera (Exhibit 1), which gave a speed for the target vehicle of 73 kph, in a 60 kph zone, and a series of certificates to show that the defendant was criminally responsible for the speed of Volvo sedan 616 FQP: Exhibits 2-5. There was also a certificate under s 124(1)(pf) of the Traffic Operations (Road Use Management) Act 1995 (“the Act”) that on 20 February 2007 the speed camera concerned was tested and was operating properly: Exhibit 6. [3] Evidence was given by the respondent, then an acting senior sergeant in the traffic camera office, as to the interpretation of the image Exhibit 1, which shows five vehicles, although the Volvo sedan 616 FQP dominates the foreground in the photograph. The respondent testified that it was that vehicle that had been detected, as a result of which the image was captured by the device.1 The prosecution then closed its case and the defendant gave evidence. He did not dispute that he was driving that vehicle at the time.2 He said that he knew when driving down that particular length of road he needed to have his brakes applied, and that the brake lights were visible in Exhibit 1: p 11. [4] The appellant referred to extracts from what he described as the Queensland Police Service Operational Procedures Manual, which he said showed that the speed camera on this occasion had been inappropriately located: p 11. Later at p 13 he said that because of these matters he questioned the legality of the way the speed camera had been set up, and also questioned the validity or reliability of the reading obtained. His point was that the policy had been contravened: p 14, line 12. Subsequently he clarified that he was challenging the positioning of the device on the basis that it was located on a downhill section of road, and because there were various metal items in the beam which could have reflected the beam, and the manual indicated that the device should be set up in such a way that such items were avoided: p 15. At p 16 he identified the relevant metal items as an electricity pole, a centre island sign, railings, metal roofs, and metal window frames. Section 118 of the Act [5] When this evidence was given the police prosecutor objected that no notice had been given as required by s 118 of the Act. The appellant in response said that he was not challenging the image, but rather challenging the way in which the speed camera had been set up. [6] Section 118 of the Act relevantly provides: “(4) If the person intends to challenge the image from a photographic detection device at a hearing, the person must give the commissioner written notice of the intention at least seven days before the day fixed for the hearing. 1 To use the terminology in the definition of “photographic detection device” in the Traffic Regulation 1960. In effect, that the camera took the photograph Exhibit 1. 2 He never actually said one way or the other, and the proposition was not confirmed during cross-examination, although other things he said presuppose that he was driving. -- 2 of 12 -- 3 (5) A notice under subsection (4) must be in the approved form and must also state the grounds on which the person intends to rely to challenge the image from the photographic detection device.” [7] This provision was amended in May 2008, that is, between the time of the alleged offence and the date of the trial. As a result there was some debate before the magistrate as to whether the amended version of the section, as I have quoted it above, applied at the time. It was submitted by the police prosecutor that the amendment was procedural and that accordingly it applied to matters where the offence had occurred prior to the date of the amendment, at least so long as there was at least seven days left before the date fixed for hearing of the matter, and although I have not heard full argument on the point, that proposition seems to me, with respect, to have been correct. I should say that the effect of the amendment was essentially to introduce the requirement that the notice be given in a particular form, and state the grounds of the challenge. Ultimately the appellant completed a copy of the approved form, which became Exhibit 8 (p 22), although he made it clear that he was doing so only as a matter of courtesy, and that he maintained that he was not obliged to complete the form in the circumstances, given the nature of the issues being raised by him in the scope of s 118. [8] There was no dispute that no such notice was given previously by the appellant in the present case. It is not entirely obvious what is covered by the concept of challenging the image referred to in subsection (4), but s 113 of the Act defines a “photographic detection device” as a device that captures an image, and s 120(2) of the Act provides that an image purported to be certified in the way indicated is evidence of the various matters specified including “the accuracy of the image”. Subsection (4) of the same section makes the marking or writing made by the device on an image evidence of what it is taken to mean in accordance with the regulation. [9] The marking and writing made by the photographic detection device on the image are contained in the upper right-hand corner of the photograph which is Exhibit 1. The interpretation of that writing and marking, called a data block in s 211(2) of the Traffic Regulation 1962, is to be found in Part 3 of Schedule 11 to that Regulation.3 By reference to Part 3 of Schedule 11, it is apparent that the handwriting at the top is information written by the operator when the particular film magazine was inserted. On the next line, the letter ‘A’ shows that the target vehicle was travelling away from the camera. The number 73 on the right-hand side shows that the device detected a speed of the target vehicle of 73 kilometres per hour relative to the ground.4 The following line shows the time in hours, minutes, and, in smaller numbers, seconds, followed by the date, and in the third line the first six digits show the camera’s location in accordance with the traffic camera coding manual, the next three digits show the speed limit at that place, and the final three digits the image number within the particular film identified at the top. [10] Plausibly the concept of challenging the image could be confined to challenging “the accuracy of the image” of which the certified image is evidence pursuant to s 120(2)(b), or it could be a reference to challenging the image in the sense of 3 Traffic Regulation 1962 s 211(1)(c). 4 The Schedule and the set up of the data block contemplate that the camera might itself be moving, and make allowance for that possibility, but this particular camera was stationery. -- 3 of 12 -- 4 challenging any of the propositions identified in s 120(2) of which the certified image is evidence, or it could extend to challenging the accuracy of the marking or writing made by the photographic detection device on the image which is made evidence by subsection (4). The structure of s 120 suggests that the matters which become evidence pursuant to subsection (4) are not treated as part of the image for the purposes of that section, and that the image is strictly speaking the photograph itself, this being what is captured by the photographic detection device. It is, however, not necessary to decide that, as one of the appellant’s argument appears to be directed to the proposition that challenging the interpretation of the image is not a matter which is precluded by the terms of s 118. [11] Ultimately what the magistrate did was allow the police prosecutor to call what was described as rebuttal evidence, in the form of further evidence from the respondent, evidence from the operator of the speed camera on this particular occasion, and evidence from a senior sergeant within the traffic camera office who gave expert evidence as to the way in which the cameras operated. That seems a reasonable response in the circumstances on the part of the magistrate. 5 Section 118 does not actually specify what the consequence is of a failure to comply with the requirement for the notice, but one would not expect that the section would have the effect of preventing a defendant from giving or leading otherwise relevant evidence on the trial, or from making particular submissions. One may contrast the much more specific provision in s 590A of the Criminal Code, dealing with notice of an alibi. Without expressing a final view on the matter which has not been argued before me, I expect that the magistrate’s reaction of allowing the prosecution to call evidence in rebuttal, and adjourning the trial for that purpose, was a reasonable response to any failure to comply with s 118 in any event. [12] However, it is not at all clear to me that there was a failure to comply with s 118. Assuming that a challenge to the image is a challenge to any of the things of which the image is made evidence by s 120 of the Act, that covered that the image was taken at a specified location and time, the accuracy of the image, the things depicted in the image, and “(d) any requirements prescribed by a regulation about the operation and testing of a photographic detection device were complied with for the specified device at all material times.” The appellant’s second point was not that there had been a requirement prescribed by a regulation about the operation of the device that had not been complied with, but that there was a requirement laid down in the police operations manual which had not been complied with. Unless there is a requirement under a regulation for the device to be used in accordance with the operational procedures manual, and I was not referred to any such provision nor have I located one, the appellant by relying on a failure to comply with the manual was doing something different from challenging the proposition specified in s 120(1)(d). [13] Even if the concept of challenging the image involves a challenge to the markings or writings made by the device on the image, which are made evidence by s 120(4), the proposition that the speed attributed to the detected vehicle may have been unreliable because of the circumstances under which the device was being used is not challenging the proposition that the device detected a particular speed, but challenging the proposition that that is reliable and compelling evidence of the 5 This course was not challenged by the appellant on the appeal, and would appear to be supported by s 146(1)(a) of the Justices Act 1886. -- 4 of 12 -- 5 speed of the vehicle detected at the time. It may be, on the other hand, that in these circumstances the appellant ought to have given notice under s 124(4) of the Act, which notice is required to be given at least 14 days before the day fixed for hearing. Again, there is no specific statement in this part of the Act as to the consequences of a failure to give notice under that provision. [14] At one point reference was made to s 119 of the Act,6 which requires notice in an approved form if a defendant intends to dispute that a traffic control device was functioning without defect. That was irrelevant for two reasons. The appellant’s argument was not that the speed camera was defective, but that because of the potential for reflection from metal objects in the beam the speeds shown by it were unreliable. In any case, s 119 does not apply to a speed detection device; it is concerned only with a “traffic control device”. This is not something defined in the Act, though there is a definition in schedule 6 of the Transport Operations (Road Use Management – Road Rules) Regulation which indicates that it means a traffic sign, road marking, traffic signal, or other device to direct or warn traffic on entering or leaving a road. Plainly that does not include a speed detection device. Section 119 is derived from what was s 44V of the Traffic Act 1949, inserted into that Act by s 10 of the Transport Legislation Amendment Act 1996. The explanatory note to that Act7 makes it clear that it is concerned with what is there described as a “traffic control instrument (such as traffic lights or a speed sign)”. It may possibly be of some relevance in a case where there is a dispute as to just what was the prevailing speed limit at the location where the speed detection device was operating, but it has no obvious relevance in the present case. The second day [15] The trial was adjourned to a later day to enable the prosecution to call further evidence. The respondent was recalled to give some further evidence, and was further cross-examined, although the magistrate only allowed him to further cross-examine in relation to the matters covered in the further evidence. Then the operator of the speed camera on this particular day was called to give evidence, and gave evidence about the procedures followed, including that he had been given a particular list of sites from which he chose this one, and he gave evidence about the documentation that he produced in relation to his operations at the site that day, including a diagram, part of Exhibit 14, which showed the position of the speed camera vehicle in relation to the white line on the left-hand side of the first traffic line, and the distance from a tree near an intersection street, and had a line marked on it purporting to indicate the position of the radar beam. There was also put in evidence two photographs he took of the speed camera vehicle set up on that day: Exhibit 9. [16] The appellant sought to cross-examine this witness on the issue of whether the actual position of the speed camera vehicle was consistent with the operations manual, but was prevented by the magistrate from doing so after the police prosecutor objected that the witness had given evidence simply that he went to a particular approved site: pp 47-48. It emerged later from the evidence of another witness that the approved site extended from Flockton Street to the set of traffic lights at the top of the hill: p 69, p 74. This is a considerable distance, and there 6 Day 1 page 18, by the magistrate. 7 1996 explanatory notes p 590. -- 5 of 12 -- 6 was obviously a good deal of room for the exercise of personal choice on the part of the operator as to precisely where the speed camera was located within that site. The later witness gave evidence about the sort of considerations that might have been taken into account in positioning the van at a particular position within the site, but plainly this line of cross-examination should have been directed to the operator who chose the particular position within the hundreds of metres covered by the site. The police prosecutor was wrong to object, and the magistrate was wrong to prevent this cross-examination. In the light of the later evidence, and the ultimate analysis of the magistrate, however, I am not persuaded that this error of law on the part of the magistrate calls into question his decision, or justifies allowing the appeal. [17] Finally, evidence was given by Senior Sergeant Bennett from the traffic camera office who gave expert evidence about the process by which speed camera sites are identified and approved, about the selection of a particular position within a speed camera site, about the location of the radar beam and the position of the radar beam in the photograph, and about whether the various matters relied on by the appellant as possible sources of interference could in fact have interfered with the proper operation of the speed camera on this occasion. Appellant’s submissions on appeal [18] There were basically two contentions advanced on behalf of the appellant. The first was that the image had been misinterpreted, and that it must (or may) have been the vehicle ahead of the appellant’s vehicle which had produced the reading of 73 kph. There is in Exhibit 1 another vehicle ahead of the appellant’s vehicle, though it is well ahead and travelling in the second lane whereas the appellant’s vehicle was in the first lane, the lane closest to the speed camera vehicle. [19] The police evidence was that when the camera is operating in away mode, as was the case here, the target vehicle is photographed after it leaves the radar beam which detects the speed, so as to ensure that the rear number plate will be visible in the photograph: p 7, 8. The respondent in his evidence said that he looked through the film at various images created by the camera at this site, and that all of the images where the target vehicle was in the left-hand lane had the target vehicle in about the same place as the appellant’s vehicle, regardless of the presence or absence of other vehicles: p 6, 8. In these circumstances, it was obvious that the appellant’s vehicle was in the position of a target vehicle in the first lane at that site. [20] There were some passages in the evidence of the respondent which suggest that he was deriving the location of the beam by reference to the location of the target vehicle. Where the object of the exercise is to identify the vehicle shown in the photograph as the target vehicle, it is unhelpful to identify the location of the beam in the photograph by reference to an assumption that a particular vehicle shown in the photograph is the target vehicle; that reasoning is circular. However, the respondent also referred to the location of all the vehicles photographed as target vehicles at this particular location in this lane,8 and one would expect that all the vehicles detected and photographed as target vehicles would be in much the same place in the photograph at a particular site, indeed probably in much the same place in all photographs taken by a particular speed camera vehicle. That reasoning is not circular, and is a valid method of identifying the target vehicle and in that way 8 Day 1 pages 6, 8; Day 2 pages 27-28. -- 6 of 12 -- 7 inferentially the location of the beam. Senior Sergeant Bennett’s evidence, on the other hand, appeared to be based on a calculation by reference to the known location and angle of the aerial generating the beam, and the camera taking the photograph, and of course evidence of the position of the beam within the photograph derived on that basis was plainly admissible and indeed persuasive. [21] It emerged in the course of evidence that the line of the photograph is not necessarily the same as the line of the beam. This is because the photograph is taken from a position different from that of the radar aerial which generates the detection beam. The aerial is attached to the bull bar at the front of the police vehicle, whereas the photograph is taken from a camera in the passenger bay of the vehicle.9 In addition, the beam runs at an angle of 20 degrees from the line of the vehicle, and hence, when the vehicle is correctly positioned parallel to the road in question, at 20 degrees to the line of the road,10 but the angle of the photograph is 15 degrees to the line of the vehicle (and the road).11 [22] In these circumstances, the location of the position of the beam in the photograph may be a matter of some difficulty. However, Senior Sergeant Bennett gave evidence that the position of the beam was between 61% and 84% of the width of the image, so that the location of the beam was about one inch to the left of the data block in Exhibit 1.12 That puts it behind the appellant’s vehicle in Exhibit 1, and crossing the end of a traffic island which has then a gap in it before a smaller triangular traffic island, separating two U-turn slip lanes. It would mean the beam would be pointing almost directly at a small sign, presumably a keep left sign, facing away from the camera on the traffic island. This may be contrasted with the diagram drawn by the camera operator that is part of Exhibit 14, which appears to show the line of the beam crossing the triangular traffic island. The diagram is not to scale, for example, the evidence was that the angle of the beam was 20 degrees whereas the angle of the line on the diagram is much greater, about 33 degrees, and it may well be that this was not sighted with any particular precision by the operator when he drew the map. [23] If the line of the beam went from the speed camera vehicle across the triangular traffic island, as in Exhibit 14, it would pass directly through the appellant’s vehicle in Exhibit 1, so that if a vehicle is photographed only after it has left the beam, that would be inconsistent with the appellant’s vehicle being the target vehicle, and support his contention that the actual target vehicle was the lighter coloured car in the second lane some distance ahead. That vehicle would have left a beam in that position, indeed would be well out of the beam. However, this inconsistency was not raised during cross-examination, and the magistrate accepted the evidence of Senior Sergeant Bennett and accepted that his was the best evidence of the actual location of the radar beam, and found that the beam was to the rear and the right of the appellant’s vehicle in Exhibit 1: p 16. That finding was open to the magistrate on the evidence. [24] In these circumstances, on the evidence accepted, and understandably accepted, by the magistrate, it was the appellant’s vehicle that was the target detected, not some 9 Day 2 page 37. There was no evidence that the camera lens was positioned on the line of the radar beam. 10 Dixon, Day 1 page 7. 11 Bennett, Day 2 page 63. 12 Bennett, Day 2 page 64. -- 7 of 12 -- 8 other vehicle, and accordingly the effect of Exhibit 1 was to show that the appellant’s vehicle had been detected at a speed of 73 kph. That had to be set against the evidence of the appellant that he was not exceeding 60 kph. It was open for the magistrate to prefer the evidence of the speed camera in this respect, and reject the evidence of the appellant, and on that basis be satisfied beyond reasonable doubt of the speed of the appellant’s vehicle. Operations manual [25] The other major issue was as to the effect of the operations manual. The appellant relied in particular on two parts of the operations manual. 13 Part 6.5 deals with speed detection devices, and within it Clause 6.5.2 provides relevantly: “Restrictions on speed detection device site locations (restricted site locations) POLICY Speed detection devices should not generally be operated in the following restricted site locations: (i) on a road which could be described as the downgrade of a hill; … It is recognised that in some instances, it may be necessary to perform speed detection operations in restricted site locations. Such instances include: … (iii) on downhill grades where there is documented history of crashes … .” [26] Reference was also made to Clause 6.6.7, site assessment considerations, which says relevantly: “POLICY All proposed speed camera sites must be assessed through application of a consistent, credible framework. Operational performance can be enhanced by ensuring that initial site assessments focus on reducing the potential for deployments to be voided for technical or poor public perception reasons. The following factors are highlighted to provide guidance to personnel undertaking site assessments: (i) potential of the radar beam to be reflected by stationary objects causing invalid speed measurements. Objects may be inclusive of: … (b) signs (particularly centre island mounted keep left or no U-turn signs; or … (d) solid metal objects or railings … .” 13 The defendant put in evidence an extract which became Exhibit 7. A fuller extract was later proved by the respondent: Exhibit 17, Day 2 page 55. I have quoted from that. -- 8 of 12 -- 9 [27] There was some argument whether Part 6.5 of the policy, relating to speed detection devices, applies also to speed cameras, the subject of Part 6.6. For what it is worth, Clause 6.3.10 defines a speed detection device as including a speed camera. In any case, one of the provisions in Part 6.6 is Clause 6.6.13, which relevantly provides: “When selecting a position at which to deploy a speed camera at an approved speed camera site whose descriptor has wide parameters, officers are to take into consideration the restrictions outlined in s 6.5.2: ‘Restrictions on speed detection device site locations (restricted site locations)’ of this chapter.” [28] As the evidence to which I have referred earlier showed, this approved site had quite wide parameters, and covered some hundreds of metres of road, including both uphill and downhill sections. On the face of it therefore the operator ought to have taken into account Clause 6.5.2 when selecting a camera location within the site. Because the magistrate did not allow the operator who made the actual selection within the approved site to be cross-examined about the matter, this was not explored at the trial. On the face of it, however, Clause 6.6.13 of the procedures manual was not complied with by the operator. [29] In relation to Clause 6.6.7, this is concerned with the process of assessment of a speed camera site. There was no dispute in the present case that the site had been approved, and the extent to which those responsible for assessing the site prior to its approval had complied with Clause 6.6.7 could not affect the validity of the approval of the site. In any case, it has not been shown that the use of the speed camera other than at an approved site invalidated the reading obtained by the camera, or removed the evidentiary effect of the image. The real significance of Clause 6.6.7 of the manual is that it suggests that a stationary object such as centre island mounted signs and other solid metal objects in the radar beam could cause invalid speed measurements; indeed, it effectively says as much. [30] The magistrate proceeded on the basis that the manual contained directions given by the Commissioner under the Police Service Administration Act 1990, s 4.9. If so, by s 4.9(3) every officer was to comply in all respects with the directions in the manual unless it was inconsistent with something in that Act. A failure to comply does not appear to be made an offence under that Act. The provenance of this manual, and whether the magistrate’s assumption was correct, were not clarified by evidence or by any formal admission by the prosecutor at the trial. [31] There are in principle various ways in which a failure to comply with that manual could be relevant to the outcome of the proceedings. In the first place, it might be possible for the Act to operate in such a way that a speed camera could not validly detect a speed unless the speed camera was operated in accordance with the operations manual. Second, it might be that compliance with the operations manual was a pre-requisite for the evidentiary effect of the image produced by a speed camera under s 120 of the Act. The appellant did not take me to any provision of the Act, or expound any chain of reasoning, which led to such a conclusion of law, and from my own consideration of the Act and an examination of such earlier decisions in this area as I have been able to locate, none is apparent to me. Accordingly, it has not been shown that any failure to comply with the operations manual resulted in the evidence generated by the speed camera being unavailable to -- 9 of 12 -- 10 the prosecution in law. Had that been the case, of course, Exhibit 1 would have been inadmissible and the prosecution would have failed. [32] A third basis which might have been applicable was if the failure to comply with the operations manual, although not rendering the image unavailable as evidence, activated the discretion to exclude it as evidence under s 130 of the Evidence Act, on the basis that the admission of such evidence against the appellant was unfair. There are various aspects to this discretionary exclusion, which reflects the common law position. Where evidence has been gathered illegally or improperly there is a discretion to exclude it.14 It has not been shown, however, that a failure to comply with the operations manual meant that any image obtained was obtained illegally. As to whether it was improperly obtained, or otherwise unfair for the evidence to be admitted against the appellant because of a breach of the operations manual, the magistrate appeared to be aware of the possibility of this, but did not ever appear to have considered exercising the discretion, essentially, it seems to me, because he ultimately did not consider that there was any relevant breach of the operations manual. [33] With regard to the question of whether the evidence from the speed camera should have been excluded under s 130 because of any failure to comply with the manual, when looked at carefully there was no proper basis for exclusion, even if a failure to comply with the manual could in principle justify an exclusion on this ground. As to the question of the speed camera being positioned on a downhill part of the road, there was evidence that this site had a documented history of crashes and accordingly it came within the exception in Clause 6.5.2.15 There was no evidence that there had been a failure to take into account the factors referred to in Clause 6.6.7 in the assessment process of this site, which was all that the manual required. In all the circumstances, there was no breach of the manual demonstrated, so there was no question of a discretionary exclusion on the basis that the use of evidence obtained in that way was unfair. [34] A fourth possibility is that the operations manual may reflect the operational parameters of the detection device, so that a failure to comply in some respect with the operations manual may suggest that the device was being used in circumstances where it may not be reliable, or perhaps just as reliable as it usually is. In this situation, the image would still be admissible in evidence and would not be excluded, but would not be as persuasive as it usually is. That seems to have been the matter that concerned the magistrate, because of a reference in the manual to devices not being used in circumstances where there were various items of street furniture which might be a source of reflection of the radar beam. There are various items shown in Exhibit 1 which, depending on the location of the beam, might be potentially a source of reflection. Ultimately, on the evidence the magistrate preferred as to the location of the beam, the back of a sign was directly in the beam. [35] In these circumstances, the significance of a failure to comply with the operations manual is not legal but factual; it may give rise to a reasonable doubt as to whether the evidence generated by the speed camera was accurate, and hence to a reasonable doubt as to whether the defendant had committed the offence. It is understandable that, confronted with that provision and what was visible in Exhibit 1, the 14 Bunning v Cross (1978) 141 CLR 54 at 72. 15 Bennett Day 2, page 55. -- 10 of 12 -- 11 magistrate said that he had a reasonable doubt about the reliability of the detected speed.16 The magistrate in his decision found that the evidence of Senior Sergeant Bennett dispelled that doubt. Certainly, if taken at face value, it was effective to do that, and his evidence was accepted as being honest and reliable by the magistrate. [36] Senior Sergeant Bennett responded to this theory in two ways: first, because of the position of the aerial and the close proximity of the aerial to a vehicle in the first traffic lane at a time when the vehicle was passing through the beam and being detected, the beam would not have been and could not have been influenced by any of the metal street furniture which was further away and would have been in the shadow of the appellant’s vehicle at the time. 17 Second, the factors referred to in the manual do not in fact impair the operational efficiency of the radar detection unit, but are merely seen as public relations considerations.18 In other words, the desire to avoid them comes not from concern about their giving rise to inaccurate readings, but rather concern about a perception of unreliability on the part of the (presumably uninformed) public in such circumstances. [37] Either of these bases, if accepted, was a sufficient answer to any doubts raised by what was said in the operations manual. There was no contrary expert evidence, and that was the basis upon which the magistrate resolved the matter.19 No reason has been shown as to why there was any error on his part in doing so. [38] Fifthly, the operations manual may simply be a matter of policy direction, which has no effect on the legal validity or technical reliability of evidence produced from a speed camera. Avoiding a downhill site is an example of that; obviously that has no legal implications on the evidence produced by the camera, and there is no reason to think that it would affect the technical reliability of the unit. One suspects that its presence in the manual is essentially a public relations exercise. In my own experience, at least in Brisbane, speed cameras are almost invariably located on downhill sections of road, often just after a steepening of the slope. Other matters [39] There were a few other matters referred to in the written outline of argument. It was alleged that the magistrate had threatened a prosecution witness with disciplinary action if the decision went against them. There is nothing in the transcript to support that. It was said that the magistrate on several occasions cut the defendant short in his questioning of the prosecution witnesses. I have identified one occasion where that did occur incorrectly, but in the light of other evidence, and the approach of the magistrate, ultimately the particular position chosen by the operator for the speed camera vehicle was not of importance. I did not find anything else in the transcript where there was any inappropriate restriction of cross-examination by the appellant. On the other hand, it does seem to me that the magistrate virtually prevented cross-examination of the appellant at the time when he was giving evidence, so that the police prosecutor had very little opportunity to cross-examine, and was not able to cover all the matters which ought to have been covered in cross-examination. 16 Day 2, pages 8, 9. 17 Day 2 page 58. 18 Day 2 pages 66, 72. 19 Decision page 18. -- 11 of 12 -- 12 [40] There was a complaint about a failure to disclose evidence in a timely fashion. It does not appear that that was raised during the trial, and at no stage during the trial did the appellant complain that he was unable to respond to evidence because he had not had sufficient notice of it, nor did he seek an adjournment. There is a statutory mechanism for inspecting an image such as Exhibit 1 prior to the trial: s 118 of the Act. The only evidence where there was a complaint on appeal about a failure to make timely disclosure was described as a site map. It is not clear whether this is a reference to the sketch which was part of Exhibit 14, or whether some other map was contemplated, but it did not seem to me that the contents of the sketch were ultimately of any real significance, and if there was some other site map, it was not put in evidence. This point was not explained in oral submissions, and I am not persuaded that there was any error in the conduct of the trial on this basis. [41] There was no evidence that the camera had not been set up in accordance with the applicable Australian standard. I do not consider that there was any indication of bias against the defendant; indeed, initially the magistrate acted on evidence in the form of an extract from the police manual which had not been properly proved, and as a result said that he had a reasonable doubt about the accuracy of the reading. Overall, it seems to me that the magistrate was acting in a way which was quite sympathetic to the point that the appellant was making, but was ultimately convinced by the evidence that there was no substance to it. I have read the transcript, and there was no indication of bias against the appellant to be found in it. [42] I should mention that the deficiency in the evidence of the delegation of the power of the Commissioner to certify under s 120 of the Act to the person who certified Exhibit 1, Senior Sergeant Bennett, discussed in my reasons in Lekich v Dixon [2009] QDC, delivered contemporaneously, was also present here. In this matter, however, there was no issue raised at the trial as to the validity of the certificate, and Senior Sergeant Bennett was called as a witness on the second day, so that the point could easily have been met by his evidence had it been raised at the trial. It is therefore not available on appeal: Coulton v Holcombe (1986) 162 CLR 1 at 7-9. This applies to an appeal by way of rehearing. The point was also not raised on appeal. There is no reason to doubt that the relevant delegation had been made, so there is no question of a miscarriage of justice if the point is not applied. [43] Overall, the appellant has not shown that there was a failure to have regard to relevant evidence, or that the evidence was misused by the magistrate. No basis has been shown to interfere with the decision of the magistrate. On the evidence before the magistrate and accepted by the magistrate, the magistrate’s decision was correct. The appeal is therefore dismissed. -- 12 of 12 --