Doherty v O'Shea [2009] QDC 291

1 [2009] QDC 291 DISTRICT COURT APPELLATE JURISDICTION JUDGE O'SULLIVAN No 73 of 2008 KIRSTIE DOHERTY Appellant and C D O'SHEA Respondent MAROOCHYDORE ..DATE 23/01/2009 JUDGMENT -- 1 of 7 -- 2 JUDGMENT HER HONOUR: This is an appeal against a decision of the Learned Magistrate of the 22nd of September 2008. I have the benefit of written submissions from both the appellant and the respondent. The parties appeared before me earlier in the sittings and indicated they did not wish to add to those written submissions. Ms Doherty did not appear when I expected her but she is here now and I am proceeding to give Reasons. This is an appeal against conviction and sentence for driving over the speed limit. The notice of appeal referred only to sentence but the written submissions which were tendered refer to the decision being overturned. It is, therefore, strictly an appeal against both conviction and sentence. The decision of the Learned Magistrate was delivered on 22 September 2008. I propose to refer to the grounds in the written submissions. The first is, in summary, that the Learned Magistrate ignored evidence that the device relies on the aiming ability of the operator. I do not agree that this is so. I refer to transcript 2-5 where the Learned Magistrate was, perhaps, informal in his approach and may well have given the impression that he was ignoring what the appellant was saying. However, as a matter of law and perhaps what he intended to convey, was that he did not have to give weight to any evidence about the aiming ability of the operator. The Learned Magistrate had before him the requisite certificates which, as a matter of law under State legislation, mean that the conviction of the charge did not require evidence of this aspect. That ground, therefore, has no merit. -- 2 of 7 -- 3 JUDGMENT Ground 2 in the written submissions is in summary; there was no evidence of the reading of the device and it was susceptible to mistaken identification. There is evidence from the police officer that he had a clear view of the car. I give the reference 12.1 and 12.2. It's further raised that the device was not reliable in traffic. The evidence of the police officer was, "If I can see your car, I can get a speed recording on your vehicle". Transcript T-4, line 55. The police officer gave evidence that he could see the defendant's vehicle clearly. T2-4, line 45. The Learned Magistrate was entitled, as he did, to accept that evidence. There is, therefore, no merit in ground 2. Ground 3 was that the police have no training re estimating speeds. I accept the submission of the respondent that the Learned Magistrate and, indeed the police, did not rely on the police officer's estimate. The Crown case did depend, and the Learned Magistrate did find, that the police officer saw the car, pointed the device in an appropriate way at the car in accordance with the standards. His evidence about the speed of the car was not the basis on which the Magistrate made his decision. There is, therefore, no merit in this ground. Ground 4 was that the device is "little more than a range finding". The Learned Magistrate, as he was entitled to do, accepted the evidence of the police officer that he levelled the device at the defendant's motor vehicle. T5.50. The Learned Magistrate, as he was entitled to do, accepted -- 3 of 7 -- 4 JUDGMENT evidence that the police officer used it in accordance with Australian standards. Reference, T6.60. The Learned Magistrate accepted, as he was entitled to do, evidence from the police officer that "If I put the red dot in the scope of your vehicle, then can be sure it was her vehicle". There is no merit in this ground. Ground of appeal 5: The Learned Magistrate took into account that the defendant did not speak up when questioned by the police. I refer to transcript T5.20. I can understand why the appellant may feel that the Learned Magistrate was criticising her, and he therefore took her failure to speak up into account. I'm not persuaded that that was so, and I accept the explanation of the appellant that she did not speak up for valid reasons. This is not an element of the offence and does not affect the correctness of the Learned Magistrate's decision. Ground of appeal 6: The prosecution case was entirely hearsay unsubstantiated by one conclusive piece of evidence. Firstly, I say, it was not hearsay; that is an incorrect use of that term. The Learned Magistrate, as he was entitled to do, found the police officer to be credible. He found him to be credible to the required standard which is beyond reasonable doubt. The Learned Magistrate also had the evidence from the certificates concerning the device. There was evidence which, in total, would, in my view, meet the requisite standard. I find no error in the Learned Magistrate's decision. -- 4 of 7 -- 5 JUDGMENT Ground of appeal 7: The identification of the target over distances is unreliable. There was no evidence concerning this, however, there was no requirement to do so because of the legislative provisions concerning the legal force of the certificates which were tendered. Ground of appeal 8: The device has no reliability when traffic is going in both directions. The police officer, in his evidence, disputed this and said they were specifically designed for traffic. See, T2-6, line 20. He said, "Provided you can see the vehicle and get a clear view to that vehicle, you can isolate that vehicle in amongst a group of traffic". Reference T-7, line 50. He made the point that the laser technology stands aside from handheld radars which the police once used. The Learned Magistrate was not required to be satisfied about this issue any further than he was. The evidence was, indeed, sufficient. In the written submissions, there is a ground of appeal under the heading, "Conclusion:" "Officer cannot give any guarantee of hitting a particular target in heavy traffic situations." I find that the police officer gave sufficient evidence in the hearing for the Learned Magistrate to reach the view which he did, namely, that the police officer saw the vehicle, used the device in an appropriate way, in accordance with standards. On the totality of the evidence, there was sufficient proof of the Crown case. -- 5 of 7 -- 6 JUDGMENT Other issues not raised are the direction of travel. I find there was evidence of the police officer concerning this upon which the Learned Magistrate was entitled to rely. I also note that the Learned Magistrate, as he was entitled to do, relied on his assessment of the witnesses and indeed, he expressed some reservations about the evidence of the appellant concerning her changing of gears. He did not specifically make a great deal of this but it must always be borne in mind that in providing Reasons, Magistrates and Judges are not required to spell out each and every factor which has influenced their decision. I am satisfied that the Learned Magistrate reached his decision in an appropriate way looking at the evidence as a whole. I point out that the issue raised on the appeal about the device or should I say, the devices, were not raised at the hearing. This is an important point. Indeed, the appellant specifically said at the hearing that she did not contest the accuracy of the device. I refer to transcript 2-3, line 10. I have therefore granted the appellant some considerable indulgence in raising these matters on appeal, given that they were not raised at the hearing. I find there is no merit in any of the grounds of appeal concerning conviction. I dismiss the appeal concerning conviction. So far as sentence is concerned, the appellant says that the Learned Magistrate "doubled the amount." This shows an understandable but quite inaccurate understanding of how the -- 6 of 7 -- 7 JUDGMENT Courts work. When there is a fine imposed at the scene, that is usually for a certain amount. However, a Magistrate or Judge is not bound by that amount when it comes to Court. Indeed, what Magistrates and Judges follow are ranges of penalties that have been established over the years by various Magistrates and Judges. There is not, as a matter of law, any relationship between an on-the-spot fine, if we call it that, and a fine that might be imposed at a hearing. Out of courtesy to the appellant, I have considered the sentence, and I find the fine of $300 to be, in my experience, quite modest. I have known much higher penalties to be given by Magistrates for these offences. There is no merit in the appeal against sentence. I dismiss it. Both appeals are dismissed. ... HER HONOUR: I publish these Reasons. ----- -- 7 of 7 --