Bradford v Burke [2005] QDC 243

1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. DISTRICT COURT OF QUEENSLAND CITATION: Bradford v Burke [2005] QDC 243 PARTIES: Neil Raymond Bradford (Appellant) v Christopher John Burke (Respondent) FILE NO/S: 142/05 DIVISION: District PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court DELIVERED ON: 30 May 2005 DELIVERED AT: Brisbane HEARING DATE: 30 May 2005 JUDGE: FORDE DCJ ORDER: Appeal Dismissed CATCHWORDS: APPEAL AGAINST SPEEDING FINE – Being punished twice for the same offence. COUNSEL: SOLICITORS: -- 1 of 5 -- 30052005 T07/JJD24 M/T CMS60/2005 (Forde DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal from a decision of the learned Magistrate at Caboolture. On 26 November 2004, the appellant was found guilty of a speeding offence, in contravention of section 20 of the Transport Operations (Road Use Management Road Rules) Regulation 1999. ("TORUM") He pleaded not guilty, but did not attend. He was fined the sum of $180 and ordered to pay $62.20 costs of Court. He was allowed two months to pay and ordered to serve five days' imprisonment, in default of payment. A conviction was recorded. The appellant had been driving on the Bruce Highway at Caboolture and was recorded by a photographic radar speed detection device at 113 kilometres per hour in a 100 kilometre hour zone. The appellant had previously been convicted in absentia on 3rd September 2004 for speeding arising out of the same circumstances. On that occasion, he was fined the sum of $160 and ordered to pay $62.20 costs of Court. He was allowed six weeks to pay and ordered to service four days' imprisonment, in default of payment. A conviction was recorded. After the conviction on 3rd September 2004, he was granted a re-hearing of the matter. The earlier conviction was set -- 2 of 5 -- 30052005 T07/JJD24 M/T CMS60/2005 (Forde DCJ) 3 ORDER 1 10 20 30 40 50 60 aside and the matter was listed to be re-heard on 26 November 2004, pursuant to section 147A of the Justices Act. Nature of the charge The appellant was issued with an infringement notice, indicating that he was charged with the offence of speeding with the particulars, "Exceed speed by at least 13 kilometres per hour, but not more than 20 kilometres per hour". On each occasion, the appellant received: "An advice of conviction or order", to the effect that he was found guilty as follows: Exceed speed limit by at least 15 kilometres per hour, but less than 30 kilometres per hour. When one looks at the reasons of the learned Magistrate, the relevant certificate was produced pursuant to section 124 of the legislation of the TORUM legislation. There is no doubt that the learned Magistrate was dealing with a speed of 113 kilometres per hour, see the transcript, page 4, lines 56 thereafter, page 5, line 7 to 12. See also the certificates which were tendered and the reasons for the decision, page 3. It was also clear that the Advice of Conviction was incorrect. -- 3 of 5 -- 30052005 T07/JJD24 M/T CMS60/2005 (Forde DCJ) 4 ORDER 1 10 20 30 40 50 60 The learned Magistrate was satisfied that the charges evidenced by the infringement notice had been proved, see the reasons for the decision, page 4. The fact that an incorrect advice of conviction was sent, does not invalidate the original decision. The learned Magistrate dealt with the various issues raised by the appellant in his letter of 22nd November 2004. The learned Magistrate was required to accept the evidence contained within the certificates, which proved the offence pursuant to section 124 of the Act, absent evidence to the contrary. The appellant did not attend personally. The certificate of conviction dated 12th of April 2005, clearly states that the appellant drove a motor car, "At a speed over the speed limit, namely 100 kilometres per hour, applying to the driver", et cetera. The learned Magistrate dealt with the speed of 113 kilometres per hour. It is the Magistrate's decision which is appealed from. The administrative error is not the subject of this appeal. The certificate of conviction is consistent with the learned Magistrate's decision. Being twice punished with the same offence. Section 147A specifically allows the Court to re-open a hearing and may set aside a conviction or vacate an order. -- 4 of 5 -- 30052005 T07/JJD24 M/T CMS60/2005 (Forde DCJ) 5 ORDER 1 10 20 30 40 50 60 The appellant was allowed to re-open his case. It is not necessary to decide if that course of action was appropriate in the present case. The fact is that the case was heard afresh, the conviction was sustained. The appellant cannot now complain that having been granted a further hearing, he had been punished twice for the same offence. In any event, section 16 of the Criminal Code, does not apply to the present case, as the more specific provision of section 147A is the relevant provision. The orders are: the appeal is dismissed. ----- -- 5 of 5 --