LONDY v DISTRICT COURT OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and SHELLER JJA 18 February 1994, 17 March 1994 [1994] NSWCA 187 The appellant, who was charged with exceeding the speed limit by more than 45 km/h under s4A(1A) of the Traffic Act 1909, claimed he was denied a proper trial; the claim was without substance and the trial judge's decision upon the evidence was upheld. Mahoney JA I agree with the judgment of Sheller JA and the orders which he proposes. No submissions have been made as to the effect of the orders made by his Honour Judge Twigg QC and this Court is not called upon to consider them. Clarke JA I agree with Sheller JA. Sheller JA The claimant, Harry Londy, was charged with an offence under s4A(1A) of the Traffic Act 1909 in that on 31 May 1992 being the driver of a motor vehicle upon a public street (Freeway 5) he drove it at a speed exceeding the speed limit applicable to that length of public street by more than 45 km/h. The charge came before the Local Court at Campbelltown where the claimant was convicted, fined $600, ordered to pay a court fee of $45 and disqualified from holding or obtaining a licence for a period of three months. The claimant appealed to the District Court under s122 of the Justices Act 1902. This appeal came before his Honour Judge Twigg QC who, on 8 October 1993, in effect dismissed the appeal by convicting the complainant. His Honour varied the orders by substituting a fine of $1,000 and confirmed the Local Court's orders as to costs and disqualification. His Honour said that the disqualification was to date from the date of his decision, 8 October 1993, but stayed all the orders for twenty one days. On 25 October 1993 this Court stayed the execution of the conviction ordered by Judge Twigg, I would infer, until the proceedings in the matter before this Court were disposed of, or further order. On 25 October 1993 the claimant filed a summons in this Court seeking an order in the nature of certiorari setting aside the orders made by Judge Twigg on 8 October 1993 and a declaration that "(i) His Honour failed to apply the correct test of proof beyond reasonable doubt; (ii) It was not reasonably open to His Honour to conclude that he was satisfied beyond reasonable doubt that the Claimant's vehicle was travelling at 158 kph or at a speed that was 45 kph over the speed limit of 110 kph; (iii) It was not reasonably open to His Honour to disregard or alternatively treat as irrelevant the evidence of the highly qualified expert Jonathan Scott, (iv) His Honour erred in treating the police operator's evidence and the evidence of his partner as expert scientific evidence." The few undisputed facts can be stated shortly. A little after 10 pm on the evening of 31 May 1992 Constables Glohe and Redhead were in a marked police vehicle on a median strip, adjacent to the Johnson and Johnson factory site on the F5 Freeway, Campbelltown. Attached to the police vehicle, which was facing along the freeway towards the south, was a KR1OSP radar instrument which was 2 UNREPORTED JUDGMENTS accurate and operating properly at the time. Both police officers observed a dark colored sedan travelling north and towards them in lane two at a speed which they estimated to be well in excess of 110 km/h. When the vehicle was at a distance of about 250 metres from them, Constable Redhead activated the radar equipment which registered a speed of 158 km/h in the target window of the computer. The vehicle continued past the police vehicle. The constables did a U turn in the police vehicle and gave chase. Some distance further north along the freeway they stopped the claimant's vehicle, spoke to the claimant and issued him with a Traffic Infringement Notice. The principal contested issue between the prosecution and the claimant at the hearing before Judge Twigg was whether the claimant's vehicle was correctly identified as the vehicle indicated by the radar equipment to be travelling at 158 km/h. As I have said both police constables observed what at some point they identified as a Mercedes vehicle travelling well in excess of 110 km/h. Constable Redhead, who his Honour said had vast experience, estimated that the speed was approaching 160 km/h. There was evidence from the constables that one or more vehicles were travelling on the freeway in the same direction behind the speeding vehicle and some evidence that shortly before it passed them other vehicles had passed them ahead of it. His Honour said: "Tt is quite clear from the evidence below and my notes of the evidence here that there were other vehicles on the Freeway and both seem to say that. The only matter that can be pointed to is whether or not there was firm evidence regarding how many vehicles. What is abundantly clear though is that at the time of sighting the particular target vehicle, there was no other vehicle on the roadway in the vicinity where they were targeting. They [the police] ruled out quite unequivocally the possibility of them observing a vehicle receding at 158 kph through the vegetation on the other part of the F5." A little later in his judgment he said: "Tt is made quite clear in written submissions that the essential point in this case is whether or not the police were observing the correct vehicle and whether they activated the radar equipment on to the correct vehicle. I have no doubt in my mind that the police did observe the Appellant's vehicle. That it was as they estimate from their long experience travelling well in excess of the relevant speed limit. The radar equipment, in my view, was properly activated in relation to this vehicle and properly recorded the speed of the Appellant's vehicle at 158 kph." The claimant said that he was travelling at a speed of between 100 and 110 km/h at the relevant time. His evidence of his conversation with the police officers after he was stopped differed in some respects from theirs. His Honour said that he had read carefully the appellant's evidence and observed his demeanor in the witness box. He rejected his evidence, primarily because of conflicting responses he had given in his evidence before the judge and the magistrate. Before Judge Twigg the claimant called Jonathan Brereton Scott, an electrical engineer and senior lecturer at Sydney University in Electronics ar;d Microwave Engineering who had specialised for some years in DOPLA radar and various DOPLA radar systems. He gave evidence that the KR10 radar chooses the URJ LONDY v DISTRICT COURT OF NEW SOUTH WALES (Sheller JA) 3 strongest signal return "which is usually but not always the nearest vehicle to the radar unit" so that "the vehicle......... whose speed is recorded is not necessarily the nearest one". He said: "Tt is most usually the nearest but it is utterly impossible to eliminate the possibility of it being a vehicle several times further away than the nearest." He said that on very rare occasions the radar might pick up something going the wrong way. He said that on the night in question it was "absolutely possible" or "entirely possible" that the speed picked up on the radar was not the closest vehicle by which, presumably, he meant the claimant's vehicle. He also said that the units would operate for distances for up to five kilometres on a long straight road. The evidence was that looking south from the point where the police constables sat in their vehicle, the road continued for a distance of up to one kilometre before curving. At the conclusion of his evidence the following interchange took place: "A. It could have been recording the speed of either of those vehicles just as the constable admitted and the onus upon deciding which vehicle is entirely based on things nothing to do with the radar. Q. That is their observation amongst other things? A. Absolutely yes. It is the only factor." In summary, at the time in question the radar showed a vehicle travelling at 158 km/h. There was not a shred of evidence that any of the other vehicles were travelling at this speed or anything approaching it. Accordingly it seems to me beyond argument that the constables correctly identified the claimant's vehicle as the vehicle travelling at the speed recorded. Having reviewed the evidence Judge Twigg was satisfied beyond reasonable doubt that the claimant exceeded the speed limit of 110 km/h by more than 45 km/h. Accordingly he convicted the claimant. The claimant's case, as I understood it, was that he was denied a proper trial, a denial demonstrated by various errors which his Honour is said to have made in his judgment and by findings which are described in written submissions by various epithets including "incredible". I should say immediately that although I have given the arguments careful consideration I can find no substance in them at all. Indeed it seems to me that under the guise of an application for certiorari the claimant has sought to have this Court re examine the evidence and make its own findings and on that basis discharge his Honour's orders. Such an approach is of course not open on an application for certiorari. In any event I am satisfied that the conclusion his Honour reached was open to him on the evidence. S146 of the Justices Act provides that "no conviction or order of a Justice...... or adjudication upon appeal of the District Court, shall be removed by any order into the Supreme Court". Even so an order made without jurisdiction or in excess of jurisdiction remains subject to removal into the Supreme Court and to an order in the nature of certiorari. So too does an order consequent upon a partial exercise of jurisdiction which can properly be categorised as a failure to exercise jurisdiction; see Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 at 242. Counsel for the claimant recognised this and sought to say, as I understand it, that the prohibition of s146 did not extend to his Honour's orders because his Honour failed to consider the case according to law. The claimant submitted: "No reasonable Judge could have come to the conclusions of fact that Twigg DCJ made on which he based his conviction. There is no real consideration of the evidence unless there is a proper consideration of the evidence." 4 UNREPORTED JUDGMENTS Whatever may be the meaning or merit of the second proposition counsel said nothing which persuaded me that his Honour's conclusions of fact were not open on the evidence or that there was no real or proper consideration of the evidence in the present case. Counsel went through his Honour's judgment and suggested there were errors in it which he described as "glaring". All these matters were peripheral to what his Honour correctly identified as the essential point in the case; whether the police were observing the claimant's vehicle and whether the radar equipment was activated by the claimant's vehicle. His Honour said: "When the vehicle approaching them at that point was coming only headlights were available to them, but at a distance of about two hundred and fifty metres from them, it was clear that the vehicle was a Mercedes vehicle and then Constable Redhead activated the relevant button to activate the radar equipment." The claimant submitted that the constables did not appreciate that the speeding vehicle was a Mercedes until it passed them. The claimant attacked his Honour's statement that: "What is abundantly clear though is that at the time of sighting the particular target vehicle, there was no other vehicle on the roadway in the vicinity where they were targeting." The claimant made the point that there were other vehicles a distance of two to three hundred metres behind the claimant's vehicle and vehicles which passed the police five to six seconds before the claimant's vehicle. The claimant criticised his Honour's statement that: "Upon noting what was in the target window, the police vehicle did an immediate 'U' turn, activated sirens and lights and gave chase to the offending vehicle." It was submitted that there was some evidence from the police that they did not activate the sirens until some moments later. Speaking of Mr Scott his Honour said: "And his technological - his outline of the technical operation of the radar machine was of course of no assistance to me, because there was no challenge to the manner of working of the machine. The expert conceded that if the operators of the machine had the vehicle targeted correctly, then if properly operated, as it was in this instance, there was little room for error. He tried to suggest to me that of course the radar is so sensitive that it could pick up a receding vehicle going in the lanes going in the opposite direction, and it could also pick up a vehicle some kilometres away." The claimant argued that this statement missed the point. There was no challenge that the machine registered a vehicle at 158 km/h for three seconds. What Mr Scott gave evidence about was that there can be "considerable" doubt as to the actual vehicle whose speed is being recorded on the radar machine. To my mind the claimant misunderstands the significance of the prosecution evidence (which his Honour accepted) that the constables were well positioned to identify the vehicle which was travelling at 158 km/h. His Honour said: "it cannot be doubted that they were able to observe and they clearly observed the [claimant's] vehicle. They watched it go by them." The claimant submitted that the use of the word "professor" in describing Mr Scott, who was a senior lecturer, was typical of the generalised exaggerations of the judge. One has only to recite such a submission to demonstrate its worthlessness. URJ LONDY v DISTRICT COURT OF NEW SOUTH WALES (Sheller JA) 5 The claimant points to discrepancies in the police evidence before the magistrate and in the District Court and complained of his Honour's statement: "T don't see any discrepancies in their evidence regarding their observations and distances." But his Honour explained this by saying: "There may be in relation to some matters not the most absolute clarity as to how many vehicles were there or what times it took for vehicles to get from one spot to another. Human nature being what it is, that is quite understandable and in my view lends credence to the matters to which they are deposing." I have said sufficient about an argument which I regard as singularly insubstantial to show that the summons should be dismissed with costs. The stay of the execution of the conviction should be discharged. 1. Summons dismissed with costs. 2. The stay of execution of the conviction should be discharged. Counsel for the Claimant: RJ Colquhoun Instructed by: Maunder and Jeffrey Counsel for 2nd Opponent: PI Lakatos Instructed by: Solicitor for Director of Public Prosecutions