New South Wales District Court CITATION: DONNELLAN v R [2010] NSWDC 315 HEARING DATE(S): 15 -16 December 2010 JUDGMENT DATE: 16 December 2010 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: Find the offence proved and dismiss the appeal against conviction. CATCHWORDS: CRIMINAL LAW - Conviction appeal - Exceed speed limit - LIDAR detection - Fresh evidence - Expert witness PARTIES: John Michael Paul Donnellan The Crown FILE NUMBER(S): DC 2009/211243 COUNSEL: Mr A Hourigan - Appellant SOLICITORS: Director of Public Prosecutions - Respondent JUDGMENT 1 HIS HONOUR: I have before me an appeal against a conviction by a Magistrate in which the appellant, Dr Donnellan, was found to have exceeded the speed limit by more than forty-five kilometres per hour whilst driving his motor vehicle along Southern Cross Drive. 2 The evidence in the Local Court consisted of, for the prosecution, the two police officers who say they detected Dr Donnellan as a speeding driver and Dr Donnellan, who gave evidence himself that he was not speeding. In the Local Court the case was run on the basis that the police may have made a mistake as to the identity of the car and falsely concluded that the car they eventually stopped, which was driven by Dr Donnellan, was the car they had seen speeding some time before. It will be necessary later in this judgment to explain a bit more about the circumstances in which police made the various observations that they say they did. 3 After the Magistrate made his finding, Dr Donnellan appealed to this Court. He sought leave to adduce fresh evidence. A different judge granted that leave and so I heard evidence from a Roy Zeegers, an expert in various aspects of police speed detection, and the two police officers gave further evidence in response to matters raised by Mr Zeegers. I then heard submissions from Mr Hourigan as to why it was that I should allow the appeal. He submitted that I could not be satisfied beyond reasonable doubt in the light of both the evidence adduced in the Local Court and the evidence adduced in this Court that his client was guilty of the offence. 4 I turn now to the evidence. Two police officers, both experienced highway patrol officers, were performing their duties. They were attempting to identify speeding drivers as cars travelled northwards along Southern Cross Drive. They therefore stopped their police vehicle in a road, I think called Mill Pond Road, which joined into Southern Cross Drive. They were parked in such a way that drivers of vehicles travelling along Southern Cross Drive would not easily be able to see that there was a police vehicle performing duties. They could see vehicles travelling down a flyover which forms part of Southern Cross Drive. One police officer sat in the driver's seat of the vehicle observing the radar. I say no more about the radar because the prosecution did not rely on any aspect of what the radar revealed. The other police officer was standing at the opened passenger door of the police vehicle with a LIDAR device. This is a speed detection device which uses light. The device transmits the beam of light which is reflected off targets in much the same way that radar uses radio waves. I gather that the device is able to measure reflections bouncing back from a target and therefore compute the speed of the target. It is important that someone using such a device is able to accurately point the beam of light at the target for a period of time. There is therefore a head up display on the top of the device and an operator looking through it sees a reticle which must be placed over the target vehicle. When that is done properly, the operator hears a continuous tone indicating that the device is measuring the speed of the target vehicle. If there is some interference with the beam such as if another vehicle gets in the way or the target vehicle goes behind a stationary object, the operator will hear a staccato tone. The procedures under which the police operate require that the operator hears the steady tone for three seconds, although the evidence would suggest that an accurate speed can usually be obtained in a much shorter time than that. 5 I return to what happened that evening. The two police officers saw a vehicle travelling at what they believed to be high speed down the flyover. One officer identified it as a silver Mercedes SLK, the other officer identified it only as I think a silver Mercedes. The LIDAR operator pointed his device to the car, he pressed the trigger, heard the steady tone for what he said was three seconds and saw the numerals 135 261 appearing in the LED screen of the device. Those numerals indicate that the target vehicle was travelling at 135 kilometres an hour away from the operator and that at the completion of the check the vehicle was 261 metres away from the operator. The operator got back into the car, told the driver "silver SLK" and a pursuit was commenced. It is important to note that by the time the police vehicle moved off, the vehicle said to be speeding was out of sight. The police vehicle then travelled at very high speed along Southern Cross Drive. Although the speed limit is eighty, at times the police vehicle travelled at 200 kilometres an hour. Even travelling at that high speed it was some time before the police vehicle caught up to what the prosecution says was the same vehicle which the LIDAR device had earlier indicated was speeding at 135 kilometres an hour. It is common ground that the vehicle seen at the end of the chase was driven by Dr Donnellan. Indeed, the in-car video was played to me in court and so it is beyond doubt that the car which the police say was the one speeding down the flyover was driven by Dr Donnellan. The police activated their lights and siren and eventually Dr Donnellan drew his vehicle to a stop. The police told him he had been stopped because he was speeding and Dr Donnellan immediately challenged that saying, "I'm sorry, I don't accept that I was speeding." He was subjected to a breath test which proved negative. The police officers then wrote out a ticket for him and served it upon him. Because of the speed, the effect of the ticket was that his licence was suspended immediately and he was told that he would have to arrange someone else to pick the car up. 6 There is evidence of Dr Donnellan's speed in three particular areas. Firstly, there is the LIDAR reading. That is challenged on two bases. Firstly, the accuracy of the reading, itself, and secondly, even if it is accurate, there remains the question as to whether the vehicle the police eventually stopped is the same vehicle that was targeted by the LIDAR some kilometres down the road. The second way in which the prosecution seeks to prove the speed of the appellant's vehicle, concerns an average speed calculated by measuring the distance over which the vehicle travelled and the time it took to make that journey. Doing that calculation reveals an average speed which was very high indeed. That calculation was undertaken by Senior Constable O'Leary. It revealed an average speed of about 145.9 kilometres an hour. Of course, that is only an accurate average speed if the police have correctly identified the vehicle. If the vehicle picked up on the LIDAR is different to the vehicle driven by Dr Donnellan then no average speed calculation can be made. The third area of evidence concerning the speed at which Dr Donnellan's vehicle was travelling is, however, not the subject of any doubt as regards the identity of the vehicle. After police caught up to Dr Donnellan's vehicle, and on the Crown case I can use the term "reacquired it", both experienced police officers said that they estimated that the Mercedes, I repeat, undoubtedly at this stage driven by Dr Donnellan, would be travelling well in excess of the speed limit. The driver of the car, Constable Simmons, estimated the speed to be between 130 and 145 kilometres an hour, while the passenger estimated it to be no less than 130 kilometres and no more than 150 kilometres an hour. That circumstance is particularly important as to whether I am able to satisfy myself beyond reasonable doubt that the vehicle stopped by police was the same vehicle which the LIDAR said was travelling at 135 kilometres an hour earlier. 7 As I mentioned, in this court evidence was called from Mr Zeegers. His report was tendered. I have to say that the report was in many respects confusing but perhaps more importantly revealed what might be thought to be a lack of impartiality. Matters adverse to the police are often highlighted through the use of an exclamation mark suggesting some excitement on the part of the author where matters helpful to Dr Donnellan are recorded. That apparent lack of impartiality was confirmed as Mr Zeegers gave his evidence. He spoke during cross-examination by the Crown of his experience in court and fused his role as an expert with his role as a McKenzie Friend. At times Mr Zeegers demonstrated an inability to focus on the questions asked of him. I formed the view that he was anxious to advance a particular point of view. I have therefore looked quite closely at the opinions Mr Zeegers expressed both in his report and in his oral evidence. Mr Zeegers' evidence introduced a new issue to be determined which had not been agitated in the Local Court. That concerned a challenge to the LIDAR reading. I want to emphasise, as I did during the course of argument, that the appellant is not to be blamed for this. In no way have I regarded the challenge to the LIDAR as being less probative because it was not raised in the Local Court. After all, if Dr Donnellan is telling the truth, all he knows is that he was not speeding. He does not know the reason why, if he is to be believed, a mistake has been made. And it was therefore quite understandable that as circumstances presented themselves in the Local Court the challenge would only be based on mistaken identity, but after the finding in the Local Court and the seeking of expert opinion, a further challenge would be made. 8 I asked Mr Hourigan, who appeared for Dr Donnellan, what aspects of the case Mr Zeegers would give an opinion on. The first matter was that it was suggested by Mr Zeegers that for technical reasons evidence of a LIDAR reading would not be admissible where the person who tested the LIDAR device at the start of a shift was not the same person who operated it during the shift. The particular passage where this is raised appears at around p 42 of Mr Zeegers' report. It is to be noted that Mr Zeegers refers to guidelines set out in the New South Wales Police Service Pro Laser Infra-Red Training Manual 2005 although I was not provided with them. But evidence was given by police that whatever was in the 2005 version the 2006 version does not have this requirement. In submissions, Mr Hourigan attempting initially to persuade me that, even though it was common ground it was not necessary for a LIDAR's accuracy that the same person who tested the device, use the device as a matter of interpretation of statute regulation or guidelines, if those people were not the same person the LIDAR evidence was not admissible. In the finest traditions of the bar Mr Hourigan abandoned that submission after having conducting some more research overnight. There is thus no legal impediment to the admissibility of evidence as to what the LIDAR read. 9 There are a number of challenges to the LIDAR of more substance advanced by Mr Hourigan. For example, it was suggested that it was possible that the operator, Senior Constable O'Leary, had inadvertently recorded the speed of a car travelling towards the police officers rather than moving away from them. At least part of the argument in support of that submission relied on the fact that at one stage the evidence suggested that the LIDAR device read 135 rather than minus 135 at the conclusion of the test. However, I am satisfied that the omission of the minus sign in other evidence was completely inadvertent and that it is not reasonably possible that Senior Constable O'Leary has inadvertently recorded the speed of a vehicle travelling towards him rather than one moving away from him. It would be remembered that the reticle on the LIDAR must be pointed at a target vehicle and a steady tone heard before the guidelines say a police officer can form the conclusion as to the speed of a vehicle. Senior Constable O'Leary said that that is what he did, having seen a silver Mercedes SLK travelling at what appeared to be high speed. Once the SLK overtook another car and he had a clear view of that vehicle he pointed the LIDAR device at it, kept the reticle over the vehicle as it moved away from him and heard a steady tone for three seconds. To record the speed of a car travelling towards him, the device would have had to be pointed at a vehicle travelling towards the officer for three seconds in order for him to have heard the steady tone for that period and at the conclusion of the test the device would have read 135 rather than minus 135. It was never suggested that the police officers had deliberately made up any of their evidence. At the most it was suggested they may have made a mistake and I do not find it reasonably possible at all that Snr Const O'Leary, the officer who operated the LIDAR, managed to accurately target and track a vehicle moving towards him at a speed of 135 kilometres an hour when what he thought he was doing was accurately targeting and tracking a vehicle moving away from him. 10 Two other aspects of the use of the LIDAR were challenged. Firstly, was there any vehicle travelling at 135 kilometres an hour and secondly, was it the silver SLK Mercedes that the police said was the one the LIDAR was used on? 11 The photographs reveal some obstructions before the flyover ends. There is a barrier preventing vehicles leaving the side of the flyover and a steel pole, presumably for a road sign, at the base of the flyover. But after that there are no relevant obstructions. There are street signs of course on the left-hand side of the roadway but Mr Zeegers said they had nothing to do with the matter. There are overhead signs, which, if the LIDAR was pointed at them, might cause some problems in obtaining an accurate speed of a targeted vehicle. 12 The police evidence was that once the vehicle had overtaken another car, Senior Constable O'Leary was able to point the LIDAR device at the vehicle and hear a steady tone for three seconds. It is the fact that he heard a steady tone which, I understand it, demonstrates the accuracy of his targeting the vehicle. If another vehicle had got in the way, as I mentioned earlier, he would hear a staccato tone. If he had initially tracked the vehicle and then it went behind an obstruction such as a street sign or some other obstruction, he would again hear a staccato tone. In my view, the evidence of the police officer that he tracked the particular vehicle he initially identified was travelling at high speed with the LIDAR device for a period of three seconds and that he heard a steady tone during those three seconds, should be accepted. I should say that, having looked at the in-car video recording, it is obvious that there is a vehicle travelling at a much higher speed than other vehicles, which is a matter that I have taken into account in deciding whether the LIDAR device was operating and operated correctly. From what I saw on the video, I am not at all surprised that the police officer was able to use a LIDAR device to determine that a car was travelling well in excess of the speed limit. 13 The issue therefore becomes one of mistaken identity as it was in the Local Court. I should point out that between where the vehicle was first detected by the LIDAR device and where Dr Donnellan's vehicle was stopped, there are two roads which a vehicle could have taken which led away from Southern Cross Drive. Of course Mr Hourigan relies on this and is suggesting that it is reasonably possible that police have detected a speeding vehicle, lost sight of it, and whilst they have lost sight of it, that vehicle has turned off Southern Cross Drive and the police officers were therefore mistaken when they come across Dr Donnellan's vehicle thinking that it must be the same one. 14 Accordingly there was some cross-examination both in the Local Court and in this Court as to the ability of the police officers to recognise particular vehicles. In particular Senior Constable O'Leary gave evidence that because of his work, he had become familiar with the appearance of many motor vehicles. He said that a Mercedes SLK has distinctive tail lights, not only because they are not what old fashioned types such as me and the Magistrate would describe as Edison bulbs, instead they are light emitting diode lights, but also because of their distinctive shape. In this Court, Mr Hourigan valiantly cross-examined the officer in an attempt to suggest that other vehicles had similar tail lights. Cars such as BMWs and Audis were suggested by Mr Hourigan to have similar tail lights. Being a Holden driver myself, I have to rely on the evidence that I heard which suggested that there is something distinctive about the tail lights on a Mercedes SLK. I take into account also that at the time the vehicle was first detected speeding, the police formed the view that it was silver in colour, the colour consistent with the vehicle which was eventually stopped. So is it reasonably possible that there were two silver Mercedes SLKs travelling along Southern Cross Drive that evening, one speeding which turned off after it went past the police and the other driven by Dr Donnellan? I do not need to answer that question yet because there is one other factor, a very important factor which, must be added into the mix. I referred to it earlier. When the police came across the vehicle which they eventually stopped, which is undoubtedly the vehicle driven by Dr Donnellan, they formed the opinion that it was speeding. They did not suggest that they had done a speed check but their evidence was unshaken in cross-examination. When they first saw Dr Donnellan's vehicle after they had caught up to it, it was travelling at high speed and indeed at a speed similar to the speed of the vehicle detected on the LIDAR. So we have police detecting a silver SLK Mercedes travelling at about 135 kilometres an hour as it went over the flyover and police stopping a silver SLK Mercedes travelling at between 130 and 150 kilometres an hour when they catch up to it. In my view, it is not reasonably possible there has been a case of mistaken identity. I am satisfied beyond reasonable doubt that the car driven by Dr Donnellan was the car detected by the LIDAR device. I am satisfied beyond reasonable doubt that he was therefore travelling at 135 kilometres an hour. I am satisfied beyond reasonable doubt because it is not an issue that the speed limit was eighty kilometres an hour. I therefore find the offence proved and dismiss the appeal against conviction. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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