In the matter of the Appeal of Michael Devos [2006] NSWDC 13

New South Wales District Court

CITATION: In the matter of the Appeal of Michael Devos [2006] NSWDC 13

HEARING DATE(S): 29/08/06

JUDGMENT DATE: 29 August 2006

JUDGMENT OF: Nicholson SC DCJ

DECISION: APPEAL DISMISSED. CONVICTION CONFIRMED; $200 FINE OF LEARNED MAGISTRATE QUASHED.; IN LIEU $77 FINE & 65 COURT COSTS

CATCHWORDS: speeding - radar device - manufacturer's guidelines - testing procedures - police instructions - elements of offence

LEGISLATION CITED: s20 Australian Road Rules; s42 Roads Traffic (Safety and Management ) Act

PARTIES: Michael Devos (Appellant) RTA (Respondent)

FILE NUMBER(S): 06/22/1119

SOLICITORS: Mr Borosstt (Appellant) Mr Mazurkiewicz (Respondent)

JUDGMENT

1 HIS HONOUR: Michael Devos has been charged, under the Australian Road Rules, s 20, with driving over the speed limit. The Court Attendance Notice alleges he exceeded the speed limit by more than 15 kilometres per hour on the Great Western Highway on 25 November 2005. The offence is said to have occurred in an area not far from Faulconbridge township.

2 The Prosecution case is that the appellant was captured by a radar device travelling at 98 kilometres per hour. The appellant argues the reading is unreliable because the radar machine was not operated in accordance with guidelines applicable to that machine.

3 The Court's task is to determine whether, in the circumstances of this case, the Crown has proved beyond a reasonable doubt that the appellant was driving in excess of the speed limit and if so whether that excess was greater than 15 kilometres per hour.

4 The Crown relies upon the evidence of Senior Constable Lackenby. His evidence was that at about one thirty on 25 November, in the afternoon, he set up a radar device known as a Silver Eagle radar, serial number 310 in accordance with the manufacturer's guidelines, police instructions. He performed the testing procedures and found that the radar was operating correctly. He conducted other checks in respect of the machine and found that it correlated. He then went to a local service station and adjusted his tyres so that they complied with the police instructions.