Philson Walbert George v R
| Jurisdiction | Cayman Islands |
| Judge | Justice McDonald-Bishop |
| Judgment Date | 31 August 2018 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | SCA No. 7/2018 |
| Date | 31 August 2018 |
Honourable Justice McDonald-Bishop (Actg.)
SCA No. 7/2018
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL SIDE
Criminal Law — Traffic Law — Speeding — Points argued:
Road not published as a road in Gazette; Improper use of the handheld radar.
Mr. Philson George IP
Mrs. Nichole Petit for the Crown/Respondent
This is an appeal brought by Mr. Philson Walbert George (“the Appellant”) from his conviction and sentence in the Summary Court on 13 th June 2018, following a trial before Magistrate P McFarlane (Ag) (“the Magistrate”). The Appellant was issued a traffic ticket by Police Constable Athelston Watts (“PC Watts”) for allegedly driving at a speed of 57 miles per hour within 40 mph maximum speed limit zone on the Linford Pierson Highway, Grand Cayman, Cayman Islands. The fine was assessed by PC Watts at $340.00.
The Appellant appeared before the Summary Court where he contested the ticket —reportedly on the basis that the handheld radar gun was not used correctly by PC Watts and, further or alternatively, that there is a possibility that he was not the driver who was speeding because there were other vehicles driving on the road in the vicinity he was driving at the time the ticket was issued and so the speed could be that of another road user.
During the course of the trial, he also contended that the road on which he was stopped was not declared to be a public road by notice in the Gazette and so he cannot be held guilty of the offence of driving at an excessive speed for which the ticket was issued.
From the written reasons of the Magistrate, the following core facts have been extracted as constituting the background to the appeal.
On Sunday 11 th February 2018, in the afternoon, PC Watts was conducting traffic checks along the Linford Pierson Highway in the vicinity of the roundabout, just beyond Pro Plus Gardening Services, and before Halifax Road. The maximum speed limit for that area was 40 mph. PC Watts observed that a motor vehicle, being driven by the Appellant, was speeding. He pointed the device in the direction of the motor vehicle and the speed was locked in the handheld radar at 57 miles per hour for a period of three seconds. PC Watts described the traffic flow as being between light to moderate and that the Appellant's motor vehicle was between 700 to 1000 feet away from where he was positioned at the time he observed it approaching.
PC Watts testified that he had received training in the use and operation of the handheld radar gun; that the device was tested twice on the day in question —prior to him using it and after the conclusion of his shift; and that he noted the results in a log. He also indicated that there was no possibility that he had locked the radar gun onto the speed of another vehicle.
PC Watts maintained under cross-examination that the road was declared to be a public road, by notice in the Gazette, and denied the Appellant's suggestion that the part of the road at which he was stopped, was not known as the Linford Pearson Highway.
PC Watts accepted, among other things, that:
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a. Although he had been trained in the use of the handheld radar gun by Mr. Colin Redden, he has never read the operational manual for the device known as “Genesis Scout”;
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b. He was trained to use the handheld radar gun in 2009;
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c. Mr. Redden has the certification documents relating to the officers who he trained to use the handheld radar gun;
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d. He would not issue a speeding ticket to someone driving on a private road; and
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e. There were other vehicles on the road at the time the appellant was stopped.
PC Watts, the Magistrate noted, was resolute under cross-examination that the appellant's vehicle was properly identified or “clocked” with the handheld radar gun driving at 57 mph and that he had used the device “correctly and in accordance with his training”.
The Appellant's defence was, according to the Magistrate, “a little more than a bare denial that he was driving in excess of the speed limit”, which was backed by his suggestion to PC Watts and his subsequent submissions that the road was not declared by notice in the Gazette to be a public road. His assertion was that “I know within myself that I wasn ‘t speeding…”
He admitted that he had declined to look at the handheld radar gun (showing the 57 mph) when it was shown to him and that he did not challenge the reading, by informing PC Watts that he was not speeding. He also accepted being aware that the speed limit in the area is 40 mph and that he had informed PC Watts that he intended to contest the ticket on the basis that the road was not gazetted.
The gravamen of his case, as usefully summed up by the Magistrate, was:
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a. That the road, even though open to the public, was not a public road because of the widening of the Linford Pearson Highway, which had not yet been surveyed (leading to amended grid reference points); and
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b. That PC Watts used the handheld radar gun incorrectly, or, otherwise, not in accordance with the user manual or his training.
The Appellant called no witnesses. He, however, sought to adduce several documents (which were never attached to his witness statement) in support of his case. These include information he received from the Lands and Survey Department through the Freedom of Information Law (2015 Revision). The documents (with the exception of a map which the prosecution accepted), were ruled inadmissible by the Magistrate, on the basis that they were not in the proper form to be admitted.
The Appellant was found guilty by the Magistrate and was ordered to pay the ticket fine of $340.00 and costs of $100.00. It was further ordered that he pay the total sum of $440.00 no later than 3:00 p.m. on 29 th June 2018, in default of which, he must serve 4 weeks’ imprisonment.
The Magistrate, in setting out the reasons for her conclusion and verdict, stated:
“In all the circumstances, I was satisfied (having heard the evidence of PC Watts and the [appellant]) so that I have no doubt in my mind that on 11 February 2018:-
i. the road on which the appellant was stopped (the Linford Pierson Highway) is a road within the meaning of the Traffic Law (2011 Revision), notwithstanding that any information (which may or may not have been accurate) received by the [appellant] which may have suggested or indicated that the part of the Linford Pierson Highway on which he was stopped (and was being widened at the time of the stop) is not yet declared a “public road” within the meaning of the National Roads Authority law (2016 revision) and the Roads Law (2005 Revision).
ii. in the absence of any or any admissible evidence from which 1 could properly conclude otherwise, that the handheld radar gun was working correctly and was properly used by PC Watts; and
iii. the [appellant] (and no other person who may have been driving in or around the immediate vicinity at or around the time the [appellant] was stopped) was accurately recorded by the handheld radar used by PC Watts driving 57 miles per hour and was thus driving 17 miles per hour in excess of the 40 mile per hour speed limit.”
Aggrieved by the decision the Magistrate, the Appellant brought this appeal on the 19 th June 2017 on nine grounds. There is substantial overlapping and close interconnectivity of some of the grounds, and so, they may conveniently be dealt with under three broad headings, as follows:
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a. The Magistrate erred when she relied on the broad definition of “road” under s.2 of the Traffic Law 2011 (the ground erroneously states (2003 Revision), which includes both ‘private’ and ‘public’ road, and found that the appellant was driving on a road, even though the road was not named and declared in the Gazette to be a “public road” within the meaning of the National Roads Authority Law (2016 Revision) and the Roads Law (2005 Revision) (grounds 1,2, 3,5, and 6).
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b. The Magistrate erred in accepting the evidence of PC Watts that (a) the radar gun, was properly used at the time the speed in excess of the speed limit was recorded; (b) the reading was from the appellant's motor vehicle; and (c) he was standing in front of the motor vehicle at the material time of the recording (grounds 4, 7 and 8).
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c. The Magistrate erred in her conclusion that only expert evidence would be accepted to establish the fact that the handheld radar gun was not operated properly (ground 9).
Did the Magistrate err in her conclusion that the Appellant was driving on “a road” even though the road declared in the Gazette to be a “public road” within the meaning of the National Roads Authority Law (2016 Revision) and the Roads Law (2005 Revision) (Grounds 1,2,3,5 and 6)?
The Magistrate did not err in her finding that the Appellantt was driving on “a road” within the meaning of the Traffic Law 2011. The grounds of appeal, which encapsulate this complaint, are without merit.
The Appellant was issued a traffic ticket for exceeding the speed limit, pursuant to s.92(1) of the Traffic Law 2011, which, in so far as is immediately relevant, reads:
“A person who drives on a road a vehicle other than an emergency vehicle -
(a) at a speed in excess of the maximum speed prescribed for the Islands generally or for the place where such vehicle is driven;
(b) at a speed in excess of the maximum speed prescribed for the class to which the vehicle belongs; or
(c) at a speed in excess of the maximum speed posted for that road works, school zone, road block or barrier as it relates to section 116, 117 or 118,
commits an offence and punishable under section 94…”
Section 2 of the Traffic Law 2011 states:
“road” means a public place where a vehicle may be...
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