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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Storen v Queensland Police Service  QDC 167
JAMES MARK STOREN
QUEENSLAND POLICE SERVICE
150 of 2019
Appeal under s 222 Justices Act 1886
Magistrates Court, Cairns
9 April 2020 (delivered ex tempore)
9 April 2020
CRIMINAL LAW – APPEAL AGAINST CONVICTION – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE – where the appellant was convicted after trial of driving without a licence while disqualified by a court order – where the appellant was fined $800, disqualified from holding a driver’s license for two years and a conviction was recorded – where the appellant appeals the conviction pursuant to section 222 Justices Act 1886 – where the appellant applies to adduce new evidence pursuant to section 223 Justices Act 1886 – where the application is not opposed.
Justices Act 1886 (Qld) s 146, s 222, s 223, s 225
J Trevino for the appellant
R Boivin for the respondent
Legal Aid Queensland for the appellant
The Office of the Director of Public Prosecutions for the respondent
- This is an appeal against conviction after trial in the Magistrates Court at Cairns of one charge of driving without a licence while disqualified by Court order. The appellant was convicted on the 30th of July 2019. He was self-represented during the trial in the Magistrates Court and, until very recently, self-represented on appeal. The Magistrate fined him $800 and recorded a conviction. He also received the mandatory minimum disqualification from holding or obtaining a driver’s licence of two years.
- The appeal is pursuant to section 222 of the Justices Act 1886 (Qld).
- The defendant is now legally represented on appeal. I have had the significant benefit of helpful outlines of submissions filed on behalf of both the appellant and the respondent. The respondent, in effect, concedes that the Court should grant the appellant leave to adduce new evidence and the appeal should be allowed. The parties also jointly submit that the appropriate order is not one of remitter to the Magistrates Court for rehearing but an order that the complaint be dismissed.
- Essentially, the Crown case before the Magistrate was that on the 19th of April 2019 the appellant was driving a car that he owned when he was disqualified from driving. At all times the appellant denied that he was the driver of the car. The only evidence that he was the driver came from a police officer. He gave sworn evidence that he saw the car being driven by the appellant, who he identified from previous dealings he had with him in the small town.
- At trial, the appellant cross-examined the police officer and suggested to him that it was not him driving the car but, in fact, his neighbour and that, given the similarities in their appearances, the police officer had been mistaken. The police officer rejected those propositions and maintained that he had seen the appellant. The appellant did not call or give evidence. The Magistrate accepted the evidence of the police officer and was satisfied beyond reasonable doubt that the appellant was the driver.
- In his notice of appeal, the appellant maintained that he was not the driver of the car. He attached to an affidavit three statutory declarations: one was declared by himself on the 26th of September 2019; one was from Russell Mow on the 20th of August 2019; and one was from Luke Blonner on 26 September 2019.
- The principles applicable to considering such an appeal are not in dispute. The appellant seeks leave to adduce fresh evidence on the appeal in the form of those statutory declarations. The Court may give leave if it is satisfied there are special grounds for giving leave.
- In the appellant’s statutory declaration, he declares that he received a telephone call from Mr Mow asking the appellant to drive him to Gordonvale. As the appellant was disqualified, he told Mr Mow that he would ask a friend, Mr Blonner, to drive Mr Mow in the appellant’s car. He declares that he was at home when Mr Blonner collected the spare set of car keys and drove Mr Mow in the car. Mr Blonner returned the car around 7 pm that evening. The declaration from Mr Blonner confirms the version of events deposed to by the appellant. The declaration from Mr Mow also confirms that version of events. In addition, Mr Mow declares that he remembers seeing a police car in the relevant location while he was in the car. He also declares that the appellant and Mr Blonner have a very similar appearance, in that they both have a similar build, similar age and hair.
- The matters the Court should have regard to in considering whether to grant leave are well established. The first is whether the evidence relied on could, with reasonable diligence, have been produced by the accused at the trial. The second is whether the evidence is apparently credible or at least capable of belief. And the third is whether the evidence, if believed, might reasonably have led a tribunal of fact to return a different verdict.
- As to the first issue, the appellant could have called those men as witnesses at the trial. He could also have elected to give evidence himself and given that evidence. Therefore, theoretically, the evidence could have been produced by the accused at the trial. However, I take into account the fact that the appellant was a self-represented litigant at trial and did not have the benefit of legal representation or advice. In those circumstances, he is entitled to a degree of leniency in the assessment of that first consideration. I accept that he may not have fully appreciated the potential consequences of his decision not to call or give evidence at that stage.
- As to the second consideration, I accept that the evidence is apparently credible or at least capable of belief, it being contained in statutory declarations properly executed.
- As to the third consideration, I also accept that the evidence, if believed, might reasonably have led a tribunal of fact to return a different verdict. Indeed, I accept both parties’ submissions that if the evidence had been led before the Magistrate, the Magistrate would have dismissed the complaint because he could not have been satisfied beyond reasonable doubt that the appellant was, in fact, the driver of the car. That is because that new evidence fundamentally undermines the only identification evidence called by the prosecution.
- In those circumstances, I am satisfied of each of the relevant considerations and I will grant leave for the appellant to adduce the new evidence.
- It also follows that the appeal should be allowed.
- The only remaining issue was whether the Court should remit the matter to the Magistrates Court for rehearing or otherwise finally determine the proceeding today. Both parties submitted that there would be no utility in remitting the matter to the Magistrates Court in circumstances where the new evidence is relatively compelling. To do so would only cause the parties additional delay and costs. There has already been a lengthy delay between when the offence was committed and when the Magistrates Court trial occurred and the hearing of this appeal. That delay is due to no fault of the parties.
- I am satisfied, having heard further oral submissions from both barristers, that it is appropriate and within the Court’s power to make an order dismissing the complaint rather than ordering the remitter, when regard is had to section 225 of the Justices Act 1886, and section 146.
- In those circumstances, I will make orders in terms of the draft prepared by the parties, as amended to implement these reasons. Those orders will be:
- pursuant to section 223(2) of the Justices Act 1886 leave is granted to the appellant to adduce the new evidence, being the relevant statutory declarations;
- the appeal is allowed;
- pursuant to section 225(1) of the Justices Act 1886 the complaint is dismissed;
- no order as to costs.
- Published Case Name:
James Mark Storen v Queensland Police Service
- Shortened Case Name:
Storen v Queensland Police Service
 QDC 167
09 Apr 2020