Busack v Council of the City of Gold Coast
[2000] QDC 283
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- Busack v Council of the City of Gold Coast[2000] QDC 283
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Busack v Council of the City of Gold Coast[2000] QDC 283
Busack v Council of the City of Gold Coast[2000] QDC 283
DISTRICT COURT | No 368 of 2000 |
CIVIL JURISDICTION
JUDGE BOULTON
JURGEN K BUSACK | Applicant |
and
COUNCIL OF THE CITY OF GOLD COAST | Respondent |
SOUTHPORT
DATE 07/09/2000
JUDGMENT
HIS HONOUR: This is an appeal, the appellant being Jurgen K Busack; the respondent, Council of the City of Gold Coast.
It is appeal number 368 of 2000 in the District Court at Southport. The appellant was convicted on 19 May 2000 before Mr Kilner, Stipendiary Magistrate, in the Magistrates Court at Southport of two parking offences under the Traffic Act Queensland 1949, as amended.
On the first offence he was fined $50 and ordered to pay costs of $416. In default of payment of the fine, two-days' imprisonment. On the second offence he was fined $10, also ordered to pay costs of $416, and in default of payment of the fine, one day of imprisonment. He was given, on each, a month to pay.
The first offence in time was committed on 23 July 1999. The Gold Coast parking officer, Mr Daly, on that day issued a parking ticket at 12.50 p.m. in respect of a red Holden sedan registered number 267-EKZ. The meter had been expired for at least five minutes when the parking ticket was written and the offence occurred during a period of regulated parking.
A certificate, Exhibit 1, identified Mr Busack as the registered owner of the vehicle and, in the absence of evidence in rebuttal, is, pursuant to section 49(1)(n) of the Traffic Act, conclusive evidence of such ownership. That section has further provisions for facilitation of proof for matters referred to in such a certificate.
Mr Daly had described the vehicle in his notes as a red Holden Gemini registered number 267-EKZ, whereas Mr Busack's vehicle was a Holden Camira registered number 267-EKZ. Under cross-examination Mr Daly agreed that he must have made a mistake as to the model.
It was also put to him that the vehicle was mauve-brown in colour. Mr Daly replied that the computer which contained details only provided for basic colours and not for different shades of such colours. In re-examination Mr Daly said that the registration number was of critical importance to identification and he was confident that 267-EKZ was correct.
The defendant gave evidence that on the day in question he drove to the corner of Australia Avenue and Jubilee Avenue and had a ‘changeover’ to commence his shift as a cab driver. He said the changeover could occur between 1 o'clock and 3 o'clock p.m., but that on the day in question he had changed over at 2.20 p.m. He conceded under cross-examination that one could drive from Hinze Street, Southport to Jubilee Avenue, Broadbeach in an hour-and-a-half.
The defendant claimed to have a specific recollection of starting times on this day and, indeed, on other days as well. Under cross-examination he said that the changeover occurred at an abandoned petrol station at Bundall which was completely at variance with his earlier detailed evidence.
The defendant told the Magistrate that he had phoned the Gold Coast Council, but agreed that he had not provided a statutory declaration pursuant to section 44G(2) of the Traffic Act. Before me he produced a copy of a letter which I have made Exhibit 2 that he said he wrote to the council, but I note that that letter does not address the issues required under that particular section.
He also claimed to have provided to a Judge a signed statutory declaration of one Matthew O'Connor which was declared on 31 May 2000. Examination of the file and inquiry with the Registry and with the callover Judge has failed to produce any such statutory declaration. The defendant produced an unsigned copy of the declaration which I have made Exhibit 2 on the appeal.
No satisfactory explanation is advanced for failing to call Mr O'Connor at the trial on 19 May 2000. Furthermore, Mr O'Connor, if, indeed, this is his declaration, claimed that the defendant was at work at 12.50 p.m. on 23 July 1999, which is in direct conflict with the evidence of the defendant himself that he started work on that day at 2.20 p.m. The statement that the defendant's vehicle was parked at Broadbeach at 1.30 p.m. - even if it could be made out - says nothing of the vehicle being at Southport at 12.50 p.m.
In considering fresh evidence on appeal against conviction, there are tests to be applied as to the qualities of credibility and cogency of such evidence. In The Queen v. Lloyd George Walker, Court of Appeal number 405 of 1994, the Chief Justice described the applicable test in the following terms:
“The question for this Court would then be whether the fresh evidence was of such a character that, if available to be led, it would have given rise to the significant possibility that it might have resulted in an acquittal. See Gallagher v. The Queen (1986) 160 CLR 392 at 399, 402 and 421. In considering the effect of the fresh evidence in terms of this test, it is necessary to decide whether the evidence possesses the necessary degree qualities of credibility and cogency. See Mickelberg v. The Queen (1989) 167 CLR, 259 at 301.”
In a dissenting judgment in the same case, Mr Justice Pincus, J.A., analysed the ‘significant possibility’ referred to in that passage and did so in considerable detail, referring to particular passages in the judgments in the two cases referred to by the Chief Justice. However, there is no point in going further into this issue. Mr O'Connor's declaration, on its face, fails on all counts. It is inappropriate, then, to allow Mr O'Connor's statement as fresh evidence on this appeal.
Mr Kilner SM at pages 2 and 3 of his decision carefully examined the evidence concerning the identification of the motor vehicle. He noted the detailed evidence given by the defendant, but pointed out the inconsistency to which I have made reference. Mr Kilner concluded that it was more likely than not that the defendant was mistaken.
I can find no failure on the part of the Stipendiary Magistrate. It could not be considered that, on a review of the evidence in the case, the decision was against the evidence or the weight of the evidence. If anything, it appears to be manifestly correct.
The second offence in time occurred on 2 August 1999. The Gold Coast parking inspector, Mr Claussen, gave evidence that around 4.30 p.m. that day he saw the defendant's vehicle parked in the loading zone at Jubilee Avenue, Broadbeach. He placed a crayon mark of the time on the tyre and returned 15 minutes later. It was in the same position and the mark was in the same place. The loading zone had a notation ‘10 minutes max’. He described a red Holden sedan registered number 267-EKZ. Again, a certificate was tendered reflecting Mr Busack's ownership.
It was suggested to Mr Claussen in cross-examination that the vehicle had been parked on the corner of Jubilee Avenue and Australia Avenue and had subsequently been moved. Mr Claussen knew nothing of any such matters. He denied that there were any signs of broken glass or of illegal entry to the vehicle when he saw it.
The accused gave evidence that he parked the vehicle in the position I have mentioned. He said,
“I left my residence about 1.30, 1.45, in between there, drove to the corner of Australia Avenue and Jubilee Avenue outside number 31 where I park religiously every day because I'm a cab driver there and it's - that's what I do. I came back about quarter to three, quarter to four. I find my vehicle - the right-hand window broken into, slammed down. I called the taxi fleet manager, Mr Matthew O'Connor. We examined the car. It had been moved from one position to another. This has happened on several occasions. I reported the occasion to Broadbeach Police Station at approximately 3 o'clock and I had no knowledge of its movement. That's it.”
In cross-examination he said that he worked from 3 p.m. to 3 a.m. and that his return was, then, in the early hours of the morning. Under questions from the Bench he was asked this is at page 15:
“Mr Busack, what distance had the car been moved?-- From the corner of Jubilee Avenue and Australia Avenue to where I found it was just inside the yellow markings of the loading zone.
Well, what distance are we talking about? Is it a kilometre, 100 metres, 10 metres?-- No. Totally, about 15 car lengths, sir.
Fifteen car lengths?-- Mmm.
And other than the window being jemmied, was there any other -----?-- Yes, sir. The radio was stolen, removed.
Anything else?-- Papers strewn from my glove box all over the place. Taken - the taxi takings removed. They're the main things that were -----
Well, how much was stolen?-- Nearly $900, sir.”
The Magistrate asked the defendant about reporting the matter to police. This is at page 18:
“Are you able to give me any evidence at all about the matter being reported to police?” Answer, “This Court has a phone system. Just ring them up.”
Bench, “Look, Mr Busack, it's not up to us to go and prove your case for you. It's a matter for you to prove your case to us.” Now, for example, have you given the police a statement?” Answer, “Yes.”
Question, “All right. Have you a copy of that statement?” Answer, “No, sir.” Question, “Did they give you a copy?” toswer, “No, sir.” Question, “Did they get you to sign the statement?” Answer, “Not to - that I can recall.” Question, “Well, are you able to tell me who it was that has investigated the matter, the name of the police officer?” Answer, “Not offhand, sir.”
Question, “All right. Is there any other evidence you want to place before me?” Answer, “No, sir.” Question, “All right. Okay. Are there any final statements or submissions you want to make in relation to this matter?” Answer, “Yeah, the council's lying through their teeth.”
The Magistrate was satisfied that the particulars in the certificate had not been rebutted and that they were therefore conclusive. Again, I am able to detect no error in his approach. The appeals in both matters must, therefore, be dismissed.
...
HIS HONOUR: I order that the appellant pay the respondent's costs of and incidental to the appeal to be taxed.
...
HIS HONOUR: I order, as I have already done, I believe, that the appellant pay the respondent's costs of and incidental to the appeal to be assessed.
Now, I note that the appeal was lodged on the very day that the decision of the Magistrate was handed down. Consequently, I believe it is appropriate to point out that the time for payment of the fines which was set by the Magistrate at one month should begin to run from today's date, 7 September, and, consequently, that those fines should be paid on or before 7 October. If those fines are not paid on or before that date I direct that the appellant appear before the Magistrate's Court at Southport at 10 a.m. on 9 October 2000 to show cause why those default terms of imprisonment should not be served.
Now, one other thing I should mention is this: I indicated on the hearing of the appeal that both parties would be notified of the handing down of my judgment, which I predicted to occur later this week. That, in fact, has occurred. My Associate contacted Mr Busack yesterday and was told that he did not intend to come and an arrangement was made and will be put into place whereby a copy of these reasons and of my orders will be sent by pre-paid post to Mr Busack in today's mail.