Pavlovic v The Commissioner of Police
[2005] QDC 341
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Pavlovic v The Commissioner of Police[2005] QDC 341
- Add to List
Pavlovic v The Commissioner of Police[2005] QDC 341
Pavlovic v The Commissioner of Police[2005] QDC 341
DISTRICT COURT OF QUEENSLAND
CITATION: | Pavlovic v The Commissioner of Police [2005] QDC 341 |
PARTIES: | Zoran Pavlovic (Appellant) v The Commissioner of Police (Respondent) |
FILE NO/S: | 41/05 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Beenleigh |
DELIVERED ON: | 20th October 2005 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 14th October 2005 |
JUDGE: | Dearden DCJ |
ORDER: | The appeal against conviction is dismissed. |
CATCHWORDS: | APPEAL AGAINST CONVICTION – Whether verdict unsafe or unsatisfactory – Fresh evidence – Admissibility of evidence Criminal Code s 668E Justices Act s 222 Chamberlain v R (No. 2) (1984) 153 CLR 521 M v R (1994) 181 CLR 487 MFA v R (2002) 213 CLR 606 |
COUNSEL: | Mr Z Pavlovic in person for the appellant Ms S Farnden for the respondent |
SOLICITORS: | Mr Z Pavlovic Director of Public Prosecutions |
Introduction
- [1]The appellant, Zoran Pavlovic, appeals against his conviction in the Beenleigh Magistrate’s Court on 14th April 2005 in respect of one count of wilful damage. The appellant was convicted, fined $450 and ordered to pay $350 compensation within 3 months, in default 16 days imprisonment. The charge alleged that the appellant wilfully and unlawfully damaged a motor vehicle, the property of one Troy Daniel Oliver, on 3rd December 2004.
- [2]The grounds of appeal, which I set out verbatim from the Notice of Appeal filed 20th April 2005 under s 222 of the Justices Act, are as follows:
“Absolutely wrong decision of the Beenleigh Court, unbelievable amount of lies of people involved in this case. Not given opportunity to present my evidence. New evidence and witnesses. Provocation from police officer in civil suit before the trial started in Court Room no.2.”
- [3]I note for the record that English is not the Appellant’s first language and that he appeared unrepresented both in the hearing before the learned magistrate and in this appeal before me.
- [4]Ms Farnden, who appears on behalf of the respondent, has helpfully summarised the grounds of appeal as follows:
- 1)The judicial officer incorrectly ruled inadmissible, a letter provided by a witness of the appellant;
- 2)There was a miscarriage of justice due to evidence not having been before the judicial officer (fresh evidence);
- 3)The judgement of the judicial officer was generally unsafe and unsatisfactory.
- [5]The appellant accepted the respondent counsel’s distillation of his grounds of appeal[1]as a fair summary of the asserted errors of the learned presiding magistrate.
Facts
- [6]The appellant had engaged the complainant, Troy Oliver, and his father, Daniel Oliver, through their company, Top Plumbing, to undertake plumbing work on his residence at 772 Browns Plains Rd, Crestmead.
- [7]There was a dispute over outstanding money for the work done and at the appellants request, Troy and Daniel Oliver drove to the appellant’s residence for a meeting at 10am on 3rd December, 2004.
- [8]Troy Oliver gave evidence of a discussion between himself and the appellant during which the appellant indicated that he was not going to pay the outstanding monies for excavator hire and drainage work. Troy Oliver claims the appellant then said “Take me to court and get off my property”. Troy Oliver and Daniel Oliver were then in the process of packing up, when a further verbal altercation between the appellant and themselves was followed by the appellant kicking the back of Troy Oliver’s car, then subsequently the back quarter-panel of the car. This was followed by the appellant screaming “Get off [a reference to his demand that the Olivers leave the property] or I’m going to keep wrecking this car”. Police arrived just as the appellant was about to kick the drivers side of the car.[2]
- [9]Troy Oliver’s version of the events was, in general terms, corroborated by the evidence of his father, Daniel Oliver. In particular, Daniel Oliver confirms seeing the first kick into the tailgate of the car by the appellant and then hearing (and subsequently sighting) damage caused by the appellant to the side of the car.[3]
- [10]The appellant’s evidence is difficult to follow in the transcript, but ultimately (as I understand it) comes down to acknowledging that although he (the appellant) put his foot on the rear bumper of Troy Oliver’s car, he didn’t cause the damage to the rear and side panels. Much of the appellant’s evidence was directed to his treatment in police custody which, in my view, is not relevant to the alleged charge.
Magistrate’s Decision
- [11]The learned magistrate noted in his reasons for decision that there had been a heated exchange between the appellant and the Olivers (father & son); that the issue was the dispute over payment; and that the appellant had ordered the Olivers off his property.
- [12]The learned magistrate then found as follows:
“I am satisfied from the evidence of the two complainants, that is the two Oliver, father and son, and in fact, following the demands by the appellant to leave, and their refusal to do so, the appellant became upset and aggressive. And observing all the parties in Court today, I can fully accept that the appellant is more aggressive than the two Olivers. I accept their evidence that when they refused to leave that he, in fact, kicked the vehicle. I am satisfied that the intention to kick the vehicle was a willed act, that he kicked the vehicle to cause damage at the time, that prior to the vehicle being kicked that, in fact, there was no damage to the areas in question. And I am satisfied that the act was unlawful because the damage was caused to someone else’s property without any provocation or excuse.
So to put it in a nutshell, Mr Pavlovic, I am satisfied that you, in fact, kicked the vehicles as alleged. That you caused the damage and that you intended to do so at the time of this incident. And it follows you becoming upset and aggressive when your demands to leave the property, when they refused to leave…
So, in relation to the charge, I am going to find you guilty of this offence…” [4]
- [13]The learned magistrate found the appellant guilty of the offence of wilful damage, convicted and fined him $450, and ordered him to pay the $350 insurance excess by way of restitution to be made within 3 months, in default 16 days imprisonment.
Findings re: Appellant’s grounds of appeal
- [14]The appellant sought leave at the hearing of this appeal on 14th October 2005 to adduce fresh evidence. I refused the application for leave, and delivered my reasons ex tempore on 14th October 2005.
- [15]In respect of the appellant’s grounds of appeal, as summarised by the prosecutor, I find as follows:
- The learned magistrate was correct in law to rule inadmissible the letter from Ms Aneeta Prince (dated 4th December 2004). If the appellant wanted to rely on evidence from Ms Prince, then she should have been called to give evidence in person or by phone. The letter from Ms Prince could not be tendered as evidence, either in the absence of the prosecutor’s consent which was not given. It is trite but correct to note that evidence can only be received from a witness who is available to give evidence-in-chief, and then to be cross-examined.
- The reasons for decision I gave on 14th October 2005 canvass why I refused leave to the appellant to adduce fresh evidence. There has been no miscarriage of justice in respect of this ground.
- The remaining issue is whether the learned magistrate’s decision was generally unsafe and unsatisfactory.
- [16]In reaching a decision in this case, the learned magistrate was required to decide whether or not he was satisfied, beyond reasonable doubt, that the appellant had wilfully and unlawfully caused damage to the complainant’s car.
- [17]The learned magistrate heard evidence from the witnesses Troy Oliver and Daniel Oliver which, if accepted by him, was perfectly capable of satisfying him beyond a reasonable doubt as to the elements of the offence. That evidence was not effectively challenged or shaken in cross-examination. When giving evidence in his own defence, the appellant, while denying causing the damage, did admit that he had placed his foot on the rear of the complainant’s car.
- [18]The learned magistrate was entitled, as he did, to accept the evidence of the witnesses Troy and Daniel Oliver, and to reject the evidence of the appellant. The learned magistrate was, of course, in the best position to assess the demeanour and credibility of the witnesses. The mere fact that the appellant passionately and vehemently disagrees with the learned magistrate’s assessment does not, of itself, provide a basis for a successful appeal.
- [19]The relevant test as to whether a verdict is unsafe and unsatisfactory, as set out by Mason CJ, Deane, Dawson, Toohey & Gaudron JJ in M v R[5]is for the appellate court to ask “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”[6]The court of course must be cognisant that “the jury, having seen and heard the evidence given, was in a position to evaluate the evidence in a manner in which a court of appeal cannot.”[7]
- [20]In this matter the learned Magistrate fulfilled the fact-finding role of the jury. He formed conclusions as to the evidence which were clearly open to him and were not unreasonable.[8]The learned magistrate correctly directed himself as to the appropriate law.
- [21]I can find no basis on which the verdict can be said to be ‘unsafe and unsatisfactory’, or, as it has been alternatively characterised, ‘unreasonable or cannot be supported having regard to the evidence’.[9]
Conclusion
- [22]Accordingly, the appeal is dismissed. I will hear submissions on the issue of costs.
Order
The appeal against conviction is dismissed.