Murray v McKenzie[2006] QDC 84

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 11 March 2004 the appellant was convicted in the Gatton Magistrates Court of one count of dangerous operation of a motor vehicle. At the same time another charge of common assault was dismissed.

2. [2]
   The appellant appeals this decision on the basis that:

• it was unsafe and unsatisfactory.
• the Magistrate failed to find adequate findings of facts,
• the Magistrate did not properly inform him of his right of election in relation to the charge of dangerous operation,
• the findings of the Magistrate were against the weight of the evidence,
• the appellant was not asked to enter a plea to the charges.

3. [3]
   The appellant has attacked the Magistrate’s findings in relation to the assault charge, however, the assault charge was dismissed by the Magistrate and, as such, cannot be appealed. However, in considering this appeal, I have considered the Magistrate’s findings of facts in relation to the assault as it reflects on the witnesses’ credit generally.

The Appellant did not enter a plea of guilty

4. [4]
   The record shows that, on the morning of the trial, the Magistrate did not ask the appellant to enter a plea to the charges and acted on the assumption that the appellant was intending to plead not guilty. The appellant did nothing to dispel this assumption by indicating that he was wanting a trial to proceed and by cross-examining the witnesses. The appellant has appealed against his conviction of the charge of dangerous operation of a motor vehicle and therefore it cannot be said that he showed any intention nor had any desire to plead guilty.

5. [5]
   S. 145 of the Justices Act 1886 provides that where a defendant is present at a hearing they shall be asked to enter a plea after the complaint has been stated. In a letter dated 20 November 2003, the appellant indicated that in relation to both charges he would be pleading not guilty and that he wished to defend both of the charges. He applied to the court to have the matter adjourned to a later date so that he could properly prepare his defence.  On the morning of the hearing the appellant was not asked to enter a plea and the question is whether this error by the magistrate can result in the conviction being set aside.

6. [6]
   In R v Mentink [CA 494/1994 15 March 1995, unreported ] the Court of Appeal considered the consequences of a procedural error in a criminal trial. At page 6 of the report Thomas and White JJ analysed the effect of procedural error:

“If there is a defect in the constitution of the court, the authorities suggest that the conviction will be set aside whether it might be thought to have affected the result or not. This is to be distinguished from procedural errors in the course of a trial by a duly constituted court. In such cases one examines whether the error might have affected the determinative process or the opportunity of acquittal for the accused, or even more generally if it might have affected the quality of the trial.”  

7. [7]
   In this case the appellant wanted to enter a plea of not guilty and there is no suggestion that the failure of the magistrate to take a plea formally in the case has in any way affected or influenced the outcome of the case. Accordingly the procedural error in this case does not require that the appellant’s conviction be set aside.

Election for summary jurisdiction

8. [8]
   The appellant claims that the Magistrate did not properly advise him of his right of election, however, a perusal of the transcript indicates that he waived reading of the charges, agreed that he knew the charges and that he wished to have the matter dealt with in the Magistrates Court. At page 2 of the trial transcript he was told:

“You have the election to have the matter dealt with in this jurisdiction.  There is a trial before me where I’ll decide whether you’re guilty or not guilty.  Or, if you wish you can have the matter transferred to the District Court before a Judge and jury.  And that’s your election.”  The appellant replied, “Sir, I’ll be happy to have it all dealt with in here.”

9. [9]
   In relation to the appellant’s election:

• he didn't ask for clarification or advice in relation to the election,
• he seemed to understand what was being said and said he wanted to proceed in the magistrates court,
• as he was representing himself, there was no obligation on the Magistrate to adjourn so that he could have further legal advice on the subject,
• the Magistrate offered, [at page 5,] to adjourn so that he could seek further advice in relation to calling his wife and the appellant indicated that he did not want to have an adjournment,
• the appellant at one stage indicated to the court that he had made attempts to get representation, but was not eligible for Legal Aid and he could not afford to pay for a lawyer.

10. [10]
    On the second day of the trial the appellant appeared with a solicitor. He did raise with the magistrate the question of the election, whether he understood the legal concept and the benefits of proceeding in a summary hearing as opposed to taking the matter to the District Court. However, having raised the matter, Mr Stewart, representing the appellant, concluded, [at page 142 ], “I did raise with him whether an option was open even at this late stage to pursue that, but his final decision is to proceed.”

11. [11]
    The appellant in my view was told of his rights of election, he discussed with a lawyer and decided that he would proceed in the magistrates court. There is no substance in this ground of appeal.

Was the decision unsafe and unsatisfactory?

12. [12]
    The remainder of the appellant’s complaints really deal with the magistrates assessment of the various witnesses. He submits that the Magistrate should have found the witnesses to be conflicting, unreliable and untruthful throughout the proceedings and that he should not have relied on the evidence of Mr Forbes, who was an independent witness.

13. [13]
    The witnesses were asked to draw the positions of people and vehicles on hand drawn maps of the nursery and to show the path of the appellant’s vehicle as it drove out of the car park. It was submitted by the appellant that the maps were not to scale and should not have been admitted, although no objection was taken to the admission of the maps at the time of the trial. In my view no objection could properly have been taken to the tender of the maps. Any objection to the dimensions or scale of the drawing was simply a matter of weight for the magistrate.

14. [14]
    The basic flaw in Mr Murray’s submissions in relation to the witnesses’ evidence is that it is generally accepted that when an event occurs quickly and unexpectedly as this one did, witnesses will not give identical accounts and differences are to be expected.

15. [15]
    The learned Magistrate was in the best position to make findings of credibility, having seen all the witnesses give evidence. He was in the best position to assess the witnesses and his findings in that regard should not, in the normal course, be ignored. This principle was expressed clearly in Devries v Australian National Railways Commission [1992-1993 177 CLR 472] at 479:

“…a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – or even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” …”

16. [16]
    The magistrate clearly took into consideration both the evidence of the defence and the Crown. He also took into account the inconsistencies in the evidence of witnesses. An examination of the evidence shows that, whilst there were inconsistencies in the witnesses accounts, they are not such that are outside the realm of what one might expect in this situation. The fact that different witnesses put people at slightly different places, again is not outside the realms of the normal course in this situation.

17. [17]
    The impression gleaned of Mr Forbes in his evidence is that he was an honest witness, doing his best to be fair in the circumstances. His description of the driving of the appellant was both logical and compelling and it fell clearly within the definition of dangerous operation of a motor vehicle.

18. [18]
    The appellant was driving at an excessive speed in the circumstances of the case. A competent driver in circumstances where he was at a busy nursery and in a narrow car park would have driven with more care and at a slower speed. A competent driver would have driven away from the people in the car park. Mr Forbes gave evidence that the appellant could easily have steered his vehicle away from Mr Liebchem.

19. [19]
    In my view, the Magistrate was perfectly entitled to proceed in the way that he did. There are no apparent faults in his reasoning and the appeal should be dismissed.

ORDER

Appeal dismissed.