Nelio v Commissioner of Police
[2009] QDC 145
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- Unreported Judgment
- Nelio v Commissioner of Police[2009] QDC 145
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Nelio v Commissioner of Police[2009] QDC 145
Nelio v Commissioner of Police[2009] QDC 145
DISTRICT COURT OF QUEENSLAND
CITATION: | Nelio v Commissioner of Police [2009] QDC 145 |
PARTIES: | TEREAPII NELIO (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 145/07 |
DIVISION: | Civil Jurisdiction |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Beenleigh Magistrates Court |
DELIVERED ON: | 8 May 2009 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 8 May 2009 |
JUDGES: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – Appeal from summary trial – Whether verdict unsafe and unsatisfactory – Circumstantial case – Approach to review of learned Magistrate’s decision |
CASES: | Morris v R (1987) 163 CLR 455 Chamberlain v R (No.2) (1984) 153 CLR 521 Plomp v R [1964] Qd R 170 Stevenson v Yasso [2006] QCA 40 R v Edwards (1993) 178 CLR 193 |
LEGISLATION: | Justices Act 1886 (Qld) s 223 |
COUNSEL: | Mr A Christie for the applicant Ms J Geary for the respondent |
SOLICITORS: | Direct Brief (Mr A Christie) for the applicant Director of Public Prosecutions for the respondent |
INTRODUCTION
- The appellant, Tereapii Nelio, was convicted on 21 November 2007 of one charge of driving a motor vehicle without a driver licence while disqualified by a Court order, at the Beenleigh Magistrates Court after a summary trial. The appellant was convicted and fined $1,500 and allowed two months to pay in default referral to the State Penalties Enforcement Registry. The appellant was disqualified from holding or obtaining a driver licence for a period of two years.
- Neither the appellant's Notice of Appeal nor his Outline of Argument specifically articulates his grounds of appeal, but by inference the appeal proceeds on the basis that the learned Magistrate's decision was unsafe and unsatisfactory in the light of the evidence presented at the trial.
FACTS
- There were four witnesses at the trial. Ms Marion Dahlstrom was a friend of the appellant, involved in a casual sexual relationship with him but wanting to become his girlfriend. The appellant had visited Ms Dahlstrom at her residence at Mayes Avenue Kingston in the early evening of the date of the alleged offence (other evidence indicated this was 16 August 2007). Ms Dahlstrom and the appellant had an argument at her residence, near the appellant's car, a grey Toyota Corolla, for about 20 minutes at around 6 to 6.30 p.m. Ms Dahlstrom went inside her house and when she came out again, the appellant and his car were gone. Ms Dahlstrom waited for her grand-daughter to return with Ms Dahlstrom's car. Ms Dahlstrom then drove along Mayes Avenue towards the appellant's residence and gave evidence that she saw the appellant's car with one person in it around the top end of Mayes Avenue. Ms Dahlstrom was able to see the appellant's car's tail lights for at least some part of the journey between her residence and the appellant's residence.
- By the time Ms Dahlstrom arrived at the appellant's residence, the appellant's car was already parked in the driveway. Ms Dahlstrom pulled her car up on the footpath. Ms Dahlstrom went inside the appellant's house and asked the appellant to come outside and talk to her. The appellant refused, so Ms Dahlstrom went out to the appellant's car and turned the appellant's headlights on so that the appellant would come out and talk to her.
- There followed an argument between Ms Dahlstrom and the appellant. Ms Dahlstrom grabbed the appellant's shirt, he pushed her in the chest and she then rang police after he walked back inside. At or around this time Ms Dahlstrom also scratched the appellant's car. Ms Dahlstrom rang police and when they arrived and she was told by police that they couldn't charge the appellant with an assault, proceeded (that is Ms Dahlstrom) to tell police that the appellant had been driving his car.
- Ms Dahlstrom accepted in cross-examination that although she had seen the appellant's car driving, she had not actually seen the appellant driving it.
- Constable Paul Spencer gave evidence that he arrived at 11 Grenadier Court, Runcorn, with Constable Steve Moore at 7.30 p.m. It appears to be accepted on the evidence that 11 Grenadier Court, Runcorn, was at the relevant time the residence of the appellant. Constable Spencer had a conversation with Ms Dahlstrom and felt the bonnet of the silver Toyota sedan in the driveway which was still hot. Ms Dahlstrom was standing beside a Ford sedan outside the house. Constable Spencer then had a conversation with the appellant in a pergola area at the house. The appellant then variously told Constable Spencer that one of his flatmates had been driving the car out the front, then when it was put to him that the flatmates denied this, he said "Marion" (i.e. Ms Dahlstrom) was the driver, and when Senior Sergeant McGibbon (another police officer who was present at the relevant time) told the appellant that Ms Dahlstrom's car was outside, the appellant then didn't answer when asked who had been driving his (the appellant's) car.
- Constable Spencer then went and had a further conversation with Ms Dahlstrom and came back to talk to the appellant, who declined to press charges in respect of scratches on the boot of the appellant's car for which Ms Dahlstrom had apparently admitted responsibility. The appellant was then asked by Senior Sergeant McGibbon how the car got there and the appellant said, "I drove it there."
- Senior Sergeant Brett McGibbon gave evidence confirming that the bonnet of the Toyota sedan was still very warm when he arrived, by inference shortly after 7.15 p.m.. Senior Sergeant McGibbon said that the appellant had initially stated that Ms Dahlstrom had driven him from Mayes Avenue, but subsequently made admissions that he (the appellant) did in fact drive.
- Constable Steve Moore also gave evidence but was unable to recall any specific conversation between the appellant and police.
THE LAW
- In determining whether a verdict is unsafe or unsatisfactory, an appellate court must undertake an independent examination of the relevant evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the defendant, considering not only whether there is sufficient evidence to entitle the tribunal of fact to convict, but also considering the quality of that evidence.
- It is not a question on appeal of the verdict being disturbed simply because the appellate court disagrees with the conclusion of the tribunal of fact.
- In a circumstantial case, the question to be determined is whether, on the evidence, it was open to the tribunal of fact to be satisfied beyond reasonable doubt of the defendant's guilt.[3] The tribunal of fact in a circumstantial case should decide whether an inference of guilt can be drawn from a combination of facts, none of which, viewed alone, would support that inference.[4]
- An appeal under the Justices Act s 223 is by way of a rehearing, with the appellate judge making their own determination of the issues on the evidence, giving due deference and attaching a great deal of weight to the Magistrate's view.[5]
MAGISTRATES DECISION:
- The learned Magistrate correctly directed himself as to the elements of the charge, the onus of proof and the standard of proof. There was no dispute that the appellant was disqualified by a Court order from holding or obtaining a driver licence at the relevant time.
- The key issue is whether the appellant drove on Mayes Avenue Kingston on 16 August 2007. The learned Magistrate accepted Ms Dahlstrom's evidence as to an argument between her and the appellant at her residence and that she realised the appellant's vehicle was gone after the argument. The learned Magistrate accepted Ms Dahlstrom followed a vehicle she believed to be the appellant's vehicle for a substantial part of the journey from her place to his but did not at any stage see who was driving the vehicle. The learned Magistrate did note that Ms Dahlstrom's "observations do carry with them a reasonable degree of uncertainty" (Decision p.4) but I read that as a reflection of Ms Dahlstrom's acknowledgement that she did not, in fact, see the appellant driving a car.
- The learned Magistrate then noted that the appellant had variously claimed that one of his flatmates had driven his car, then that Ms Dahlstrom had driven the car, then finally that he (the appellant) had driven a car.
- In the circumstances the Magistrate directed himself (apparently in accordance with R v Edwards (1993) 178 CLR 193), that the appellant had told lies about a material issue in the trial, that there was independent evidence of the lie, and it revealed a consciousness of guilt.
- I do not accept the submissions on behalf of the appellant that the appellant's car was not appropriately identified as being the car the appellant said was driven by the flatmate or alternatively Ms Dahlstrom and finally driven by himself. In my view, such an inference was clearly properly and appropriately open to the learned Magistrate.
- I also do not accept the submission that the appellant's admission as to driving the car because it was not "clear as to the time" could not be relied on beyond reasonable doubt. It was a clear, open and appropriate inference that the appellant was referring to his car out the front of his house.
- I consider that it was open to the learned Magistrate to conclude that the appellant's responses as to the flatmates and/or Ms Dahlstrom's driving of a car were references to the appellant's car and were lies. I further consider it was open to the learned Magistrate to conclude in those circumstances that Ms Dahlstrom's evidence as to following the appellant's car, combined with the appellant's lies about other drivers, and the appellant's admission as to his own (non-time specific) driving of the car, was sufficient to be capable of satisfying the learned Magistrate, beyond reasonable doubt, that the appellant had driven his car as particularised in the charge and therefore sufficient to satisfy the learned Magistrate beyond reasonable doubt that the appellant was guilty of the charge.
CONCLUSION:
- Given my conclusion that it was open on the whole of the evidence for the learned Magistrate to conclude as he did (that is to find the defendant guilty) and given that in my view the learned Magistrate has not fallen into error in so concluding as he did, then the appeal must be dismissed.
- In the circumstances I consider that costs should be awarded. I will moderate those costs in the light of the circumstances and I order that the appellant pay the respondent's costs fixed at a sum of $1,000.
- I'll order that that be referred to the Registrar of the State Penalties Enforcement Registry for recovery action.