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Millar v Queensland Police Service[2018] QDC 219

Millar v Queensland Police Service[2018] QDC 219

DISTRICT COURT OF QUEENSLAND

CITATION:

Millar v Queensland Police Service [2018] QDC 219

PARTIES:

MILLAR, Andrew John

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:

3602 of 2017

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

7 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

26 and 27 March 2018, 3 April 2018 (further written submissions were provided on 17 April 2018 and 1 May 2018)

JUDGE:

Rosengren DCJ

ORDER:

  1. The applications to adduce further evidence are granted.
  2. The conviction in relation to the charge of stealing is quashed.
  3. The appeal against conviction is otherwise dismissed.
  4. No order as to costs.

CATCHWORDS:

APPEAL – APPLICATION TO ADDUCE FRESH EVIDENCE – where the appellant applies for leave to adduce two pieces of fresh evidence at the appeal – whether the fresh evidence ought to be admitted

APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of two offences against the Criminal Code 1899 (Qld) after a trial in the Magistrates Court – where the appellant appeals the convictions pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant raises a number of appeal points directed at establishing the existence of a miscarriage of justice –  where the appellant raises various complaints in relation to the conduct of the police, the prosecutor and the magistrate – where the appellant submits that the evidence presented by the Crown was not sufficient to found the convictions –  whether the appellant was denied a fair trial

Justices Act 1886 (Qld) ss 222, 223, 225

Lacey v Attorney-General of Queensland (2011) 242 CLR 573

Teelow v Commissioner of Police [2009] QCA 84

Fox v Percy [2003] HCA 22

Bode v Commissioner of Police [2018] QCA 186

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679

R v WBF [2017] QCA 142

R v Wait [2011] SASCFC 91

Trainer v The King [1906] 4 CLR 126

R v Smale (Unreported), New South Wales Court of Criminal Appeal, Lee, Maxwell and McInerney JJ, 15 August 1986

The Queen v Baden-Clay [2016] HCA 35

COUNSEL:

The appellant appeared on his own behalf

C Ahern (sol) for the respondent

SOLICITORS:

The appellant appeared on his own behalf

The Office of the Director of Public Prosecutions for the respondent

  1. [1]
    The appellant was charged with one count of entering premises and commit an indictable offence under section 421(2) of the Criminal Code 1899 (Qld) (‘the Code’), one count of stealing under section 389 of the Code and one count of fraud – dishonestly obtaining property from another under section 408C(1)(b) of the Code. He pleaded not guilty to each of the charges.
  2. [2]
    The trial came on before a magistrate at Brisbane on 10, 15, 21, 23 and 28 August 2017. The appellant was found guilty of all three charges. He was sentenced to concurrent terms of six months imprisonment with a parole release date after serving 27 days in relation to each charge. He was also ordered to pay $200 compensation.
  3. [3]
    The appeal is against conviction only. The appellant also seeks to adduce fresh evidence.
  4. [4]
    The appeal was heard on 26 and 27 March 2018. At the hearing of the appeal, the appellant was self-represented and the respondent was represented. The appeal was opposed by the respondent, save for a concession. This was that the criminality relied on by the prosecution at the summary trial in relation to the charges of enter premises and commit indictable offence and stealing were the same, with the consequence that the conviction in relation to the charge of stealing ought to quashed.
  5. [5]
    The new evidence the appellant sought to adduce is the record of interview between the investigating officer and the principal prosecution witness, Richard Weise, which interview was conducted on 4 March 2017.
  6. [6]
    After the hearing of the appeal had concluded, on 28 March 2018 it was brought to my attention that the respondent had emailed the appellant on the afternoon of 26 March 2017. The appellant apparently did not become aware of the email until the morning of 28 March 2018. The email attached a statutory declaration from Acting Det Sgt Gerard McCarthy dated 6 February 2018. Relevantly it states, that during the record of interview with Mr Weise, he presented a number of pieces of paper relating to sales of bicycles by the respondent to him. Acting Det Sgt McCarthy could recall looking at these pieces of paper but not retaining copies of any of them. I was informed from the bar table and it does not seem to be in controversy that the pieces of paper included a document relating to the sale of a bicycle from the appellant to Mr Weise on 19 February 2017.
  7. [7]
    The hearing was re-opened on 3 April 2018. It was explained on behalf of the respondent that the statutory declaration had been disclosed at this late stage as a precautionary measure in circumstances where it was thought that it had already been provided to the appellant but confirmation of this could not be found. The appellant sought to adduce the statutory declaration as fresh evidence. Directions were made with respect to further written submissions addressing this issue. These submissions were provided by the respondent and the appellant on 17 April and 1 May 2018 respectively.
  8. [8]
    For the reasons set out below, the application to adduce the record of interview of Mr Weise and the statutory declaration of Acting Det Sgt McCarthy should be allowed. Further, the appeal should be dismissed apart from quashing the conviction for stealing.

Nature of s 222 appeals

  1. [9]
    The appeal is brought under Part 9 Division 1 of the Justices Act 1886 (‘the Justices Act’). Section 222 provides that a defendant aggrieved by an order made by a justice in a summary way on a complaint for an offence, may appeal within one month after the date of the order to a District Court judge.
  2. [10]
    Section 223 of the Justices Act provides that the appeal is by way of rehearing on the evidence given in the proceeding before the magistrate. However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
  3. [11]
    On a rehearing, subject to the powers to admit fresh evidence, the court conducts a rehearing on the record of the hearing in the Magistrates Court to determine whether the convictions are the result of some legal, factual or discretionary error.[1]   Whilst this does not involve a rehearing of the evidence of witnesses, the court has the power to draw inferences from primary facts, including facts not disputed and findings of fact.[2]
  4. [12]
    In Fox v Percy[3] Gleeson CJ, Gummow and Kirby JJ said at [25]:

“Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”

  1. [13]
    Recently, in Bode v Commissioner of Police[4], McMurdo JA confirmed that the task of an appellate court conducting a rehearing is as described by the High Court in Robinson Helicopter Company Inc v McDermott as follows:

”A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”[5]

  1. [14]
    The record is constituted by:
  • the oral evidence of Daniel Van Hoof-Harkin, Richard Weise, Const Aroha Tirra, Acting Det Sgt Gerard McCarthy, Det SC Andrew Gillespie, Det Sgt Peter Williams, Const Shane Asnicar, Kimberly Spain and the appellant;
  • a receipt for the purchase of the Avanti bicycle;
  • Sellers Statement dated 18 February 2017;
  • Transaction Register dated 18 February 2017;
  • field property receipt dated 25 February 2017;
  • electronic field property receipt;
  • photographs of the Avanti bicycle;
  • SPIR enquiry;
  • photographs of the garage taken on 8 July 2017;
  • Optus spreadsheet;
  • affidavit of Andrew John Millar sworn 6/03/2017; and
  • email correspondence between Kimberley Spain and Acting Det Sgt Gerard McCarthy dated 3/03/2017.
  1. [15]
    The grounds of the appeal are that:
  1. (i)
    The decision was against the weight of the evidence and the magistrate altered evidence to support his decision.
  1. (ii)
    The decision was affected by fraud.
  1. (iii)
    There was a miscarriage of justice. Material evidence exculpatory to the defendant was withheld from the trial by the police.
  1. (iv)
    The magistrate should have dismissed all charges.
  1. [16]
    As to the giving of leave to adduce new evidence, the relevant principles and test were discussed in R v WBF[6] where Philippides J said at [106] – [107]:

“The relevant principles concerning further evidence are as set out in R v Spina. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. On the other hand, new or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence have then been discovered.

The test for determining whether to allow an appeal against conviction based on fresh evidence is whether it is established that there is a significant possibility (or that it is likely) that, in light of all the admissible evidence, both the fresh evidence and the evidence at trial, a jury acting reasonably would have acquitted.” [citations omitted]

  1. [17]
    Pursuant to section 225 of the Justices Act, the appellate court can confirm, set aside or vary an order or make any other order considered just.

Relevant facts

  1. [18]
    Daniel Van Hoof-Harkin lived in an eight unit residential complex in Taringa. Each unit had a garage which was located on the street level. Mr Van Hoof-Harkin stored property in his garage, including an Avanti Giro bicycle (‘the Avanti bicycle’), which he had purchased in October 2012. The serial number of the bicycle was V119K00042.
  2. [19]
    On Thursday, 9 February 2017, Mr Van Hoof-Harkin left home at approximately 7am. Just prior to leaving he went into his garage. He saw the Avanti bicycle inside the garage and against the back wall under some shelving. Accessories were attached to it and his helmet and cleat shoes were on the shelves above it. When leaving the garage, he checked that it was locked.
  3. [20]
    At approximately 6.40 that evening, Mr Van Hoof-Harkin returned home and went to unlock the garage door. He noted that it was slightly ajar, bent a little bit and there were some dents down the right hand side of it. It appeared to him that it had been jemmied or forced open in some way. Because it was slightly ajar, he did not need to unlock it. Rather it just popped open. Mr Van Hoof-Harkin noticed that the Avanti bicycle and helmet were missing. He reported the missing property to Policelink. It was suggested to him that he should keep an eye on Gumtree, an online classified advertisement website where items of property are bought and sold.
  4. [21]
    Some two weeks later, Mr Van Hoof-Harkin noticed that the Avanti bicycle was advertised for sale on Gumtree by a second hand bicycle shop, Weise Bike Co Pty Ltd (‘Mr Weise’s bicycle shop’) at Slacks Creek. This business was owned and operated by Richard Weise. Mr Van Hoof-Harkin visited the second-hand dealership the following day, being 25 February 2017. His Avanti bicycle was there as confirmed by the serial number. All accessories, apart from the water bottle cage had been removed from it. These included the lights and the saddle bag. Mr Van Hoof-Harkin telephoned Policelink to inform them that he had found his Avanti bicycle. Const Tirra and SC McDonald attended.
  5. [22]
    Mr Weise first met the appellant in early 2016 when he purchased a bicycle off him through Gumtree. He estimated that prior to the subject events he had purchased some 30 to 40 bicycles from the appellant. His evidence was that he would routinely check with the appellant that the bicycles were not stolen and the appellant would consistently tell him that he had collected them in the course of bond clean ups.
  6. [23]
    It was the evidence of Mr Weise that on 10 February 2017, he purchased the Avanti bicycle for $200 from the appellant at ‘a little over 2pm. Around about 2pm[7].’  He categorically denied in cross-examination the suggestion put to him by the appellant that this was untrue.[8]  His evidence was that he did not remove any of the accessories from the Avanti bicycle, namely the headlight, the saddle bag or the pump. He explained that he met the appellant in a side street outside the back of the Rocklea Hotel as he was working nearby in his IT business which he also operated.
  7. [24]
    The purchase of a bicycle in these circumstances would ordinarily trigger the completion of a document titled a ‘Sellers Statement’. Mr Weise gave evidence that a Sellers Statement was completed for the purchase of the Avanti bicycle. He also explained that he would ordinarily include the purchase in what is called the Transaction Register. He did not on this occasion. His reason for this is because that week he had been pre-occupied with work associated with his IT business.
  8. [25]
    Mr Weise’s evidence was that his next contact with the appellant was eight days later, on 18 February 2017. The appellant telephoned him for the purpose of arranging a time to meet him to sell further bicycles to him. Mr Weise was unable to remember at what time he received the call, other than to say that it was prior to 2pm.[9]  He was cross-examined by the appellant as to how the meeting came about and it was suggested to him that the appellant rang him in the morning to arrange it. Mr Weise’s evidence was that he could not recall at what time the appellant had telephoned him.
  9. [26]
    According to Mr Weise, he met the appellant on this occasion in a side street near the Holland Park Hotel. He understood this to be only a few streets from the appellant’s house. Mr Weise had with him the Sellers Statement for the Avanti bicycle from 10 February 2017. It was discussed that he had not yet entered the details of the purchase of the Avanti bicycle in the Transaction Register. It was the evidence of Mr Weise that the appellant asked him to record the purchase of the Avanti bicycle in the Transaction Register with the two other bicycles that the he was there to purchase from the appellant. The net effect of this is that the Transaction Register would record the Avanti bicycle as having been purchased on 18 February 2017, rather than 10 days earlier. It was Mr Weise’s evidence that the appellant had been making similar requests in relation to other bicycles that he had purchased from the appellant over the previous four or so weeks. Mr Weise explained that the appellant did not tell him why it was that the appellant wanted this done. Mr Weise assumed it was for tax purposes for the appellant. Mr Weise said that at this time he had no reason to suspect that the Avanti bicycle or any other bicycle he had purchased from the appellant were not the property of the appellant. This is because he had come to know the appellant and there had been no reason to question the appellant’s honesty.
  10. [27]
    It was against this background that Mr Weise said he complied with the request. He screwed up the Sellers Statement dated 10 February 2017. He then added the Avanti bicycle to the Sellers Statement that he completed on 18 February 2017, which also detailed the two other bicycles that he purchased that day from the appellant. This was tendered as Exhibit 2 at the hearing.
  11. [28]
    It was the evidence of Mr Weise that some parts of the Sellers Statement dated 18 February 2017 were completed by the appellant, and others were completed by him. He said that the signature which appears on it is the appellant’s and that it was signed in Mr Weise’s presence. In cross-examination, Mr Weise was asked why he wrote 2pm, to which he responded “Because that’s when it – it would have happened.”[10] It lists the three bicycles, including the Avanti bicycle and records the purchase price for the three bicycles to have been $450. The Avanti bicycle did not have the model number recorded as part of the description. Mr Weise explained that the appellant had filled out this part of the Sellers Statement and he did not realise that the appellant had omitted to include the model number.[11] 
  12. [29]
    Consistently with the Sellers Statement, the Transaction Register was completed to indicate that all three bicycles (including the Avanti bicycle), had been purchased by Mr Weise from the appellant on 18 February 2017. The time is stated to be 2pm. The purchase is detailed as having occurred at Mr Weise’s shop. In evidence Mr Weise explained that this location was written in because it was easier in circumstances where the purchase of the Avanti bicycle on 10 February 2017 and the purchase of the two other bicycles eight days later had occurred at different locations. He allocated ‘111’ as the Trade No. for the Avanti bicycle and 110 and 112 to the two other bicycles.
  13. [30]
    Mr Weise was required to enter the details of the second-hand bicycles purchased by him, including the serial numbers of the bicycles in a police data base known as SPIRS. He explained that information from the Transaction Register would be uploaded into an Excel spreadsheet and forwarded electronically to SPIRS every fortnight.
  14. [31]
    In evidence in chief Mr Weise was shown a photograph of the Avanti bicycle taken by police after it had been seized. His evidence was that while he could not be 100 percent sure that it was the Avanti bicycle the appellant had sold him on 10 February 2017, it appeared to be. The appellant sought to make much of this in his oral submissions. Importantly the serial number on the bicycle in the photograph matches the serial number which is recorded in the Transaction Register dated 18 February 2017 for the Avanti bicycle.
  15. [32]
    After Mr Van Hoof-Harkin produced the warranty card for the Avanti bicycle and had satisfied Mr Weise that it in fact belonged to him, Mr Weise delivered it to the Springwood Police Station. He was provided with a field property receipt detailing the Avanti bicycle and the serial number.
  16. [33]
    Acting Det Sgt McCarthy assumed responsibility as the investigating officer in relation to the stolen Avanti bicycle on 1 March 2017. The appellant was interviewed by him and Const Asnicar on the following day. It was during this interview that police first became aware that Mr Weise and the appellant had met on 10 February 2017. It was at this time that the appellant also identified his partner, Kimberley Spain as a potential witness. She did not speak with police prior to the hearing.
  17. [34]
    The next involvement Mr Weise had with this matter was when he was telephoned by a police officer from the Indooroopilly Police Station on 4 March 2017. He was informed that following a conversation with the appellant, an issue had arisen which required clarification. It related to when the appellant had sold the Avanti bicycle to him. Mr Weise told the police officer that he had not filled out the paperwork accurately in relation to the sale of the Avanti bicycle from the appellant and he then travelled to the Indooroopilly Police Station where he participated in a record of interview.
  18. [35]
    In evidence in chief and again in cross-examination, Mr Weise explained that he subsequently told police that he had purchased the Avanti bicycle on 10 and not 18 February 2017. He said while he knew he should have recorded it as being purchased on 10 February 2017, the purchase had been included in the Excel spreadsheet provided to SPIRS prior to him becoming aware that Mr Van Hoof-Harkin and not the appellant was the owner of the Avanti bicycle. He explained in evidence that he was subsequently charged for “fraudulently destroying of a document, or something similar” and that he was dealt with by a court.[12]  He confirmed in cross examination that this charge related to the destruction of the Sellers Statement dated 10 February 2017.[13]   
  19. [36]
    Det Sgt Peter Williams is attached to the SPIRS unit, which maintains a database for any second hand item with a resale value of more than $55 or if the item is identifiable by a make, model or serial number. He explained that exhibit 7 is an extract from the SPIRS database. His evidence was that dealers would send through entries made in their Transaction Registers and these would then be manually entered into the electronic data base. The records from the SPIRS unit established that the information in relation to the Avanti bicycle was received at the SPIRS unit on 20 February 2017 and was loaded into the SPIRS database on 24 February 2017.[14]  
  20. [37]
    Evidence was also given by Det SC Gillespie from the Indooroopilly CIB. His evidence was in relation to data obtained from Optus in relation to telephone calls made and received from the appellant’s mobile phone over the relevant time. The data was presented in a spreadsheet. The prosecution sought to rely on Det SC Gillespie’s interpretation of the data in the spreadsheet to establish that the appellant made a phone call while in the Taringa area at around 1.38pm on 9 February 2017. However, the defendant raised a number of objections to this evidence. The substance of the objections were to the effect that the officer had no appropriate qualifications or expertise to be interpreting the data. The learned magistrate seemed to accept there was merit to these objections. Indeed, the officer conceded that he was not sure as to what certain parts of the spreadsheet related to.
  21. [38]
    Const Asnicar explained in evidence that it was not until after the appellant had been interviewed that police became aware that Mr Weise may not have been entirely frank when he was initially spoken to by police as to his failure to mention his involvement with the appellant on 10 February 2017.
  22. [39]
    The appellant gave evidence and was cross examined. Relevantly, for the purposes of this appeal, he denied having anything to do with the commission of these offences. This included denying that:
  1. (i)
    he broke into Mr Van Hoof-Harkin’s garage and stole the Avanti bicycle;
  1. (ii)
    he met Mr Weise on 10 February 2017 at approximately 2pm near the Rocklea Hotel and sold him the Avanti bicycle for $200;
  1. (iii)
    he again met Mr Weise on 18 February 2017 but this time near the Holland Park Hotel and sold him two other bicycles;
  1. (iv)
    when he met Mr Weise on 18 February 2017 he requested Mr Weise to include the Avanti bicycle on the Sellers Statement for that date; and
  1. (v)
    the signature on the Sellers Statement is his or that he completed any other parts of that document.
  1. [40]
    The appellant admitted that prior to 10 February 2017, he knew Mr Weise and his evidence was that he would have sold him more than 10 bicycles.
  2. [41]
    The only other witness called by the appellant, was his partner Kimberley Spain. She gave evidence of her usual routine on Saturdays such as 18 February 2017. She said that she would normally go to the gym and then come home and have breakfast with the appellant. They would each go about doing their own thing. For her, this included domestic chores and going out to pick up her son. For the appellant, this included going out or being home on the computer. Her evidence was that it would not be unusual for the appellant to go out on his own.

Magistrates findings

  1. [42]
    The learned magistrate found that:
  1. (i)
    the Avanti bicycle was stolen from Mr Van Hoof-Harkin’s locked garage between 7am and 6.40pm on 9 February 2017;
  2. (ii)
    Mr Weise’s version of events was credible;
  3. (iii)
    there was the opportunity for the appellant to have met with Mr Weise on 18 February 2017, despite the appellant’s denials of having done so;
  4. (iv)
    Ms Spain’s evidence did not preclude a meeting between Mr Weise and the appellant on 18 February 2017;
  5. (v)
    the bicycle that the appellant said that he found on 6 or 8 February 2017 was not the Avanti bicycle sold to Mr Weise on 10 February 2017;
  6. (vi)
    the fact that there is no phone call from the appellant’s phone to Mr Weise on 18 February 2017 does not preclude there having been a telephone discussion between the appellant and Mr Weise around 2pm on 18 February 2017; and
  7. (vii)
    applying the doctrine of recent possession the prosecution discharged its burden of establishing that the appellant stole Mr Van–Hoof-Harkin’s bicycle.
  1. [43]
    It is noted that the learned magistrate did not accept the evidence of Det SC Gillespie and this is addressed in further detail below.

Whether the magistrate erred

  1. [44]
    In his written outline and in oral submissions, the appellant argued a number of points, which incorporated the grounds of appeal.
  2. [45]
    The first point relates to Det SC Gillespie’s evidence. The learned magistrate permitted the officer to give evidence as to his interpretation of the data from Optus regarding calls made to and from the appellant’s mobile on 9 February 2017. The relevant document was tendered without objection from the appellant.[15]  The officer interpreted the data as establishing that a call was made from the appellant’s mobile phone in the vicinity of the Taringa area at 1.38pm on 9 February 2017. The relevance of this evidence is that if accepted it provided support to the prosecution case that the appellant was in the vicinity of the garage from which the Avanti bike was taken on the day it went missing.
  3. [46]
    The appellant is under the misapprehension that the learned magistrate accepted this evidence. It is readily apparent from the learned magistrate’s reasons and findings at page 3 that he did not. It is expressly stated that the prosecution had not established that the officer had the appropriate expertise, either by virtue of his education or training to give that evidence. In other words, while the officer was permitted to give the evidence, his Honour attached no weight to it.
  4. [47]
    Reference is made by the appellant to the fact that when Acting Det Sgt McCarthy was cross-examined about the Optus data that he gave evidence that it was his understanding that it indicated that the appellant’s mobile phone utilised the Taringa mobile tower on the day the Avanti bicycle went missing. This evidence was given in response to a question asked by the appellant. Once again the learned magistrate’s reasons and decision reveal that he did not place any weight on this evidence in concluding that the appellant entered Mr Van Hoof-Harkin’s garage with the intention of stealing.
  5. [48]
    I should add that there is nothing to support the appellant’s characterisation of Det SC Gillespie’s evidence as ‘false’. The submission by the appellant that there was corroborated perjury between Acting Det Sgt McCarthy, Det SC Gillespie and the prosecutor at the summary trial is entirely baseless on any sensible reading of the evidence. It is in no way surprising that the learned magistrate did not share the appellant’s views in this regard.
  6. [49]
    The second point relates to the first, is that the prosecutor relied on Det SC Gillespie’s evidence about the Optus spreadsheet to defeat the ‘no case’ application made by the appellant at the close of the Crown case. It is true that the prosecutor did refer to this evidence in oral submissions. However, the learned magistrate did not refer to this evidence in rejecting the ‘no case’ application and I see no error in his ruling in this regard.[16]  On all of the other evidence before the learned magistrate as it stood at the time the Crown case was closed, the appellant could be lawfully convicted. The evidence was capable of establishing the charges beyond reasonable doubt, taking the primary facts at their highest and assuming that all the inferences relied on by the prosecution were reasonably open.[17] 
  7. [50]
    The third point complains of the fact that it was not until after the police had interviewed the appellant that Mr Weise disclosed his interactions with the appellant on 10 February 2017. This occurred after he was telephoned by Acting Det Sgt McCarthy. The police then interviewed Mr Weise on 4 March 2017 where he provided his version of events regarding 10 February 2017. The appellant alleges impropriety on the part of the officers in conducting the investigation in this way, in circumstances where it is alleged that Mr Weise remained a suspect. There is simply no merit to this complaint. These were matters for cross-examination and the appellant cross-examined Acting Det Sgt McCarthy about them. There is nothing perverse about the police investigation and the complaint is without merit.
  8. [51]
    The fourth point relates to the third is that Mr Weise’s record of interview was not disclosed to the appellant until after the hearing had been concluded. It was in the interview on 4 March 2017 that Mr Weise gave his version of his dealings with the appellant on 10 February 2017. The appellant complains that the police had a duty to re-interview him to ascertain his position on this issue. I am satisfied that the police had no such duty. The brief of evidence provided to the appellant included a statement from Mr Weise. He could have applied for an adjournment if he had considered it necessary. Further, he cross-examined Mr Weise on this very issue. Mr Weise categorically denied the suggestion by the appellant that he did not meet with the appellant around 2pm on 10 February 2017 for the purpose of purchasing the Avanti bicycle from the appellant. There is nothing in this complaint.
  9. [52]
    The fifth point is a criticism of the prosecution for not having the Sellers Statement examined by a handwriting expert. This submission is in the context of an assertion by the appellant that it could have been altered in any number of ways between when Mr Weise was telephoned about the anomaly with the date on which the appellant sold the Avanti bicycle to him and when Mr Weise was interviewed in relation to it. However, the prosecution case was not dependent upon handwriting analysis. Mr Weise identified the appellant as the person who sold the Avanti bicycle to him. There was nothing preventing the appellant from obtaining his own handwriting evidence if he so desired. In a similar vein, the appellant is critical of the police for not having obtained the relevant telecommunication records in relation to Mr Weise’s phone; CCTV footage of the Lord Stanley Hotel; Brisbane City Council CCTV footage in the vicinity of the Story Bridge in the early afternoon of 18 February 2017; and an analysis of the hard drive of Ms Spain’s laptop. Once again, the prosecution case was not dependent on any such evidence.
  10. [53]
    The sixth point is that it was not open to the learned magistrate to find that the appellant met Mr Weise around 2pm on 18 February 2017. The purported reasons for this are as follows:
  1. (vi)
    First, the finding involved the learned magistrate accepting Acting Det Sgt McCarthy’s evidence which the appellant says was perjury. There is no basis for characterising Acting Det Sgt McCarthy’s evidence in this way and further, the finding of the learned magistrate on this point was not dependant on any evidence given by Acting Det Sgt McCarthy.
  1. (vii)
    Second, the appellant relies on his evidence to the effect that he did not meet Mr Weise as alleged. The problem for the appellant is that this was not accepted by the learned magistrate in circumstances where the evidence of Mr Weise was preferred on this point. Mr Weise knew the appellant well. While he may have initially not been frank with the police as to his interaction with the appellant on 10 February 2017, the magistrate considered that Mr Weise had learnt his lesson. He impressed the learned magistrate as a witness of truth.[18] In other words, any weaknesses in Mr Weise’s initial version supplied to police, were not such as to cause the learned magistrate to doubt the reliability of Mr Weise’s evidence on one of the central issues, namely whether he met the appellant around 2pm on 18 February 2017.
  1. (viii)
    Third, it was not open to the learned magistrate to find that he met Mr Weise around 2pm on 18 February 2017, because there was a ‘concrete’ alibi that he was at Ms Spain’s house at the time. This overstates Ms Spain’s evidence. Her evidence as the learned magistrate found it to be, was that while the appellant was at her house over the weekend, they did not keep tabs on each other and would each come and go as they pleased.
  1. (ix)
    Fourth, is that his telephone records show that he placed bets from Ms Spain’s laptop around the relevant time, and the laptop needed to be plugged in for this to occur. This of course required the learned magistrate to accept the appellant’s evidence on this point and he did not. Further, the appellant has focussed on a finding of the learned magistrate that there is no evidence that the transaction between the appellant and Mr Weise occurred precisely at 2pm. In my respectful opinion that was correct. Therefore the appellant has failed to discharge his onus and his sixth point is not made out.
  1. [54]
    The seventh point is that the learned magistrate misconstrued the appellant’s record of interview with police by his reference to having had possession of a bike to being a reference to Mr Van Hoof-Harkin’s bike. The appellant’s submission should not be accepted. There was no misconstruing of anything the appellant said. Rather, the learned magistrate simply did not accept the appellant’s version that the Avanti bicycle was not Mr Hoof-Harkin’s but was rather a bicycle that he found on 6 or 8 February 2017. The learned magistrate had the benefit of seeing and hearing the appellant. Upon my review of the record and giving appropriate weight to the learned magistrate’s findings, it was clearly open to the learned magistrate to reject the appellant’s version as to whether and if so when he had the Avanti bicycle in his possession. 
  2. [55]
    The eighth point is that the telephone records of the appellant prove that there was no telephone contact between him and Mr Weise on 10 and/or 18 February 2017. This cannot be accepted. At best they prove that the phone to which the telephone records relate, was not used for the purpose of any such communications. There was the evidence of Mr Weise to the effect that he spoke to the appellant on both occasions and as explained above, the learned magistrate accepted Mr Weise’s evidence. Therefore the appellant’s argument was rejected by the learned magistrate as he was entitled to do in determining a factual question.
  3. [56]
    The ninth point revolves around the learned magistrate having misunderstood the precise nature of the offence for which Mr Weise had entered a plea of guilty. The point is made by the appellant that Mr Weise said that he had pleaded guilty to destroying the Sellers Statement that had been created on 10 February 2017 in relation to the Avanti bicycle. In his reasons the learned magistrate referred to Mr Weise having been charged in relation to the destruction of the document. The appellant handed up a copy of Mr Weise’s criminal history at the hearing of the appeal. No objection to this was raised by the respondent. It contains only the one entry for the offence of having fraudulently falsified/destroyed/altered or damaged a record on 18 February 2017. The precise nature of the offence of dishonesty does not advance the appellant’s case in any material way. Further, the circumstances relevant to Mr Weise having been charged were ventilated at the summary trial.
  4. [57]
    The tenth point relates to the damage to Mr Van Hoof-Harkin’s garage door. The appellant contends that the photographs show that the scratches in the middle of the garage door and that they are unrelated to someone breaking into the garage. These photographs were tendered as an exhibit at the summary trial and I have viewed them. I do not agree that such a conclusion can be drawn from the photographs. Further, the learned magistrate accepted the evidence of Mr Van Hoof-Harkin to the effect that the garage door was slightly ajar, bent a little and that there were some dents down the right hand side of it. Mr Van Hoof-Harkin went on to explain that because it was slightly ajar he did not need to unlock the door as it just popped open. This was not the condition of the door when he had last seen it earlier that day. In my view, the learned magistrate was entitled to accept the evidence of Mr Van Hoof-Harkin in this respect.
  5. [58]
    The eleventh point is that the police told the appellant a lie during the course of the record of interview. They told him that they had a copy of the Sellers Statement when they in fact did not. I am not persuaded from the record of interview that the police officers lied to the appellant. At best, there seems to be some confusion as to what is being referred to. The point is that prior to the trial the appellant was well aware of the existence of the Sellers Statement dated 18 February 2018 and the Crown case in relation to this. In short, I am not satisfied that the police officers in any way conducted themselves dishonestly when interviewing the appellant and in any event, it has no present relevance to the disposition of the appeal.
  6. [59]
    The twelfth point is that the police have made up that he destroyed the Sellers Statement which was dated 10 February 2017. This is entirely without merit. The evidence about this document having been destroyed came from Mr Weise who the learned magistrate found to be a reliable witness. As I read the record, this was an appropriate conclusion.
  7. [60]
    The thirteenth point is that the Sellers Statement of 18 February 2017 has been altered. The appellant would have the court believe that this was in fact the Sellers Statement completed when he sold a different bicycle to Mr Weise on 8 February 2017. However, it was clearly open to the learned magistrate to prefer the evidence of Mr Weise as to this issue. The appellant contends that a handwriting expert would have proved that this document had been tampered with. The prosecution was not required to lead such evidence and was entitled to rely on Mr Weise’s evidence about this. As I have previously observed, there was nothing preventing the appellant from obtaining his own expert evidence if he so desired.
  8. [61]
    The fourteenth point is that there would have been no motive for the appellant to have asked Mr Weise to screw up the Seller Statement from 10 February 2017 and then request Mr Weise to instead have it represented that the Avanti bicycle was sold to him by the appellant on 18 February 2017. I do not agree. Evidence of possession of the Avanti bicycle on 10 February 2017 provided circumstantial evidence which was capable of supporting an inference that it was the appellant who had stolen it from Mr Van Hoof-Harkin’s garage on the previous day. Having said this, the prosecution did not and was not required to rely on a motive to establish the guilt of the appellant. Of course, the motive by which a person is induced to do an act or form intent is immaterial to the question of criminal responsibility in this case. In short, the appellant’s complaint in this regard does not advance his appeal in any material way.
  9. [62]
    The fifteenth point is the alleged failure by Mr Wiese to have complied with the Second Hand Dealers and Pawnbrokers Act 2003 and the Second Hand Dealers and Pawnbrokers Regulation 2004 as to the information to be included on the Sellers Statement dated 18 February 2017. As explained above, it cannot be overlooked that it was Mr Weise’s evidence that it was the appellant who filled out the descriptions in relation to the three bikes. Having said this, nothing turns on this as it has no present relevance to the determination of the appeal.
  10. [63]
    For the purpose of completeness, I should say that I reject without hesitation the appellant’s complaint that the magistrate altered evidence and that his decision was affected by fraud.  Suffice to say that I have read all the relevant material and there is simply no substance to this on a reasonable reading of the evidence and the reasons and decision of the learned magistrate. 
  11. [64]
    Upon my review of the record and giving appropriate weight to the learned magistrate’s findings, I am satisfied the appellant was guilty of the offences of entering premises and committing and indictable offence and fraud in the context of dishonestly obtaining property from another. The reasons for this are summarised below.
  12. [65]
    The prosecution case against the appellant in the Magistrates Court was based upon inferences which it submitted should be drawn from the fact that the appellant was found to be in possession of the Avanti bicycle which was stolen from Mr Van Hoof-Harkin’s garage shortly after it was stolen.
  13. [66]
    With regard to the charge of entering premises and commit an indictable offence, the evidence revealed that at some time between 7am and 6.40pm on 9 February 2017, a person entered Mr Van Hoof-Harkin’s garage through the garage door and stole his Avanti bicycle and helmet. The prosecution case against the appellant with respect to this charge was based on recent possession. The so-called doctrine was explained by Griffith CJ in Trainer v The King[19] in the following way:

“It is a well-known rule that recent possession of stolen property is evidence, either that the person in possession of it stole the property, or received it knowing it to have been stolen, according to the circumstances of the case. Prima facie, the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it, knowing that someone else had stolen it. This is only an illustration of the rule as to circumstantial evidence.”

  1. [67]
    The prosecution case was that the appellant sold the Avanti bicycle to Mr Weise on the following afternoon. Evidence of the appellant being in possession of the Avanti bicycle which had been stolen the previous day is circumstantial evidence which is capable of supporting an inference of the appellant having stolen it, which needed to be considered in the context of all the other evidence. Whether the possession of stolen goods is sufficiently recent to justify the making of an inference that the person in possession was the person who stole it is a question of fact, to be determined by the tribunal of fact.[20]
  2. [68]
    Mr Van Hoof-Harkin identifying his stolen Avanti bicycle at Mr Weise’s bicycle shop was compelling. The evidence of the appellant selling the Avanti bicycle so soon after it was stolen was further compelling evidence that the appellant was the person who committed the offence of entering Mr Van Hoof-Harkin’s garage and at the time he entered it, he intended to commit an indictable offence, namely stealing. The inferences drawn by the learned magistrate were not only open to him, but were, in my opinion, the only rational inferences to be drawn from the relevant circumstances.[21]   I am satisfied that the prosecution have excluded beyond reasonable doubt as a reasonable hypothesis consistent with the appellant’s innocence that he did not steal the Avanti bicycle from the garage and did not have it in his possession on the day after it was stolen from the garage.
  3. [69]
    As to the charge of fraud – dishonestly obtaining property from another, it was alleged by the prosecution that between 9 and 19 February 2017 the appellant dishonestly obtained a sum of money from Mr Weise. The prosecution case was that Mr Weise paid the appellant $200 to purchase from the appellant the Avanti bicycle, which in fact did not belong to him. The credibility of witnesses is a material consideration in this case. The learned magistrate had the benefit of hearing and seeing all of the witnesses including Mr Weise and the appellant. Both witnesses were extensively cross-examined. Mr Weise was unshaken on the identity of the appellant on both 10 and 18 February 2017. Upon my own review of the record, I am satisfied the learned magistrate was entirely justified in accepting the evidence of Mr Weise that on 10 February 2017, Mr Weise paid the appellant $200 for the Avanti bicycle. Likewise it was clearly open to the learned magistrate to reject as untruthful the appellant’s version as to his interactions with Mr Weise. In my opinion that was correct.
  4. [70]
    In reaching this conclusion, the learned magistrate considered and rejected as he was entitled to do, the appellant’s case that he did not sell the Avanti bicycle for $200 to Mr Weise on 10 February 2017 or indeed on any other date and did not meet with him on 18 February 2017. Further, the appellant would have the court believe that he sold Mr Weise another Avanti bicycle on 8 February 2017 and that the Sellers Statement dated 18 February 2017 was in fact the Sellers Statement from the earlier sale of this other bicycle. I concur with the learned magistrate’s conclusion in this regard.
  5. [71]
    In short, on the whole of the evidence, it was open to the learned magistrate to be satisfied beyond reasonable doubt that the appellant was guilty of the two charges. The appellant in his lengthy written and oral submissions has raised no matter which would suggest any error in the conduct of the trial or the nature of the evidence to give rise to a conclusion that there had been a miscarriage of justice.

Adducing new evidence

  1. [72]
    The new evidence sought to be adduced by the appellant is two-fold. First is a record of interview between investigating police officers and Mr Weise on 4 March 2017. Second is the statutory declaration of Det Sgt McCarthy dated 6 February 2018.

Record of interview

  1. [73]
    Mr Weise’s record of interview is not fresh evidence. The respondent concedes that it should have been disclosed to the appellant prior to the summary trial commencing. I have reviewed the record of interview and in summary, it relevantly contains the following:
  • he had previously sold some 10 or so bikes to the appellant and thereby knew him reasonably well;
  • the Avanti bicycle had been purchased from the appellant at Rocklea on 10 February 2017 for $200 and that he had completed a Sellers Statement on that date detailing the purchase; and
  • he purchased two other bikes from the appellant near his home at Holland Park on 18 February 2017. At this time, he had not yet submitted the Transaction Register for the purchase of the Avanti bicycle on 10 February 2017. He had the Sellers Statement with respect to that purchase with him which was screwed up and thrown away. A further Sellers Statement was completed for the two bicycles that Mr Weise purchased from the appellant on that day. The Avanti bicycle was added to this document. The appellant signed this Sellers Statement.
  • The police had reviewed the Transaction Register between 8 and 19 February 2017. Mr Weise explained that the bicycle he purchased from the appellant on 19 February 2017 was a Trek Madone which the appellant had dropped off at his Slacks Creek shop at approximately 4pm on that day.
  1. [74]
    I am not persuaded that it is likely that when considering this record of interview together with the evidence at trial, that it might reasonably have led to a different conclusion as to the appellant’s guilt.
  2. [75]
    In submissions, the appellant contended that the failure to disclose this record of interview had the consequence that he was unaware that it was being alleged by the respondent that he had stolen the Avanti bicycle on 9 February 2017 and had then sold it to Mr Weise on the following day. I do not accept this. The brief of evidence provided to the respondent included a written statement of Mr Weise taken by investigating officers. As stated above, the appellant accepted that at least a week before the summary trial commenced he was aware that Mr Weise had spoken to police about his interactions with the appellant on 10 February 2017. Indeed the appellant cross-examined Mr Weise about this very issue.[22]  Further in the appellant’s own evidence he expressly denied that he had had any contact with Mr Weise on that day.
  3. [76]
    The appellant further contended that he was denied the opportunity to cross-examine and present his own evidence as to his whereabouts on 19 February 2017 when Mr Weise said that the appellant sold him the unrelated bicycle. This too is without merit. It formed part of exhibit 7. It was the appellant who first raised the issues about this date at the trial.[23]  Further, a review of the transcripts of the hearing show that he was not denied any such opportunity. The references to matters related to this issue are numerous.[24] Further, the dealings between the appellant and Mr Weise on this day were not relevant to the subject charges.
  4. [77]
    It is also worth noting that the evidence Mr Weise gave as to his meetings with the appellant on 10 and 18 February 2017 is consistent with the information he provided to the police when he was interviewed on 4 March 2017.

Statutory declaration

  1. [78]
    In the statutory declaration Acting Det Sgt McCarthy confirms that in 2017 he conducted the record of interview with Mr Weise. He also deposes to being presented with a number of papers during the interview relating to the sale of bicycles by the appellant to Mr Weise. He goes on to explain that he can recall having looked at the pieces of paper but that he did not retain any of them. One of the pieces of paper appears to have been the Sellers Statement dated 19 February 2017.
  2. [79]
    This statutory declaration arises out of an order made by another judge in this court on 29 November 2017 whereby it was ordered that the respondent was required to enquire of police if they had the Sellers Statement dated 19 February 2017 and if they did not have it, the appellant could request it by subpoena.
  3. [80]
    These orders and the statutory declaration came into existence when preparing for the appeal and therefore the statutory declaration could not have been led at the original hearing.
  4. [81]
    This issue can be disposed of in the following way. While I am prepared to receive the statutory declaration given that the appellant is self-represented, I am in no way persuaded that it, when combined with Mr Weise’s record of interview and the evidence at trial would require that the convictions be set aside to avoid a miscarriage of justice. It’s relevance to the material issues is marginal. Further, as discussed above, the meeting which Mr Weise says occurred on 19 February 2017 does not form part of the subject charges. Its relevance is confined to credibility issues and as explained above was explored by the appellant during the course of the trial.

Further issue 

  1. [82]
    In his most recent submissions the appellant has contended that the Court should be reconvened to hear submissions as to why charges should be laid against counsel for the respondent and five of the witnesses who gave evidence for the respondent at the original hearing. Reconvening for this purpose would be neither warranted nor appropriate.

Order

  1. [83]
    It  is ordered that:
  1. The applications to adduce the record of interview and the statutory declaration as further evidence are granted.
  2. The conviction in relation to the charge of stealing is quashed.
  3. The appeal against conviction is otherwise dismissed.
  1. [84]
    The respondent has not sought costs and in these circumstances there is no order as to costs.

Footnotes

[1] Lacey v Attorney-General of Queensland (2011) 242 CLR 573.

[2] Teelow v Commissioner of Police [2009] QCA 84 at [3]-[4].

[3] [2003] HCA 22.

[4] [2018] QCA 186.

[5] (2016) 90 ALJR 679, 686-687.

[6] [2017] QCA 142.

[7] Transcript 10 August 2017, p 38, ln 31-32.

[8] Transcript 10 August 2017, p 67, ln 42-43.

[9] Transcript 10 August 2017, p 72-73.

[10] Transcript, 10 August 2017, p. 60, ln 31-40.

[11] Transcript, 10 August 2017, p. 68, ln 19-22.

[12] Transcript 10 August 2017, p 55, ln 20-31.

[13] Transcript 10 August 2017, p 61, ln 4-6.

[14] Transcript 10 August 2017, p 102-6.

[15] Transcript 15 August 2017, p 91, ln 27.

[16] Transcript 15 August 2017, p 128, ln 20-22.

[17] R v Wait [2011] SASCFC 91.

[18] Learned magistrate’s decision, p 5 ln 33-34.

[19] [1906] HCA 50; 4 CLR 126 at 132.

[20] R v Smale (Unreported), New South Wales Court of Criminal Appeal, Lee, Maxwell and McInerney JJ, 15 August 1986.

[21] The Queen v Baden-Clay [2016] HCA 35 at 46.

[22] Transcript 10 August 2017, p 67, ln 42-43.

[23] Transcript 10 August 2017, p 113, ln 46-47.

[24] For example, Transcript 15 August 2017, p 151-153, ln 12-47; Transcript 21 August 2017, p 18, ln 43-46; p 21, ln 1-18, Transcript 23 August 2017, p 15, ln 2-47; p 42, ln 8-37.

Close

Editorial Notes

  • Published Case Name:

    Millar v Queensland Police Service

  • Shortened Case Name:

    Millar v Queensland Police Service

  • MNC:

    [2018] QDC 219

  • Court:

    QDC

  • Judge(s):

    Rosengren DCJ

  • Date:

    07 Nov 2018

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMagistrates Court (No Citation)28 Aug 2017Defendant convicted of one count of entering premises and committing an indictable offence; one count of stealing and one count of fraud.
Primary JudgmentMagistrates Court (No Citation)01 Sep 2017Defendant convicted of one count of entering premises with intent to commit an indictable offence and one count of entering premises committing an indictable offence.
Primary JudgmentDC3601/17 (No Citation)28 Mar 2018Appeal (from 1 September 2017) dismissed: Ryrie DCJ.
Primary Judgment[2018] QDC 21907 Nov 2018(Appeal from conviction on 28 August 2017): applications to adduce further evidence granted; appeal against conviction for the charge of stealing allowed and conviction quashed; appeal against conviction otherwise dismissed: Rosengren DCJ.
Notice of Appeal FiledFile Number: 329/1804 Dec 2018Appeal from [2018] QDC 219
Appeal Determined (QCA)[2019] QCA 21111 Oct 2019Applications for leave to appeal refused (from [2018] QDC 219 and ex tempore decision of Ryrie DCJ on 28 March 2018): Gotterson and Philippides and McMurdo JJA.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Bode v Commissioner of Police [2018] QCA 186
2 citations
Jump To
Cite 1 - [2018] QCA 186
Cite 2 - [2018] QCA 186
Fox v Percy (2003) HCA 22
2 citations
Jump To
Cite 1 - (2003) HCA 22
Cite 2 - (2003) HCA 22
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
2 citations
Jump To
Cite 1 - (2011) 242 CLR 573
Cite 2 - (2011) 242 CLR 573
R v Wait [2011] SASCFC 91
2 citations
Jump To
Cite 1 - [2011] SASCFC 91
Cite 2 - [2011] SASCFC 91
R v WBF [2017] QCA 142
2 citations
Jump To
Cite 1 - [2017] QCA 142
Cite 2 - [2017] QCA 142
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
2 citations
Jump To
Cite 1 - (2016) 90 ALJR 679
Cite 2 - (2016) 90 ALJR 679
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
2 citations
Jump To
Cite 1 - [2009] QCA 84
Cite 2 - [2009] QCA 84
The Queen v Baden-Clay [2016] HCA 35
2 citations
Jump To
Cite 1 - [2016] HCA 35
Cite 2 - [2016] HCA 35
Trainer v The King (1906) 4 CLR 126
2 citations
Jump To
Cite 1 - (1906) 4 CLR 126
Cite 2 - (1906) 4 CLR 126
Trainer v The King [1906] HCA 50
1 citation
Jump To
Cite 1 - [1906] HCA 50

Cases Citing

Case NameFull CitationFrequency
Millar v Queensland Police Service [2019] QCA 2111 citation
1

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