Malayta v Queensland Police Service
[2018] QDC 37
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- Malayta v Queensland Police Service[2018] QDC 37
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Malayta v Queensland Police Service[2018] QDC 37
Malayta v Queensland Police Service[2018] QDC 37
DISTRICT COURT OF QUEENSLAND
CITATION: | Malayta v Queensland Police Service [2018] QDC 37 |
PARTIES: | SELWYN WILLIAM MALAYTA (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | Appeal D173/17, Magistrate 664/16 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Ayr |
DELIVERED ON: | 16 March 2018 |
DELIVERED AT: | Townsville |
HEARING DATE: | 6 November 2017 |
JUDGE: | Lynham DCJ |
ORDERS: | 1Appeal dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST CONVICTION – appeal pursuant to s 222 Justices Act 1886 – where the appellant was convicted of one charge of unlawful use of a motor vehicle – elements of the offence – whether it was an element of the offence that the appellant used the vehicle knowing that the person in possession of the vehicle had not consented to its use – where appellant was passenger in the vehicle – whether appellant “used” the vehicle CRIMINAL LAW – APPEAL AGAINST CONVICTION – improper admission or rejection of evidence – where the appellant was convicted of one charge of unlawful use of a motor vehicle – where the Magistrate admitted evidence that the appellant had declined to participate in a police interview – whether the evidence was wrongly admitted |
LEGISLATION: | Criminal Code 1899 (Qld), ss 8, 408A Motor Vehicles Act 1921 (SA), s 21 Criminal Code (WA), s 371A |
| CASES: | Fox v Percy (2003) 214 CLR 118 McDonald v Commissioner of Police [2017] QCA 255 Forrest v Commissioner of Police [2017] QCA 132 Rowe v Kemper [2009] 1 Qd R 247 White v Commissioner of Police [2014] QCA 121 Teelow v Commissioner of Police [2009] 2 Qd R 489 Commissioner of Police v Al Shakarji [2013] QCA 319 R v C [2001] QCA 387 Palmer v Lacco [2013] WASC 236 Robinson v Hart [2005] WASC 268 R v Fauid [1993] QCA 315 R v Ellison [1993] QCA 205 Bollemeyer v Daly [1933] SASR 295 Ramsay v Samuels [1975] 14 SASR 77 R v Ireland (1970) 126 CLR 321 Petty v R (1991) 173 CLR 95 R v Thurlow [2015] QCA 89 Miller v Miller (2011) 242 CLR 446 Captain v Wosomo [2017] QSC 86 |
COUNSEL: | D Castors for the Appellant S Sutherland for the Respondent |
SOLICITORS: | Aboriginal and Torres Strait Islander Legal Service for the Appellant Director of Public Prosecutions (Qld) for the respondent |
[1] The appellant was conjointly charged with Jerry Lee Dennis with one offence of unlawful use of a motor vehicle contrary to section 408A Criminal Code 1899 (Qld) (“the Code”). Both the appellant and his co-defendant elected to plead not guilty and the matter proceeded to trial in the Ayr Magistrates Court on 1 June 2016. The Magistrate determining the charge reserved his decision. On 5 July 2017 the appellant was found guilty of the offence. His co-defendant was found not guilty.
[2] The appellant appeals his conviction. The appeal is brought under section 222 Justices Act (Qld). Section 222(1) relevantly provides:
“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”
[3] Pursuant to section 223 Justices Act, the appeal is by way of rehearing on the original evidence, since neither the appellant nor the respondent has sought to lead further evidence. On an appeal by way of rehearing, it is necessary that I undertake a real review of the evidence adduced at trial, as well as the Magistrate’s reasons, and make my own determination of the relevant facts in issue from the evidence and the legal consequences that follow from such findings of fact, giving due deference and attaching a good deal of weight to the Magistrate’s view.[1]But to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[2]
Background
[4] Sometime between 26 and 27 August 2016 a white Toyota Corolla registration 486-VJN was stolen from an address in Townsville.[3]At around 1.30pm on 31 August 2016 the same vehicle was captured on CCTV footage at the United Service Station in Ayr. The prosecution alleged that the appellant was one of two men observed in the CCTV footage to be associated with the vehicle.
[5] At around 3pm that same day police attended an address at 11 Cox Street, Ayr where they observed the vehicle stationary in a driveway of a set of units. The appellant, and his co-defendant Mr Dennis, were observed to be standing in close proximity of the vehicle. When he observed the police vehicle the appellant ran into one of the adjacent units.
[6] Inside the vehicle police located various items in the passenger foot well including drug related paraphernalia, knives and a mobile phone which contained the words “Real Brothers survive 4Life / Selwyn.” Also located inside the vehicle were items of clothing which were identical to items of clothing which the appellant could be seen to be wearing in the CCTV footage captured at the United Service Station. The appellant was also observed to be wearing a pair of checked shorts which were also similar to those he was observed to be wearing in the CCTV footage. A fingerprint examination of the vehicle located the appellant’s fingerprint on the front passenger dash of the vehicle.
[7] The prosecution case against the appellant was particularised as the appellant unlawfully using the vehicle at the United Service Station at Ayr at about 1.30pm on 31 August 2016.[4]
Evidence
[8] Sergeant Walsh was the first prosecution witness called to give evidence. He gave evidence that at about 3pm on 31 August 2016 he attended a set of units at 11 Cox Street in Ayr to investigate a noise complaint. Upon attending the address he observed a white Toyota Corolla registration 486-VJN parked in the unit complex. He was aware that this vehicle had previously been reported stolen. Sergeant Walsh observed the appellant standing on the driver’s side of the vehicle and Mr Dennis standing on the passenger side of the vehicle. The vehicle’s doors were both open.
[9] When the appellant and Mr Dennis observed police they both moved away from the vehicle. The appellant then ran towards the car port of one of the units. Sergeant Walsh took up with Mr Dennis and, after questioning him, placed him under arrest. He then performed an emergency search of the unit for the purposes of locating the vehicle’s keys. During the course of the search the appellant was located in one of the bedrooms of the unit and placed under arrest. The keys to the vehicle were not located.
[10] Sergeant Walsh observed the appellant at the time of his arrest to be wearing a creamy-white pair of shorts with a check pattern on them. When the vehicle was searched various items were located which included a sleeveless Everlast jumper with paint markings on it, an Everlast jumper with black writing on it, mobile phones, cross bows and an assortment of drug implements.
[11] The appellant was transported to the Ayr Police Station. Sergeant Walsh gave evidence that the appellant was asked, and declined, to participate in a record of interview. The appellant was later released without charge.
[12] In cross-examination Sergeant Walsh agreed that drug paraphernalia including drugs, utensils and clip seal bags were located inside the vehicle. He also agreed that when the vehicle was captured on CCTV footage at the United Service Station, fuel had been put in the vehicle which was paid for.
[13] John Wheeler was the next prosecution witness. He gave evidence that in August 2016 he was a Constable in the Queensland Police Service. At about 3pm on 31 August 2017 he was driving a police vehicle which attended 11 Cox Street Ayr. He was in the company of Sergeant Walsh at the time. He observed a Toyota Corolla registration 486-VMJ parked at the end of the driveway of a set of units. He observed the appellant running from behind the vehicle towards a carport. He observed Mr Dennis leaning against a white utility parked about 10 metres from the Toyota Corolla.
[14] Senior Constable Stephen Patane was the next prosecution witness to give evidence. He conducted a forensic examination of the vehicle. He photographed the inside of the vehicle including the items of clothing which were located.[5]He also conducted a fingerprint examination of the vehicle. Fingerprints were located inside the vehicle which were photographed for purposes of identification.
[15] Sergeant Doolan was the final prosecution witness. He gave evidence that Mr Dennis’ left palm fingerprint was located on the inside of the right driver’s door pillar of the vehicle and that the appellant’s right thumb fingerprint was located on the front passenger dash of the vehicle.
[16] The appellant did not give or call evidence in his defence.
Issues on appeal
[17] Although not the subject of an admission by the appellant, it is clear from the manner in which the hearing was conducted that the appellant did not seek to challenge that at the time and place particularised in the charge that he was a passenger in the vehicle and therefore he had used the vehicle. The appellant now concedes that it was open to the Magistrate to find that the appellant had used the vehicle.[6]
[18] Upon a review of the evidence that concession is properly made. The CCTV footage which captured the vehicle at the United Service Station at around 1.30pm on 31 August 2016, supported the Magistrate’s finding that the appellant was the person depicted in the footage.[7]Moreover, the items of clothing and the mobile phone found inside the vehicle, the clothing which the appellant was wearing when arrested which was identical to that which one of the males captured in the CCTV footage at the service station some 90 minutes earlier was wearing together with him being found with the vehicle at 11 Cox Street also provided compelling evidence as to the appellant having used the vehicle.
[19] Upon a review of the evidence adduced at the hearing, the finding by the Magistrate that the appellant was in the vehicle when it was driven away from the United Services Station on 31 August 2016 was clearly open on the evidence. Indeed the evidence in my view conclusively proved that the appellant was in the vehicle when it departed the service station.
[20] The real issue which the appellant now raises to challenge his conviction can be distilled into this question: was it open to the Magistrate to find that the “appellant knew that the subject vehicle was stolen”?[8]Whilst the appellant’s notice of appeal contains 9 grounds of appeal, and the appellant seeks to raise a further ground of appeal relating to the adequacy of the reasons given by the Magistrate, when properly considered all 10 grounds of appeal are to be determined against whether it was necessary for the prosecution to prove, as an element of the offence, that the appellant knew that the vehicle was stolen when he used it.
Elements of the offence of unlawful use of a motor vehicle
[21] At the hearing of this appeal an issue arose as to the elements of the offence of unlawful use of a motor vehicle under section 408A of the Code. The appellant contends that, so far as is relevant to the offence which he was charged, the prosecution was required to prove, beyond reasonable doubt, three elements:
(1)The defendant unlawfully used the vehicle referred to in the charge.
- (2)The person in lawful possession did not consent to its use.
- (3)The defendant used it knowing the person in lawful possession of the vehicle had not consented to its use.
[22] The Supreme and District Court Benchbook’s deconstruction of an offence of unlawful use of a motor vehicle under section 408A of the Code contains these three elements.[9]The trial of the charge was conducted on the basis that the prosecution was required to prove each of these three elements and the Magistrate proceeded to determine the charge on that basis. Ultimately the Magistrate was satisfied that the prosecution had proved beyond reasonable doubt each element of the offence. The real issue on this appeal is whether the charge required proof of the last element and the appellant’s grounds of appeal all generally relate to whether the evidence was sufficient to prove the last element.
[23] The respondent argues that contrary to what is contained in the Supreme and District Court Benchbook, an offence of unlawful use of a motor vehicle under section 408A of the Code requires proof of only the first two elements as set out above, and that the third element as identified in the Benchbook is not an element of the offence. It is therefore necessary to determine the elements of the offence.
[24] So far as is relevant to the issues raised on this appeal, section 408A of the Code provides:
Unlawful use or possession of motor vehicles, aircraft or vessels
- (1)A person who –
- (a)unlawfully uses any motor vehicle, aircraft or vessel without the consent of the person in lawful possession thereof;
………
is guilty of a crime …..
[25] In the commentary to section 408A contained in Carter’s Criminal law of Queensland[10], the learned authors identify the elements of an offence of unlawful use of a motor vehicle under section 408A(1)(a) of the Code as follows:
“[s 408A.20] Elements of offence (A) s 408A(1)(a) — the accused:
- (1)unlawfully;
- (2)uses;
- (3)a motor vehicle, aircraft or vessel;
- (4)without the consent of the person in lawful possession thereof.”
[26] It will be immediately obvious that the de-construction of the offence contained in the commentary in Carter’s does not include an element that the accused used the vehicle knowing that the person in lawful possession of the vehicle did not consent to its use.
[27] Whether an offence of unlawful use of a motor vehicle under section 408A requires proof of a mental element that a defendant used the vehicle knowing that the owner of the vehicle had not consented to its use was considered by the Court of Appeal in R v C [2001] QCA 387. There the appellant appealed his conviction for an offence of unlawful use of a motor cycle contrary to section 408A(1)(a) of the Code. The sole ground of appeal related to whether the trial judge erred in ruling that a defence under section 22 of the Code would not be left for the jury’s consideration. In the course of summing the case, the trial judge directed the jury as follows:
“The Crown must prove that the accused used the motorbike unlawfully. That simply means not authorised or justified or excused by law. The Crown must prove that, when the accused used the motorcycle, he did so knowing that the person in lawful possession, Mrs Messer, had not given her consent to its use”. (emphasis added)
[28] In dismissing the appeal, Davies JA held at [3]:
“What he got from the trial judge was a direction that the jury had to be satisfied beyond reasonable doubt that, at that time, he knew that Mrs Messer, the true owner, had not consented to his use of it; that is, that he knew that Mrs Messer (not he) was the true owner of the bike and that she had not given her consent to his use of it. That direction was wrong and unduly favourable to the appellant.”
[29] Wilson J held at [25]:
“The absence of consent is an essential element of the offence of unlawful use of a motor vehicle, but knowledge of the absence of consent is not an element of the offence: see Criminal Code s 408A(1)(a). In directing the jury that the Crown had to prove that the appellant knew that the person in lawful possession of the motor cycle had not given her consent to its use, the trial judge went beyond the requirements of that provision.The jury could not have returned a verdict of guilty if they had not been satisfied of the absence of consent, and so the direction about knowledge, while erroneous, was innocuous.” (emphasis added)
[30] As I have noted already, the Supreme and District Court Benchbook identifies as a third element of an offence of unlawful use of a motor vehicle that “the defendant used it knowing the person in lawful possession of the vehicle had not consented to its use.” It should be noted that no authority is cited as supporting this as being an element of the offence. In my view, the reasoning of both Davies JA and Wilson J in R v C makes clear that proof that a defendant knew that the person who owned the vehicle had not given consent to its use is not an element of an offence of unlawful use of a motor vehicle under section 408A(1)(a) of the Code.
[31] That the offence does not require proof of any additional mental element is also, in my view, consistent with the section itself. There is nothing contained in the express words of section 408A(1)(a) from which it might be interpreted that the offence requires proof that a defendant used the vehicle the subject of a charge knowing the owner of the vehicle had not consented to its use. What the section does however require is proof that that the defendant used the vehicle “unlawfully” which, for purposes of the section, means that the use of the vehicle was not authorised, justified or excused by law. This means that a defendant is entitled to rely upon any of the defences contained in chapter 5 of the Code such as bona fide claim of right under section 22 or mistake of fact under section 24 of the Code. Section 408A(1C) of the Code also expressly provides a defence to the charge that the defendant had the lawful consent of the owner of the vehicle to use it.
[32] Thus a defendant who uses a vehicle with the consent of the owner does not unlawfully use a motor vehicle. A defendant who uses a vehicle without the consent of the owner of the vehicle, but in circumstances in which they honestly but mistakenly believe the owner has consented to the vehicle being used, likewise does not unlawfully use a motor vehicle.
[33] In my view, having regard to the express wording of the section itself as well as the construction of the section considered by Davies JA and Wilson J in their judgments in R v C, an offence of unlawful use of a motor vehicle under section 408A(1)(a) requires proof of two elements: (1) the defendant unlawfully used the vehicle referred to in the charge and, (2) the person in lawful possession did not consent to its use. There is no requirement for the prosecution to prove an additional third element that the defendant used the vehicle the subject of the charge knowing that the owner of the vehicle had not consented to its use.
[34] This construction of section 408A(1) as not requiring proof that the defendant used the vehicle knowing the owner had not consented to its use is supported by the interpretation which has been applied to section 371A Criminal Code (WA), which is an analogous provision to section 408A. It has been held that section 371A does not import a mental element requiring the prosecution to also prove that the defendant used the vehicle knowing that the person in lawful possession of the vehicle had not consented to its use.[11]
[35] Accordingly, the prosecution was not required to prove that the appellant used the vehicle knowing that the owner of the vehicle had not consented to him using it. Thus if the evidence proved beyond reasonable doubt that the appellant had used the vehicle and that the owner of the vehicle had not consented to the appellant using the vehicle then, in the absence of any evidence raising a defence, the charge would be made out.
[36] The appellant seeks to distinguish the construction favoured by Davies JA and Wilson J in R v C. First, it is argued that the court in R v C did not consider its earlier decisions in R v Fauid [1993] QCA 315 or R v Ellison [1993] QCA 205 when determining whether an offence under section 408A did contain a mental element which the prosecution must prove. It is submitted by the defendant that in both Ellison and Fauid the Court of Appeal accepted that proof of an offence under section 408A required proof that the person using the vehicle knew that the owner of the vehicle did not consent to its use.
[37] In my view, a careful reading of both decisions does not support the appellant’s contention. Both judgments were delivered ex tempore by the Court of Appeal. The grounds of appeal in both decisions did not avert expressly to the elements of a charge under section 408A. The observations by the court as to any mental element required to be proved by the prosecution were therefore obiter dicta and are to be viewed in the context of the grounds of appeal considered by each court in dismissing the appeals. In my view the construction of the section as explained by Davies JA and Wilson J in R v C, where it was expressly held that knowledge of the absence of consent by a defendant is not an element of the offence, is correct and I am bound to follow this construction of the section.
[38] The appellant also seeks to draw a distinction between a defendant who is charged with an offence of unlawful use of a motor vehicle where the defendant is a passenger in the vehicle rather than the driver of the vehicle. It is submitted that the basis for criminal liability is different: the passenger is a party to the offence whereas the driver is a principal offender.
[39] An offence under section 408A is of course one of unlawfully “using” a motor vehicle not unlawfully “operating” a motor vehicle. The term “used” is defined in the Benchbook to mean “used as a conveyance – that is that the defendant travelled in it whether as driver or passenger”. In Bollmeyer v Daly [1933] SASR 295 it was held by Richards J at page 297 that the word “use” employed in section 21 Motor Vehicles Act 1921 (SA), being similar in terms to 408A, “covers every degree of use” and included the passenger of a vehicle which was being unlawfully used. The correctness of this interpretation was affirmed in Ramsay v Samuels [1975] 14 SASR 77, where it was held by Walters J at page 78 that:
“Though the appellant was merely a passenger in the vehicle driven by Knight, it is beyond question that he made a conscious and voluntary use of it; that he was responsible for being in it; and that his degree of use was sufficient to create an offence against s. 44 of the statute.”
[40] Therefore in my view the Benchbook direction on the term “using” for purposes of the section is correct. It merely reflects the broad definition to be given to the term and it is wide enough to include the passenger in a vehicle.
[41] Whilst the basis upon which criminal liability attaches to a passenger of a vehicle charged with an offence under section 408A may well be founded on them participating in a joint illegal enterprise under section 8 of the Code[12], in my view criminal liability is not limited only to section 8. If the term “uses” includes being a passenger in a vehicle, then a defendant’s criminal liability will arise under section 408A by them merely being a passenger in a stolen vehicle. A person in those circumstances will be deemed to have “used” the vehicle even if they were not involved in the forming of a common purpose to steal the vehicle. If however there is evidence that the person was unaware the vehicle had been stolen when they were a passenger in it, or where they believed the driver to be the owner of the vehicle, then a defence under chapter 5 of the Code would clearly be available.
Grounds of Appeal
[42] The appellant relies upon 10 grounds of appeal to challenge the Magistrate’s finding of guilt. Those grounds can be summarised as follows:
Ground 1: That the Magistrate erred by making findings of fact not supported by the evidence;
Grounds 2, 3 and 4: That the Magistrate misdirected himself in respect to circumstantial evidentiary reasoning;
Grounds 5 and 6: That the Magistrate misdirected himself in respect to flight demonstrating a consciousness of guilt;
Ground 7: The Magistrate erred in allowing the prosecution to lead evidence that the appellant had declined to participate in a record of interview;
Ground 8 and 9: That the Magistrate made “errors of law” or “errors of fact”;
Ground 10: That the Magistrate failed to provide sufficient reasons for his decision.
Consideration
[43] As I have noted earlier, the grounds of appeal relied upon by the appellant are more directed to the findings by the Magistrate in respect to what has been identified as the third element of an offence under section 408A of the Code, namely, whether the appellant knew that the vehicle had been stolen. Having regard to my determining that the prosecution was not required to prove that the appellant used the vehicle the subject of the charge knowing that the owner of the vehicle had not consented to its use, the real issue then seems to me to be whether, upon a review of the evidence adduced a trial, the elements of the charge were proved beyond reasonable doubt.
[44] Again, as I noted earlier, in my view the appellant would be guilty of the charge if two elements were proved beyond reasonable doubt: (1) that the appellant unlawfully used the vehicle referred to in the charge at the relevant time and place particularised and (2) the owner of the vehicle had not consented to its use. As to the first element, I have previously reviewed the evidence which proves that the appellant was, at the relevant time, a passenger in the vehicle. In my view the evidence clearly established that it was the appellant who was a passenger in the vehicle when it left the service station. The appellant now concedes that the evidence was sufficient to prove the first element. Having reviewed the whole of the evidence I am satisfied beyond reasonable doubt that the appellant did use the vehicle the subject of the charge at the relevant time.
[45] As to element 2, having regard to the admission made on behalf of the appellant at trial that the vehicle the subject of the charge had been stolen from an address in Townsville on the 26thor 27thAugust 2016, the second element of the charge was also proved on the evidence.
[46] Accepting then that the evidence proved that the appellant used the vehicle (in the sense of being a passenger in it) and that the owner of the vehicle had not consented to its use, the only issue arising at the trial of the appellant was whether he had used the vehicle unlawfully. The appellant neither gave nor called evidence. Therefore there was no evidence adduced by the appellant which raised any defence either under chapter 5 or section 408A(1C) of the Code. Accordingly, there was no evidence upon which for example it might have been found that the appellant honestly and reasonably, but mistakenly, believed that his co-defendant Mr Dennis was the owner of the vehicle or that Mr Dennis had the consent of the owner to drive it. What the evidence did establish is that the appellant was a passenger in a car which had been stolen from Townsville some 3 or 4 days earlier.
[47] In those circumstances the evidence was more than sufficient to prove that the appellant’s use of the vehicle was unlawful. Upon my review of the evidence, there was no basis upon which it was open to find that the prosecution had not proved that the appellant’s use of the vehicle was unlawful. Whilst it is true that the appellant paid for the fuel purchased from the service station this of itself is not sufficient to establish that the appellant’s conduct was not unlawful. In the absence of any evidence from the appellant, in my view the appellant did not satisfy the evidential burden raising a defence to the charge. In the absence of any evidence raising a defence, the evidence adduced at trial was sufficient to prove that the appellant’s use of the vehicle was unlawful and he was therefore guilty of the charge.
[48] Whilst the Magistrate did proceed to determine the charge by considering that it was necessary for the prosecution to prove the third element of the charge discussed earlier, having regard to my conclusion that the third element as contended by the appellant is not an element of an offence under section 408A, it is unnecessary then for me to consider the findings or reasons of the Magistrate in finding the third element proved. Moreover, the fact that the Magistrate did determine the charge as requiring proof of the third element did not in any way disadvantage the appellant. Indeed if anything, by doing so, the Magistrate was unduly favourable to the appellant in determining the charge as requiring proof of the third element.
[49] With the exception of ground 7, all of the grounds of appeal are directed at challenging the Magistrate’s findings and reasons in respect to the third element. It is argued that it was not open for the Magistrate to find that the appellant did know the vehicle was stolen and that the Magistrate’s reasons, or lack of, disclose the various errors articulated in the grounds of appeal. The grounds which relate to the use of flight demonstrating a consciousness of guilt and circumstantial reasoning relate only to the Magistrate’s findings as to what has been identified as the third element of the charge as do the inadequacy of reasons. Again, having concluded that it was not necessary for the prosecution to prove the third element as argued by the appellant, it is not necessary for me to consider those grounds of appeal. Having undertaken a real review of the evidence adduced at trial I am satisfied beyond reasonable doubt that the elements of the offence I have identified were proved and the appellant was guilty of the charge.
[50] For completeness I wish to make some specific comments in relation to ground 7 of appeal. This ground relates to the evidence given by Sergeant Walsh as to the appellant refusing to participate in a record of interview. Ultimately, I am satisfied having considered the reasons of the Magistrate in convicting the appellant that whilst he allowed the evidence to be admitted (albeit after it had already been given) there is nothing to indicate that the Magistrate had any regard to that evidence when reaching his decision. In any event I have disregarded that evidence in my review of the evidence.
[51] However the ground of appeal raises what appears to be a common place practice in the Magistrates Court of permitting police officers to give evidence of a defendant’s refusal to give an interview. Evidence that the appellant, having been warned, declined to answer questions was, in the circumstances of this case, irrelevant, and should not have been led.[13]The evidence should not have been given at all and it is important that Magistrates be vigilant to ensure such evidence is not adduced unless there is some other basis which renders such evidence admissible.
Conclusion
[52] Having regard to what I regard as the elements of the offence the prosecution was required to prove, I am satisfied that the evidence adduced at the trial of the appellant was sufficient to prove each of those elements. The appeal is therefore dismissed.
Footnotes
[1] Fox v Percy (2003) 214 CLR 118 at [22]-[25]; McDonald v Commissioner of Police [2017] QCA 255 at [47]; Forrest v Commissioner of Police [2017] QCA 132 at p. 4; Rowe v Kemper [2009] 1 Qd R 247 at [3]; White v Commissioner of Police [2014] QCA 121 at [6].
[2] Fox v Percy (2003) 214 CLR 118 at [27]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7], [65]; White v Commissioner of Police [2014] QCA 121 at [8].
[3] Transcript 1-3; This was also the subject of an admission made on behalf of the appellant: Transcript 1-6
[4] Transcript 1-7
[5] Exhibit 3
[6] Appellant’s outline of submissions paragraph 5.1
[7] Decision page 4
[8] Appellant’s outline of submissions paragraph 5.1
[9] Direction 191.1 (excluding any circumstance of aggravation)
[10] Loose leaf service - Volume 1
[11] Palmer v Lacco [2013] WASC 236; Robinson v Hart [2005] WASC 268
[12] Miller v Miller (2011) 242 CLR 446; Captain v Wosomo [2017] QSC 86
[13] R v Ireland (1970) 126 CLR 321; Petty v R (1991) 173 CLR 95 at 99; R v Thurlow [2015] QCA 89 at [18]