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- Unreported Judgment
Vladik v Commissioner of Police QDC 107
DISTRICT COURT OF QUEENSLAND
Vladik v Commissioner of Police  QDC 107
QUEENSLAND POLICE SERVICE
Magistrates Court Brisbane
28 June 2019
14 June 2019
Devereaux SC, DCJ
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appellant was convicted of an offence after trial – where the credibility of the complainant was in issue – whether the conviction was unsafe and unsatisfactory
A McDougall for the appellant
A Ballantyne (sol) for the respondent
Hannay Lawyers for the appellant
Director of Public Prosecutions for the respondent
- The appellant was convicted on 12 December 2018 of wilful and unlawful damage. He appeals against that conviction, the ground in the notice of appeal being, “the magistrate erred by finding me guilty of the offence”. Counsel appearing for the appellant reset the ground as, “the conviction was unsafe and unsatisfactory with respect to the evidence”. The essence of the argument was that the magistrate erred in failing to find that the complainant’s credibility was so undermined that she could not be believed about any aspect of her evidence concerning the events leading to the charge. As the hearing progressed, it was submitted that, given the defect in the complainant’s credibility and evidence of an innocent explanation for the damage to the complainant’s car, upon a review of the record I should not be satisfied the prosecution had proved the appellant’s guilt beyond reasonable doubt.
- The evidence was heard over two days, on 28 May and 5 September 2018. The complainant gave evidence that she knew the appellant. They had dated for a year and a half in high school. The relationship started in 2009 or 2010 and ended in June 2011. The events giving rise to the charge happened on 29 December 2011. As the complainant was driving home from a friend’s house, she saw a red car on the road. The appellant was in the front passenger seat. She saw the car again when she was stopped at a red light. The red car stopped beside hers in the lane to her right. The appellant, with the upper half of his body out the window, spoke to her in a threatening way. She ignored him but he threw a small object, perhaps a cigarette lighter, at her car. After the light changed and the cars moved forward, the red car overtook two vehicles in front of the complainant and then came to a sudden stop. The two cars between them made their way around the red car. The driver of the red car and the appellant walked towards the complainant’s car. She drove forward and tried to move into the next lane to go past the red car. The appellant stood in front of her car and she came to a complete stop. The driver, named Bukdir, then climbed on to her car roof and was jumping on it. The appellant jumped onto her bonnet. He jumped on it two or three times causing a dent in the bonnet. He slammed his two fists on the windscreen. The windscreen shattered. Her evidence continued that he took out a weapon, a handgun, and pointed it at her face from his position on top of the bonnet. Eventually she drove forward and the two rolled off.
- Other evidence included fingerprints found on the bonnet of the vehicle in front of the driver’s seat which matched the appellant’s. That was not contested.
- The arresting officer, Senior Constable Hannah Du, gave evidence that after the appellant was arrested later on the same evening, he refused to be interviewed and “went on to say that – something to the line that he was on the roadway and he was ran over by” the complainant. That officer took a formal written statement from the complainant on 6 January 2012. Officer Du agreed with the appellant’s solicitor that the complainant did not mention, in her statement, the use of a weapon. When it was put that the complainant did not say that a gun was pulled on her, the officer replied that she did not recall. The officer did agree that had the complainant mentioned that a gun was involved in the incident she would have included that in the statement.
- Senior Constable Kade Pepper of the forensic crash unit gave evidence based on photographs of the damaged car. He said he had been asked to provide an opinion on whether the damage evident in the photographs was consistent with the vehicle having struck a pedestrian. He described what would happen to a vehicle should it strike a pedestrian and expressed the opinion that the damage to the car was not consistent with that scenario. He said the denting and the damage to the windscreen was not consistent with someone being hit by the front of the vehicle and flung back towards it. The damage suggested someone either sitting on the bonnet or downward pressure being put on it. The appellant’s solicitor asked him to assume that the vehicle had been driven at the appellant, that he jumped and landed on the windscreen “half on the windscreen and half on the bonnet”. The witness’ first reply was to the effect that the damage on the bonnet was a downward-pressure dent and there were no scuffs and no scraping. So the witness repeated, “it’s not consistent with a person tumbling from the front of the vehicle to the rear of the vehicle.” He said it was a very direct downward pressure and any momentum from movement of the car would not allow such a direct downward pressure to be produced. The witness also attempted to decline to comment on the scenario without full information such as the speed of the vehicle. The witness was asked at what speed, “if someone was to jump and land on the vehicle, like, with their elbow and their knee”, that sort of damage could be done. The witness said he could not say. Asked if he accepted that such was possible he said, “Well, anything’s possible.” After some further questioning, the appellant’s solicitor returned to the proposition as follows: “So if my client jumped and hit the windscreen, do you accept that there’s going to be no damage to the bumper”. The witness agreed. The next question was,
So let’s assume he jumped and the car was moving, and my client’s elbow hit the left side or on the driver’s side with his elbow, and his knee and sort of body came across the vehicle as a result… He jumps from the front of the car and lands on the windscreen – windscreen and bonnet, sort of half. Do you accept that it is possible that damage came as a result of that.
- The witness answered, “It’s possible.” In re-examination, the witness confirmed his opinion that the damage was deliberately caused.
Ground of appeal
- The appellant’s essential submission was that, given the stark absence of a mention in the witness’ statement of the use of a firearm, the complainant’s credibility was so fundamentally undermined as not to be a reliable foundation for a conviction. Second, given the concession of Officer Pepper, that the damage was explicable on a basis other than the complainant’s account. So, the verdict was unsafe and should be set aside.
- The learned magistrate dealt with the absence of mention of the firearm in the complainant’s statement by noting a number of things. First, the use of the firearm was not a relevant part of the charge. As I have briefly outlined the complainant’s evidence above, the charge of wilful damage was complete before the firearm was produced. Second, the complainant insisted under cross-examination she had told police on the evening of the event that the appellant produced a firearm. She said she had spoken several times on the phone to police. Her statement was taken later on 6 January 2012. The learned magistrate therefore could not exclude the possibility that the complainant had told other officers. Her Honour concluded that the mention of the gun was not a recent invention. I respectfully agree with and endorse each of those conclusions. Her Honour continued that even if it were a recent invention, it did not otherwise undermine the reliability of the complainant’s account as to the cause of damage to her vehicle. Upon my own review of the evidence, I reached the identical conclusion. The appellant’s case was put to and squarely rejected by the complainant. The following propositions were put to, and answers given by, the complainant in cross-examination:
… my client was parked on the side of the road and was standing behind the vehicle smoking?---No, that did not happen.
You then pulled up behind him or in front of him, behind the car?---No that did not happen.
And you had something in your hand?---Yes, I had my phone in my hand at the traffic lights, on the phone.
You then said something to my client?--- No.
He then started walking towards the car, his car?--- No.
You then drove forward at him?--- No.
He then turned round?--- No.
You then stopped your car?--- No.
He then said to you, ‘What are you trying to do’?--- No.
You then accelerated towards him?--- No.
He jumped and landed on your bonnet?--- No.
When I say landed on your bonnet, he had his right elbow hit your windscreen, and his left knee hit your windscreen?--- No.
He then yelled at you, ‘What are you doing? Stop the fucking car’?--- No.
- On my reading of the transcript, the complainant was a persuasive, perhaps compelling, witness. The learned magistrate, who had the benefit of seeing and hearing all of the evidence, clearly thought the same. Her Honour made no error as asserted by the appellant. The verdict is not unsafe. On the contrary, the only sworn evidence was the complainant’s. The idea that the damage was caused in a different way was fairly put to the complainant and squarely rejected. The evidence of Senior Constable Pepper was consistent with the complainant. The existence of an idea that might explain the damage does not create a reasonable doubt, despite the absence in the formal statement taken on 6 January 2012 of reference to the use of a weapon. The appeal is dismissed.
- Published Case Name:
Vladik v Commissioner of Police
- Shortened Case Name:
Vladik v Commissioner of Police
 QDC 107
28 Jun 2019