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- Unreported Judgment
Rizzuto v Commissioner of Police QDC 260
DISTRICT COURT OF QUEENSLAND
Rizzuto v Commissioner of Police  QDC 260
CARLEY ELIZABETH RIZZUTO
THE COMMISSION OF POLICE
District Court at Maroochydore
DELIVERED EX TEMPORE ON:
8 November 2019
8 November 2019
Cash QC DCJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – s 222 Justices Act – where the appellant was convicted of breaching bail – where the case was circumstantial – whether evidence sufficient to exclude innocent hypotheses.
Bail Act 1980 (Qld) s 29
Allesch v Maunz (2000) 203 CLR 172,  - 
C Rizzuto (self- represented) for the Appellant
Office of the Director of Public Prosecutions for the Respondent
- HIS HONOUR: On 12 April 2019 the appellant was convicted of an offence of breaching a bail condition contrary to section 29 of the Bail Act. The offence was alleged to have occurred in August 2017. On 7 May 2019 the appellant filed a notice of appeal against her conviction. There are four grounds of appeal but each are directed to an ultimate submission that the evidence before the Magistrate was not sufficient to permit a conclusion that the appellant was guilty of the offence. Before discussing the arguments of the parties and the principles to be applied, it is convenient to set out a summary of the evidence.
- The appellant admitted that on 27 July 2017 she entered into an undertaking as to bail and was subject to its conditions in August of 2017. Among the conditions of the bail undertaking was a condition that the appellant:
“have no contact whatsoever either directly or indirectly with the victims Benjamin Farrell … Aaron Rizzuto … Lydia Jocumsen-Johns”
- The prosecution alleged that the appellant broke this condition by sending a number of emails to Aaron Rizzuto. Mr Rizzuto had, by the time of the trial, changed his surname to Walsh. The only issue in the trial was whether the prosecution could prove, beyond reasonable doubt, that it was the appellant who sent the emails. Mr Walsh testified that he had been in a relationship with the appellant. He used to use the email address “[email protected]” but stopped using that address when the appellant took his phone on 25 July 2017. This email account was active on the phone and it was not necessary to sign in to use it. After the appellant took Mr Walsh’s phone, he began to use another email address: “[email protected]”. Mr Walsh was unable to access the apfechner address as the “security questions and stuff” had been changed.
- On 7 August 2017 an email was sent from apfechner to apcross asking:
How did Court go today?
- From 13 to 15 August 2017 there was an exchange between the two email addresses with the subject heading “TAFE Certificates”. The first email was from apfechner to apcross asking:
When did you want to collect all of these?
- The exchange continued as follows (including errors in the original messages)
apcross: I’m calling John today.
apfechner: Good. Let me know when you are doing the re-interview and where. I also found your grandpa’s jumper things. Do you want them?
apcross: Yer I do, please. How will I get the stuff. Meet you somewhere?
- Under the same subject heading, an email from apfechner on 15 August 2017 at 7.19 am asked:
What happened in court?
- The following exchanged occurred over the following days.
apcross: No change. Everything still the same.
apfechner: So the DV went thru
apcross: Yer 5 years dv goes for
apfechner: What about all the people listed on it? Did they get taken off and for the stalking shit is that getting heard at Maroochydore or Caloundra?
apcross: Mdore ..and yernther still.on.it
ap.fechner: Did she deal with the breach?
ap.cross: Nope not yet
- Conversation under the heading “TAFE Certificates” continued into September. Relevant exchanges included a query from “apfechner” on 23 August 2017:
When do you want to collect your stuff?
- Mr Walsh testified that he “knew” the emails from “apfechner” had been sent by the appellant for the following reasons. The appellant was in possession of his TAFE certificates and his grandfather’s jumpers were in the wardrobe at the house Mr Walsh used to share with the appellant. On the day there was a query about court, Mr Walsh was in fact attending court in relation to a domestic violence matter. (I pause to note that Mr Walsh’s opinion that it was the appellant is not relevant. It is his evidence of matters that might support this inference that is the relevant part of his evidence.)
- In cross examination Mr Walsh agreed that he had the “apfechner” address for six or seven years, having set it up himself. At some point, he said, he forgot the password but as the address was active on his phone and computer, this did not prevent him using the account. Sometime after 25 July 2017 he was locked out the account.
- On 2 August 2017 Mr Walsh sent an email to an insurance company using the “apfechner” address. This appeared to be contrary to Mr Walsh’s police statement where he said he did not use the account after 25 July 2017. Mr Walsh denied that he sent the subject emails from “apfechner” to himself. He admitted he had previously been convicted of stalking and stealing. It was not disputed that Mr Walsh’s phone was in the possession of the appellant.
- Kirsten Braywood testified that she was the partner of Mr Walsh. She was the person who accessed Mr Walsh’s “apcross” account and printed the emails that were tendered. There was no cross-examination.
- Senior Constable Josh Lawrenson gave some evidence about making inquiries with Microsoft, who operate both email domains. This evidence did not assist either side.
- The appellant did not give or call evidence.
- The prosecution case was properly identified as being one that relied upon circumstances. To that end, the appellant could only be convicted if there was no reasonable inference available on the evidence consistent with her innocence.
- I turn to the principles relevant to an appeal of this kind. An appeal to this court pursuant to section 222 of the Justices Act 1886 is to be determined in accordance with section 223 of that Act. That is, the appeal is by way of rehearing on the evidence before the Magistrate and any other evidence introduced with leave of this Court, rather than a hearing de novo. It is for the appellant to demonstrate that the decision, the subject of the appeal, is the result of some legal, factual or discretionary error. (See Allecsh v Maunz (2000) 203 CLR 172,  and , Teelow v Commissioner of Police  QCA 84, ; but contrast Forrest v Commissioner of Police  QCA 132 at page 5.)
- An appeal by way of rehearing involves the Appellate Court conducting a real review of the evidence given at the trial. In Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJ 679 at pages 686 to 687, the High Court said:
“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.”
- In McDonald v Queensland Police Service  2 QR at 612, Justice Bowskill said:
“It is well established that, on an appeal under s 222 by way of re-hearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”
- The error suggested here is that the Magistrate was wrong to conclude that the evidence excluded, beyond reasonable doubt, all innocent hypotheses. If having reviewed the evidence at first instance and giving weight to the view of the Magistrate, I conclude the evidence proved the guilt of the appellant, the appeal should be dismissed.
- As noted, the appellant gave notice of four grounds, but it is convenient to treat each as a particular of a general complaint that the evidence was not sufficient to sustain a conclusion that the appellant was guilty. The evidence of the complainant, if accepted, was capable of proving by inference that the appellant sent the relevant emails. It was not disputed that she had the phone that contained the email account for “apfechner”. The content of those emails related to matters that were personal to the complainant and the appellant. This is sufficient to allow the inference that the appellant sent the emails. The appellant submitted that the complainant’s evidence was undermined by inconsistencies. The principle inconsistency is that at one point the complainant appeared to say he was locked out of the account as soon as the appellant took the phone on 25 July 2017. This was contradicted by his accepting he sent an email from that account on 2 August 2017. But a close examination of the evidence resolves this apparent inconsistency. On the evidence, it is plausible that while the appellant took the phone on 25 July, the complainant still had access to the email account on 2 August but after that the password was changed and the subject emails sent from 7 August 2017. There is otherwise no basis for doubting the evidence of the complainant.
- The next question is whether there existed, on the evidence, a reasonable possibility consistent with innocence. The only possibility suggested by the appellant is that the complainant sent the messages to himself. It can be accepted that the possibility suggested by the appellant exhausted the reasonable possibilities that might have been consistent with innocence. If the complainant did not send the email, it must have been the appellant. In my view, it was not a reasonable possibility that the complainant sent the emails. Such behaviour would be very strange to say the least. There was no apparent reason for the complainant to behave in this way, and it might be observed, if he wanted to get the appellant into trouble, why was the content of the emails so banal? Inferences must be based on evidence and it is insufficient to simply float a theory.
- In this case, there was no tangible evidence to support the appellant’s theory. The circumstantial case against the appellant was, in my view, compelling. While she had no obligation to testify, in the absence of an explanation by her, it is easier to reach the conclusion that she was the author of the emails.
- Having review all of the evidence and having regard to the decision of the Magistrate, I am satisfied, beyond reasonable doubt, the evidence established the guilt of the appellant. In the result, the appeal will be dismissed.
- Published Case Name:
Rizzuto v Commissioner of Police
- Shortened Case Name:
Rizzuto v Commissioner of Police
 QDC 260
Cash QC DCJ
08 Nov 2019