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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Cavanagh v The Commissioner of Police  QDC 135
MICHELLE ROBYN CAVANAGH
THE COMMISSIONER OF POLICE
Appeal against conviction pursuant to s 222 of the Justices Act 1886
Magistrates Court, Southport
22 June 2020
14 February 2020
1. The appeal against conviction is dismissed.
CRIMINAL LAW – APPEAL AGAINST CONVICTION –
IDENTIFICATION - where the appellant pleaded not guilty to one charge of failure to stop a vehicle and one charge of driving without a driver licence disqualified by court order - where the appellant was found guilty - whether the conviction was open on the evidence – whether the conviction was unreasonable - whether the conviction should be set aside.
Justices Act 1886 (Qld), Sections 222, 223
Bode v Commissioner of Police  QCA 186 Domican v The Queen (1992) 173 CLR 555 Forrest v Commissioner of Police  QCA 132 Fox v Percy (2003) 241 CLR
Rowe v Kemper  QCA 175
E. Coley (sol) for the Respondent
Office of the Director of Public Prosecutions for the Respondent
- The appellant was charged with the following two offences allegedly committed on 3 June 2018:
Charge 1: Failure to stop a motor vehicle
Charge 2: Driving without a driver licence disqualified by court order.
- On 24 April 2019, the matter proceeded to hearing with the appellant pleading not guilty to both charges. The Magistrate found the appellant guilty of each offence.
Grounds for appeal
- The Notice of Appeal filed by the appellant on 3 May 2019 states that the verdict was unreasonable and was not supported by the evidence.1 In her written outline of submissions, the appellant submits that the Magistrate erred by making findings of fact that were not open on the evidence.2
Law on appeals
- This appeal is pursuant to s 222 of the Justices Act 1886 (Qld). The appeal is by way of rehearing on the original evidence given in the Magistrates Court unless the court is satisfied there are special grounds to grant leave to adduce new evidence.3 No leave was sought by either side to adduce fresh evidence. Therefore, the rehearing proceeded on the original evidence tendered before the Magistrates Court.
- The Court is required to review the evidence from the original decision and draw its own conclusions, bearing in mind the decision of the original court and any advantage the Magistrate has had in seeing and hearing the witnesses giving evidence.4
- McMurdo JA in Bode v Commissioner of Police5 reiterated the court’s duties. He stated:
“The task of a court conducting an appeal by way of rehearing is 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.’” (Footnotes omitted.)
1 Notice of Appeal, filed 3 May 2019.
2 Appellant’s Outline of Submissions, filed 26 August 2019.
3 Section 223 Justices Act 1886 (Qld).
4 Fox v Percy (2003) 241 CLR at ; Rowe v Kemper  QCA 175 at ; Forrest v Commissioner of Police  QCA 132.
5  QCA 186.
Senior Constable Adam Lawty
- Senior Constable (SC) Lawty gave evidence that on 3 June 2018, at approximately 8pm, he was travelling north along Gold Coast Highway with SC Ashbolt in an unmarked police car. As the officers neared the Vibe Hotel, they noticed a black Holden V8 wagon with the registration plates ‘621 WBP’ (the vehicle) also travelling north.6 SC Lawty searched the registration of the vehicle on QLiTE, a police device that provides information related to vehicle registrations. It showed that the vehicle was registered to Bernard McKiever. There was additional information on QLiTE that the appellant was associated with the vehicle. QLiTE also showed a number of alerts, including that the appellant was a disqualified driver, the vehicle may fail to stop, and that it had previously been involved in police evades.7 QLiTE also displayed photographs of the appellant.
- SC Lawty directed SC Ashbolt to drive up next to the vehicle in the right, adjacent lane in order to confirm the identity of the driver before stopping the vehicle.8 From the passenger seat, SC Lawty observed the appellant driving the car and a male in the passenger seat.9 He could not recall what the female driver was wearing but observed she had her hair up.10 SC Lawty then compared the driver of the vehicle with the pictures of the appellant on the QLiTE device and concluded that they were the same person. Upon the driver realising that they were next to a police officer, SC Lawty observed the driver say “oh fuck”.11 He said the street was well lit by buildings and street lighting, there was a distance of approximately two metres between himself and the vehicle, the police vehicle was travelling at approximately 40-50kph, and he had the female under view for approximately 10 seconds.
- The officers then followed the vehicle as it turned left onto Thomas Drive. They activated police lights but not the siren and the black car pulled over immediately. Red and blue police lights were flashing. SC Lawty directed SC Ashbolt to remain in the driver’s seat in case the vehicle took off. He got out of the police car and as he approached the vehicle, it took off heading west along Thomas Drive.12 The officers then put the vehicle sirens on and followed the vehicle over the bridge on Chevron Island and left onto Bundall Rd, where they witnessed the vehicle go through a red light. After losing sight of the vehicle, the officers discontinued their pursuit.13
- SC Lawty subsequently obtained Gold Coast City Council CCTV footage from the night of the incident which was tendered and played. The first video shows the black vehicle and the police vehicle driving parallel to each other on the Gold Coast Highway for approximately 10 seconds.14 The second video shows the black vehicle turn left onto Thomas Dr with the police vehicle trailing it, with no police lights flashing.15 The third video shows the black vehicle pull over on Thomas Drive with the police vehicle following. The police vehicle turns on its blue, red and white
6 T9 1. 29.
7 T5 ll. 30-35.
8 T6 l. 20.
9 T7 ll. 1-2.
10 T8 ll. 33-40.
11 T8 l. 10.
12 T9 ll. 36-44.
13 T9 ll. 46, T10 ll. 1-5.
14 Exhibit 4, CCTV Footage video 1 ‘VOI heads north on Ferny Ave GR-SG’.
15 Exhibit 4, CCTV Footage, video 2 ‘CIB follow VOI onto Chevron Bridge GR-SG’.
flashing lights and high beam, and SC Lawty approaches the black vehicle. Upon him approaching, the black vehicle takes off down Thomas Drive. SC Lawty gets back into the police car and they follow the black vehicle.16 The fourth and fifth videos show the pursuit down Thomas Drive.17
- On 17 June 2018, SC Lawty attended the appellant’s address and located a black wagon in the carpark which appeared to be the same vehicle involved in the evasion; however, the registration number plate on this black wagon was ‘329 YES’.18 The registration plates of the black wagon involved in the evasion and the black wagon found in the carpark were both registered to Bernard McKiever.19 A certificate of registration was tendered.20
- SC Lawty subsequently applied for a search warrant for the appellant’s address.21 At approximately 6.30am on 3 July 2018, the search warrant was executed. During the search, officers found the keys to the vehicle and the registration plates ‘621 WBP’ (those attached to the vehicle on the night of the offences). The appellant was arrested.
- A certificate was tendered which confirmed the appellant was disqualified from driving from 26 July 2017 until 25 July 2019. 22
- Under cross-examination, SC Lawty confirmed he had no prior dealings with the appellant; the registration check on the vehicle was random; and QLiTE showed that the appellant was previously associated with the vehicle and also a disqualified driver. He formed the belief that the driver was the appellant so he stopped the vehicle to check whether the driver had a valid licence.23
- SC Lawty was shown photographs24 of the vehicle. He agreed that the windows were heavily tinted.25 He made contemporaneous notes on the evening of the incident, which described the driver of the vehicle as ‘female, overweight’ and with ‘blonde hair up in a bun’. He confirmed that the notes made no mention of the driver’s age or that she was a disqualified driver.26 He confirmed that he did not hear the driver of the vehicle say “oh fuck”; he assumed that was what she said.27
- SC Lawty confirmed he was aware that the appellant’s daughter Zaylie Cavanagh had filed a statutory declaration saying that she was the driver of the vehicle on the night in question.28 He confirmed he had seen Zaylie outside of the court precinct before court that day. He maintained he was certain he had not mistakenly identified the appellant as the driver of the vehicle on the night in question.29
16 Exhibit 4, CCTV Footage, video 3 ‘VOI evades after being pulled over on Thomas Dr GR-SG’.
17 Exhibit 4, CCTV Footage, video 4 ‘VOI heads west on Thomas Dr GR-SG’ and video 5 ‘VOI continues west on Thomas Dr GR-SG’.
18 Exhibit 9, photograph of registration plates 621WBP; Exhibit 10, photograph of car.
19 T14 l. 11.
20 Exhibit 6 and 7.
21 T14 l. 38.
22 Exhibit 5.
23 T27 ll. 5-7.
24 Exhibit 11, close up shot of the black wagon; Exhibit 12, further away shot of the black wagon.
25 T28 l. 20.
26 T30 l. 29.
27 T31 ll. 36-46.
28 T32 ll. 43-45.
29 T34 l. 5.
- The appellant gave evidence of an alibi. She said that on the evening of 3 June 2018, she was at her friend Casey Hanton’s house in Logan where she stayed the night.30 She had possession of the black wagon on 17 June 2018, when SC Lawty attended her address, because it had previously been in an accident “approximately six to eight weeks prior" and was being repaired in Benowa, and was also undergoing detailing by the appellant and a friend.31 The car was previously registered in her name, but she had transferred the registration to Mr McKiever because she didn’t have a licence at the time she purchased it. The appellant believed she transferred registration to Mr McKiever’s name around April 2018.
- The appellant denied driving the vehicle on the night of the evasion.32 She explained that the number plates were removed by the panel beater repairing the vehicle and he failed to re-attach them. She assumed they had been stolen so reported them missing; however, she later discovered they were with the panel beater, who eventually returned them.33 The appellant said that other people may have driven the vehicle while it was at her home.34 This included her daughter, Zaylie Cavanagh, who sometimes drove the car but not very often as she was on a learner’s licence at the time.35 Under cross-examination, the appellant said she believed it was her daughter driving the vehicle at the time of the evasion.36 She confirmed that she was dropped to Ms. Hanton’s by a friend Peter Stuchlick.37
- Ms Hanton gave evidence that on 3 June 2018, the appellant arrived at her home at about 4pm before Ms Hanton left for work. Ms Hanton returned from work at approximately 9pm and spent time with the appellant.38
- Under cross-examination, Ms. Hanton said that she didn’t see how the appellant arrived and did not know who picked her up the next day.39 She assumed the appellant was at Ms. Hanton’s home while she was at work. She could not remember what the appellant was wearing. When asked whether she would lie for the appellant, she replied “I’m not a good liar”.40
- Zaylie, the appellant’s daughter, gave evidence that on 3 June 2018, she was driving home in the vehicle from her nephew’s birthday party. Mr Stuchlick, a friend of the
30 T43 l. 34.
31 T35 ll. 20-24.
32 T36 l. 4.
33 T36 ll. 12-18.
34 T36 l. 29.
35 T37 l. 6.
36 T38 l. 18.
37 T39 l. 27.
38 T40 l. 44
39 T42 ll. 42-46.
40 T43 ll. 35-36.
appellant’s, was in the passenger seat next to Zaylie supervising her driving. She said that when she stopped at a convenience store to get milk, she noticed a car pulled up behind her with its high beam lights flashing.41 She saw a man approaching her car and thought it was her previous employer who had been stalking her and making threats against her at the beginning of 2018 when she was in his employ in Surfers Paradise. 42 She said that her previous employer had followed her and a friend in the past, so she drove off because she was scared. Zaylie said she had blonde hair in June 2018.43
- Zaylie confirmed that she drove to her nephew’s party at Merrimac in the vehicle and arrived at approximately 7.30pm or 8.00pm and left around 9pm.44 Prior to the party, she had caught a tram to the appellant’s address at Golden Gate to collect the car, and driven from there to Merrimac with Peter Stuchlick supervising her driving because she was on a learner’s licence.45 Before the party, she went to Kmart at Australia Fair in Southport at approximately 7pm to buy a present for her nephew.46 Following this, Zaylie drove to the party in Merrimac.
- Zaylie said she had stopped at a convenience store on the way home to buy milk when she noticed a car pull up behind her with its high beam lights on. She confirmed that the man she thought was stalking her approached the vehicle from the passenger side of his car.47 She said that she drove off at high speed towards Bundall and kept driving until she couldn’t see anyone behind her.48
- The Magistrate had regard to the oral and other evidence. He stated he was satisfied beyond a reasonable doubt that the appellant was the driver of the vehicle and guilty of the offences.
- The Magistrate described the appellant’s explanation of why the original number plates were replaced and why she had possession of the car on the day the search warrant was executed as nonsensical. The Magistrate said that while these matters themselves did not prove that she was the driver of the vehicle, they undermined her credibility.49
- With respect to Zaylie Cavanagh’s evidence, the Magistrate described her version of events as fanciful. He did not accept any of her evidence as credible. The Magistrate acknowledged that it would be dangerous to rely solely on the poor performance of a witness in the witness box, when rejecting their evidence. However, he found that her lack of detail, as well as the fact that her version of events appeared to fall apart during cross examination, was sufficient reason to reject her evidence.50
41 T45 ll. 39-46.
42 T46 l. 23-38.
43 T46 ll. 40-44.
44 T47 ll. 25-36.
45 T48 ll. 10-30.
46 T48 ll. 29-36.
47 T49 ll. 33-41.
48 T50 ll. 35-37.
49 Decision T4 ll. 1-4.
50 Decision T6 ll. 14-17.
- Similarly, with respect to the evidence of Ms. Hanton, the Magistrate found her to be an unreliable and dishonest witness due to the lack of detail in her testimony as well as due to her demeanour when giving evidence.
- The Magistrate accepted SC Lawty’s evidence as honest and reliable. The Magistrate had regard to the CCTV footage,51 the testimony of SC Lawty, and the fact that when SC Lawty had the female driver under observation, the cars were driving at a low speed, the distance between the cars was relatively close, and the lighting in the area was quite bright. He further considered that the tinting and lack of light definitely could have impeded SC Lawty’s view of the driver; however, he reached the conclusion that it was not impossible to look through the window and identify who the driver of the vehicle was.52 He was satisfied beyond a reasonable doubt that the driver of the vehicle was the appellant.53
- The Magistrate concluded that SC Lawty was comparing the photographs of the appellant with the driver of the vehicle in real time as he travelled next to the vehicle. His description of the driver was consistent with a description of the appellant, namely that the driver was blonde, overweight and female. He noted that this was not an accurate description of Zaylie Cavanagh, who could not be said to be overweight.54 The Magistrate considered that, given SC Lawty had access to the QLiTE device which contained the date of birth of the appellant, had Zaylie been the driver of the car, he would have no doubt noticed that she was half the age of the appellant.55
Grounds of Appeal
- The only ground of appeal is that the verdict was unreasonable and was not supported by the evidence.56 In support of this, the appellant submits:
- The Magistrate erred when he made a number of findings of fact that were not open to him on the evidence;57
- The Magistrate should not have rejected the defence case;
- Based on the weaknesses in the identification evidence, it was not open to the Magistrate to be satisfied of the appellant’s guilt beyond a reasonable doubt.
- The respondent concedes that the Magistrate made a number of findings of fact that weren’t open to him on the evidence. The respondent submits that it was still open to the Magistrate to reject the evidence of the appellant and two witnesses, and find the appellant guilty of the offences beyond reasonable doubt.
Appellant’s Submissions and This Court’s Analysis
51 Exhibit 4.
52 Decision T2 ll. 34-37.
53 Decision T8 ll. 20-22.
54 Decision T7 ll. 38-44.
55 Decision T7 ll. 46-47, T8 ll. 1-4.
56 Notice of Appeal, filed 3 May 2019.
57 Appellant’s Outline of Submissions, filed 26 August 2019.
- The appellant submits that the Magistrate made a number of findings of fact that were not open to him on the evidence.
- The appellant submits the Magistrate’s finding, that the switching of the registration plates was in order to distance herself from the incident, was not supported by evidence. The appellant, in her evidence, conceded she was in possession of the vehicle on 17 June 2018 when SC Lawty found the vehicle in her garage; she stated the vehicle was at her address because it had been in an accident approximately six to eight weeks earlier. When the vehicle was at the panel beaters, the registration plates were removed and not replaced before the vehicle was returned to her, so she reported the registration plates as stolen on 15 June 2018 and replaced them with new registration plates. The Magistrate rejected the appellant’s explanation on the basis her version was inconsistent with the chronology of events because, if the vehicle was in an accident 6-8 weeks before 17 June, then it would not have been on the road on the date of the offence .58 The appellant submits it was open to the Magistrate to find, that she was mistaken as to when the accident occurred.59 Further, the appellant submits that there were 12 days between the alleged offence and the number plates being reported stolen. If she was trying to distance herself from the vehicle, it would have been more logical for her to report the registration plates were missing shortly after the commission of the alleged offence rather than waiting 12 days.
- In my view, the appellant’s evidence was to the following effect. The vehicle was damaged in an accident approximately six to eight weeks before SC Lawty attended the garage at her residence on 17 June 2018. This sets the approximate date of the accident at the end of April 2018/the beginning of May 2018. The police saw her car with number plates 621WBP on 3 June 2018 when the driver of the vehicle evaded police. The car was returned to her from the panel beater without the number plates ‘621 WBP’ on an unknown date, and she reported the number plates as stolen on 15 June 2018. The vehicle was located bearing the new number plates ‘329 YES’ on 17 June 2018 when SC Lawty attended the appellant’s garage and took photographs of the vehicle. The panel beater returned the original number plates (621 WBP) sometime after the appellant had reported them stolen, which is, why they were found in her room during execution of the search warrant on 3 July 2018.
- I reject the appellant’s explanation of why the vehicle had different registration plates on 17 June 2018 than when police tried to intercept the car on 3 June, yet police located the original number plates at her home on 3 July 2018, as implausible. The alleged offence was committed on 3 June 2018. The unchallenged evidence was that the vehicle was undamaged, and bearing the number plates 621 WBP on that date. This does not accord with the appellant’s evidence that the vehicle was returned from the panel beaters with no number plates in April/May. Had this been the case, then the vehicle would have had the new number plates (‘329 YES’) on during the commission of the offence. The appellant submits it is open for me to make a finding that she was potentially mistaken about when the accident occurred. There was no evidence from the panel beater to support this unlikely story. I reject this explanation as to why the number plates had been replaced, but then found by police at her home.
58 Decision T6 ll. 21-25.
59 Appellant’s Outline of Submissions, filed 26 August 2019, page 4.
The more likely scenario is that the appellant reported the original plates stolen to distance herself from the commission of the offence.
- As the Magistrate remarked, this evidence is not of itself enough to prove that the appellant was the driver of the vehicle. However, the inconsistencies in the appellant’s timeline of events, as well as her explanation as to why she replaced the registration plates, does raise some serious doubts regarding her credibility. It was open to the Magistrate to reject the appellant’s evidence and I find no error in his doing so.
Vehicle being at the appellant’s residence on 18 June 2018
- The appellant submits the Magistrate erred when he said that there was no explanation provided as to why the vehicle was at the appellant’s residence on 18 June. The submission is correct. The Magistrate appears to have overlooked her evidence that the vehicle was at her address because it was being fixed and required detailing.60
- The appellant submits that the Magistrate erred when he determined that Ms. Hanton was not a credible witness because he based his findings on the fact that Ms. Hanton replied “I’m not a good liar” rather than saying “no” when she was asked whether she would lie for the appellant.61 The appellant submits that, whilst demeanour is relevant to the assessment of the witness, no other evidence contradicted Ms. Hanton’s evidence.62 The appellant submits the Magistrate erred in rejecting the evidence of Ms. Hanton on the basis that it lacked detail.
- I consider the Magistrate was entitled to reject Ms Hanton’s evidence. There was no evidence adduced by defence to substantiate the claims made by Ms. Hanton. She was not an independent witness, and she was the appellant’s friend. Her demeanour as a witness and the evidence she provided was all the Magistrate could use to assess the credibility of the alibi she provided for the appellant.
- Given the Magistrate rejected the evidence of Ms. Hanton on the basis that she was an unconvincing witness, and as I do not have the benefit of observing Ms. Hanton in the witness box, I must make an assessment as to her credibility from the transcript of the proceedings. Having regard to Ms. Hanton’s reluctance to answer simple questions in cross-examination, the lack of other evidence adduced to corroborate her story, her relationship with the appellant, and the evidence of SC Lawty, I find that it was open to the Magistrate to reject Ms. Hanton's evidence and he made no error in doing so. I would also reject her evidence.
Physical similarities between the appellant and Zaylie Cavanagh
- The appellant submits that the Magistrate’s assessment that the appellant and Zaylie were not similar in appearance was erroneously based on his observation of the appellant and Zaylie Cavanagh on the day of the hearing, rather than at the time the offence was committed.
60 Appellant’s Outline of Submissions, filed 26 August 2019, page 5.
61 T43 ll. 35-36.
62 Appellant’s Outline of Submissions, filed 26 August 2019, page 5.
- Having regard to exhibit 13, a photograph taken in early 2018 of the appellant with Zaylie Cavanagh, I consider there is clearly a marked physical difference between the mother and daughter given their features, the disparity in age and weight. Irrespective of whether the Magistrate made that assessment based on the photographs taken in 2018 or at the hearing, it was still open to him to find that they did not look similar.
- The appellant submits certain other findings of fact were not open on the evidence, as follows:
- The Magistrate erred by assuming that the appellant was the grandmother of the nephew whose birthday party Zaylie attended, and questioned why the appellant wasn’t at the party herself, as the grandmother. The appellant submits there was no evidence to suggest the appellant was the grandmother; therefore, the Magistrate incorrectly drew negative inferences from this in his assessment of the appellant and Zaylie.
- The Magistrate erred by impermissibly criticising aspects of Zaylie’s evidence regarding the timeline of events; how Zaylie would have known where the key to the car was if she wasn’t living at the appellant’s residence at the time; how Zaylie would have accessed the unit; and what prior arrangements were made with Peter Stuchlick, who was allegedly supervising Zaylie’s driving at the time of the offence. The appellant submits that there was no evidence contrary to Zaylie’s account of how she came to be driving the car and how she met Mr Stuchlick at the appellant’s residence. Further, it was a reasonable inference that Mr Stuchlick would have had access to the car given he had driven the appellant to Ms. Hanton’s place earlier in the day.
- The Magistrate erred by rejecting Zaylie’s evidence that she attended Kmart because Kmart was not open at 7pm on a Sunday. The appellant submits this is factually incorrect as Kmart is open at 7pm on a Sunday. There was no basis for the Magistrate to reject Zaylie’s evidence that she attended Kmart,
Australia Fair at 7pm
- I accept the appellant’s submissions that the Magistrate erred by making the above findings of fact, which were not open on the evidence. I accept the appellant’s submission that Kmart is indeed open at 7pm on a Sunday. I consider that it was not open to him to draw any negative inferences from these pieces of evidence with respect to Zaylie Cavanagh’s credibility or reliability as a witness.
- However, I consider that other important aspects of Zaylie Cavanagh’s evidence were unbelievable to the extent I would have rejected her evidence that she was the driver of the vehicle on 3 June 2018. For example, the CCTV footage clearly shows the police vehicle flashing its lights behind the black vehicle after both vehicles had pulled over on Thomas St. The blue and red police lights flashed for a significant period of time. I do not accept Zaylie’s evidence that she failed to see the flashing police lights and assumed that it was her previous employer who had been stalking her. I do not accept Zaylie’s evidence that she panicked upon noticing a man approach the vehicle, who she thought may have been her old boss, and then impulsively drove away. She would have noticed the blue and red flashing police lights emanating from the car well prior to SC Lawty exiting the car and approaching
her. I agree with the Magistrate’s determination that her explanation for stopping and then taking off because she was scared is totally unbelievable. She was not a female alone in the vehicle. There was a male, allegedly Mr Stuchlick, in the front passenger seat. The vehicle appeared to pull over in response to the police lights. I am satisfied the driver of the vehicle would definitely have seen the police lights whilst the vehicle was stationary, and would have realized it was a police car because of this. As SC Lawty stated in evidence, often drivers who evade police do so by pulling over first and taking off when the officer has gotten out of the police car to approach the vehicle. I accept that the CCTV footage adduced shows this is exactly what the driver of the vehicle did.
- The appellant submits that the Magistrate erred when he concluded SC Lawty would have seen information relating to the appellant’s age on QLiTE and noticed that Zaylie was half the age of the appellant (had it been Zaylie driving the car). I accept the Magistrate erred because there was no evidence adduced by SC Lawty that QLiTE contained information regarding the appellant’s age or date of birth. Irrespective of this, however, I find it was still open to the Magistrate to conclude that SC Lawty would have noticed the disparity in age between the appellant’s photograph on QLiTE and Zaylie, if Zaylie had been driving the vehicle on 3 June 2018.
- The appellant submits that, even if the defence evidence is rejected, the weaknesses in the identification evidence should have caused the Magistrate to have a reasonable doubt that the appellant was the driver of the vehicle.
- It is clear from the Magistrate’s reasons that he carefully examined the video footage, as I have, as to how long SC Lawty had the driver of the vehicle under observation, the close distance between the two vehicles at the time of observation, and SC Lawty’s evidence that he was certain the appellant was the driver. The Magistrate also had regard to the weaknesses in the identification evidence including the fact it was night time, the amount of light, and whether the tint of the black vehicle’s windows would impede SC Lawty’s view of the driver.63 The Magistrate correctly considered that this was not a typical identification case where a person is later attempting to identify the accused from a photo board; rather, SC Lawty was comparing a photograph of the appellant with the driver of the vehicle in real time.
- I have conducted a rehearing on the original evidence and find that the appellant’s grounds of appeal are without merit. It is true that some of the Magistrate’s comments and findings of fact were not based on evidence. However, I consider the errors are not material. The trial was conducted in a fair and proper manner, and it was open to the Magistrate to reach the conclusion to reject the evidence of the defence witnesses.
- Once the defence witnesses’ evidence is rejected, I must consider the prosecution evidence to determine whether the offences have been proven beyond a reasonable doubt.
63 Domican v The Queen (1992) 173 CLR 555.
- The case against the appellant depends to a significant degree on the correctness of SC Lawty’s visual identification of the appellant, which the appellant alleges to be mistaken. I proceed on the basis there is special need for caution before convicting because it is quite possible for an honest witness to make a mistaken identification. I have carefully examined SC Lawty’s evidence. I accept the Magistrate’s finding that he gave credible and reliable evidence.
- I have carefully examined the circumstances in which the identification by SC Lawty was made including: the length of time he had the female driver under observation; the distance between them; the lighting; whether his line of sight was impeded; the fact that he had not seen the appellant before; and whether there was any material discrepancy between the description given by him in his police statement and his evidence during the trial.
- The evidence capable of supporting the visual identification of the appellant derives not only from the officer’s evidence, but also from the CCTV footage. It includes: the lengthy period of time he had to view the appellant (approximately 10 seconds); the short distance between SC Lawty and the driver as both cars travelled side by side (approximately 2 metres); the fact SC Lawty was comparing a photograph of the appellant with the driver at the time he was looking at the driver; his description of the driver as blond and overweight; his evidence that he was certain the driver was the appellant and certain the driver was not Zaylie Cavanagh.
- I have also had regard to the weaknesses in that identification evidence which include that it was night time, the windows of the vehicle were tinted, and SC Lawty had not previously seen the appellant. Despite these weaknesses in the identification evidence, and exercising caution, I am satisfied beyond reasonable doubt that the strength of the identification evidence supports the conclusion that SC Lawty correctly identified the appellant as the driver of the vehicle.
- I consider that SC Lawty’s evidence alone was sufficient for the Magistrate to be satisfied beyond reasonable doubt that the appellant was the driver. In addition, other circumstantial evidence supported the identification including: the appellant’s connection to the vehicle; the fact police found the missing registration plates in her room; the fact she was disqualified from driving at the time; and the vehicle evaded police consistent with the appellant not wanting to be caught driving whilst disqualified. I am satisfied the only rational inference open on all the evidence is that the appellant was the driver that night.
- The appeal against conviction is dismissed.
- Published Case Name:
Michelle Robyn Cavanagh v The Commissioner of Police
- Shortened Case Name:
Cavanagh v The Commissioner of Police
 QDC 135
22 Jun 2020