Buckley v Queensland Police Service [2016] QDC 323

DISTRICT COURT OF QUEENSLAND CITATION: Buckley v Queensland Police Service [2016] QDC 323 PARTIES: JOSEPH RAYMOND BUCKLEY (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: APPEAL NO: 121/2016 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Mareeba DELIVERED ON: 9 December 2016 DELIVERED AT: Cairns HEARING DATE: 6 December 2016 JUDGE: Morzone QC DCJ ORDER: 1. Appeal allowed. 2. The conviction and orders made by the Magistrates Court on 30 June 2016 in respect of the charge of failing to stop a motor vehicle on 3 May 2014 are set aside and in lieu substitute the verdict of not guilty to that charge. CATCHWORDS: CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – failing to stop a motor vehicle – mode of hearing of appeal – error of law – whether magistrate incorrectly applied test in Briginshaw v Briginshaw Legislation Justices Act 1886 (Qld), s 222, s 223 Police Powers and Responsibilities Act 2000 (Qld), s 754, s 756(4) -- 1 of 10 -- 2 [1] On 30 June 2016, the appellant was convicted after a summary trial in the Magistrates Court held at Mareeba of failing to stop a motor vehicle on 3 May 2014 contrary to s 754 of the Police Powers and Responsibilities Act 2000 (“PPRA”). [2] The appellant now appeals his conviction. [3] Both parties provided outlines of argument and made further submissions on the hearing of the appeal, which I have gratefully considered. Background [4] On 30 June 2016 a summary hearing was held in the Magistrates Court at the Mareeba. [5] Section 754 of the PPRA makes it an offence for a driver of a motor vehicle to fail to stop a motor vehicle. In particular and relevantly, s 754(1) and (2) are in these terms: “(1) This section applies if, in the exercise of a power under an Act, a police officer using a police service motor vehicle gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving. (2) The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances.” Cases Briginshaw v Briginshaw (1938) 71 CLR 430 White v Commissioner of Police [2014] QCA 121 Rejfek v McElroy (1965) 112 CLR 517 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Palmer v Dolman [2005] NSWCA 361 Victoria v Turner (2009) 23 VR 110 Whitehorn v R (1983) 152 CLR 657 Chidiac v R (1991) 171 CLR 432 Knight v R (1992) 175 CLR 495 Morris v R (1987) 163 CLR 454 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Warren v Coombes (1979) 142 CLR 531 COUNSEL: S. Williams for the appellant SOLICITORS: Richardson Eckersley Lawyers for the appellant The Office of Director of Public Prosecutions for the respondent -- 2 of 10 -- 3 [6] The appellant made formal admissions to each element of the offence except that he was the “driver” of the car.1 He relied upon the defence in s 756(4) of the PPRA that: “(4) In a proceeding for an evasion offence, started against a person because of this section, it is a defence for the person to prove, on the balance of probabilities that the person was not the driver of the motor vehicle involved in the offence when the offence happened.” [7] The trial was confined to this issue. The prosecution called one witness, Senior Constable Saul. The appellant and his partner gave evidence in the defence case. [8] The appellant’s solicitor submitted that the court would be satisfied that the appellant was not the driver of the car at the time because: the evidentiary standard for the defence was on the balance of probabilities;2 the appellant was never identified as the driver;3 the appellant told police that he was not the driver but could not nominate who was;4 the appellant also took part in a recorded interview but did not provide a statutory declaration about the driver;5 and at the hearing the appellant gave evidence consistent with what he had said in the interview.6 [9] The police prosecutor submitted that the appellant had not proved on the balance of probabilities that he was not the driver at the time of the offence because the sliding scale of Briginshaw v Briginshaw7 required a greater level of proof by the appellant.8 The prosecutor argued that the seriousness or gravity of the finding included a consideration that a successful defence would require the State to refund the impoundment fee of $4,544.9 [10] The case was adjourned for decision on 30 June 2016. On that date, the magistrate convicted and sentenced the appellant to 18 months probation, and disqualified him from holding or obtaining a driver licence for two years. Mode of Appeal [11] Pursuant to section 223 of the Justices Act 1886, an appeal under section 222 is by way of rehearing on the original evidence given in the proceedings before the trial magistrate, and new evidence adduced on appeal in special circumstances with leave. The appeal is not a new trial to consider, as if presented for the first time, the arguments advanced. It is a review of the record of the proceedings below, rather than a completely fresh hearing.10 [12] This court is required to make his 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.11 1 T1-3/13 to T1-4/34. 2 T1-19/7. 3 T1-19/8-9. 4 T1-19/10. 5 T1-19/15. 6 T1-19/16. 7 (1938) 71 CLR 430. 8 T1-19/32 & T1-21/40. 9 T1-19/33-45. 10 White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed). 11 White v Commissioner of Police [2014] QCA 121 at [4] per Morrison JA (Muir JA & Atkinson J agreed). -- 3 of 10 -- 4 [13] Fundamentally, the appellant must demonstrate some legal, factual or discretionary error.12 Ground of Appeal [14] The appellant appeals against the conviction on the ground that the magistrate erred in law by applying the principles of Briginshaw v Briginshaw to the defence in s 756(4) of the PPRA. [15] The appellant argues that the magistrate acted upon a wrong principle and thereby allowed erroneous or irrelevant matters to guide or affect him. Error of law [16] The respondent properly concedes that the approach in Briginshaw does not apply to the defence proved pursuant to s 756(4). [17] I agree. [18] Section 756(4) places the burden on the appellant to prove that he “was not the driver of the motor vehicle involved in the offence when the offence happened,” and he must do so on the “balance of probabilities”. [19] In the ordinary course, a fact is proved to be true on the balance of probabilities if its existence is more probable than not, or if it is established by a preponderance of probability.13 It need not be a great deal more probable; the slightest degree of probability is sufficient. Even though the test in Briginshaw does not create another standard of proof, the test permits a court to require a higher degree of satisfaction to discharge that standard where the seriousness of the allegations and consequences of sustaining them warrant that approach.14 [20] Clearly enough, a successful defence under s 756(4) is exculpatory for the defendant. The jeopardy of the State to refund the impoundment fee does warrant proof at a higher end of the standard according to the Briginshaw principles. [21] Further, the clear terms of the provision can be contrasted with legislative provisions that prescriptively modify the standard, for example: s 132C(4) of the Evidence Act 1977 (Qld) and sections 140 and 142 of the Evidence Act 1995 (Cth). These provisions reflect a “sliding scale” approach akin to Briginshaw, unlike s 756(4). [22] In my respectful view, I conclude that the magistrate erred by applying the Briginshaw principles. In doing so, it seems to me that His Honour’s erroneous approach guided or affected his assessment of the evidence in a way that was unduly adverse to the appellant. Unreasonable and Unsupported Verdict [23] The appellant then invites this court to make its own assessment of the evidence and acquit the appellant, rather than return the proceeding for retrial. On the contrary, the respondent argues that the evidence supports the magistrate’s findings in any event. 12 White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed). 13 Rejfek v McElroy (1965) 112 CLR 517. 14 Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [110] per French and Jacobson JJ. See also Palmer v Dolman [2005] NSWCA 361; Victoria v Turner (2009) 23 VR 110 at [112]-[118] per Kyrou J. -- 4 of 10 -- 5 [24] A verdict may be disturbed if the appellant shows that the trial magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal.15 This necessitates my independent examination of the evidence, including the credit of witnesses subject to what I said above, 16 to make my own assessment of both the sufficiency and quality of the evidence.17 Prosecution Evidence [25] Senior Constable David Saul gave evidence in the prosecution case. [26] He testified that the appellant was the registered owner of the car and that the notice of the offence served on the appellant. The recorded interview was not in evidence. In cross- examination the senior constable agreed that the appellant said various things in his recorded interview including his denial of driving the car, that he was living in a share house with backpackers, and that he did not know their whereabouts. [27] The senior constable also agreed that he advised the appellant that he had one day to provide a statutory declaration. But when the appellant said that he could not identify the driver, the officer issued him with a notice to appear. The appellant’s evidence [28] The appellant’s evidence was to the following effect.18 [29] He asserted that on 3 May 2014, at the time of the offence, he was neither the driver of the car, a Holden Rodeo, nor involved in any police chase. [30] He explained that the he lived together with his partner, Ms Curtis. The couple shared the house with other individuals who were backpackers and with whom they worked. He was unable to give the surnames of the other individuals. He said, “There was one guy called Victor. He was from France; another fellow called Eric. He was from Italy. There was two girls, Tilda, I can’t remember the other one’s name”, from Sweden. [31] The appellant said that he owned the car outright for which he paid $5000. He allowed the backpackers to use it to drive to town and to do their shopping. He had never asked to see their driver licences but relied upon their indication that they held driver licences. The car keys were kept in the car’s ignition. He said that he was “pretty sure” his licence was suspended at the time. He was not challenged about these matters. [32] The appellant testified that at the time of the offence, 12:30am on 3 May 2014, he was in bed with his partner at home. He last saw the car “probably when we knocked off work” at five o’clock on 2 May 2014. He was not aware that his car had been taken from the premises. [33] He first became aware of the allegations when he received a telephone call from his mother on the morning of 3 May 2014. She told him that the police had come to her house and told her 15 Whitehorn v R (1983) 152 CLR 657 at 687. 16 Chidiac v R (1991) 171 CLR 432 at 443-4 per Mason CJ, at 452-3 per Dawson J, at 459 per Gaudron J; Knight v R (1992) 175 CLR 495 at 503 per Mason CJ, Dawson and Toohey JJ. 17 Morris v R (1987) 163 CLR 454 at 463-4, 466 per Mason CJ, at 473 per Deane, Toohey and Gaudron JJ, at 477-9 per Dawson J. 18 T1-9-T1-15. -- 5 of 10 -- 6 that he had been in a chase with the police. She urged him to go and see the police. The appellant made immediate inquiries with the backpackers as to who was driving the car. None of them admitted to driving the car at the time. The appellant stated, “they’re not going to admit to me that they had a car chase in my car. That’s what I assumed, you know. I asked them.” It was put to the appellant that he really took no steps to find out who the driver was, to which he stated that he “had an idea of one of the backpackers. So I had an idea of who it was.” Nevertheless, he permitted the backpackers to continue driving the car after their denials. [34] He also testified that, whilst he was not sure of the date, within one week of the offence he went to the Mareeba Police Station and was told that the matter had been resolved, not to worry about it and to go home. He further stated that he was not aware of the impending prosecution at that stage. Some eight or nine months later, when he was intercepted for drink-driving, police told him that he was wanted for the offence of evade police. [35] The appellant explained that his employer loaned him money to pay the accumulating impounding fees of $4544 to retrieve the car. He explained that he did so because he was told he would receive a bad credit rating if he did not pay the bill. He was not challenged about this. Evidence of Jasmine Anne Curtis [36] The appellant’s partner, Ms Curtis, gave evidence to the following effect.19 [37] She testified that on 3 May 2014 she was living with the appellant as well as a few backpackers. She was not asked or challenged about their identity. She said the backpackers were allowed to use the appellant’s car and that they would use it to go shopping, to have a look around the place, or to do whatever else they wished to do. It didn’t cross her mind as to what would happen if the backpackers had an accident in the appellant’s car. She accepted that to allow them to use the car was awfully generous and seemed a bit unwise. [38] She also testified that on the night of 2 May 2014, Ms Curtis was at home with the appellant. She said that she was with him all night and that he did not leave the premises at all. She did not see the appellant drive the car at all. She was three or four months pregnant at the time. She described herself as a “pretty light sleeper” and that she would “toss and turn a little bit, … especially being pregnant.” She believed the appellant had either his Provisional or Open driver licence and was able to drive at the time. She was not challenged about these matters. [39] Ms Curtis recalled answering the telephone call from the appellant’s mother. She recalled that the appellant’s mother her that the police had turned up at her house looking for the appellant but did not give any details. Ms Curtis thought that the appellant then spoke to his mother. Ms Curtis said the appellant did not know what it was about either. She could not remember how the conversation went. [40] The prosecutor put to Ms Curtis, “So when did you first know that it was about a chase or a pursuit?” to which she answered, “I think when [the appellant] came in to talk to the traffic officer.” She clarified that it was when the appellant came to do the statement in March 2015. That was the first she knew about the pursuit. 19 T1-17 – T1-18. -- 6 of 10 -- 7 [41] The police prosecutor put the following to Ms Curtis: “And at no point was there a general conversation between you all about – certainly not during – after the call from mum, who’s been using the car, it’s in a chase, we’re in trouble, who is responsible?” To that Ms Curtis answered, “I don’t recall myself. I was working big hours at the time as well and also had bad morning sickness.” It was further put to her: “But it’s not something that you guys – he never said to you, look, the police are after me for a chase until March?” Ms Curtis responded with, “No.” She accepted that it would be something they would talk about if they were close. She accepted they were close and would talk about things that were important to each other. Challenge to fact finding based on witnesses’ credit & Inferences [42] During the course of the trial, the magistrate had the opportunity of listening to and observing the demeanor of each of the witnesses whilst they gave their evidence, which he found “greatly assisted in assessing the credibility or otherwise of the witnesses”.20 [43] However, the extent to which His Honour was so assisted by the observation of the witnesses is not apparent from the reasons. Instead, His Honour ultimately rejected the appellant’s evidence on matters of inconsistency and plausibility. This was despite those witnesses’ evidence remaining uncontradicted by other witnesses and not subjected to any relevant or significant challenged by the prosecution. His Honour said:21 “…the features of the evidence which concern me and that the defendant does not help himself by on the one hand denying being the driver, and expects the court to accept this without providing evidence of the details of the individual or individuals, he would have the court believe, would have been the driver in terms of one or all of the four backpackers. His evidence in this regard is vague and unreliable, when I would expect in the circumstances he would be more specific. Further, it appears at the time the defendant was driving, according to Ms Curtis’ evidence-in-chief, she said he was able to drive. He had his p’s. Yet the defendant, in his evidence, maintains that his licence was suspended at the time. Ms Curtis was a restless sleeper by her evidence and able to confirm the defendant was by her side all night. It says nothing about any coming or going of persons during the night such as the backpackers who purportedly were using the vehicle. Mr Buckley, on the other hand, says he believed the vehicle was where it should be. Presumably this means parked somewhere at his residence. Further, Ms Curtis says she became aware of this incident after the defendant attended the Mareeba Station. In contrast, the defendant says he was aware of the incident after speaking with his mother on the phone. He then inquired with the backpackers and then attended the police station. Now, because of these anomalies and the generally vague evidence of the defendant, I find the defence witnesses lack credibility. I’m not persuaded the defences consequences that flow from this charge, the vague nature of the evidence the defendant presents and 20 Decision, p 2/34. 21 Decision, pp 5-6. -- 7 of 10 -- 8 the inconsistencies I’ve identified, his continued inability to provide more specific particulars, at least the individuals who he alleges were the driver or drivers. I’m not persuaded by the occurrence of the events as the defendant and Ms Curtis would have me believe, and I do not believe in the reality of what the defendant has submitted. I cannot be satisfied the defendant has discharged the onus on him on the balance of probability, that he was not the driver at the time in question when the evasion offence was committed. That being the case, the four elements of the offence having previously been admitted, the defendant is deemed to be the driver of the relevant vehicle at the time of the offence and defendant is guilty as charged.” [44] In Devries v Australian National Railways Commission,22 Brennan, Gaudron and McHugh JJ said: “More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.” [45] Similarly, in Fox v Percy,23 Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,24 as to the correct approach of an appellate court where findings of fact based on credibility are challenged, this way: “[28] … the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (References omitted.) [46] This is not an exhaustive formula. The Court went on to recognise that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”. Gleeson CJ, Gummow J and Kirby J said: [29] … In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. 22 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. 23 Fox v Percy (2003) 214 CLR 118 at [26]-[30]. 24 Including Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. -- 8 of 10 -- 9 [30] It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.” (references omitted.) [47] Further a trial magistrate’s findings of fact based on inference ought be taken as correct unless and until the contrary is demonstrated. In Warren v Coombes,25 the majority of the High Court reiterated the rule that: “[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”. Discussion [48] It seems to me that the magistrate approached the evidence of the appellant with the expectation that he would be more specific by providing evidence of the personal details of the individual backpackers. That is, an expectation that he would have identified the guilty driver. I’m not sure how that expectation was formed in the circumstances espoused by the evidence. [49] It is undisputed that the appellant first received the requisite notice pursuant to s 755 of the PPRA on 1 March 2015 being some 10 months after the alleged offence. The appellant had four days to provide a declaration that he was not the driver at the time and nominating the name of the driver. Indeed, the officer also informed him about the option at the time he received the summons to appear. The appellant was not familiar enough with the backpackers to learn their surnames, and of course, by this time the backpackers had vacated and he was unaware of their whereabouts. Such is the lifestyle of an itinerate workforce. [50] Clearly enough, the evidence of the appellant’s witnesses were uncontested and substantially, and at least relevantly remained unchallenged. The witnesses’ alibi evidence was consistent and cogent as to the appellant’s whereabouts at the time of the alleged offence; the effect of which completely exculpates the appellant. The evidence of the appellant’s conduct after receiving his mother’s call was immediate, plausible and not eroded by any effective challenge. The appellant testified that he immediately interrogated the other residents to no avail and attended upon police shortly afterwards. He heard nothing more until a significant time later, by which time the backpackers had departed and with them the sources of further information, inquiry and investigation. It is difficult to see how the defendant could have otherwise proceeded. [51] The evidence contains some discrepancies and displays inadequacies in effective advocacy, but was not significantly tainted or otherwise lacking probative force. There was no real probative value in the relatively minor inconsistencies between the evidence of the appellant 25 Warren v Coombes (1979) 142 CLR 531 at 551, affirmed in Fox v Percy (2003) 214 CLR 118 at 127 [25] per Gleeson CJ, Gummow J and Kirby J. -- 9 of 10 -- 10 and Ms Curtis, for example, as to the state of his driver licence or his capacity to drive. Nor is there any real impact on the post phone call communication between them. The fact that the appellant proceeded to pay the impounding fees was also plausibly explained in terms of avoiding a bad credit rating and this was not challenged. The same can be said in relation to the fact that the appellant allowed the backpackers to continue using the car. This seems to me to be plausible in the context that they all continued to reside together and were dependent on that transport. [52] In my opinion, the magistrate engaged in impermissible conjecture and speculation affected by the prosecutor’s urging to apply a higher quality of proof. [53] Having considered the evidence myself, I respectfully conclude that the decision at trial was glaringly improbable and contrary to the direct, uncontested and corroborated alibi evidence. The evidence of the defence witnesses was not diminished by any robust or forensically effective cross-examination. It seems to me that the verdict is unreasonable or cannot be supported, resulting in a wrong decision of law and a miscarriage of justice. I find the defence proved to the requisite standard on the balance of probabilities. [54] For these reasons, I am bound to allow the appeal against the conviction, and find the appellant not guilty of the charge of failing to stop a motor vehicle on 3 May 2014. The consequence is that the probation orders and two year disqualification should be set aside, and any impoundment fee ought be refunded in due course. Appeal against Sentence [55] Having regard to my conclusion on conviction, and the absence of any challenge to the unrelated offending and orders, it is unnecessary to consider the adequacy of the sentence. Order [56] I allow the appeal. [57] I set aside the conviction and orders made by the Magistrates Court in respect of the charge of failing to stop a motor vehicle on 3 May 2014 contrary to section 754 of the PPRA and substitute the verdict of ‘not guilty’ to that charge. Judge Dean P. Morzone QC -- 10 of 10 --