Byrnes v Queensland Police Service [2013] QDC 323

DISTRICT COURT OF QUEENSLAND CITATION: Byrnes v Queensland Police Service [2013] QDC 323 PARTIES: DAMIAN LUKE BYRNES (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 56 of 2013 DIVISION: Appellate PROCEEDING: Appeals s 222 Justices Act 1886 ORIGINATING COURT: Magistrates Court at Cairns DELIVERED ON: 12 December 2013 DELIVERED AT: Cairns HEARING DATE: 18 November 2013 JUDGE: Harrison DCJ ORDER: 1. The appeal against convictions and sentence is dismissed CATCHWORDS: APPEAL – APPEAL BY WAY OF REHEARING – APPEAL AGAINST CONVICTION – Justice Act 1986 (Qld) s 222 – where appellant convicted of three charges of wilfully and unlawfully damaging timber frames – whether the complainant was the owner of the property – whether the appellant was a party to the offence APPEAL AGAINST SENTENCE – whether sentence imposed was manifestly excessive – where appellant was fined $1000.00 and ordered to pay compensation of $1084.60 with no convictions recorded LEGISLATION: Criminal Code 1899 (Qld) Justices Act 1886 (Qld) Sale of Goods Act 1896 (Qld) CASES: Hudson v Entsch [2005] FCA 460 COUNSEL: DL Byrnes self-represented J Crawfoot for the respondent SOLICITORS: Office of the Director of Public Prosecutions for the -- 1 of 16 -- 2 respondent [1] On the 6th of March 2013 the appellant, following a two day trial, was found guilty in the Magistrates Court at Cairns of three charges of wilfully and unlawfully damaging timber frames. [2] One fine of $1000.00 was imposed in relation to all three matters and he was ordered to pay compensation in the sum of $1084.60. No conviction was recorded and the fine and compensation were referred to the State Penalties Enforcement Registrar. The compensation was ordered to be paid to the complainant, Curtis Pitt. [3] The relevant timber frames each held in place roadside campaign signs for three separate candidates in the Cairns Regional Council elections and were all damaged on the 13th of April 2012. [4] The frames had been supplied by Mr Curtis Pitt, the member of the Legislative Assembly for the seat of Mulgrave, to each of the three candidates to support their signs. The appellant had actually stood against Mr Pitt in the State election for the seat of Mulgrave on the 24th of March 2012. [5] The appellant has appealed the convictions under s 222 of the Justices Act 1886 (Qld). In his Notice of Appeal he has also raised issues about the order for compensation and I have treated his appeal as one against sentence as well as against conviction. Appeals by way of rehearing [6] It is well accepted that pursuant to s 223(1) of the Justices Act this court must conduct the matter as a new hearing and make its own assessment of the evidence and form its own conclusions upon the issue of the appellant’s guilt having due regard to the findings and conclusions of the learned Magistrate.1 Application to lead new evidence [7] The appellant made an application for leave to introduce new evidence, which I determined prior to the hearing of the substantive appeal, on the 18th of November 2013. [8] The basis of the application was that further evidence should be lead about whether or not the complainant, Pitt, was in fact the owner of the subject timber frames at the relevant time. The argument was essentially based around the matters raised in grounds 1, 2 and 3 of the Notice of Appeal as expanded upon in the appellant’s outline of argument. [9] I refused the application and gave ex tempore reasons and I will deal with that further after I analyse the evidence and deal with the grounds of appeal. Analysis of evidence [10] The first witness called for the prosecution was Senior Constable Jan-Maree Patricia Webster from the Edmonton CIB. 1 See Fox v Percy (2003) 214 CLR 118 at [25] and Gobus v Queensland Police Service [2011] QCA 283 at [3]. -- 2 of 16 -- 3 [11] She received a complaint from Curtis Pitt on the 14th of April 2012. She then arranged for Scenes of Crime to inspect the three scenes where frames had been damaged and produced a series of photographs (exhibit 1) in respect of the sign for the candidate Zac Murphy, a further series of photographs (exhibit 2) in respect of signs for the candidate Leigh Dall’Osto and a series of photographs (exhibit 3) for the conjoint signs for the candidates Rob Pyne and Leigh Dall’Osto. [12] She also produced a series of telephone records from various mobile phone suppliers which confirmed a phone call from the phone of Leigh Dall’Osto to the phone of the appellant at 8.07pm on the evening of Friday the 13th of April 2012 and a further call from the phone of Zac Murphy to the phone of the appellant that same evening. [13] She assisted Pitt in a pre-text phone call on the 15th of April 2012 and an audio recording and a transcript of that was tendered as exhibit 10. [14] It is not necessary to go into the transcript in any great detail. There was no direct admission from the appellant about damaging the signs in the course of this conversation. After being accused by Pitt of having cut down Zac Murphy’s signs the appellant made certain comments to the effect that he had removed certain rubbish which was illegally on the side of the road. When questioned further he agreed the rubbish, as he described it, was near Wright’s Creek. [15] He was questioned further about Mill Road and Forest Gardens and confirmed that there was rubbish there as well. Throughout the course of that conversation the appellant complained to Pitt that the signs, in effect, were the wrong size and should not have been positioned where they were. [16] Senior Constable Webster also produced some CCTV footage from three sites in the areas near where the signs were removed, allegedly showing the presence of a vehicle owned by the appellant in the area at different times between 5.37pm and 5.43pm on the afternoon of Friday the 13th of April 2012. She also produced photographs (exhibit 11) of his vehicle. It was quite distinctive because it had on the back a large photograph of the appellant showing him as the Katter’s Australian Party candidate for Mulgrave. [17] Senior Constable Webster was asked some questions by the appellant who represented himself on trial although they did not take the matter any further. [18] The second witness called for the prosecution was the complainant, Curtis Warren Pitt. He confirmed that he was the member for Mulgrave and a member of the Australian Labor Party and that he had known Dr Byrnes who had stood against him on two separate occasions and through other electoral campaigns. [19] He confirmed that the timber frames in question had been used by him during the course of his State election campaign and he confirmed that he had lent the frames to Murphy, Dall’Osto and Pyne so they could place their election signs in these same places. [20] He said that the Regional Council elections immediately followed the State election and he said that his signs actually remained in place for some time after the State election because it took some time for the votes to be counted in Mulgrave. He -- 3 of 16 -- 4 could not say exactly when his were taken down and the others were placed on the frames. [21] He produced a tax invoice dated the 12th of March 2012 from Steven Struber directed to “Curtis Pitt Mulgrave Campaign 2012” for the sum of $1084.60 for the supply of materials, the fabrication and erection of the relevant timber frames. [22] He confirmed that he was contacted late on the afternoon of Friday the 13th of April 2012 by a number of people and told certain things about what had happened and he then made his complaint to the police. He confirmed that he did not give anyone permission to damage the frames. [23] He was cross-examined at some length by the appellant, although this happened in the face of constant objection from the police prosecutor who did not appear to be making much allowance for the fact that the appellant was self-represented. [24] Much of the questioning centred on whether or not Pitt had completed any electoral documentation to the effect that he had made these donations to the respective campaigns of the three candidates. He was unable to answer that because he did not have all of his material with him. [25] He was questioned about payment of the account from Struber. He said that there had been a delay in terms of paying the account but said that it was paid in September 2012. Documentation (exhibit 17) was later produced confirming the monies were paid from an account of CW Pitt with the National Australia Bank to an account with the Commonwealth Bank on or about the 4th of September 2012 in the sum of $1084.60, the amount of the invoice. [26] There was further questioning about why proof of payment was not included in any electoral returns, although the relevance of that, despite questioning from the learned Magistrate, was never really explained. The appellant also questioned Mr Pitt about whether or not there were any repair bills for the frames. It was suggested that Leigh Dall’Osto’s husband had repaired the frames and that the signs were put back up again. Pitt denied that there were any repairs done to the frames. [27] He was also asked whether he had any formal rental or loan agreements with the three people to whom he loaned the frames and he said there was not any formal agreement. [28] After Mr Pitt gave evidence there was discussion between the learned Magistrate and the appellant about a claim on his part that the police had decided to proceed by way of an indictable as opposed to a summary offence. This is something that the appellant raised on the hearing of the appeal before me as well, although I am not aware of any summary offence of this type. Certainly, he was of the view that matters should proceed by way of indictment only if the damage exceeded $250.00. I raised this on appeal with the representative of the Director of Public Prosecutions who appeared for the respondent and he was not aware of any such charge either. [29] The next witness called was Leigh Dall’Osto who confirmed that she had known the appellant for some time, having seen him on various electoral campaigns. She confirmed that she was a candidate for Division 2 in the Cairns Regional Council which took place in April 2012. She confirmed that Zac Murphy, Rob Pyne and her -- 4 of 16 -- 5 became, effectively, a team and that they supported each other as much as possible during the campaign. [30] She confirmed that she had known Curtis Pitt for a long time through their mutual connection with the Australian Labor Party and that she had helped on his last two campaigns. [31] She confirmed that she had a v-shaped sign in place on Mill Road during the election and that she shared another sign with Rob Pyne at Forest Gardens. [32] She said that the framing structures had remained in place from the State election and that Pitt had offered them the use of those structures to put their own signs on during the Regional Council campaign. She said that he did not tell them what he was going to do with them once they gave them back and she confirmed that they were not theirs permanently and that all they were offered was a loan. [33] She explained how they each placed their own signage on the relevant frames and she believes that this took place in about the first week of April 2012 and that the offer from Pitt was made after the State election which was held on the 28th of March 2012. [34] She confirmed that she was contacted on the evening of the 13th of April 2012 and told something by Jenny Pyne, who was the wife of Rob Pyne. She said that as a result of that her husband went and checked the signage. [35] She then went on to say that as a result of information she received she spoke to a number of people and then eventually by telephone the appellant. She said that after telling him who she was she asked him “did you cut my signs down?” and he replied “yes – yes, I did.” She said that she asked him why he had done that because they had been friends prior to that and that she would have hoped he would have let her know if he had a problem with the signs. She said that he apologised to her for affecting herself, Rob Pyne and Zac Murphy and he believed they were all good people. She said that he said again that he had done it and that she asked him who did it with him and he replied “no – nobody, I did. I did it myself.” She then questioned him further about whether anyone else was involved and he again said that he had done it himself. [36] She said that after that she made an approach to the police. She was then shown the damage to the frames for her signs in exhibits 2 and 3 and confirmed that whilst the signs themselves were not damaged the frames were. [37] The appellant questioned her at some length about the conversation. There was a suggestion that at one stage he had said that he had done it with someone else and that, at a later stage, that he had done it himself. She agreed that that was the case. At no stage, however, was it put to her that he did not have anything to do with the cutting down of the signs. [38] She was questioned at length about whether or not the frames were repaired and she said that to her knowledge they were not repaired. She said that the signs were put up again but not in the same way. At Forest Gardens, for example, she said they were propped up against some metal poles that were there on the side of the road and she said that her husband tried to attach some pieces of wood to the signs to try and get them back up at Mill Road but she was not sure what happened after that. -- 5 of 16 -- 6 She said that they could not possibly be in the same position as before because the frames had been cut in such a way that in each case large sections were left in the ground. [39] She was questioned at some length about whether or not she had seen a letter from the Cairns Regional Council about the signs and she said that she had not actually seen the letter although she was aware at one stage there had been a complaint about the size of the signs and she said that they were, in fact, moved and put further down the road after such complaint. [40] She was questioned further about the arrangement with Pitt about the frames and she repeated that it was nothing more than a loan, although it had not been discussed what would happen with the frames at the end of the Council election campaign. [41] The next witness called was Zac Edward Murphy who confirmed that he was a candidate for Division 1 in the Cairns Regional Council elections. He confirmed that he knew the appellant through elections and community events. [42] He said that he received a telephone call from Pitt after the State election offering the use of a frame which was positioned near Wright’s Creek on the highway. He said that he later place two billboard signs on the frame. [43] He said that he could recall an afternoon after that when he was contacted by Andrew Talbot, who worked for Curtis Pitt, who told him something about the sign. He then went to the Wright’s Creek location. He said that he later rang the appellant and he put to him that someone had seen his vehicle at the area where the sign was damaged such that it was now flat on the ground. He said that the appellant apologised to him in some form and told him that he was a good bloke but the signs and frames just had to come down. He said that the appellant said to him that the actual sign was not damaged but the framework was no longer workable. When asked further about the conversation he said that the appellant had told him that they were not meant to be up there and that they had to come down. [44] Certainly, the conversation never went as far as it did with Dall’Osto in terms of what it was alleged that the appellant told him and there was no direct admission alleged in the conversation. [45] He was shown the photographs in exhibit 1 which confirmed the damage to the frames and the fact that his signs were down. [46] During cross-examination he was questioned at some length about whether or not there had been some contact from the Council about the signs being unlawful. He said he was able to confirm there had been some contact at some stage. He was also questioned about his knowledge of the legality or otherwise of the signs by reference to size and he was uncertain about that. He was questioned about whether or not he had any evidence that Curtis Pitt owned the signs and he said that it was Curtis Pitt who granted him permission to use them in the first place and that he had listed this in his return statement for the election. [47] The next witness called was Robert John Pyne. He confirmed that he was a councillor on the Cairns Regional Council and that he had known the appellant for some years and had developed a friendship with him. -- 6 of 16 -- 7 [48] He confirmed that he was a candidate for Division 3 in the Cairns Regional Council elections in 2012 and he confirmed that he also worked co-operatively with Curtis Pitt during that campaign. [49] He said he was offered the use of the timber frames by Mr Pitt during the course of the Council campaign, referring to it as an “in-kind donation”. He was not sure when the offer was made but thought that it came after the conclusion of the State election in late March 2012. He said that it was his understanding that Pitt was the owner of the frames. [50] He then explained how a joint sign for himself and Leigh Dall’osto was placed on the timber frames already in place and he identified the relevant frames and signs as shown in exhibit 3. [51] He confirmed that he received a telephone call from Curtis Pitt on Friday the 13th of April 2012 as well as from another person. As a result of these calls he got his wife to go to the area where the sign was positioned to check things for him. [52] He also produced a letter to him from the Cairns Regional Council dated the 12th of April 2012 requiring him to remove, in effect, the joint sign forthwith because the signs exceeded the maximum permissible size for such an election. He said that he never actually received this letter until the 16th of April 2012. [53] During cross-examination he was questioned at some length about whether the signs were legal, although it is not necessary to take that any further. He said he did remove the signs afterwards in accordance with the letter from the Cairns Regional Council. He was asked whether he ever received any proof of ownership from Curtis Pitt and said that he had not but he had always assumed that Curtis Pitt was the owner of the frames. [54] The next witness called was Adam John Murphy who was the brother of Zac Murphy. [55] He described how he was driving home on Mill Road sometime between 5.30 and 8.30pm on Friday the 13th of April 2012 when he noticed that the Dall’Osto campaign sign in that area was no longer standing. He said that he noticed the Katter Party car, which he described as a red double-cab, was on the side of the road at the time. He identified the vehicle in question from the series of photographs which form exhibit 11. He said that there was another car there and that there were two people there, although he never really bothered to look at them in any detail. He also noticed that in relation to the sign, it had been cut low to the ground such that it would have been difficult to get the stumps out of the ground. [56] He then said that he contacted his brother and told him what he saw. [57] In cross-examination he agreed that he never saw what actually happened to the signs. [58] The next witness called was Rachel Jane Kraft who was a customer service officer for the Cairns Regional Council. [59] She gave brief evidence of the procedures involved in the complaint process at the council and said that she was approached by the appellant at 1.27pm on the 29th of March 2012 and that he was complaining about a number of signs. She prepared a -- 7 of 16 -- 8 document called “Customer Request Management Inquiry” which incorporated his complaint which she said she logged with the council. This document was tendered as exhibit 18. [60] The next witness called was Vanessa Joan Webb who was a senior customer service with the Cairns Regional Council at the relevant time. [61] She gave evidence that she saw the appellant at 1.08pm on the 10th of April 2012 and through her were tendered three Customer Request Management Inquiries (exhibit 19, 20 and 21). In each document, which respectively related to the three sites relevant to these charges, she noted that he said that if the signs were not removed by 10.00am on Friday that he would cut them down himself with a saw. They were, in fact, cut down late on the following Friday. [62] In cross-examination she agreed that he had made complaints about those signs before. It was not put to her that he had not made comments about cutting down the signs himself with a saw if they were not removed by 10.00am on Friday. [63] The next witness called was Stewart Charles Pollett who was at the relevant time a senior local laws officer with the Cairns Regional Council. [64] He confirmed that on the 29th of March 2012 he was made aware of certain complaints about signs (exhibits 18, 19, 20 and 21) and he confirmed that he did contact the office of Curtis Pitt. He said that he passed information that he received from Pitt on to his supervisor and that the matter was allocated to another local laws officer, Spencer Mason. [65] He referred to exhibit 16 which was a notice sent to Pitt and also identified another document (exhibit 22) which was a letter in similar terms dated the 12th of April 2012 directed to Zac Murphy. [66] There was some cross-examination about the relevant sizes for legal signs and also about internal council procedures but it never took the matter anywhere. [67] The next witness called was Spencer James Mason who at the relevant time was a local laws compliance officer with the Cairns Regional Council. [68] He was able to identify exhibits 18, 19, 20 and 21 which he said were documents which were prepared in response to complaints by the appellant. [69] He confirmed that he dealt with those matters and eventually prepared notices to different people. He identified exhibits 16 and 22 which were letters forwarded to Pyne and Murphy. [70] He also confirmed that he contacted the appellant. He said that he told the appellant that Murphy had been spoken to and had agreed to remove the signs by the following evening and he confirmed that he told him about the notices but said that those notices would probably not be received until the following Monday, which was the 16th of April 2012. [71] He confirmed that he also spoke to the appellant on the 16th of April 2012 who told him that he had been charged with illegally cutting down the signs and sought further information about the legality of the signs. He said that he confirmed that he told him that the signs did not comply with the size requirements but he said that -- 8 of 16 -- 9 there were a number of officers within the Council who had delegated power to remove signs in those circumstances. [72] In cross-examination he agreed that he did have a conversation with the appellant on the 12th of April 2012 and that the appellant had not said anything to him about cutting down the signs. [73] The next witness called was Andrew James Talbot who at the relevant time was working as an electorate officer for Curtis Pitt in the Mulgrave electorate office at Gordonvale. He said that he had met the appellant on a number of occasions during elections and also in the electoral office. [74] He was able to describe the vehicle normally driven by the appellant as a red four wheel drive with a canopy with Katter’s Australian Party stickers on the doors and also on the rear window. He identified the vehicle as shown in exhibit 11. [75] He said that he saw that same vehicle after he finished work when he was travelling north on the Bruce Highway from Gordonvale on Friday the 13th of April 2012 at approximately 5.25pm. He explained how he was driving past the sign for Zac Murphy, which he said was placed on a frame previously used for signage by Mr Pitt, and he saw the appellant’s vehicle and another vehicle parked about five metres off the roadway. [76] He said that he continued on to Edmonton and rang Mr Pitt after he got there. On advice from Mr Pitt he went back to the scene and he noticed that the signs were lying on the ground. [77] He then said that he drove to the Mill Road area and then to the Forest Gardens turn off. The sign at Mill Road was lying flat on the ground. When he got to Forest Gardens the sign there was still in place and he then drove home to Smithfield and rang Zac Murphy. [78] Through him the prosecution tendered exhibit 24, a handwritten note from the appellant dated the 16th of April 2012 which he said was given to the secretary in the Mulgrave electorate office on the 16th of April 2012. [79] This note reads – “Dear Member for Mulgrave, could you please remove your illegal rubbish that has been situated beside the Bruce Highway and on Mill Road for 5 weeks now. Sincerely Damien Byrnes 16/4/12” [80] In cross-examination he agreed that he had taken photographs of the appellant’s vehicle. [81] He was questioned about whether he had seen any estimates of repairs to the frames and he said that he had only seen the original invoice for the construction. [82] He was asked whether or not he was contacted by the Cairns Regional Council to remove the signs in question and he said that he was not. [83] The next witness called was Michael Anthony Woodfield who agreed that he used to drive past the different signs on the Bruce Highway on a daily basis. He said he had met Mr Pitt and also knew Mr Pyne. -- 9 of 16 -- 10 [84] He gave evidence of having seen the large sign, which included both Dall’Osto and Pyne, on the highway near the Forest Gardens intersection. He gave evidence of an occasion when he was driving home and he saw two people on the roadside in that area, one of whom was carrying an orange or orange-red coloured chainsaw. He said that the two men were about 10 to 20 metres from the sign and were walking in the direction of the sign. He also said that he came back 5 to 10 minutes later and the sign was down. [85] In cross-examination he agreed that he could not recognise either of the men. [86] The final witness called by the prosecution was Senior Constable Glen Thomas Schwartz who was at the relevant time stationed at the Gordonvale Police Station. He said that he had known the appellant for about 10 to 12 years and that he used to see him from time to time personally and also on television in his involvement with politics. [87] He was aware that the appellant had stood as a candidate for the Katter Party in the State election and was familiar with his vehicle, which he described as a red or maroon coloured four wheel drive with a canopy festooned with decals advertising his candidacy. He said he would often see this vehicle parked around the place. He recognised the vehicle in the photographs (exhibit 11). [88] He said that he was rostered for the 6.00pm to 2.00am shift at Gordonvale on the 13th of April 2012 and said that at some time between 5.25 to 5.40pm he was driving to work along the Bruce Highway in the area where there was a large advertising sign for candidates in the upcoming election. He said that he observed the appellant’s vehicle in the area and that there was another vehicle parked immediately beside it. He did not recognise the other vehicle. As he got closer he noticed that there were two people standing on the southern side of the advertising sign. One of these was the appellant and he did not recognise the other one. He said that the second male was crouched down and he obviously had a chainsaw with a blade that appeared to be about 12 inches. [89] He said that at the time the appellant was two to two and a half metres away from the other male and that the other male was clearly in the act of beginning to cut down the advertising awning. He said that the conditions were a bit overcast at the time and it was getting late in the afternoon but the sun was still shining and that he had a clear view for something like six to ten seconds from the time he first saw the appellant’s vehicle. He said that closest he got to the area of the sign would have been about 15 metres. [90] He was aware that the signage there was originally for Curtis Pitt in his campaign for Mulgrave but later on it was used for Mr Murphy when he stood for the local elections. [91] He agreed that it was a substantial sign and that it was supported by three timber poles. He identified the sign and frames from some of the photographs which formed part of exhibit 1. [92] In cross-examination he said that he did not actually see the sign being damaged in any way. He agreed that he did not see the appellant damage anything. -- 10 of 16 -- 11 [93] His evidence completed the case for the prosecution. The appellant did not give or call evidence although he did tender one document headed “Election Signage” which was put out by the Department of Transport and Main Roads. This document was exhibit 15 which was tendered during the course of the prosecution case. The learned Magistrate’s decision [94] The learned Magistrate handed down her decision on the 6th of March 2013 and convicted the appellant. She gave detailed reasons and during the course of those reasons had regard to the following matters –  She noted that it was not disputed that the various frames had been damaged when the signs were cut down but that the appellant disputed that he was a party to cutting them down;  She noted that it was not disputed on the evidence that at some point prior to the 13th of April 2012 Mr Curtis Pitt had arranged for the erection of the three timber frames in question and that they were erected for the signage for his campaign as the Australian Labor Party candidate for the Mulgrave electorate in the State elections;  She noted that the appellant had stood against him in the election as the candidate for the Katter’s Australia Party;  She noted that there was evidence that Mr Pitt had lent the signs to the three previous candidates who themselves were also members of the Australian Labor Party;  She noted that an invoice had been received for $1084.60 and that this was not paid because of an administrative oversight until September of 2012;  She also noted that as well as claiming ownership to the frames Mr Pitt indicated that he did not consent to the damage to the frames;  She noted the attendance of the appellant on the 29th of March 2012 at the Cairns Regional Council when he was attended to by the witness Rachel Kraft;  She referred to the attendance on the 10th of April 2012 when he was attended to by the witness Vanessa Webster and to what was said in each case about the signs being cut down by a saw if not removed by 10.00am that Friday;  She also noted that notifications were sent to both Murphy and Pyne on the 12th of April 2012 about the removal of the signs;  She referred to the evidence of Andrew Talbot who observed the presence of the appellant’s vehicle, which he was familiar with, near the sign referred to in exhibit 1 at about 5.25pm on the 13th of April 2012;  She noted that he returned shortly after and that the sign was on the ground and referred to his evidence about his attendance at the scene of the second and third signs; -- 11 of 16 -- 12  She then referred to the evidence of Senior Constable Schwartz and his identification of the appellant as one of the men at the scene along with the man holding the chainsaw;  She then referred to the evidence of Adam Murphy and to the presence of the appellant’s vehicle in the area of what she referred to as sign two;  She then referred to the evidence of Michael Woodfield in the area of what she referred to as sign three, to the effect that he saw two men both walking towards the electoral sign and one carrying a chainsaw and the fact that about 10 minutes later the sign was lying down flat;  She also had regard to the CCTV footage (exhibit 13). Whilst she had some reservations as to whether or not a vehicle shown at 5.46pm was actually the appellant’s vehicle, she noted that this footage assisted in showing when the signs were effectively cut down. She noted that sign three could be seen falling over at 5.43pm and the evidence recorded the fact that the other two signs were already cut down shortly before that;  She referred to the telephone conversation between Zac Murphy and the appellant on the evening of the 13th of April 2012 and noted that he apologised to Mr Murphy at the same time telling him that he was a good bloke;  She then referred to the telephone call between Leigh Dall’Osto and the appellant that same evening and to the specific references that I have already summarised containing the admissions allegedly made to her. She noted that this was not disputed in cross-examination by the appellant, although he had made submissions about her evidence being unreliable;  She referred to the pre-text phone call on the 15th of April 2012 and the references to the removal of rubbish or illegal rubbish by the roadside in the three relevant areas;  She also noted the delivery of the note (exhibit 24) which used that same reference to illegal rubbish. [95] Her reasons included an extensive summary of the prosecution evidence, the bulk of which was largely unchallenged. She summarised the submissions of the appellant to the effect that there were no eye witnesses showing him cutting down the timber frames and summarised his disputes about ownership of the frames by Mr Pitt such that the prosecution could not prove that the damage was done without the owner’s consent and therefore, through the operation of s 458(1) of the Criminal Code, could not prove that the damage was done unlawfully. She also summarised his argument which she described as one of political right based on the decision in Hudson v Entsch [2005] FCA 460. [96] She accepted the evidence of Senior Constable Schwartz about the identification after, quite properly, directing herself about identification evidence. She particularly noted the fact that the witness was very familiar with the appellant and, as she said, it was more the case of someone recognising someone they knew rather than someone identifying some unknown person. -- 12 of 16 -- 13 [97] She also placed considerable weight on the fact that the vehicle identified as the appellant’s electoral vehicle was seen in the area of some of the signs at the relevant time and she placed particular emphasis upon comments made by him to staff at the Cairns Regional Council about cutting down the signs with a saw. [98] She concluded that she was satisfied beyond reasonable doubt that the appellant was one of the two men present at the time the signs were cut down. [99] She had regard to s 7 of the Criminal Code in relation to parties to offences and effectively concluded that even though there was no evidence of him physically doing something at the site of sign 1 she was satisfied that he was a party to the offence. [100] She then turned to the question of lawfulness and noted that it was necessary that there be evidence that the offence was done without the consent of the owner. [101] She had regard to the Sale of Goods Act 1896 (Qld) and concluded that pursuant to s 20 of that Act, property in the timber frames as constructed by Mr Struber would have passed to Mr Pitt at the time of delivery and it did not matter that payment was not made until some months later in September 2012. [102] She noted, in effect, that there was no evidence to contradict the claim on the part of Mr Pitt that the frames were his property. [103] She noted that there was some dispute about whether or not he owned them or whether the Australian Labor Party owned them and she said that it made little difference whether the property passed to him personally or whether it passed to him on behalf of the party at the time the frames were supplied. [104] She then turned to the question of whether or not there was any other excuse that might render the actions lawful. She noted the evidence about the illegality of the signs because of their size but concluded that even if the signs were, in effect, illegal that did not give the appellant any right to cut them down. [105] She concluded that she was satisfied that the appellant, on all of the evidence, was a party to the cutting down of the frames and was satisfied that he was present on those occasions in order to assist, aid or encourage the person to actually cut down the frames thus making him a party under s 7 of the Criminal Code. She found that she was satisfied that this was done wilfully and unlawfully. [106] She rejected any defence based around the decision of the Federal Court in Hudson v Entsch (supra). Grounds of Appeal [107] The bulk of the grounds of appeal centre on this whole question of ownership and I have great difficulty understanding just where the appellant was coming from. [108] The appellant seemed to be of the view that because they were not paid for until later that somehow everything about ownership was a fabrication. [109] To me it seems irrelevant whether the signs were owned by Mr Pitt personally or by the party. He was the party’s candidate for the seat of Mulgrave and was certainly able to speak on behalf of the party in that capacity. -- 13 of 16 -- 14 [110] The invoice suggests that it may have been either the party or him, but there is clear evidence from him that there was no consent to the damage of the signs by him in his private capacity or on behalf of the party. The appellant’s application to include fresh or new evidence was based around a request for Mr Struber to be called. There was nothing before me to indicate what Mr Struber would or could say and nothing to suggest that the evidence would take the matter anywhere. I fail to see what could possibly have been achieved by calling Mr Struber as witness. [111] It is well accepted that in cases involving fresh or new evidence it is only admitted if it could be shown that the unavailability of the new evidence at the time of the trial involved a miscarriage of justice at the trial such that the court considered there was a significant possibility that the Magistrate acting reasonably would have acquitted the appellant of the charge if the new evidence had been before the Magistrate.2 [112] Here there were no indications whatsoever as to what the new or fresh evidence was going to be and it clearly did not justify making the necessary orders to call Mr Struber for what was effectively a fishing expedition. [113] There is clear evidence that Pitt had lawful possession of the frames prior to the Council elections and, according to all three candidates, lent them to them for their use for the display of their signs during the Council elections. His evidence that he did not consent to the damage was more than sufficient to satisfy the element of unlawfulness under the section. There was never any suggestion of any consent from anyone who may have had an interest in the frames. [114] Ground 4 alleged that the learned Magistrate failed to give any or any adequate reasons for her guilty verdict. She set out a detailed summary of the evidence in her reasons and it appeared to me to take into account all of the relevant facts. There is no basis to this ground. [115] Ground 5 alleged that there was no evidence of damage to the campaign signs in any event. This is irrelevant because the charges relate to the three frames. It seems to have been accepted that the signs themselves were not damaged. [116] Ground 6 purported to raise some defence based on the decision in Hudson v Entsch [2005] FCA 460. [117] The circumstances there were entirely different. The petitioner in that matter was someone who had a personal grievance with Mr Entsch, who was the member for Leichhardt. As a result of his grievance, he placed a number of signs with a cartoon drawing of Mr Entsch near Mr Entsch’s political signs inviting people to look at a website where his grievance against Mr Entsch was set out in more detail. [118] The signs set up by the petitioner were knocked down during the course of the campaign and when interviewed by a local television station Entsch said that the signs should have been knocked down because they were offensive. [119] In that case there was a specific finding that Entsch did not aid, abet, counsel or procure the knocking down of the signs. Reference was made to a provision of s 327(1) of the Commonwealth Electoral Act, which dealt with the political right to 2 R v Gallagher (1986) 65 ALR 207. -- 14 of 16 -- 15 vote, the right to stand for an election and the right to support or oppose a candidate, group of candidates or party. [120] The appellant was relying on an interpretation of that section which is clearly not relevant here because the signs were in place for the local elections which were catered for under Queensland legislation. [121] The appellant’s case seemed to be based on some comments made by Justice Dowsett at paragraph 57 when he said – “To knock down an electoral sign may be as much as an expression of such support or opposition as is its erection, providing that both actions are performed lawfully.” [122] Even if the Commonwealth legislation was relevant here this comment was qualified by the reference to the action being lawful. Here there was a proper finding that the damage was done unlawfully. [123] There was therefore no basis to ground 6. Rehearing of Evidence [124] I have considered all of the evidence and I confirm that I would have reached exactly the same conclusion as the learned Magistrate on the finding of guilty. [125] What is particularly relevant is the fact that the appellant made the threats to the Council in the first place to cut the signs down if they were not removed by 10.00am on Friday (effectively the 13th of April 2012), coupled with evidence of the presence of his vehicle at some of the scenes and the direct identification of him being in the immediate vicinity of the person bending over with the chainsaw at one of the scenes, coupled with the clear admissions made to Dall’Osto which were not challenged in evidence make the case against the appellant overwhelming. [126] Whilst there is no direct evidence that he was the one that cut them down I would have formed the same conclusions as the learned Magistrate to the effect that he was a party under all of the paragraphs of s 7 of the Criminal Code in terms of aiding, abetting and encouraging the commission of the offence. Just his mere presence, as noted by Senior Constable Schwartz, in the circumstances where he was near the person who was bent over with the chainsaw, in the absence of any explanation, would be sufficient for me to be satisfied beyond reasonable doubt that he was aiding in the commission of that particular offence. [127] There is no direct evidence of him being in place at each of the three scenes but it is relevant that all occurred within a short space of each other and the various sightings of him, coupled with the specific admissions made to Dall’Osto, coupled with the apology made to Murphy, coupled with the reference to a removal of the illegal rubbish in the pre-text phone call and the earlier statements to the council lead me to conclude that, even though some of the evidence was circumstantial, the only logical rational explanation is that he was involved as a party in the commission of each of the three offences and I confirm that the appeal against conviction should be dismissed. Sentence -- 15 of 16 -- 16 [128] Because of the appellant’s complaints about the compensation order, I have dealt with this as an appeal against sentence also. At the outset I must say that the penalty was not manifestly excessive. The learned Magistrate imposed one fine which she was entitled to do as all matters arose out of the same set of circumstances. [129] It could not be said that a fine of $1000.00 was manifestly excessive. [130] His arguments focussed more on the compensation order. He argued that the signs were repaired and therefore he should have to pay the full amount of the order, being the cost of the original construction and erection of the frames. [131] As I read the evidence, however, this argument is ill conceived. The frames, on the evidence, were never repaired. At best, some of the signs were put back in that area but there is no evidence whatsoever that the timber frames were repaired. [132] As was pointed out in evidence, it would have been difficult to repair them as they were cut in such a way that parts would have been left underground and they could not possibly have been used the same way as they had previously. [133] At times the questioning on the part of the appellant varied between reference to signs as opposed to reference to frames and this lead to the confusion. There was no evidence called by him to the effect that the frames themselves were repaired and no evidence from any of the prosecution witnesses to this effect. [134] The learned Magistrate quite properly did not record convictions and she had regard to the fact that he was a qualified medical practitioner. She considered that it could have some impact on him, particularly in his dealings with the relevant medical board. [135] This was a matter of obvious concern to the appellant when he appeared before me on the hearing of the appeal. Like the learned Magistrate, I would not have recorded a conviction either. In the overall scheme of things this is a relatively petty matter and it seems clear that he acted quite stupidly taking the law into his own hands. [136] There is clear evidence that the council were already going to do something about these signs and he should have left it to the council to follow up if, as it appears, the signs were larger than what was permissible in the circumstances under the relevant rules. [137] I would be very surprised if a medical board gave any serious consideration to limiting in any way his right to practice for something as trivial as this. [138] The appeal against sentence should also be dismissed. Orders of the Court 1. The appeal against convictions and sentence is dismissed -- 16 of 16 --