Charington v Commissioner of Police [2007] QDC 96

1 [2007] QDC 096 DISTRICT COURT APPELLATE JURISDICTION JUDGE BRABAZON QC Appeal No 2699 of 2006 BRADLEY RAYMOND CHARINGTON Appellant and COMMISSIONER OF POLICE Respondent BRISBANE ..DATE 27/03/2007 JUDGMENT -- 1 of 7 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal against Mr Charington's conviction for driving while disqualified. That conviction was made in the Magistrates Court on the 12th September 2006. It is necessary to say something briefly about the delays in this matter. The incident in question took place on the 14th May 2003. The first appearance in the Magistrates Court was fairly prompt on 4th June 2003, but on a Court sheet that indicated, as Mr Charington says here, that there would be a plea of guilty. However, he always pleaded not guilty. It seems that his next appearance was more than two years later on the 14th December 2005. There were then several adjournments. Finally the Magistrate insisted that the matter be set down and that led to the hearing and sentence on the 12th September 2006. There is no complaint about the sentence which was a fine of $1,200 and disqualification from driving for two years. Mr Charington appeared for himself at the hearing. Two police officers who were on patrol in a car gave evidence. He gave evidence. He did not call any other witnesses. He complained here that he had asked on many occasions for the police brief but had not been given it. The surprise that he really complains about relates to a Transport Department certificate that was tendered at the trial. Dated September 2004 it showed that he was the registered owner of the vehicle in which he was found on the night. He always disputed that and here he puts forward a further certificate from the Transport -- 2 of 7 -- 3 JUDGMENT 1 10 20 30 40 50 60 Department showing that his father was the registered owner of that vehicle. When the certificate was produced he said in Court that he wanted to dispute it. When the police officer was being cross-examined by him he complained, in effect, to that officer that no police brief had been given to him and the certificate was a lie. However, the difficulty for him is that he did not ask the learned Magistrate for any extra time or complain to the Magistrate or in some way ask for a right to challenge in an effective way that part of the evidence. It was not necessarily to an outside observer an important matter. The certificate was not in existence on the night in question. It came into existence a year or so later. He suggests that it went to the honesty of the police officers because he wanted to say that they in effect had fabricated it and that it was completely a lie. The other thing which he complains about is the lack of an opportunity to give some fresh evidence, that is to say from his father, and to show a video that he has taken more recently of the conditions of the road where the car, in which he was either a driver or a passenger, was intercepted. It needs to be understood that generally speaking fresh evidence is not allowed on appeals. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial in the ordinary way. It must be such that if it -- 3 of 7 -- 4 JUDGMENT 1 10 20 30 40 50 60 had been given at the trial it would probably have an important influence on the result of the case though it doesn't have to be decisive. So, it is difficult in situations like this to persuade the Court that fresh evidence should be allowed long after the event of the hearing. I should also say something about Mr Charington's position as a self represented litigant. It is true that someone who is appearing for himself and does not have the advantage of a legal adviser is at a disadvantage, and sometimes a distinct disadvantage, no matter how much a Magistrate or Judge may try to make up for the imbalance. However, it remains a disadvantage. It is not a privilege. If something goes wrong it does not mean that the self represented person will be given a greater right to have a second hearing, which is really what Mr Charington wants to do. In this case, curiously, we know that he had an extensive criminal history at the time, running to six pages in this State. That criminal history tends to give some credibility here to what he says, that he would never confess to an offence of this kind to police officers because of his experience of being arrested and dealing with police on many previous occasions. The paradox is the learned Magistrate quite rightly did not have that information before him, at least not until the stage of sentencing was reached. -- 4 of 7 -- 5 JUDGMENT 1 10 20 30 40 50 60 So, the question remained for the learned Magistrate - were the police telling the truth or not? Could he be persuaded beyond reasonable doubt that he was the driver of the car? If he was the driver of the car, and that was proved beyond reasonable doubt, then he was guilty of driving while disqualified, which is what the Magistrate found. The police officers said that they saw he was the driver when they pulled up slightly behind his vehicle during the night at the side of a road. According to them he agreed that he had been driving. That is the confession which he stoutly denies here ever making, giving reasons why he would never do so. It is quite possible, I think, that Mr Charington is telling me the truth. He says that he was harassed by police, not just because of his criminal history but because of a family reason which he says gave at least some members of the police force reasons to pursue him. He says that it was for those reasons that the confession here has been made up by the police officers. It is also true that the confession was not recorded on a tape-recorder which, though there was no evidence about it, the officers would probably have had with them. In this case the conversation they had with him was recorded in a note book. Both police officers signed it. I might point out that this is a summary charge. The requirements with regard to recording in the Police Powers and Responsibilities Act do not literally apply to this situation. -- 5 of 7 -- 6 JUDGMENT 1 10 20 30 40 50 60 So, the question for this Court is, with all those things in mind, did he have a fair trial? Was the Stipendiary Magistrate wrong in some way in which he conducted the hearing, did he misuse in some way the advantage he had in seeing the witnesses give evidence before him? There were questions of credibility involved, clearly enough. He took into account that he'd seen the witnesses because he recounted that credibility was something he had to decide, and that he'd had the advantage of seeing the parties and listening to the witnesses. He noted that the police had made a written note at the time. He then accepted the evidence of the police officers and said in short that there were some holes in the evidence of the accused, Mr Charington, which meant that he did not accept his version of what he said had happened. He said that he preferred the evidence of the prosecution to that of the defendant and that he accepted the version given by the prosecution. It therefore followed that he convicted him. I have read the outlines here, including Mr Charington's outline, and I have listened to what he has said. I have read all of the transcript. I have read the decision of the Court of Appeal handed up by the counsel for the police here, the decision in Bailey and Costin, Court of Appeal 261 of 1993 QCA 404. This is a case which is familiar enough whereby the appeal Court has to decide whether or not the findings of credibility -- 6 of 7 -- 7 JUDGMENT 1 10 20 30 40 50 60 in the Court below can or should be disturbed. Having heard all that has been said it seems to me that the only available conclusion here is that the decision of the learned Magistrate should not be disturbed. As I say, if I had been hearing the evidence afresh, from what I know about the matter, I may have had a doubt about the truth of what the police were saying, but that is not the issue. Mr Charington has had a trial. In my opinion it is impossible to say that it was not a fair or proper one. Therefore, the appeal must be dismissed. Now, is that the only order? MR HUNGERFORD-SYMES: Yes, your Honour, there's nothing further sought. HIS HONOUR: All right, thank you. That is the order, appeal dismissed and we will adjourn now. ----- -- 7 of 7 --