Donnelly v Warwick [2004] QDC 474

DISTRICT COURT OF QUEENSLAND CITATION: Donnelly v Warwick [2004] QDC 474 PARTIES: JAMES DONNELLY Appellant v WILLIAM PATRICK JOHN WARWICK Respondent FILE NO/S: 21/2003 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Ipswich DELIVERED ON: 2 December 2004 DELIVERED AT: Ipswich HEARING DATE: 15 October 2003 JUDGE: Richards DCJ ORDER: Appeal dismissed. CATCHWORDS: Findings on credit of the witnesses – weight on appeal COUNSEL: Mr Kissick for the appellant Mr Lehane for the respondent SOLICITORS: M A Kent & Associates solicitors for the appellant. DPP for the respondent [1] On 29 November 2002 at approximately 4.36pm Sergeant Stephen Drabble was driving a marked police vehicle. Constable Alana Grundy was in the passenger seat. He was patrolling east on Ash Street and approaching the roundabout at the entrance to Kensington Hills Estate. As he exited the roundabout he saw the appellant driving in the opposite direction. The driver’s side window was down and he saw that the appellant did not have his seatbelt on. The seatbelt was hanging parallel with the door pillar and not across his shoulder. The driver appeared to look at him. [2] As he drove through and exited the roundabout he looked in his rear view mirror and saw the vehicle turn left into a nearby street. He then turned the car around and -- 1 of 4 -- 2 followed the appellant’s car and discovered the car parked in Chelsea Close. At that stage the appellant was still in the driver’s seat and did not have a seatbelt on. The appellant got out of his car as Drabble approached him and met him at the driver’s side door. Drabble says that he then spoke to the appellant as follows: “I am Sergeant Drabble from Yamanto. I have just seen you driving this vehicle in Ash Street and you didn’t have your seatbelt on. Is there any reason for not wearing it? -- No. Do you have a medical certificate that prevents you from wearing the seatbelt? -- No. Why weren’t you wearing it? -- Just stupid. I’ll be issuing a traffic infringement notice for not wearing a seatbelt, do you have your driver’s licence please?” [3] At that stage the appellant kicked the front wheel of his car and said “fuck”. [4] The appellant gave evidence that he was wearing his seatbelt on the roundabout but that when he pulled over shortly afterwards he took off his seatbelt to change a CD in the boot of the car and that when the police pulled up he had not yet put his seatbelt back on. [5] He called his friend who also said that he took his seatbelt off to get out of the car to change the CD. [6] The passenger from Sergeant Drabble’s car, Alana Gundry, was also called. Unfortunately, her evidence was of no relevance because she became confused between this matter and another event. [7] The main complaint by the appellant on this appeal is that the conversation as given by Drabble was a reconstruction from notes made at the time of issuing the infringement notice and as such it is said that the magistrate placed undue weight on that evidence. -- 2 of 4 -- 3 [8] The actual text of the notes was very scant in that it says: “DS window down. Beige belt not on at roundabout. Located in unknown street. Still not on. No med cert. Belt okay. Just stupid. Kicked his tyre. Said fuck.” (transcript page 8 line 30) [9] The appellant submits that these notes could not have aided Drabble’s recollection of the events. [10] The appellant claims that the magistrate in effect reversed the onus of proof by saying that the police intercepted the appellant because he was not wearing his seatbelt and to think otherwise would be “wishful thinking” and that the notes were important in terms of the evidence in the case. [11] An appellate court must be careful not to overturn findings in relation to the credit of witnesses by the court that has had the advantage of seeing the witnesses. This is a well-established principle of law and has been enunciated in many cases, for example, in Devries v Australian National Railways Commission (1992) 177 CLR 472. Brennan, Gaudron and McHugh JJ said at 479: “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’ for which was ‘glaringly improbable.’” [12] In this case the magistrate’s decision turned very much on the assessment of the witnesses, Drabble on the one hand and Donnelly and Smith on the other. The fact that Drabble had some notes which assisted him in remembering the conversation -- 3 of 4 -- 4 even though they were not verbatim, was obviously a matter that influenced the magistrate. [13] In my view the magistrate did not make an error in being influenced by the fact that Drabble had made some notes. Similarly, the fact that the magistrate said that it would be wishful thinking to think that the police officer did not notice the lack of seatbelt, is simply in my view an indication that she did not accept Donnelly as a credible witness. [14] The magistrate made clear findings as to the credibility of the witnesses. She said she found Sergeant Drabble steady and unflappable in his evidence about the essential elements. She found that the corroborating officer gave no useful evidence, and therefore did not act in any way on that evidence. She did not find the appellant to be a credible witness, nor his friend, Matthew Smith. She found Matthew Smith’s evidence was honest but that it may well have been a reconstruction. [15] She considered both versions of the evidence and found that the police officer was giving accurate evidence and therefore the charge was proved to the requisite standard. [16] The magistrate’s judgment very much depended on the impression the witnesses made. In line with the authority of Devries v Australian National Railways Commission [supra] the findings of fact should not be interfered with as they are based on an assessment of the witnesses as they gave their evidence. ORDER The appeal is dismissed. -- 4 of 4 --