Croll v Parton [2004] QDC 434

DISTRICT COURT OF QUEENSLAND CITATION: Croll v Parton [2004] QDC 434 PARTIES: LEONARD THEODORE CROLL (Appellant) v JAY CHRISTIAN PARTON (Respondent) FILE NO/S: 758/2004 DIVISION: Appeal PROCEEDING: Appeal under s 222 of the Justices Act 1886 ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 15 October 2004 DELIVERED AT: Brisbane HEARING DATE: 4 October 2004 JUDGE: Judge Robin QC ORDER: APPEAL ALLOWED CATCHWORDS: APPEAL FROM CONVICTIONS BY MAGISTRATE - Magistrate held not to have directed himself correctly where sole evidence of offence (of cyclist not wearing a helmet) was a police officer’s identification alleged by the defendant in sworn evidence to be mistaken – whether magistrate pressured defendant to plead guilty to a similar charge on another day considered. Justices Act 1886 s 222, s 225 Domican (1992) 173 CLR 555 Amore (1994) 1 WLR 547, 553 Clough v Fergus (1956) QWN 7 Devries v Australian National Railways Commission (1993) 17 CLR 472 Hobbs v Tinling (1929) 2 KB1, 21 COUNSEL: Mr Croll appeared on his own behalf for the Appellant Ms McCormack for the Respondent SOLICITORS: Appellant Self-represented DPP Queensland for the Respondent -- 1 of 16 -- 2 [1] This is an appeal by Mr Croll under s 222 of the Justices Act 1886 against his conviction by a magistrate in Brisbane on 3 February 2004 of offences of “Failing To Stop A Vehicle for Prescribed Purpose and Cyclist Failed To Wear Safety Helmet” on 27 August 2002 in the area of Dawson Parade, Keperra. Mr Croll was dealt with on the same occasion for another offence of failing to wear a helmet in Madison Street, Keperra on 19 February 2003. To that offence he pleaded guilty in unusual circumstances. The penalty imposed was a single fine of $300 for the two helmet offences (costs of court of $61.40 also to be paid) and a $50 fine “in respect of the failing to obey the direction”. [2] My understanding is that the appeal relates only to the earlier matters, in respect of which the magistrate found Mr Croll guilty after a trial. Mr Croll appeared for himself both at trial and in the appeal. Sergeant Timothy James Dachs, named as a respondent in the Notice of Appeal filed 27 February 2004 was the complainant in the 19 February 2003 incident. He had no role in relation to events of 27 August 2002. [3] The appeal should be allowed. [4] Mr Croll’s defence was that he was not the unhelmeted cyclist observed riding from Crampton Street into Dawson Parade at about 2.30 pm by Constable Parton. His assignment was to operate a speed camera located in a van. Constable Parton’s evidence was: “ I was seated in the rear of the speed camera and I was checking – making visual observations of traffic that was coming towards me and past me to the north. Out of the intersection of Crampton Street I observed a male person that I immediately identified as the defendant, Leonard Theodore Croll. His hair was pulled back in exactly the same fashion that he’s wearing it now except it was a -- 2 of 16 -- 3 little bit more sweaty. He was riding a blue mountain bike. He had shorts on and a [indistinct] tee shirt. I could see that he didn’t have a helmet on his head. I fumbled in the camera for – camera van for my hat, and I observed then that the defendant turned right out of Crampton Street and began riding very fast in my direction. I got out of my vehicle, I gave way to a northbound car, raised my hand in the correct stop sign, ran out on to the road and said – and yelled at the top of my lungs, basically, ‘Stop, Leonard.’ The defendant turned to me, smiled, continued riding. I turned and yelled, ‘Stop there.’ He continued to ride up the street. I then returned to the speed camera van, called on the police radio for an officer to come and search for the defendant. Some time later, Sergeant Stemm arrived. He told me that he’s made a patrol of the area but had been unfortunately unable to locate him. We won’t go into what he-----?-- That’s okay. I then completed two infringement notices, one for failing to wear a bicycle helmet and the other one failing to stop for a prescribed purpose. I spoke to the acting superintendent in charge of my district and he authorised me to go to the defendant’s home in Pearse Street, Keperra and give those to him. The defendant wasn’t home at the time. I had a short conversation with his father and, as a result of that, I left those infringement notices in the letterbox.” [5] Constable Parton maintained his version throughout lengthy cross-examination which extended over two days (31 October 2003 and 3 February 2004). The cross- examination was wide-ranging, to the concern of the magistrate, who was at pains to make it clear that he preferred not to have information about Mr Croll’s traffic history (which was considerable) ventilated before him and to declare that he would not be influenced against the defendant by whatever he might learn about it. Mr Croll’s whole purpose was to demonstrate to the court that (consistently with a view I accept he genuinely holds) the “Ferny Grove Police” were pursuing an extended vendetta against him. The explanation he gave for this was that a complaint to the Criminal Justice Commission regarding Sergeant Stemm’s actions towards him (a complaint which it seems was made by his father, Trevor Croll) resulted in disciplinary actions in respect of the officer. Mr Croll’s theory that the infringement notices were part of victimisation of him related to what happened to Sergeant Stemm was clearly set out in his letter of 17 September 2002 to the Chief -- 3 of 16 -- 4 Executive of the Department of Transport (Exhibit 2); the letter also contends that Mr Croll “was not even in Brisbane on the said date.” [6] I have no idea whether Mr Croll’s considerable traffic history owes anything to his having been the subject of particular police interest. It appears to be the case that unsustainable charges have been prosecuted against him from time to time. He was acquitted of three of five charges prosecuted against him in the District Court arising out of what he called “a road rage” incident; having appealed unsuccessfully on the other two to the Court of Appeal, he has taken them before the High Court of Australia. Ms MacCallum SM on 19 September 2003 acquitted Mr Croll of charges of contravening a requirement and of obstructing police (stating “it seems to me that the element of acting in the course of his duty has not been proved to the requisite standard”), while convicting on a charge of driving a motor vehicle on Madsen Street which was not unsafe but was otherwise defective. On 30 May 2000 Mr Smith SM dismissed another charge after his concerns about the police evidence (principally Sergeant Stemm’s) moved him to invite Mr Croll to make a submission of “no case to answer”. There was an appeal to this court (2561 of 2000, 2 October 2000, Judge Forno QC) which was dismissed as having “no legal basis”. Mr Croll’s purpose in appealing seems to have been to avoid being limited in steps he might take by Mr Smith’s “statement” that Sergeant Stemm gave his testimony “openly and honestly”. This appears to be the matter in which it turned out that the Constable who was Sergeant Stemm’s “corroborating officer” had nothing whatever to do with the relevant incident (she apparently told the CJC she had confused it with some other incident). Not only Mr Croll (who stood to suffer adverse consequences directly) but all of us ought to be concerned by a charge prosecuted in such a manner. -- 4 of 16 -- 5 [7] Typical of Mr Croll’s assertions to Constable Parton are the following (at p 55 of the transcript): “DEFENDANT: I put it to you, the reason why we are here today is because you and Sergeant Stemm are trying to get me back for Sergeant Stemm being disciplined by the CJC Ethical Standards Command and then you are ….? … You’re not worth the time, Leonard.” The magistrate strove to focus on events of 27 August 2002 in Dawson Parade. In the circumstances, I think that the nature of the defence was such that a certain amount of latitude had to be permitted Mr Croll to canvas other police matters. The way things developed at the trial, although evidence of court proceedings which Mr Croll placed before this court may have been excluded by the magistrate, the general background received considerable mention. The CJC’s communications to Mr Trevor Croll were admitted into evidence. [8] Mr Croll does not help himself by his resort to intemperate language. His documents filed in the appeal accused the Learned Magistrate of “extreme bias”, even “invincible bias”. In oral argument in this court, Mr Croll did not pursue that claim, nor others, such that a bicycle is not a “vehicle” so as to authorize a police officer’s issuing requirements or directions.1 It should be stated that perusal of the full transcript reveals nothing to support a claim of bias. Indeed, the magistrate took great care to provide a fair hearing, allowing Mr Croll considerable indulgence in his cross-examination of Constable Parton and his questioning of Sergeant Stemm (called as a defence witness). That said, if one imagines oneself in Mr Croll’s position, with his general view of the police, the magistrate may have appeared 1 See s 51 of the Police Powers and Responsibilities Act 2000 and the relevant definition of “vehicle” in Schedule 4, which brings in Schedule 4 of the Transport Operations (Road Use Management) Act 1995: “includes any type of transport that moves on wheels and a hovercraft, but does not include a train or -- 5 of 16 -- 6 unduly favourable to them. He appeared determined to exclude material which might be taken as pointing to police harassment of Mr Croll (notably by his approach that only what happened on 22 August 2002 was of interest to the court). The magistrate refused to accept there was any relevance in the tape Constable Parton made of his conversation with Trevor Croll, which tape apparently went missing, for unexplained reasons, by the time of the second day of trial, when Mr Croll’s interest in it had been made clear on the first day. [9] Mr Croll may have assessed that he was appearing before a hostile tribunal, but the magistrate was apparently being helpful in seeking to elicit his case in putting some questions to him at p 62: “Well first it would be wise if you tell me this incident relates to the 27th of August 2002. I suppose the best place to start is to tell me what you were doing on this particular day and then go from there? - - Okay, your Worship. On the 27th of August 2002, I was not even in Brisbane. Okay, where were you?-- If it please the Court, your Worship, I don’t wish to state for – in case I need to use that as further evidence at another stage. Well, I can only act on the evidence you give before me. It’s a matter for you but if you don’t tell me how can I be persuaded in the evidence that’s given in this Court?-- I understand, your Worship, but I’m telling you on the Bible that I was not in Brisbane. All right, yes? Your Worship, also if I can put, I have medical records here with me today to prove that on the weekend of the 10 th of August 2002 I was in Nambour General Hospital. I had an operation in there to resuture a wound to my right hand. As part of this operation I was put in a slab which is a plaster cast on my right arm. Now I was released from hospital on the 11th of August 2002 as these records state.” [10] The magistrate took an indulgent approach in receiving the hospital records into evidence. Mr Croll’s sworn evidence was that his injured arm (which contained a train”. One wonders about the status of roller skates, skateboards, unicycles, strollers, perambulators, -- 6 of 16 -- 7 fracture) was in plaster for three or four weeks. It was established in the cross- examination which followed at p 67 that the Croll family had a mountain bike which Mr Croll occasionally rode. The cross-examination continued: “And do you own a helmet? -- Ah, yes, I did own a helmet, um, but it was stolen off a job site. I don’t know what exactly the day ---- But on the 27th of August 2002, did you own a helmet at that point in time? -- Um, I’m – I’m not sure. You’re not sure?—No. Okay? -- Um, if – if it helps you, um, the helmet charge to which his Worship said I should plead guilty to ---- BENCH: Well, I didn’t say you should plead guilty. At no time I indicated you should plead guilty to any charge? -- Well, you stated to me, ‘Were you riding the pushbike?’ The record will bear me out that in no way did I influence you in pleading guilty in relation to that charge?-- Okay. Um, if you go back----- And as I’ve indicated, I take no adverse inference from that. The only reason that you’ve entered a plea of guilty is because you indicated clearly to this Court that you were not riding a helmet – riding a bike with a helmet on that occasion?-- As I stated, I had reason ----- But as I say, I don’t want to delve into that issue because that’s put aside, we’re only dealing with this matter. SGT RATTRAY: So Mr Croll, you say you weren’t in Brisbane at 2.30 on the 27th of August 2002? -- That’s correct. But you won’t disclose to the Court where you were? -- Um, no, I won’t. For the simple reason that, um, I’ve had dealings with the Ferny Grove police, I know to what extent they are out to get me and I’m not – I need one more avenue of proof so I have my ----- Well, do you intend to call any witnesses to tell us where you were at that time? -- no, I don’t feel I need to.” [11] Odd as it seems that Mr Croll was so circumspect about his actual whereabouts on the day of 27 August 2002, he was giving reasons for that approach other than the supermarket trolleys, etc. -- 7 of 16 -- 8 reason the magistrate may well have inferred, namely that he was guilty. I do not say this to be critical of the magistrate, but Mr Croll could be forgiven for regarding the court as likely to be unreceptive to anything he might say about his whereabouts. [12] I would respectfully differ from the magistrate as to what “the record” shows in respect of the guilty plea. When asked to plead in relation to the 19 February 2003 matter, Mr Croll said “Given the circumstances, Your Worship, Not Guilty.” There followed (from p 4) this exchange: “BENCH: Now, you wish to raise an issue about hearing the matters together, is that right? DEFENDANT: Yes, I do, your Worship. BENCH: What’s your objection in that regard? DEFENDANT: Your Worship, these matters are of a similar nature but they are alleged to have occurred on totally separate dates. I feel that if these matters were all – these separate matters were to be heard on the same date there could be a possibility of bias drawn towards myself. If I were to be found guilty for one of those charges, I feel there is a possibility of bias towards myself could arise because the charges of a similar nature. I feel that in order to have a fair trial for all the matters ---- BENCH: As I understand your defence, you are saying that you wore your helmet – you deny that you did not wear your helmet on each occasion. Isn’t that right? DEFENDANT: Um---- BENCH: Because you’ve pleaded, not guilty, to both. DEFENDANT: On the single charge of failing to wear a bicycle helmet, your Worship –um – that’s – that’s why I’d like to have heard – heard separately because there are---- BENCH: But they are both the same offence are they not? You either did or you didn’t wear your bicycle helmet on each occasion. Is that not the case? Are you saying you did as opposed to the complaint saying you didn’t. -- 8 of 16 -- 9 DEFENDANT: There’s – um – circumstances, your Worship, as to – for different circumstances for each of these cases, your Worship. BENCH: Oh, I realise the different circumstances, but putting aside the circumstances, the issue to be resolved here is that you either had your helmet on and it was properly, securely – that it was properly fitted and fastened or it wasn’t. And you are saying that on each occasion you had your helmet on and it was properly fitted and fastened, aren’t you? Isn’t that what you are saying? DEFENDANT: Your Worship, I feel I am being pressured into answering that question. I’d – it’s not what I’m saying. BENCH: Well, see you pleaded, not guilty. So, if you pleaded, not guilty, therefore it follows in that you are denying – as alleged in this complaint, you disagree with the complaint in that you did wear a helmet. Because it says, you failed to wear one. So, by pleading, not guilty, you are saying you did wear one. And the complaint says that it was not securely fitted and fastened. So, by pleading, not guilty, you are saying it was properly fitted and fastened. DEFENDANT: I understand your Worship. BENCH: Do you understand what I am saying? DEFENDANT: Yes I do. BENCH: So, it actually follows from a plea of “not guilty” that that’s the issues that you are going to raise. Is that not the case or is that the case or not? DEFENDANT: In the case dated the 19th of February, your Worship, there are circumstances----- BENCH: What circumstances do you intend to allege in relation to that matter? DEFENDANT: Your Worship, I was not wearing a helmet. But I explained to the police officers – both police officers my reasons for what happened. And, I feel, that if – if I don’t have a hearing to do with that, then I can’t put forward to yourself----- BENCH: You’re saying you weren’t wearing a helmet? DEFENDANT: Pardon? BENCH: You’re saying you weren’t wearing a helmet? DEFENDANT: On the 19th of February, I did not have a helmet on, but there was circumstances as to why----- -- 9 of 16 -- 10 BENCH: So, how can you plead ‘not guilty’? DEFENDANT: Pardon? BENCH: How can you plead ‘not guilty’? There may be circumstances----- DEFENDANT: Not guilty----- BENCH: -----I misunderstand, Mr Croll. So far as the law is concerned you have a complaint which says that you didn’t wear your helmet. If, in fact, you weren’t wearing your helmet, then clearly you cannot plead ‘not guilty’. If you have some circumstances that may go towards whether you should receive a penalty or what that penalty may be, they are other circumstances. but they go – but they don’t go to the offence. They go to the question of sentence. You have two aspects, one of whether you are guilty of the offence and you should be convicted. And the second aspect is what sentence, if any, the Court should impose. They are two separate issues. And what I’m dealing with, at this stage, is the first part of the case. And, that is, whether you, in fact, did do what the complaint said or you didn’t do what the complaint said or you didn’t do what the complaint said. Once that’s been proven, then we get to the other issues about sentence and facts and circumstances surrounding them. What may be in dispute about that. DEFENDANT: Okay. BENCH: So, do you want to reconsider your plea in respect of that now? DEFENDANT: Ah – after you’ve explained it like that, your Worship, I feel that I have no choice. I have to. BENCH: Plead ‘guilty’ to the offence because you are clearly indicating to me that you didn’t have your bicycle helmet on. DEFENDANT: Yes. No, I didn’t, your Worship. I didn’t. BENCH: So, do I understand, then, what you are telling me, quite honestly, is that you rode this bicycle on Mooney Street, Keperra and that you didn’t have your bicycle helmet on at the time? Is that right? DEFENDANT: Yes, that’s correct, your Worship. BENCH: But what you want to explain to me is some of the circumstances surrounding that? Is that okay? Is that the situation? -- 10 of 16 -- 11 DEFENDANT: Yes, your Worship. BENCH: Well, very well. Having explained that to you and I don’t wish to pressure you. But I have told you what the law is and what your situation is. To that offence on the 19th of February, now, how do you plead? DEFENDANT: Guilty, your Worship. BENCH: Very well. So, do we come to the – now, to the 27th of August – and I should indicate I’ll give you that opportunity to explain matters to me about the 19th later on. But I want to dispose of that first element or issue that we’ve talked about. Moving to the offences on the 27th of August 2002. Is the same position – is it the same position there so far as the bicycle helmet is concerned? DEFENDANT: I am not guilty, your Worship.” While recognizing that the atmosphere in the court may have put a very different complexion on things, to a reader of the transcript, the conclusion that the court did put pressure on Mr Croll to plead guilty is difficult to avoid. The consequence (among others) was that, for whatever it may have been worth, the claim that Mr Croll’s helmet had just been stolen (although elliptically adverted to in a passage set out above) was not mentioned to the magistrate until the sentencing stage, after he had convicted Mr Croll on the matters that remained contentious. It is a matter of pure speculation whether the guilty plea, which the magistrate may have assessed was a reluctant one, might have had some subliminal effect in making it more easy for the magistrate to reach the conclusion that Mr Croll had done something similar on 27 August 2002. [13] In the circumstances, Constable Parton had no cause to give a description of the law breaking cyclist, being convinced it was Mr Croll. In cross-examination he suggested the shorts may have been grey corduroy, and that the t-shirt was “light coloured”. He could not say anything about wrist bands and could not recall -- 11 of 16 -- 12 anything in the nature of a plaster cast. One would think that if the miscreant had been sporting a plaster cast or any kind of obvious bandage that would have attracted the notice of anybody. A cyclist’s arms are easy to see. It may be surprising that Constable Parton could not commit himself one way or the other. [14] After the long exchange leading to the change of plea, the magistrate (p 7) summed up the issue: “It’s a question of identity… the complaint’s alleging that it was you at the time and you are going to be giving the evidence here, today, or putting forward evidence that it wasn’t yourself?” [15] The magistrate’s reasons were brief: “BENCH: The onus in these proceedings, as I stated at the outset, is upon the complainant to prove all elements of the offences beyond a reasonable doubt. The date, time and place of the offence are not in dispute. The only issue in dispute is whether it was the defendant who rode the bicycle at the relevant time. The defendant has chosen to present his own defence. The record will bear me out when I state that every possible assistance and a great deal of latitude was afforded in an endeavour to allow him to conduct his case. However the Bench can only proceed so far without crossing from its neutral position to one of seemingly unduly assisting either party. I have had the opportunity of course of observing the demeanour of the witnesses as each has given their evidence before me. I accept the evidence of Police office Parton and reject that of the defendant. It is clear upon the evidence that the defendant was immediately recognised by Officer Parton. Both Officer Parton and the defendant are readily known to each other. The identification was made in circumstances where Officer Parton was standing some two metres from the defendant when he called upon him to stop. The defendant has simply given evidence that he was not in Brisbane on the day in question. Well that evidence is inconsistent in that the defendant has stated that he collected the notices from the mail box at his residence late on the day on which the very offences are alleged to have occurred. -- 12 of 16 -- 13 The defendant has further raised that he was wearing a plaster cast on his arm due to an operation at or about that time. The medical evidence produced to this Court does not disclose that the defendant’s arm was in a cast on the day in question. The nature and type of the cast is also not known. In any event, Officer Parton’s familiarly with the defendant and the length of time that has passed since the incident occurred it is not unreasonable that he may not have noticed such cast given the brief moment in time that he observed the defendant. On the whole of the evidence I am satisfied that the complainant has proved all elements of these offences beyond a reasonable doubt and I find the defendant guilty of each offence.” [16] It seems to me there is a troubling inconsistency between the confidence expressed regarding recognition of features of the cyclist in the area of his head and the excusing of Constable’s Parton’s failure to observe the absence or presence of a plaster cast given the “brief moment” of observation. The reasons make no mention of the fast speed of the cyclist (estimated by Constable Parton at 25 kph), or (even for the purpose of excluding it) of any considerations of animus, although both police officers conceded that they did not like Mr Croll. Further, in my opinion it is impermissible to point to Mr Croll’s being in Brisbane late on 27 August 2002 when he collected the infringement notices as inconsistent with his claim of being out of Brisbane on the day, a claim committed to writing (Exhibit 2) within three weeks. I am concerned that this asserted inconsistency may be the basis of the rejection of the defendant’s evidence (which does not necessarily make the police officer’s true, as Scrutton LJ’s dictum about going to Rome on May 1 in Hobbs v Tinling (1929) 2 KB 1, 21 famously points out). [17] I felt misgivings about these convictions throughout the hearing of the appeal. The essential problem about them became clear to me only afterwards, upon reading the whole transcript including exhibits and reflection. -- 13 of 16 -- 14 [18] The question for a judge hearing an appeal under s 222 is not whether he or she entertains a reasonable doubt after consideration of the evidence. The appeal is to be treated as one from a jury’s verdict. A conviction may be set aside only if there had to be a reasonable doubt in the mind of any reasonable fact finder – or in other circumstances, such as an error of law having been made. There can be occasions when the appeal court, unable to do justice by resolving a conflict of evidence given at trial, requires a full rehearing, as in Clough v Fergus (1956) QWN 7. [19] In the present matter, my conclusion is that the magistrate failed to direct himself correctly, given that the matter was a pure “identification” case, dependent on the correctness of Constable’s Parton’s disputed identification. It must be acknowledged that the reasons given contain some enumeration of features pointing to the identification as accurate, but there is not so much said about those which point to its possibly being inaccurate. I would not have felt the same difficulty with the convictions had the magistrate expressly or in some other way acknowledged the caution which he (like a jury) should have exercised in deciding the issue of identification. I acknowledge, as Devries v Australian National Railways Commission (1993) 17 CLR 472 requires that I do, the advantage the magistrate had in assessing the credibility of witnesses (even though I had a considerable time myself in which to form a view of Mr Croll). [20] The leading case is Domican (1992) 173 CLR 555, in which six judges of the High Court said at 561: “Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue. -- 14 of 16 -- 15 Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.” At page 565 their Honours said: “The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused.” [21] The Domican approach is taken elsewhere. In Amore (1994) 1 WLR 547, 553 the Privy Council spoke of: “The importance of warning juries … of the danger that an honest witness, who is convinced of the correctness of his identification and gives his evidence in an impressive manner, may yet be mistaken” (Cited in the Queensland Supreme and District Courts’ Benchbook 49.1 Note 3. The Benchbook enjoins judges to instruct juries that “notorious miscarriages of justice have sometimes occurred in such situations.” In Amore, it was held that -- 15 of 16 -- 16 reference to such miscarriages of justice elsewhere was not necessary, as it was not shown there had been any in Jamaica.) The magistrate here seems not to have been troubled by the thought that Constable Parton might have been mistaken. He misdirected himself or appears to have done so; he did not demonstrate (as ought to have been done in the circumstances) that he was following the approach in Domican. [22] The court ought to hear the parties in respect of what orders should to be made other than setting aside of the convictions in respect of the 27 August 2002 matters, and the fines and court costs ordered in respect of them. It may be necessary to split the $300 fine by allocating some part of it to the offence on 19 February 2003. [23] The contentious convictions impress me as relating to relatively trivial matters, not necessarily justifying a further two day trial. The respondent would face a considerable task to persuade me that the public interest required the matter to go back to the Magistrates Court under s 225(2) of the Justices Act – or that, in the circumstances, any substantial penalty is called for in respect of 19 February 2003. -- 16 of 16 --