Bialek v Police - [2011] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BIALEK v POLICE
[2011] SASC 195
Judgment of The Honourable Justice White
8 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
The appellant was convicted of one count of endangering life or creating risk of serious harm, contary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA), and one count of failing to give particulars following a car crash, contrary to r 287(2) of the Australian Road Rules - she appealed against those convictions.
Whether the Magistrate gave appropriate weight to certain discrepancies in the complainant's evidence; whether the Magistrate made an appropriate assessment of the complainant's recognition evidence; whether the conduct of trial counsel led to a miscarriage of justice; whether the appellant had an opportunity to provide particulars following the crash.
Held: appeal dismissed - the Magistrate appropriately considered the evidence at trial - there is no indication that the conduct of trial counsel led to a miscarriage of justice - the appellant had an opportunity to provide particulars following the crash.
Criminal Law Consolidation Act 1935 (SA) s 29; Australian Road Rules r 287, referred to.
Taylor v Hayes (1990) 53 SASR 282; Fox v Percy (2003) 214 CLR 1881; Warren v Coombes (1979) 142 CLR 531; R v King (1975) 12 SASR 404; Craig v The King (1933) 49 CLR 429; Wheeler v Police [2005] SASC 156; R v Bazan [2010] SASCFC 50; Nudd v The Queen (2006) 80 ALJR 614, considered.

BIALEK v POLICE
[2011] SASC 195
Magistrates Appeal

WHITE J. A Magistrate found that on 13 September 2010, Mrs Bialek had deliberately driven her vehicle into the side of another, thereby causing substantial damage.
The Magistrate then convicted Mrs Bialek of a contravention of s 29(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), which makes it an offence for a person, without lawful excuse, to do an act, knowing that the act is likely to cause harm to another and intending to cause such harm or being recklessly indifferent as to whether such harm is caused.
The Magistrate also found Mrs Bialek guilty of a contravention of r 287(2) of the Australian Road Rules because she had not, as soon as practicable after the collision, given her name and address and the registration of her vehicle as required by that Rule.
Mrs Bialek now appeals against those convictions. Although she had legal representation at the trial, she represented herself on the appeal.
Background Circumstances
The victim of the offence was a Mr Bright. Over a period of about six years ending in 2007, he had been in a relationship with Mrs Bialek’s daughter Jessica. Mr Bright and Jessica have had two children together. However, by the middle of 2010, Mr Bright and Jessica were estranged, and their relationship was acrimonious. The incident on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bialek v Police

Details

AGLC: Bialek v Police [2011] SASC 195
Case: [2011] SASC 195
Decision Date: 8 November 2011

CaseChat Overview and Summary

Mrs Bialek appeals against her conviction for intentionally causing damage to a vehicle, a criminal offence under the Criminal Code. The incident in question occurred on 13 September 2010, when Mrs Bialek allegedly rammed the car of Mr Bright, her daughter’s estranged partner. The case involves issues of witness reliability, the sufficiency of evidence, and the drawing of inferences from circumstantial evidence. The trial magistrate was satisfied beyond reasonable doubt that Mrs Bialek had driven the vehicle that rammed Mr Bright’s car. The Court of Appeal reviewed the evidence and found no reason to interfere with the magistrate’s conclusion. The Court considered that the magistrate’s assessment of the evidence was sound, particularly in relation to Mr Bright’s identification of Mrs Bialek as the driver and the circumstantial evidence linking the vehicle to the incident. The appeal was dismissed, and Mrs Bialek’s convictions were upheld. The Court found that the evidence, both direct and circumstantial, was sufficient to support the magistrate’s findings and that the magistrate’s assessment of the evidence was not flawed. The Court also noted that the absence of witnesses and the lack of collision debris, while surprising, did not undermine the overall reliability of the evidence presented. The decision highlights the importance of a thorough and balanced review of the evidence in criminal appeals, respecting the trial magistrate’s advantage in assessing witness credibility while also ensuring that the Court’s statutory function is properly discharged.

Orders

Orders of the court

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Background

Background to the litigation

Mrs Bialek now appeals against those convictions. Although she had legal representation at the trial, she represented herself on the appeal.Background Circumstances The victim of the offence was a Mr Bright. Over a period of about six years ending in 2007, he had been in a relationship with Mrs Bialek’s daughter Jessica. Mr Bright and Jessica have had two children together. However, by the middle of 2010, Mr Bright and Jessica were estranged, and their relationship was acrimonious. The incident on 13 September 2010 occurred in the context of that acrimony. On 1 September 2010 and after a period of some disputes, the Family Court granted custody of the two children to Mr Bright on an interim basis. Jessica was restricted to supervised access on Sunday afternoons. In contravention of that order, Jessica had retained custody of the two children, leading to the Australian Federal Police removing them from her care on 6 September 2010. The children then lived with Mr Bright at his parent’s home in Craigmore. Jessica lived with Mrs Bialek a short distance away in another street in Craigmore. The evidence suggested that there had been a number of communications of an unpleasant kind between Mr Bright and Jessica. For approximately six years before September 2010, Mr Bright had worked as a security officer at Felixstow. It was shift work, with the day‑shift commencing at 6.00 am. In September 2010, and for some years before, Mr Bright had a metallic blue Holden Commodore with a distinctive registration plate. Mrs Bialek knew both the colour and make of Mr Bright’s car, as well as its registration plate. The prosecution case was that at about 5.00 am on 13 September 2010, Mrs Bialek had waited for Mr Bright to drive along Yorketown Road, Craigmore on his way to work. She was driving a Jeep Cherokee 4WD which had a bullbar fitted. When she saw Mr Bright’s car approaching, she flashed her headlights at him and then performed a U-turn to follow him. Mrs Bialek then overtook Mr Bright, who braked and made a U-turn. Mrs Bialek also made a U-turn and followed Mr Bright. He pulled in to the left‑hand side of Yorketown Road and stopped. The prosecution alleged that Mrs Bialek then deliberately rammed the driver’s side door of Mr Bright’s car with her bullbar, while Mr Bright was still in the driver’s seat. Mrs Bialek then reversed and appeared to be intending to ram Mr Bright’s vehicle again. He then accelerated away at speed, returning to his own home. The prosecution alleged that Mrs Bialek was motivated by animus towards Mr Bright, which arose from the estranged relationship between Jessica and him, and the decisions of the Family Court. The prosecution relied on evidence of both a direct and circumstantial kind. The direct evidence was Mr Bright’s evidence that, in addition to seeing that the other vehicle was a black and white four wheel drive, he had recognised Mrs Bialek as its driver. He said that as the 4WD turned towards his vehicle, immediately before the first ramming, he had a very brief (one second) view of the driver. Although it was dark outside, there was sufficient light from streetlights, shopping centre lights and the dashboard lights for him to see that the driver was Mrs Bialek.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

Jessica Bialek gave evidence which was generally supportive of that of her mother.The Magistrate’s Decision The Magistrate was satisfied beyond reasonable doubt that it was Mrs Bialek’s Jeep which had rammed Mr Bright’s vehicle. He said:[31]The description [Mr Bright] gave of the vehicle matched the vehicle located in the defendant’s carport. I accept Mr Bright’s evidence that he did not know [that] the defendant owned the vehicle at the time. Police attended within an hour of the incident. The engine of the vehicle was warm. The CCTV footage shows that the vehicle had not been driven after 5.12 am. The defendant’s home is a short distance from the location of the incident. There was sufficient time to return before 5.12 am. While the paint analysis is not conclusive, it is a strong piece of circumstantial evidence. Occupants of the household, the defendant and Jessica, loathed Mr Bright. It is beyond coincidence that another vehicle could have been involved. Having found that it was the Jeep owned by Mrs Bialek which had rammed Mr Bright’s car, the Magistrate then considered the evidence concerning the identity of the driver. He rejected as implausible the suggestion in Mrs Bialek’s evidence that some unknown intruder had broken into her house, found the keys in her handbag, taken the Jeep from the carport, used it to ram Mr Bright’s vehicle, and had then returned the Jeep to the carport and the keys to the handbag. The Magistrate then considered that the driver must have been one of Mrs Bialek, Jessica, or Kylie. Jessica gave evidence that she had been in bed at the relevant times. Kylie did not give evidence. The Magistrate considered the possibility that Mr Bright had mistaken Mrs Bialek for Kylie. He noted that there was some family resemblance between Mrs Bialek and Jessica and noted Jessica’s evidence that there had been times when she had been mistaken for Kylie. Ultimately, the Magistrate resolved to accept Mr Bright’s evidence concerning his recognition of Mrs Bialek. He said:[36][Mr Bright] knew Jessica very well and I consider it most unlikely that he would confuse Jessica for the defendant. I also infer from his evidence and accept that he could readily tell Kylie and the defendant apart. I also note that the defendant has a distinctive straight hair cut and wears distinctive large square glasses. Even though Mr Bright is incorrect concerning the exact circumstances in which he saw the driver of the vehicle, I am satisfied that at some stage immediately prior to the collision he did look directly at the driver of the white 4WD and recognised the defendant. The fact that the defendant, unbeknown to Mr Bright, was the owner of a vehicle matching the description he provided, strengthens the reliability of his identification. Kylie had never driven the vehicle before and Jessica had only once. The Magistrate then rejected Mrs Bialek’s evidence that she was not the driver of the vehicle. The Magistrate found the remaining elements of the offence proven beyond reasonable doubt. Approach on appeal

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

On an appeal such as the present, the Court is required to conduct a real review of the evidence. On issues involving an assessment of the quality and reliability of a witness, the Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence given. However, the fact that a magistrate has reached his or her conclusion by an acceptance of the evidence of particular witnesses, and a rejection of that from others, does not prevent the Court from carrying out its statutory function. There may be cases in which incontrovertible facts, uncontested testimony, or the glaring improbability of a Magistrate’s conclusions will, despite a magistrate’s preference for the evidence of a particular witness, warrant this Court’s intervention. Further, if the question is one of inferences to be drawn from facts found or from evidence accepted by a magistrate, this Court can substitute its decision if it comes to a different conclusion as to the appropriate inference to be drawn.[1][1] Taylor v Hayes (1990) 53 SASR 282 at 291-2; Fox v Percy [2003] HCA 22 at [25]-[29], (2003) 214 CLR 118 at 126-8; Warren v Coombes (1979) 142 CLR 531 at 551.Consideration Mrs Bialek’s first group of submissions were directed to Mr Bright’s evidence concerning the collision itself. She drew attention to the absence of any witnesses, the absence of skid marks or debris on the road of a kind commonly seen after a collision, and to an inconsistency in Mr Bright’s description concerning the way in which the collision had occurred. In a sketch plan which Mr Bright drew for the police on the day of the collision, he indicated that the 4WD had been at an angle to his car at the time of impact. This angle was such that it was the front passenger side corner of the 4WD which had hit his car first. However, in his evidence he said that it was the other way round, and marked the sketch plan so as to show the front driver’s side corner of the 4WD striking his car. The damage to Mr Bright’s car as shown in the photographs tendered at trial seems more consistent with impact from the front passenger side corner of the 4WD and, as previously noted, the scuff and scrape marks on Mrs Bialek’s Jeep were on its front passenger side corner. Some of Mrs Bialek’s submissions on this topic seemed directed to whether there had been an incident as described by Mr Bright at all. Other aspects of the submissions seemed to be directed to casting doubt on the truthfulness and reliability of Mr Bright’s evidence more generally. The Magistrate was alert to the discrepancy in Mr Bright’s evidence concerning the angle of approach of the 4WD. He referred to it twice in his reasons and concluded that Mr Bright’s account in his evidence was a result of reconstruction. The Magistrate considered that it was the front passenger side of the bullbar which had rammed Mr Bright’s car. The Magistrate did not make any express reference to the absence of witnesses or road debris. The former was however obvious from the nature of the prosecution case. The latter was a material matter. I agree that it is surprising that the police were unable to locate any collision debris. However, in addition to Mr Bright’s evidence, there was other evidence supportive of the conclusion that a collision had occurred. The photographs of Mr Bright’s car showed damage of a kind consistent with impact from a vehicle travelling at angle towards it. Further, Mrs Bialek’s Jeep had marks and paint consistent with having caused such damage.