Crozier v Coelho

[2002] WASCA 21

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   CROZIER -v- COELHO [2002] WASCA 21

CORAM:   McKECHNIE J

HEARD:   24 JANUARY 2002

DELIVERED          :   24 JANUARY 2002

FILE NO/S:   SJA 1103 of 2001

BETWEEN:   JAMES SAMUEL DONALD CROZIER

Appellant

AND

PHILLIP BERNARD COELHO
Respondent

Catchwords:

Appeal - Sufficiency of evidence - No new principles

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms J A Girdham & Ms H K Ward

Respondent:     Ms J T Fisher

Solicitors:

Appellant:     State Director of Public Prosecutions

Respondent:     Justine Fisher

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Chamberlain v The Queen (1984) 153 CLR 521

Davern v Messell (1984) 155 CLR 21

R v Benz (1989) 168 CLR 110

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306

Wing Luck Foods v Lay Choo Lim [1989] WAR 358

1. McKECHNIE J:  This is an appeal by the prosecution on the basis of findings of fact which it is said were so against the evidence and the weight of evidence as to demonstrate a fundamental misunderstanding of the Crown case so that the parties were thereby deprived of a fair trial according to the evidence. 

2. This ground is extensively particularised and has been exhaustively canvassed in both the written and oral submissions.  There are further grounds that the Magistrate failed to consider the alternative verdict and that he erred in his interpretation of "pursue" as that word is found in the Criminal Code.

3. The respondent was charged with stalking.  It was alleged that he pursued the complainant with intent to intimidate her contrary to the Criminal Code s 338E(1).

4. As the Magistrate correctly recognised, and as the appellant conceded, the central issue was the identification of the respondent by the complainant as the person driving the car which followed her from at least the South Terrace intersection on the Kwinana Freeway, off the Freeway at Thomas Road, through Oakford, and ultimately to the Kwinana Police Station.  The latter part of the journey, from west on Thomas Road off the Freeway, was conceded by the respondent as the path he took.

5. Although the appellant has endeavoured to show factual evidentiary errors on the part of the Magistrate, the real submission seems to be that he accorded too little or too much weight to particular matters.  The Magistrate's reasons commence with a recitation, largely without comment, of the evidence in the case.  Having done so he posed the question at page 257:

   "Since the defendant admits having driven over that part of the route which extends west but adamantly denies ever having been east of the Freeway the central issue becomes the question of the reliability of the identification of the vehicle which the complainant believed was following her over the whole of the route.

   This is because the defendant has offered a plausible explanation for his having been driving over that part of the route commencing at the intersection of the Freeway and Thomas Road and terminating at the Kwinana Police Station. ..."

6. The Magistrate then dealt with the question of identification in this way:

   "Although there is evidence from the complainant that she identified the same vehicle as the one that had followed her partly on the Freeway and partly on Thomas, Cummings, Orton and King Roads, the court must be cautious in accepting identification evidence from a complainant who was undoubtedly panic‑stricken and at times hysterical, and who admits that she was not really aware of the make of the vehicle until informed by the police and who was purporting to identify a dark‑coloured vehicle at night without noting any registration number.

   There is no doubt in my mind that the complainant genuinely believed and believes that the vehicle following her east of the Freeway was the same vehicle but, having said that, there must be doubt that the complainant was making a cool and careful identification and I believe that it would be dangerous to make findings adverse to the defendant for the reasons stated above on the complainant's evidence alone.

   The only positive identification of the vehicle following the complainant's vehicle was that of the complainant's mother at a point along the route where the defendant himself admits having driven in his intended journey to Mandurah.  Whilst the defendant's reasons for driving to Mandurah at that time of night, in order to contemplate his future with his wife, may be unusual that alone does not cast sufficient doubt upon his evidence to render it incredible."

7. It is the case that the complainant was, very understandably, distressed.  The weight to be attributed to the effect of that distress on the complainant's reliability in identification was a matter for the Magistrate.  The Magistrate concluded his reasons in this manner:

   "Having considered all of the evidence and having been particularly conscious of the need to take great care when assessing identification evidence – and indeed, the cases on identification evidence whilst they normally relate to human faces and identification of human beings still apply to an equal extent to vehicles which the defendant is said to be driving – I am not persuaded to the criminal standard that the defendant drove any part of the route situated east of the Kwinana Freeway.  Although I am satisfied that he did drive west down Thomas Road along the route related by the complainant, I cannot be satisfied to the criminal standard that he did not do so with innocent intentions unrelated to any pursuit of or even knowledge of the complainant."

8. I am not persuaded that the Magistrate palpably misused the advantage he enjoyed in assessing the demeanour of the witnesses, nor am I persuaded that his factual findings were wrong to such an extent necessary as to set aside his finding.  He attributed different weight to that which the appellant would urge upon me but in the main he made few factual errors.

9. Finally, I am unpersuaded that the decision was so perverse that no reasonable Magistrate could have reached it.  In fact, this was an unremarkable trial following which the Magistrate was not able to be satisfied beyond reasonable doubt.  It may have been that another Magistrate might have been satisfied but that is not the test.

10. Ground 1 of the appeal is not made out.  Grounds 2 and 3 do not therefore fall for consideration and I dismiss the appeal.