Davies v Commissioner of Police
[2018] QDC 201
•10 October 2018
DISTRICT COURT OF QUEENSLAND
CITATION:
Davies v Commissioner of Police [2018] QDC 201
PARTIES:
DAVIES, John James
(appellant)
v
COMMISSIONER OF POLICE
(respondent)
FILE NO:
BD 4898/17
PROCEEDING:
Appeal against conviction
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
10 October 2018
DELIVERED AT:
Brisbane
HEARING DATE:
31 August 2018
JUDGE:
Judge AJ Rafter SC
ORDER:
Appeal dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – s 222 Justices Act - where the appellant was convicted following a summary trial of one charge of failing to stop a motor vehicle – where a police officer issued an evasion offence notice pursuant to s 755 Police Powers and Responsibilities Act – where the appellant failed to comply with that notice – where a witness gave evidence that he was with the appellant at the relevant time – whether the appellant has proved on the balance of probabilities that he was not the driver of the motor vehicle when the offence happened.
Justices Act 1886 (Qld) s 222
Police Powers and Responsibilities Act 2000 (Qld) s 754, s 755, s 756
Bode v Commissioner of Police [2018] QCA 186, considered
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
McDonald v Queensland Police Service [2017] QCA 255, appliedR v BCB [2011] QCA 314, cited
COUNSEL:
S G Bain for the appellant
K L Jones, solicitor for the respondent
SOLICITORS:
A W Bale & Son Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent
Introduction
The appellant was charged that contrary to s 754(1) and (2) Police Powers and Responsibilities Act 2000 (“PPRA”) he failed to stop his motor vehicle having been given a direction to stop by a police officer. The charge was as follows:
“That on the 6th day of December 2015 at East Brisbane in the Central Division of the Brisbane Magistrates Court District in the State of Queensland (the appellant) being the driver of a motor vehicle namely motor car having been given a direction to stop the said motor vehicle by a police officer namely Constable Marshall exercising a power under an Act and using a police service motor vehicle failed to stop the said motor vehicle as soon as reasonably practicable in circumstances where a reasonable person would stop the motor vehicle.”
The appellant’s trial was held in the Magistrates Court at Brisbane on 22 November 2017. He was found guilty of the offence.
The following day the appellant was sentenced to the minimum period of imprisonment of 50 days served wholly in a corrective services facility.[1] The appellant had spent 200 days in pre-sentence custody consisting of 1 day on 16 December 2015 and 199 days from 14 February 2017 to 31 August 2017, so it was declared that he had served the sentence of imprisonment. The appellant was disqualified from holding or obtaining a Queensland driver licence for two years.[2]
[1]s 754(2) PPRA.
[2]s 754(3) PPRA.
The grounds of appeal
By notice of appeal filed 20 December 2017 the appellant appealed against the conviction on the following grounds:
·whether the learned magistrate erred in law in her interpretation and application of s 754 of the PPRA in conjunction with her interpretation and application of s 757 evidentiary provisions.
·whether the learned magistrate erred in convicting the appellant against the weight of admissible evidence and by her consideration of irrelevant evidence.
The appellant’s written outline of submissions filed 20 February 2018 sought to amend the grounds of appeal.
The first ground of appeal as expressed in the written outline of argument is that:
“The learned Magistrate erred in law in her interpretation and application of sections 755, 756 & 757 Police Powers & Responsibilities Act.
The ground of appeal as stated in the outline of argument varies from the notice of appeal by omitting reference to s 754 and adding the provisions in s 755 and s 756.
The appellant’s written outline of argument did not expand on any errors in law made by the magistrate in the interpretation and application of the relevant provisions of the PPRA. On the hearing of the appeal, Ms Bain who appeared for the appellant did not contend that the magistrate made any such error.
The second ground of appeal contended that the magistrate erred in convicting the appellant against the weight of the admissible evidence and by a consideration of irrelevant evidence. The written outline of argument on behalf of the appellant did not refer to any irrelevant evidence. On the hearing of the appeal Ms Bain accepted that the magistrate did not have regard to any irrelevant evidence.
The outline of argument on behalf of the appellant sought to add an additional ground of appeal that “the verdict was unreasonable and cannot be supported having regard to the evidence.” Ms Jones who appeared for the respondent did not oppose the amendment to the notice of appeal.[3]
[3]Outline of submissions for the respondent at [11].
The notice of appeal or the grounds of appeal may be amended pursuant to s 224(1)(c) Justices Act 1886. Leave to amend the grounds of appeal should therefore be allowed.
In view of the concessions made by Ms Bain, the appellant’s argument is essentially that the magistrate erred in convicting him against the weight of the evidence, and that the verdict was unreasonable and cannot be supported having regard to the evidence.
The ground of appeal is expressed in terms contained in s 668E(1) Criminal Code which applies to appeals to the Court of Appeal where the appellant was convicted on indictment. It was pointed out by Bowskill J in McDonald v Queensland Police Service[4] that s 668E(1) of the Criminal Code does not apply to appeals to the District Court pursuant to s 222 Justices Act 1886.
[4][2017] QCA 255 at [64].
Further, as was pointed out by McMurdo JA in Bode v Commissioner of Police[5], a ground of appeal that the verdict is unreasonable and cannot be supported having regard to the evidence carries the risk that the court may be misled into considering that the appeal is analogous to an appeal to the Court of Appeal pursuant to s 668E Criminal Code.
[5][2018] QCA 186 at [39].
Nature of the appeal
An appeal to the District Court pursuant to s 222 Justices Act 1886 is by way of re-hearing on the evidence before the Magistrates Court unless leave is given to adduce fresh, additional or substituted evidence: s 223.
An appeal by way of re-hearing involves the appellate court conducting a “real review” of the evidence given at the trial. In Robinson Helicopter Company Inc v McDermott[6] the High Court said:
“A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”
[6](2016) 90 ALJR 679, 686 – 687; [2016] HCA 22 at [43]. (footnote references omitted)
In Fox v Percy[7]the plurality of Gleeson CJ, Gummow and Kirby JJ said:
[7](2003) 214 CLR 118, 126 – 127; [2003] HCA 22 at [25]. (footnote references omitted)
“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in…operation”.
In McDonald v Queensland Police Service[8] Bowskill J said that:
“It is well established that, on an appeal under s 222 by way of re-hearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”
[8][2017] QCA 255 at [47]. (footnote references omitted)
In conducting a review of the evidence any advantage the magistrate had in seeing and hearing the witnesses should be considered.[9]
The relevant provisions of the PPRA[10]
[9]Mbuzi v Torcetti [2008] QCA 231 at [17]; Commissioner of Police v Toomer [2011] QCA 233 at [21]– [22].
[10]The relevant provisions of the PPRA were amended by the Police Powers and Responsibilities and Other Legislation Amendment Act 2018, No 20 of 2018, which commenced on 20 September 2018. The provisions applicable to this appeal are those in force at the time of the offence.
The offence provision is s 754 PPRA which states:
“754 Offence for driver of motor vehicle to fail to stop motor vehicle
(1) This section applies if, in the exercise of a power under an Act, a police officer using a police service motor vehicle gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving.
(2) The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances.
Minimum penalty—50 penalty units or 50 days imprisonment served wholly in a corrective services facility.
Maximum penalty—200 penalty units or 3 years imprisonment.
...
(4) An offence against subsection (2) is an evasion offence.”
A police officer investigating an “evasion offence” may give the owner of a motor vehicle an “evasion offence notice” requiring the owner to give a declaration within four business days: s 755 PPRA.
A person who has been given an evasion offence notice and does not provide the required declaration is taken to be the driver of the vehicle involved in the evasion offence by virtue of s 756 PPRA, which provides:
“756 Who may be prosecuted for evasion offence if no response to evasion offence notice[11]
[11]This provision was amended by s 41 Police Powers and Responsibilities and Other Legislation Amendment Act 2018 by adding subsections (5) to (11) which restrict the ability to rely on evidence that should have been contained in a statutory declaration under s 755.
(1) This section applies only if—
(a)a police officer gives an evasion offence notice to a person under section 755; and
(b) the person given the notice does not give a declaration as required under that section within the time required under that section.
(2) The person is taken to have been the driver of the motor vehicle involved in the evasion offence to which the evasion offence notice relates even though the actual offender may have been someone else.
(3) If the actual offender is someone else, subsection (2) does not affect the liability of the actual offender, but the person and the actual offender can not both be punished for the offence.
(4) In a proceeding for an evasion offence, started against a person because of this section, it is a defence for the person to prove, on the balance of probabilities that the person was not the driver of the motor vehicle involved in the offence when the offence happened.”
Factual overview
On 6 December 2015 police officers from the Public Safety Response Team were conducting patrols in an unmarked LandCruiser vehicle. At approximately 10.30 pm the police attempted to intercept a silver Commodore utility on Elfin Road at East Brisbane. The vehicle had been pursued with lights and sirens for a brief period.[12] The Commodore utility stopped at a red light and the unmarked police vehicle pulled up next to it. One of the police officers then approached the driver’s side window of the utility but it sped off through the red light. The tinting on the windows of the utility was dark and the police were unable to identify the driver. In accordance with police policy, the Commodore utility was not pursued.
[12]A direction to a driver may be given by a police officer displaying warning lights and sounding an alarm to attempt to intercept the vehicle: s 748(2) PPRA.
The appellant had purchased the Holden utility on 13 November 2015. The seller of the vehicle had given the appellant a roadworthy certificate and signed transfer of registration documents. However, as at 6 December 2015 the transfer of registration had not actually taken place.
The seller of the vehicle had personalised number plates on it which he removed at the time of the sale. The number plates on the vehicle observed by the police appeared to be false plates bearing the same letters as the personalised number plates belonging to the seller of the vehicle.[13]
[13]Transcript p 8 lines 25-35.
The appellant was given an evasion offence notice on 14 December 2015 requiring that he provide a signed statutory declaration within four business days stating, among other things, the name of the person believed to be using the vehicle at the time when the evasion offence occurred.[14]
[14]Exhibit 3.
The appellant failed to comply with the evasion offence notice and was therefore deemed by s 756(2) PPRA to be the driver of the vehicle involved in the evasion offence.
The main issue at the trial was whether the appellant established the defence in s 756(4) PPRA that on the balance of probabilities, he was not the driver of the vehicle involved in the offence when the offence happened.
The prosecution case
At the commencement of the trial it was formally admitted by the appellant’s solicitor that the appellant purchased a 2006 Silver Holden commodore utility on 12 November 2015. It was also admitted that on 14 December 2015 the appellant was served with the evasion offence notice which was due to be responded to by 18 December 2015.[15] It appears to have been common ground that the appellant failed to comply with the evasion offence notice within the stipulated time.[16]
[15]Transcript p 3 lines 10-20.
[16]Transcript p 3 line 45 to p 4 line 1.
The prosecution called three witnesses:
· Constable Grant Marshall, the front seat passenger in the police vehicle;
· Senior Constable Shane Wright, the driver of the police vehicle;
· Alexander Hurst, the previous owner of the Holden commodore utility.
Constable Marshall said that he was conducting patrols in an unmarked LandCruiser in the Fortitude Valley area together with Senior Constable Jonathan Kirkman and Senior Constable Shane Wright. At approximately 10:30pm on Sunday 6 December 2015 he observed a silver commodore utility bearing Queensland registration number AGH. The vehicle had pulled in front of the police vehicle before the merge onto the Story Bridge. As the police followed the vehicle they conducted a series of checks on it. Constable Marshall said that the number plate appeared not to be a proper number plate. A check on the police QLiTE device revealed that there had been a prior incident on 26 November 2015 where there was an attempt to intercept the vehicle.[17]
[17]Transcript p 8, lines 25-40.
Constable Marshall described the police following the vehicle and attempting to intercept it. The lights and sirens on the police vehicle were activated.
The police vehicle stopped beside the Commodore utility on Elfin Street at the intersection with Vulture Street. Constable Marshall approached the vehicle, but when he was about half a metre away, the vehicle accelerated and proceeded through the intersection against a red light. The Commodore proceeded along Vulture Street. There were vehicles travelling along Vulture Street that were forced to stop in order to avoid a collision.
The Commodore utility had a dark window tint which prevented Constable Marshall from making a visual identification of the driver. The vehicle was not pursued.
Senior Constable Wright was driving the unmarked police LandCruiser. He said that the number plates on the Holden utility appeared to be fake and he requested the other police officers to conduct checks. As a result they attempted to intercept the Commodore utility. He said that while they were alongside the vehicle they were unable to see inside it because of the dark window tint. Senior Constable Wright described Constable Marshall approaching the vehicle but it said that it accelerated away at speed through the red light, narrowly missing Constable Marshall, the police vehicle and other vehicles at the intersection.
Alexander Hurst sold the silver V8 VZ Holden Commodore SS utility to the appellant on 13 November 2015. He said that the vehicle had personalised numberplates, AGH. The registration plates were removed from the vehicle at the time of sale. Mr Hurst said that a transfer form was completed. The appellant was to lodge the transfer form and obtain new registration plates on the following Monday. Mr Hurst said that after he had sold the vehicle he received some speeding tickets and parking fines in the mail which caused him to see whether the transfer of registration had occurred. When he discovered that the transfer of registration had not taken place he took steps to cancel the registration of the vehicle.
The appellant’s case
At the close of the prosecution case the appellant’s solicitor made a no case submission, arguing that there was no evidence that the appellant was in fact the driver. The magistrate correctly pointed out that by reason of s 756 PPRA the appellant was deemed to be the driver as he had not responded to the evasion offence notice.[18] The appellant then called the following witnesses;
· Dr Asher Khan;
· Courtney Grasmeder.
[18]Transcript pp 23-24.
Dr Khan was a friend of the appellant. He said that on 6 December 2015 he spent the day with the appellant and other friends at the Stereosonic music festival at the RNA show grounds. The music festival commenced at about midday and continued until 10pm when the group went to The Family nightclub. They remained at the nightclub until 5am.
Dr Khan said that he saw the silver utility earlier that day and that the appellant gave the keys to Courtney Grasmeder.
Dr Khan said that longest period during the day that he did not have the appellant in his sight would have been 15 minutes to half an hour.
In cross-examination it emerged that shortly after the music festival the registration of the Holden commodore utility had been transferred into Dr Khan’s name.[19]
[19]Transcript p 32 lines 15-45.
Dr Khan was cross-examined in relation to how long he had known that he was to be a witness in the matter. He said that he had known for a day or two, perhaps less.[20] He was asked about how he knew that they had been at the music festival on that particular day and he said, “Because he said the day that that’s when it was, and I was like, ‘But I’m pretty sure we were at Stereosonic that day.’”[21]
[20]Transcript p 36 lines 10-11.
[21]Transcript p 36 lines 25-30.
Courtney Grasmeder had been in a relationship with the appellant that ended in about 2014. At the beginning of her evidence Ms Grasmeder agreed that she had provided a statutory declaration relating to an offence on 6 December 2015 involving a silver Holden Commodore utility.[22] The magistrate then informed her of her right to claim privilege against self-incrimination.[23]
[22]Transcript p 39 lines 30-35.
[23]Transcript p 39 lines 36-40.
The appellant’s solicitor then asked Ms Grasmeder to look at the statutory declaration. The prosecutor objected to the statutory declaration on the basis that it was documentary hearsay. The magistrate indicated that the document was not hearsay but asked whether there was any problem with Ms Grasmeder orally in the first place. The appellant’s solicitor took no issue with that.[24]
[24]Transcript p 40 lines 1-20.
Ms Grasmeder was then asked whether she had any involvement with the utility on 6 December 2015 and she indicated that she did not wish to incriminate herself.[25]
[25]Transcript p 40 lines 20-25.
The magistrate reiterated the warning that Ms Grasmeder could claim privilege against self-incrimination in relation to any offence whether it was a traffic offence, something else illegal, or whether she had sworn a false declaration.[26]
[26]Transcript p 41 lines 1-5.
Ms Grasmeder acknowledged having signed the statutory declaration but declined to answer any questions in relation to whether she drove the vehicle on 6 December 2015.[27]
[27]Transcript p 41 lines 25-45.
The magistrate refused to allow the statutory declaration to be tendered on the basis that Ms Grasmeder had not adopted it.[28]
[28]Transcript p 43 lines 14-19.
In cross-examination Ms Grasmeder said that her relationship with the appellant ended in 2014. She was asked about the last time she had been at the appellant’s residence and although she said that she did not know the exact date she thought it was some time in January 2015.[29]
[29]Transcript p 46 lines 25-30.
The magistrate’s reasons
The magistrate concluded that the appellant had not established on the balance of probabilities that he was not the driver of the motor vehicle at the relevant time as required by s 756(4) PPRA.[30]
[30]Transcript of magistrate’s decision on 22 November 2018 at p 5 lines 3-7.
Her Honour set out the evidence in some detail and then expressed the following conclusions in relation to the evidence called by the appellant:
“It was a little hard to tell with the Doctor, not knowing his normal demeanour, whether or not he was being evasive. There was certainly something going on because he was not calmly and forthrightly giving evidence. It is submitted by the Defence that his truthfulness was not effectively challenged in cross-examination but it is certainly obvious that, as I said, he may have been nervous, he may have had some other issue but he certainly – his demeanour was not what one would expect from a completely truthful witness.
The main issue I have with his evidence is the version of how he came to give evidence. It just was not credible. He said by happenstance over the weekend just passed – which is we are now in November 2017 and the offence was in December 2015, so almost two weeks shy of two years after the offence – by happenstance the defendant tells his friend about the charge that he has to go to Court for including the date of the offence which would seem to be a rather unusual conversation, and that immediately Dr Khan knew that they were together at the music festival that day. And with only a couple of days to help him turn his mind back to the matter, remembers in detail the events of the day, fairly specific timeframes, and the movements of the defendant throughout the day fairly closely, and this incident of the defendant handing the keys over to his former girlfriend before they moved out.
There was also a very unusual story about the vehicle after the date of the offence becoming registered in his name at a time when he was going overseas to a family wedding for some period of time, and he suggested that – he agreed to have the vehicle registered in his name as opposed to the defendant’s name who owed the vehicle because he intended to buy the vehicle when he came back from overseas. That apparently did not happen and who knows what happened with the registration after that date. But that was a very unusual story that was proffered by the witness in response to some fairly general questions from the Prosecutor about what his involvement with that vehicle has been. Obviously, the police were aware that the vehicle was registered in his name.
In relation to the defendant’s presence at the music festival with Dr Khan on that day, it seems to me very unlikely that the witness could reliably account for the defendant’s presence in the circumstances of being at such a large music festival for a 10 hour period, and then later at a nightclub for another five or six hours. So it seems to me that the witness was either mistaken as the Prosecutor has suggested or that he was doing his best to try and reconstruct the events of the night to assist his friend. In any event, I did not find his evidence compelling.
The evidence from Ms Grasmeder is rather more problematical in that she actually gave very little evidence. She answered some questions but after being warned, sat within her right against self-incrimination in relation to most of the questions asked of her because they related to either her being the driver on this particular occasion which seems to have been the intent of the thrust of her evidence or her being here. It did not turn out that way. Or the fact that she has potentially perjured herself in swearing a false statutory declaration stating that she was the driver. She did not adopt the statutory declaration copy that was given to her in a sufficient way that meant that it was able to become evidence, and so it has not been tendered before the Court.
In any event, her actual positive evidence was very brief. It was effectively to the extent that she knew the defendant, had once been in a relationship with him, had last been to his house at Tarragindi in January 2015 or thereabouts but the more specific the questions were to her, the more vague her answers became about taking time to move out, not being sure what happened when, not being sure where she lived when. She thinks she might have been with her mother at the time of the offence, living with her mother then, and her evidence basically has virtually no credit. The one thing that she was fairly clear about was the timing of her attendances at the defendant’s premises which would mean, without her giving direct evidence on this point, that she was not at the house on the day when Dr Khan says that she was handed the keys by the defendant. So I think in the end result, there is certainly nothing positive for the Defence that can be taken from her evidence.[31]
[31]Transcript of magistrate’s decision on 22 November 2017 at p 3 line 22 – p 4 line 36.
The appellant’s submissions
The appellant did not argue that the magistrate erred in refusing to admit Courtney Grasmeder’s statutory declaration. The written submissions accepted that “…her evidence was effectively neutralised by her failure to answer most questions associated with a claim against self-incrimination.”[32]
[32]Written submissions for the appellant at para 16.
On the hearing of the appeal Ms Bain, who appeared for the appellant, did not seek to place any reliance on Courtney Grasmeder’s evidence.
It was not submitted that the magistrate made any specific factual error. It was simply submitted that Dr Khan’s evidence meant that the appellant had established the defence in s 756(4) PPRA.
Ms Bain’s written submissions stated as follows:
“(21)It is submitted that upon the available evidence the evidence was sufficient to establish to the requisite standard (on the balance of probabilities) that the appellant was not the driver.
(22)It is submitted that on an examination of the whole of the evidence this Court would experience a doubt which her Honour ought also to have experienced: or in the circumstances of this section; the Court would be satisfied at least to the requisite standard that the evidence established a defence under the relevant provision.
(23)It is submitted that there was little justification for failing to rely upon the evidence of Khan. This was not a case where there were issues of credibility such that her Honour was in a better position than this Court to make an assessment of the witnesses’ evidence.
(24)It is submitted that given the evidence this was a case where the tribunal of fact could be satisfied to the requisite standard as to the evidence of Khan: that is that the appellant could not have been the driver. It is submitted that her Honour should have, and this Court would, acquit the appellant.”[33]
[33]Citations omitted.
Consideration
The appellant did not identify any specific factual errors in the magistrate’s conclusions. The issue for determination before the magistrate, and on appeal, is whether Dr Khan’s evidence should have been accepted. The magistrate had the distinct advantage of seeing Dr Khan give evidence and observed that “his demeanour was not what one would expect from a completely truthful witness”.[34] The limitations in assessing the truthfulness of a witness by reference to demeanour have been recognised.[35] However in this case, the magistrate had regard not only to Dr Khan’s demeanour as a witness, but to specific aspects of his evidence that were considered to be implausible.
[34]Transcript of magistrate’s decision on 22 November 2017 at p 3 lines 27-28.
[35]See for example, R v BCB [2011] QCA 314 at [61].
My review of the evidence of Dr Khan leads me to conclude that his evidence was indeed implausible. The date of the offence was 6 December 2015. The trial was held on 22 November 2017. Dr Khan did not satisfactorily explain how he linked the date of the offence to the date that he and the appellant attended the music festival. In cross-examination Dr Khan said that he had only known for a day or two that he was to give evidence at the trial. The following exchange occurred:
“So, obviously, you’re here today as a witness for Mr Davies. How long have you known that he’s been – had to front court for this matter? ---Not that long, to be honest, not this – not this particular court sitting at all.
How long had you known that he’s had to front court for this matter? ---Not that long, to be honest; I’d probably say a day or two, if that. Less – less than that, even, to be honest.
So today’s Wednesday? ---Mmmm.
You didn’t know about it over the weekend? ---Nope.
So how did this come up with you and Mr – how has it come up that you’ve appeared today? Who asked you to appear? ---It wasn’t anyone in particular; he would just tell me what was going to – what was going through, and just sent me that – I just told him that, you know, we were at Stereosonic and stuff. I didn’t know what else to, like – I can – I can offer that question. He, particularly, didn’t ask me; he was just telling me the story about what’s – what’s been going on, the court matter - - -
How did you know you’d been at Stereosonic that day? ---On Sunday?
How did you know that you had been at Stereosonic on the day that he’s alleged to have committed this offence? ---Because he said the day that that’s when it was, and I was like, “But I’m pretty sure we were at Stereosonic that day.”
So he’s giving you a date, and you’ve just magically remembered that it was Stereosonic - - - ? ---Well, it was – it was a big festival.
- - - almost two years ago? --- Yep.”[36]
[36]Transcript p 36, ll 5-35.
There is also the curious feature commented on by the magistrate relating to the circumstances in which the appellant’s vehicle came to be registered in Dr Khan’s name. The following exchange occurred in cross-examination:
“Have you ever been in that car? ---No, I haven’t.
…
So you just told the court you’d never been in that car? ---I’ve never personally been in that car, no.
Have you ever owned that vehicle? ---It was registered under my name, and then that’s pretty much it. It was just rego’d under – registered under my name, but I’ve never actually been in it or driven that car.
All right. Tell us – tell the court about this registration of this vehicle? ---It was – happened, I think, around the end of the year, yep. So we had Stereosonic, and then, pretty much, the following week, I had to leave overseas to Dubai to attend a family blast [indistinct] my cousin was getting married then. And then, I think John just wanted to get rid of the car, and I was like, “You know what? I’ll probably come back and buy it.” And so, as a result, he just registered it in my name.
How much did you pay? ---I didn’t pay anything at the [indistinct] he was just, like, “We’ll deal with it when you get back.”
When did you go to Dubai? What was the date? ---That was the straight week after Stereosonic.
All right. So what was the date that you went? ---It was the 12th or the 11th, I think.
The 12th – which one was it? The 12th or the 11th? ---I can’t recall directly, but it was the 12th or the 11th.
What paperwork did you sign - - -? ---It was - - -
- - - to have that car registered in your name? ---I didn’t – it was just – just the usual standard registration paperwork, that’s all, that Jonah gave to me. I just filled it out and that was it. I just gave it back to him. That’s all I know.
Describe that document to the court? ---I can’t – I can’t recall [indistinct]
Solicitor: Perhaps if that document’s in our possession, it could be disclosed and tendered. It – bit difficult to describe a document.
Her Honour: Well, it’s not really if you fill one out, and the witness is obviously familiar with what sort of document it is.
…
Her Honour: So just say as much as you can remember about what was in the document? ---Oh, it just - - -What was your understanding as to what it was? What was the document? ---It just went over the car [indistinct] the previous owner, what the car owner was going, licence number, the car’s registration. I think it was just a yellow and white – yellow/whitish piece of paper.
Okay. When did you fill that out? --- That was around three days after Stereosonic [indistinct] before I went to Dubai - - -
So after the music festival? ---Yep. Yep.
Okay.
Prosecutor: And when was that, during the – what time of day was that? ---During the – around, like, 3pm-ish.
How do you recall that? ---Just went over to Jonah’s house; he was just, like, “Just looking at, you know, get rid of my car,” and stuff. “Would you – are you interested?” And so I was like, “Yep.” [indistinct] I was going overseas. And then, just for – then I was, like, “Okay.” Did the paperwork there and then that was it.”[37]
[37]Transcript p 32 line 10 – p 33 line 30.
It seems remarkable that having purchased the vehicle on 13 November 2015, the appellant would sell it to Dr Khan shortly after 6 December 2015, particularly in circumstances where the transaction details are so vague. There was no discussion about the sale price with this being left until after Dr Khan returned from Dubai. The transfer of registration may well have been designed to blur the situation in relation to the ownership of the vehicle at the date of the offence.
Although Ms Bain did not seek to place any reliance whatsoever on the evidence of Ms Grasmeder, it is nevertheless relevant that her evidence contradicted Dr Khan’s evidence in relation to when she had last been at the appellant’s residence. Ms Grasmeder said that she had been in a relationship with the appellant that ended about three years earlier. When asked about the last time she had been to the appellant’s residence at Tarragindi, she said that she thought it was in January 2015.[38]
[38]Transcript p 47 lines 25-40.
The evidence of Dr Khan is in my view implausible. It has not been established on the balance of probabilities that the appellant was not the driver of the vehicle at the relevant time. Accordingly, the appeal must be dismissed.
2
5
2