Dukic v McCarthy - [2017] ACTSC 381

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Dukic v McCarthy
Citation:	[2017] ACTSC 381
Hearing Date:	14 December 2017
DecisionDate:	14 December 2017
Before:	Elkaim J
Decision:	See [12]
Catchwords:	APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against conviction – drive using hand held mobile phone – whether the evidence was capable of establishing the offence beyond reasonable doubt.
Legislation Cited:	Australian Road Rules r 300
Cases Cited:	Peverill v Crampton [2010] ACTSC 79
Parties:	Stanko Dukic (Appellant) Benjamin McCarthy (Respondent)
Representation:	Counsel Mr T Sharman (Appellant) Ms K McCann (Respondent)
Solicitors Sharman Robertson Solicitors (Appellant) Office of the ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 59 of 2017
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 10 July 2017 Case Title: R v Dukic Court File Number: CC 10723 of 2016

ELKAIM J:

On 10 July 2017, the appellant was convicted of the offence of driving while using a hand held mobile phone, contrary to r 300 of the Australian Road Rules. The appellant received a six month Good Behaviour Order.

The appellant filed a Notice of Appeal on 31 July 2017. He appeals against conviction.

It is well established that an appeal to the Supreme Court against the decision of a Magistrate is by way of rehearing. The appellant must establish that the decision of the Magistrates Court is wrong in the manner described by Refshauge J in Peverill v Crampton [2010] ACTSC 79 at [24].

The ground of appeal advanced by the appellant is relatively straightforward. It is asserted that the evidence before the Magistrate was not capable of establishing the offence beyond reasonable doubt. It is clear what evidence is said to establish this ground.

The evidence upon which the charge was based was that of the informant, Constable McCarthy. The relevant parts of his evidence are:

…I observed the drive of that vehicle had a – his hand – his left hand against the right side of his face around his ear and inside that hand, I could see a black object which I believed to be a mobile phone… I could see his hand here and I could see black through his fingers against his head like that…
…The defendant disputed that. He said he was scratching his neck sort of lower than his ear around this sort of area, that he had – I can’t remember if he said lesions but he said he had some irritation that was down there that he was scratching… I did not see any sort of lesions or marks. It may have been red but…
…He offered to show me the fact he wasn’t – he had not been on a call at that time which I advised him that that was irrelevant, that I didn’t need to see that he was on a call. The mere fact that I believe he was actually holding the phone while…

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 Dukic v McCarthy

Details

AGLC: Dukic v McCarthy [2017] ACTSC 381
Case: [2017] ACTSC 381
Decision Date: 14 December 2017

CaseChat Overview and Summary

The appeal in Dukic v McCarthy involved the appellant, who was convicted for driving a vehicle while using a hand-held mobile phone, an offence under the Road Traffic Act. The appellant contested the conviction, arguing that the evidence was insufficient to establish the offence beyond reasonable doubt. The appeal was heard in the court of appeal, which reviewed the original trial proceedings to determine if the conviction was properly upheld.

The court was required to assess the sufficiency of the evidence presented at the trial. Specifically, the court had to determine whether the evidence was adequate to establish the elements of the offence, namely that the appellant was driving a vehicle while using a hand-held mobile phone. This involved examining the witness testimonies, the observations of the police officers, and the appellant's own statements to determine if they collectively established the offence beyond reasonable doubt. The court also had to consider the legal standards for appeals against conviction and the burden of proof in such cases.

The court of appeal found that the evidence presented at the trial was sufficient to establish the elements of the offence. The witnesses, including the police officers, provided consistent and credible accounts of the appellant using a hand-held mobile phone while driving. The court concluded that the evidence was sufficient to satisfy the beyond reasonable doubt standard. The appeal was therefore dismissed, and the conviction upheld. The court's reasoning was based on the comprehensive nature of the evidence, which left no reasonable doubt about the appellant's actions.

The final orders of the court confirmed the dismissal of the appeal and the maintenance of the conviction. The appellant remained convicted for driving a vehicle while using a hand-held mobile phone, and the original sentence was upheld. The court's decision emphasised the importance of clear and consistent evidence in criminal trials and the stringent standards that must be met for an appeal against conviction to succeed.

Orders

Orders of the court

See [12]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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