Fradale v Zonic
[2016] WASC 114
•8/04/16
FRADALE -v- ZONIC [2016] WASC 114
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 114 | |
| Case No: | SJA:1079/2015 | 4 APRIL 2016 | |
| Coram: | BEECH J | 8/04/16 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KERRY CHARLOTTE FRADALE SELVER ZONIC |
Catchwords: | Criminal law Appeal against conviction Appeal against findings of fact based on assessment of credibility Turns on own facts |
Legislation: | Nil |
Case References: | Ascic v Bedworth [2013] WASCA 174 Bibovic v The State of Western Australia [2016] WASCA 22 CSR Ltd v Della Maddalena [2006] HCA 1 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gallagher v The State of Western Australia [2016] WASCA 54 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen (1994) 181 CLR 487 Murphy v Spencer [2013] WASC 256 Rankilor v City of South Perth [2016] WASCA 29 The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
SELVER ZONIC
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G A BENN
File No : MI 3587 of 2015
Catchwords:
Criminal law - Appeal against conviction - Appeal against findings of fact based on assessment of credibility - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr J F Bennett
Solicitors:
Appellant : In person
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Ascic v Bedworth [2013] WASCA 174
Bibovic v The State of Western Australia [2016] WASCA 22
CSR Ltd v Della Maddalena [2006] HCA 1
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gallagher v The State of Western Australia [2016] WASCA 54
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen (1994) 181 CLR 487
Murphy v Spencer [2013] WASC 256
Rankilor v City of South Perth [2016] WASCA 29
The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1
- BEECH J:
Introduction
1 The appellant appeals against her conviction in the Magistrates Court of an offence of wilfully and unlawfully damaging property under s 445 of the Criminal Code (WA). The magistrate found that the appellant intentionally slammed her car door into an adjacent car in a supermarket car park, and that the adjacent car was being driven by Mr Chappell.
2 The appellant's primary ground of appeal is that the magistrate erred in finding that the driver's door of her car hit the driver's door of Mr Chappell's car, saying that this was 'not possible' because of the relative positions of the two cars as they were parked.
3 For the reasons that follow, none of the grounds of appeal has reasonable prospects of success. The application for leave to appeal, and the appeal, must be dismissed.
4 The nature of the appellant's complaint makes it necessary to outline the evidence that was before the magistrate.
The evidence
Overview of the evidence
5 The prosecution called two witnesses: Mr Gavin Chappell, the complainant, who was in his car at the time of the incident, and a police officer, Constable Zonic, who conducted a video record of interview with the appellant eight days after the incident the subject of the charge.
6 The prosecution also tendered CCTV footage that showed aspects of what had occurred; photographs of Mr Chappell's car and the appellant's car; and the video record of interview.
7 The appellant gave evidence in her defence.
Mr Chappell's evidence
8 Mr Chappell's evidence was to the following effect. On 18 February 2015, he drove the Toyota Camry vehicle, registration 1DVO 470, with two colleagues. The car was owned by his employer, and provided to him for his use. After dropping his colleagues off, he waited for them in the car park at IGA in Midland. He remained in his car, looking at his emails on his mobile telephone. He heard a light knock on his car. He looked up and saw a lady (the appellant) getting into her car. After resuming to read his emails, he heard two loud bangs on the side of his car door. He got out of his car. The lady in the other car shouted 'I did that on effing purpose' to which he replied 'I can see that'. He took a photograph of the appellant's car as she drove off. He also took a photograph of the damage to his car caused when the car door of the other car was slammed into his.1
9 In the course of cross-examination, Mr Chappell's evidence did not alter in any respect.
The prosecution exhibits
10 The photographs taken by Mr Chappell2 show the red Hyundai Getz belonging to the appellant, and damage to the driver's door of Mr Chappell's car. The photographs show red paint in the part of the door that is dented and damaged.
11 The CCTV footage shows the incident from two angles. In each case, the footage has the time marked on it, updating each second. What can be seen on the footage includes the following:
(1) at about 12.53.55 the red Hyundai Getz is parked, and the appellant gets out and goes into the supermarket;
(2) at about 12.55.58 Mr Chappell's silver or pale blue Toyota Camry arrives in the car park. Two people get out of the car. The driver then parks the Camry next to the red Hyundai Getz;
(3) at about 12.56.48 the appellant comes out of the supermarket and goes to her car;
(4) she gets into the red Hyundai. The two cars were parked closely together, making it somewhat difficult for the appellant to get back into her car;
(5) the footage does not reveal with any clarity whether the appellant's car door came in contact with Mr Chappell's car. That is because the appellant's car door is obscured from vision due to the angle of the cameras;
(6) very soon after the appellant got back into her car, her red Hyundai moved forward a short distance into the next car bay and then stopped briefly;
(7) while that occurred, Mr Chappell got out of his car and used his mobile telephone to take a photograph of the red car, and of the door of his car.
12 The video record of interview was conducted on 23 February 2015, eight days after the incident in question. In the course of the interview, the appellant admitted that she damaged Mr Chappell's car, but said it was not done deliberately.3 In the course of the interview, she appeared to continue to harbour anger towards Mr Chappell, saying repeatedly that he 'should not have parked there'.4
The appellant's evidence
13 The appellant's evidence at trial included the following:
(1) when she parked her car on the day of the incident, the adjacent bay was empty. When she returned to her car, there was a car in the next door bay;5
(2) the car shown in the CCTV footage was not the car that parked next to her on the day. The car involved in the incident was an older grey vehicle;6
(3) the person sitting in the car next to her was not a man in a suit but a person in a workman's outfit with a thick jumper on;7
(4) this struck her as very odd, as it was a hot day;8
(5) she had difficulty getting into her car, having to 'squeeze in' because the other car was parked too close to her;9
(6) there was no discussion between her and the person in the car next door;10
(7) she did not hit Mr Chappell's car with her car door;11
(8) there was no way her car could have caused the damage to Mr Chappell's car because of the relative positioning of the cars and the fact that Mr Chappell's car was 'too high' to make contact with her car;12
(9) she noticed the person in the adjacent car get out of his car and take a photograph of her car as she was leaving the supermarket car park;13
(10) the CCTV footage had been altered by superimposing Mr Chappell's new car over the older grey vehicle that had in fact been there.14
The magistrate's reasons
14 The magistrate's reasons included the following:
(1) his Honour accepted Mr Chappell's account of what had happened on 18 February 2015, finding him to be an honest and reliable witness whose evidence was consistent, logical, clear and objective;15
(2) his Honour set out an accurate outline of Mr Chappell's evidence, as I have summarised it;
(3) there was no dispute that the red Hyundai vehicle that Mr Chappell had taken a photograph of was the appellant's car;16
(4) there was no real dispute that damage had been caused to Mr Chappell's car, but said that the issue was whether any damage was caused accidentally rather than intentionally;
(5) his Honour found that the appellant was angry at Mr Chappell for parking his car close to her car and causing her difficulty in getting into her car, referring to comments made by the appellant about Mr Chappell in the course of the VROI;17
(6) the CCTV footage of the incident did not show the detail of how the damage occurred;
(7) the CCTV footage showed the appellant arriving at the shops and parking her car before Mr Chappell arrived and parked his car next to hers;
(8) the CCTV footage also showed the appellant return to her car and drive off, stopping a short distance away during which time Mr Chappell got out of his car and took photographs of the appellant's car;
(9) the magistrate found that what could be seen on the CCTV footage accorded with Mr Chappell's evidence as to the events that had happened leading up to his getting out of the car, and taking photographs of the appellant's car and the damage to his car;18
(10) the damage shown in the photographs was consistent with Mr Chappell's account of events and the CCTV footage as to the position of the cars and the colour of both cars;19
(11) the appellant's evidence that the CCTV footage had been doctored to superimpose Mr Chappell's car was described as irrational. The magistrate found that there was no other evidence to support that and it was an extraordinarily unlikely event to have happened, observing that there was nothing on the footage itself to indicate that the footage had been doctored in any way;20
(12) the magistrate concluded that given that aspect of the appellant's evidence and her demeanour in the video record of interview, she was not a reliable witness as to what occurred on that day;
(13) he rejected the appellant's evidence that she did not slam her car door against Mr Chappell's car and did not speak to Mr Chappell;21
(14) in light of the findings already made, his Honour found that the appellant should be convicted of the charges.22
Grounds of appeal and submissions
15 The appellant has filed two notices of appeal. The later notice of appeal states as the grounds that the magistrate 'made a mistake', it was not possible to hit the driver's door with the appellant's driver's door, and that was the charge. It also stated that there was the wrong number plate on the charges. I treat these as ground 1 and ground 2 respectively.
16 In apparent explanation of ground 1, the appellant handwrote and drew a diagram on the notice of appeal. The diagram showed the two cars side by side in adjacent car parks with the appellant's car facing one way and Mr Chappell's car facing the other, showing the two drivers' doors as not being immediately adjacent to each other. In oral submissions the appellant asserted that her front door was 'nowhere near' Mr Chappell's front driver's door. On the notice of the appeal the appellant has also handwritten some assertions that Mr Chappell was wanting to make her a scapegoat to avoid having to pay an excess on the insurance policy relating to his company car.
17 In oral submissions the appellant handed up a photograph of a car she said was similar to the one that had been involved in the incident (being different from Mr Chappell's car).
18 The appellant also handed up a medical report about her health. I am unable to see the relevance of the report to this appeal.
The nature of the appellant's appeal
19 The appellant's appeal attacks the magistrate's findings of fact. In particular, in substance, the appellant complains that the magistrate erred in being satisfied beyond reasonable doubt of the appellant's guilt.
20 The question in this appeal is whether it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question, this court must not disregard or discount the consideration that the magistrate was the court entrusted with the primary responsibility of determining guilt or innocence, and had the benefit of having seen and heard the witnesses.23
21 The question for this court is whether the magistrate must, as distinct from might, have entertained a doubt about the appellant's guilt.24
22 A finding of fact based on the credibility of a witness is not to be set aside merely because an appellate court thinks the probabilities of the case are against, even strongly against, that finding of fact.25 Such findings will not be interfered with by an appellate court unless it appears that the judicial officer failed to use or has palpably misused the advantage of seeing and hearing the witnesses or has acted upon evidence which was inconsistent with the facts incontrovertibly established, or which was glaringly improbable.26
The merits of ground 1
23 As I have said, ground 1 attacks the magistrate's findings of fact. In essence, ground 1 involves a repetition by the appellant of the case which she put to the magistrate at trial, and which the magistrate rejected.
24 As I have explained, the magistrate had the advantage of seeing and hearing the witnesses, and was the court with primary responsibility for determining whether the appellant was guilty or innocent. In the appeal from the magistrate's decision, this court does not determine the facts afresh, as if the slate were clean. In order to succeed in this appeal, the appellant must show that the magistrate's findings were glaringly improbable, contrary to compelling inferences, or inconsistent with facts incontrovertibly established. That cannot be found in the present case.
25 To the contrary, in my respectful opinion, the magistrate's findings were well open, and do not reveal any error. As the learned magistrate found, the photographs and the CCTV footage, which I have carefully viewed, provide significant support for Mr Chappell's evidence. I refer to the magistrate's findings (7) - (10) outlined in [14] above. I agree with those findings.
26 It was well open to the magistrate to reject the appellant's assertion that the CCTV footage had been doctored to put a different car into the footage in place of the car which had been involved in the incident. The CCTV footage showed, and the appellant accepted in her evidence,27 that after the contact between the cars, the other person got out of his car and took a photograph. One of the photographs taken by Mr Chappell showed damage to the driver's door of Mr Chappell's car, with red paint visible in the damaged area. The other shows a car which the appellant accepts is her red Hyundai Getz. Thus, the photographs support the veracity of the CCTV footage. Further, there is nothing in the footage to provide any support for the appellant's assertion. Moreover, there is nothing in the evidence before the magistrate to suggest any reason why any person would have tampered with the integrity of the footage. The CCTV footage was not within the control of the complainant Mr Chappell.
27 Further, I am satisfied that the magistrate's reasons for rejecting the evidence of the appellant were well open. Given Mr Chappell's evidence, the photographs and the CCTV footage, it was open to the magistrate to reject the appellant's evidence that the relative position of the two cars meant that it was not possible that her driver's door made contact with the driver's door of Mr Chappell's car. Indeed, in my opinion, far from revealing error, the magistrate's reasons were cogent and compelling.
28 For these reasons, ground 1 has no merit. I would refuse leave to appeal on ground 1.
The merits of ground 2
29 Ground 2 complains that the charge listed the wrong licence plate number for the vehicle in question. That matter was raised and dealt with at trial. The issue was raised by the appellant during the course of cross-examination of Mr Chappell.28 The prosecution applied to amend the prosecution notice to correct the licence plate number. In substance, the appellant did not oppose the application to amend. The magistrate amended the prosecution notice to refer to the correct licence plate number, by substituting 1DVO … for 1DVL … (The numbers were not changed).29
30 Insofar as by ground 2 the appellant complains that the magistrate erred in permitting the amendment, there is no merit in such a complaint. The power to amend a charge in a prosecution notice is set out in s 132 of the Criminal Procedure Act 2004 (WA). A prosecution notice may be amended at any time before or during trial.30 Such an application may be made by the prosecutor.31 A court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor.32 The court may refuse to amend a prosecution notice if it is satisfied that:
(a) the amendment is material to the merits of the case;
(b) the amendment would prejudice the accused's defence of the charge, prosecution notice or indictment; and
(c) an adjournment would not overcome the prejudice.33
31 In order to succeed on an appeal, the appellant would need to show that the magistrate erred in the exercise of discretion to refuse the amendment. That cannot be shown. To the contrary, the magistrate's decision to permit the amendment was, with respect, plainly correct. The amendment was not material to the merits of the case and did not prejudice the appellant's defence of the charge in any way. It did not alter the nature of the allegations against her. The merits or otherwise of the issues raised by the appellant at trial were not influenced by the correction of a single letter in the number plate.
32 For these reasons, I would refuse leave to appeal in respect of ground 2.
Conclusion
33 For the reasons I have given, there is no merit in any of the appellant's proposed grounds of appeal. I would refuse leave in respect of all grounds of appeal, and dismiss the appeal.
1 ts 5 - 6.
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23M v The Queen (1994) 181 CLR 487, 492 - 493; see also Murphy v Spencer [2013] WASC 256 [63] - [64], cited with approval in The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1 [372] - [373].
24Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]; Bibovic v The State of Western Australia [2016] WASCA 22 [34]; Gallagher v The State of Western Australia [2016] WASCA 54 [24].
25Rankilor v City of South Perth [2016] WASCA 29 [25].
26Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [27] - [31]; CSR Ltd v Della Maddalena [2006] HCA 1 [21]; Ascic v Bedworth [2013] WASCA 174 [64] - [65]; The State of Western Australia v Rayney [374] - [375].
27 ts 38.
28 ts 15 - 16.
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30Criminal Procedure Act 2004 (WA), s 132(1).
31Criminal Procedure Act 2004 (WA), s 132(3).
32Criminal Procedure Act 2004 (WA), s 132(4).
33Criminal Procedure Act 2004 (WA), s 132(10).
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