Francisco v The Queen

[2019] NSWDC 720

District Court

New South Wales

Medium Neutral Citation:	Francisco v R [2019] NSWDC 720
Hearing dates:	22 November 2019
Decision date:	29 November 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Conviction appeal dismissed: Confirm orders of Local Court.
Catchwords:	CRIME - Appeal and review - Appeal from Local Court to District Court – By person convicted against conviction- District Court’s powers on rehearing - application of principle - identification evidence – alibi.
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes Act 1900 District Court Act 1973 Evidence Act 1995
Cases Cited:	Charara v The Queen (2006) 164 A Crim R 39 Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218 Dyason v Butterworth [2015] NSWCA 52 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Fox v Percy (2003) 214 CLR 118 Gianoutis v Glykis (2006) 65 NSWLR 539
Category:	Principal judgment
Parties:	Marcio Rogerio Francisco (the appellant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: Mr B Loukas (for the appellant)   Solicitors: Good Legal (for the appellant) Ms T Lasschuit, Director of Public Prosecutions
File Number(s):	2018/00155548

Judgment

Introduction

1. On 1 July 2019, Magistrate McGowan, sitting at Wollongong Local Court, heard evidence in relation to a number of charges against Marcio Rogerio Francisco. Her Honour reserved her decision and on 16 July 2019 found Mr Francisco guilty of each count.

2. As is his right, Mr Francisco appealed each decision to the District Court: s 18 Crimes (Appeal and Review) Act 2001. Mr Francisco, now the appellant, has advised the court that, after receiving legal advice, he wishes to contest only his convictions for two offences - Sequence 1 Intentionally or recklessly damage property: s 195(1)(a) Crimes Act 1900 and Sequence 2 intentionally damage property by fire: s 195(1)(b) Crimes Act 1900.

3. Mr Loukas, who also appeared for the appellant in the Local Court, has narrowed the issues to be determined in helpful and comprehensive written submissions: Appeal MFI 1.

4. Ms Lasschiut, Solicitor for the Director of Public Prosecutions provided the Court with:

• a summary sheet containing formal court papers and the notice of appeal: Appeal Exhibit A;

• the transcript of the proceedings in the Local Court: Appeal Exhibit B;

• the exhibits from the Court below, including discs of DVED evidence with the principle Crown witness, the appellant’s former partner Ms Janceski and CCTV of the street where the incident occurred: Appeal Exhibit C.

5. I viewed, in court and again in chambers, a Domestic Violence Evidence in Chief Statement (DVEC) disc of a police interview with Ms Juli Janceski and the CCTV of the street where the events occurred.

6. After evidence and submissions were received I adjourned until today, 29 November 2019. There was insufficient time to conclude the matter last Friday due to the pressure of other matters in a busy list.

An incident at Albion Park

7. It is not in dispute that in the early hours of 7 May 2018, someone wearing a hooded jacket and driving, or being driven in, a largish dual cab utility vehicle with a tray top, used a screw driver to puncture the tyres of another tray top vehicle belonging to Mr Norm Janceski. Having punctured the tyres the person then set the utility alight.

8. The appellant was arrested and charged with offences relating to damaging the tyres and lighting the fire. He said he was not guilty. He was also charged with contravening prohibitions in an Apprehended Violence Order obtained to protect Ms Janceski and her mother. The contravention offences were said to have occurred earlier, on the 5 and 6 May 2018.

9. The prosecution case against the appellant was based on both direct identification and circumstantial evidence. The direct evidence came from Ms Janceski, who said she was woken that night by sounds near her father Norm’s vehicle. She then looked out from her home and saw a man in a black hooded jacket at her father’s car. She said there was enough light for her to recognise that person as her former partner, the appellant. She said she could recognise him from his movements, his stature, his nose and beard and from seeing him directly, face to face, in the light of the fire.

10. There was also evidence that because of the breakup in their relationship and Ms Janceski’s complaints to police about his behaviour earlier on the 6 May 2018, the appellant may have had a motive to do what is alleged given he had displayed some animosity toward her. Late on the evening of 6th May 2018, the appellant had rung police in response to his hearing they were trying to contact him.

11. The appellant’s case was that he did not commit either crime and that he had an alibi as he spent the evening at his brother’s home.

District Court power on rehearing

12. Appeals against conviction involve a rehearing on the evidence given in the original Local Court proceedings: s 18 Crimes (Appeal and Review) Act 2001. No application to call fresh evidence was made in this appeal.

13. A District Court Judge reviews the evidence presented to, and the transcript of, the Local Court proceedings. Reference can be made to the Magistrate’s reasons for judgment: Charara v The Queen (2006) 164 A Crim R 39, per Mason J at [23].

14. A Judge is entitled to draw his or her own inferences from the evidence given in the Local Court (with the “natural limitations” of an appellate court); those inferences may, or may not be, contrary to any inferences drawn by the Magistrate. The Judge must be alive to the possibility that misapprehensions and errors of judgment can occur in a Magistrate’s evaluation of evidence.

15. After hearing an appeal Crimes (Appeal and Review) Act 2001 may determine an appeal against conviction:

1. by setting aside the conviction, or

2. by dismissing the appeal: (s 20)

16. Neither the Crimes (Appeal and Review) Act 2001 nor the District Court Act 1973 specifically provide for the procedure to be adopted, or set out the powers to be exercised or the function to be performed by the District Court on an appeal against conviction in the Local Court. On one view a s 18 rehearing does not require a finding error, as there is no power of remitter back to the Local Court if error is found: Gianoutis v Glykis (2006) 65 NSWLR 539. More recent decisions from the Court of Appeal require the appellant demonstrate that the order, the subject of the appeal, is the result of a legal, factual or discretionary error. Only then can the District Court substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52; Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 and per Basten JA in Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218 (Simpson J disagreeing).

17. Justice Basten noted in Director of Public Prosecutions v AG, the term “error” has no precise meaning; it requires the appellate judge to be satisfied that the judgement under appeal is wrong and should be corrected. How that satisfaction is achieved will depend on a range of factors relevant to specific cases: at [34].

18. Here, that particular controversy does not need resolution as the appellant asserts a number of specific errors were made in the Local Court. The submissions were supported by a thorough review of the evidence presented or in this case not presented in the Local Court.

Appellant’s submissions

19. Four specific errors were advanced as appeal grounds:

1. That the identification evidence was unreliable.

2. That there was an absence of evidence linking the offences to the appellant.

3. That it was wrong of the magistrate to reject the established alibi.

4. The learned Magistrate’s findings were contrary to the evidence.

Ground 1:

20. In short compass it was submitted that Ms Janceski did not in fact see, and could not have seen, who lit the fire. Rather, she had made an assumption given her previous history with the appellant that the person she saw at her father’s utility was him. This assumption is said to be exemplified by Senior Constable Elston’s note of what she first said to him: She said, “It was him, it was Marco, or something similar to that...” Constable Elston was the first officer on the scene and the officer investigating the breach of the domestic violence orders complaints.

21. Further, it is submitted that when Ms Janceski told police what she was able to see, her assessments of distances were “wildly wrong” and what view she did have was obstructed. This is said to be particularly relevant given how dark it was that night and that she was woken from sleep. It is suggested that her assertion of what she in fact saw could not have been as clear as she deposed.

22. One example advanced by Mr Loukas required a viewing, and later reviewing, of the CCTV evidence. In the Local Court Ms Janceski had said “When I first looked out the window I didn’t see anyone and then I seen the fire and then I seen Marco’s head pop up…” Earlier she had said she and Marco looked directly at each other for “10 seconds max.”

23. The CCTV is from a camera some distance down the street. The ‘action’ takes place mainly in the top corner of the screen. Nothing is distinct. It is possible to see a shadowy figure at Mr Janceski’s vehicle about half an hour before the fire. The figure is seen at the side of the vehicle and walking around the front of the Janceski home and then walking down the street. About 4:38 AM a vehicle, without lights, pulls up near the Mr Janceski’s vehicle. A person gets out and walks around the vehicle and in front of the Janceski home. A small flame is seen on the ground beside Mr Janceski’s utility, then its cab erupts in flame. The other vehicle drives off with lights on. It is a dark twin cab utility with a silvery tray top.

24. Mr Loukas submits that from the first flame to the eruption was less than a second not 10. A fact which he says must cause doubts about what Ms Janceski said and her capacity to identify anyone, let alone the appellant.

Ground 2:

25. No forensic evidence links the appellant to the damage or the fire. A screwdriver was found at the scene and was presumably used to puncture Mr Janceski’s vehicle’s tyres. Ms Janceski said she recognised it as part of a set owned by the appellant. No effort was made to check whether it did match a set owned by the appellant.

26. No DNA or fingerprint investigation was done. In fact there was no forensic examination of the car or any clothing owned by the appellant. No checks were made on any vehicle he may have had access to.

Ground 3:

27. Emmanuel (Nelson) Francisco the appellant’s brother gave evidence that he saw the appellant on the lounge at 9 PM when he went to bed the night of the incident. The TV was still on until 10:30 PM. He said the appellant was still there on the couch when he got up at 5 AM the next morning. He said he saw no vehicle like that described as being involved and seen in the CCTV and that the appellant did not have access to a vehicle like that. He said his brother was stressed and worried.

28. Emmanuel (Nelson) Francisco said he was aware police were looking for the appellant. He agreed to a suggestion that about 11 PM the appellant used his (Nelson’s) phone to call Constable Elston but he believed this call was made was the day before, the night of the 5th and 6th. That belief did not accord with the Constables recollection or the logic of events.

29. It is submitted that despite an entirely understandable mix up in dates this is compelling evidence which could not and should not have been rejected. It raises a reasonable possibility it was impossible for the appellant to have committed the crime

Ground 4:

30. Mr Loukas details a number of examples where he submits the learned Magistrate’s logic was skewed or incapable of discernment.

Crown response

31. Ms Lasschuit took me to aspects of the evidence and Magistrate McGowan’s reasoning, which she submitted rebutted each proposition advanced for the appellant.

The Magistrate’s Judgment

32. Magistrate McGowan gave herself all necessary directions, including a warning pursuant to s 165 (1) (b) Evidence Act 1995 about the need for special caution when purported identification evidence is given. She reviewed the evidence and the respective submission of the parties.

33. It is important to note that she was also dealing with contested assertions of breaches of domestic violence orders. Her convictions and subsequent orders relating to those matters are not now challenged. At the Local Court there was defence assertion the fire was lit for a fraudulent purpose. That submission is not now maintained.

34. Magistrate McGowan’s assessment of the critical witnesses is important. She saw and heard them tested, I did not, although I did review part of Ms Janceski’s DVEC: Appeal Exhibit C - 8. The following extracts make her Honour’s conclusions clear:

“I formed the view that Julie was a compelling and credible witness, extremely so, in case anybody has any doubt whatsoever. I have none. I am satisfied beyond reasonable doubt that she did recognise Marcio as described in her DVEC recording which was consistent in every detail with the oral evidence she gave in court. I do not think it significant that she said to Senior Constable Elston “It was Marcio”, rather than “I saw it was Marcio”. She clearly said it was him in the DVEC, and to her father shortly after the event took place.”

“The evidence of Emanuel did not assist the defence. I do not agree it was compelling. In fact I think it was some of the most uncompelling evidence I have ever heard. I found it most confusing. He could not say with any certainty where Marcio - well it was a jolly good try - but he could not say with any certainty where - well no it was not a very good try - he could not say with any certainty where Marcio was in the early hours of the morning of 7 May 2018, I do not accept his evidence regarding the telephone call to Senior Constable Elston. It was clearly on the wrong day.”

Determination

35. My rehearing does not involve a completely fresh hearing of all the evidence. I proceed on the basis of the record from the Local Court and Her Honour’s reasons, to the extent they help me understand what occurred. That includes her assessment of witnesses.

36. I am obliged to give the judgment, which in my opinion ought to have been given in the first instance. I must be aware of "natural limitations" that exist in any case where an appellate court proceeds wholly on the record from the court below, including the advantage that the magistrate had about the "feeling" of a case and their evaluation of witnesses' credibility. A judge on appeal reading the transcript and viewing exhibits, cannot always fully share such an experience. I need to weigh the conflicting evidence and draw my own inferences and conclusions. I must not shrink from giving effect to my own conclusions. And, I must reason to those conclusions, as far as possible, on the basis of objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118.

37. In reaching these conclusions I remind myself that the appellant has no onus of proof and that each allegation must be proved beyond reasonable doubt. I caution myself about the many dangers inherent in relying on identification, particularly by those who carry preconceptions based on earlier events and who have a familiarity with the person said to be recognised and identified. Once a person is recognised it is not uncommon for that recognition to firm up as 100% identification even though there may be considerable practical difficulties with seeing who in fact was present.

38. Further, it is not unusual to see an otherwise familiar item associated with the person recognised and by reference to the object form a misconceived opinion as to who was in fact there: a familiar jacket; a familiar car or screwdriver can skew a person’s perception.

39. I have carefully reviewed the submission made both in the Local Court and before me. I have reviewed Magistrate McGowan’s determination. Her Honour did not err in law or approach to the evidence.

40. In the early hours of 7 May 2018, Mr Janceski’s car was damaged; first by having its tyres punctured and then by being set alight.

41. The appellant had earlier that day displayed animosity toward the Janceski family; animosity resulting from the breakdown of his relationship with Ms Janceski, the mother of his son. He had breached apprehended violence orders. He was aware that police wanted to speak to him about something, presumably his breach. He rang police the night of the incident.

42. While his brother says he was at his home that evidence carried no weight as the brother was of the view the call was made the night before and his capacity to know where his brother was the night in question was compromised by that error of memory and an assertion that he went to bed and stayed in his room from 9 PM to 5 AM.

43. Ms Janceski saw someone at the car. The area was illuminated by street lighting. There was no evidence that her view was obstructed. A fire was lit, resulting very soon after in an explosion. Given the CCTV footage was obscured by glare of the fire and car headlights it is impossible to derive any benefits from the CCTV about what the level of illumination from Ms Janceski’s point of observation was, from the time the fire was lit to when, almost immediately after what was presumably an accelerant, ignited inside the utility.

44. Nothing in the CCTV footage contradicts Ms Jancevski’s evidence; with the exception of her time estimate of 10 seconds, which is not in my opinion critical. What she said was, as Magistrate McGowan observed, corroborated by what can be discerned from the CCTV footage. She was able to describe the way the offender looked and what he apparently did. She accurately described the tray of the vehicle that was driven at speed from the scene. She immediately identified the person as the appellant. That information was given to her father and soon after the appellant’s name was broadcast on police radio. It was confirmed by her soon later when she spoke to police.

45. I caution myself that there is always the possibility that an honest witness, even one very familiar with the person identified, may make an error. I caution myself that the risk of error can be compounded by a witness seeing things associated with that person, but which are also everyday items; worn, driven or carried by many in the community.

46. I caution myself that given her earlier complaint to police about the appellant Ms Janceski may have been predisposed to making an assumption when she did not in fact see who was wearing the black hooded jacket. I caution myself that given her recognition of a car, a screwdriver and a jacket as similar to those used or warn by the appellant, she may have jumped to a conclusion that was not justified by the evidence.

47. I am aware that further police investigations could have been carried out. I can take the fact that there has been no evidence, from a source that might be expected to produce evidence, into account when I determine whether the prosecution has proved the guilt of the appellant. I am entitled to, and do, take into account that there was no forensic evidence when deciding whether or not there is a reasonable doubt about the appellant's guilt. I cannot however guess what that evidence would or would not have been. I remind myself for the last time that it is for the prosecution to prove guilt and that the standard of proof is beyond reasonable doubt.

48. Having given myself those cautions and having considered all the evidence before the Local Court and the submissions in relation to it I am satisfied that Magistrate McGowan did not err. Independently of that conclusion I am satisfied beyond reasonable doubt that each offence was committed by the appellant.

49. The appeals are dismissed and the orders of the Magistrate are confirmed.

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Decision last updated: 02 December 2019