Hall v Davis
[2020] ACTSC 300
•11 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hall v Davis |
Citation: | [2020] ACTSC 300 |
Hearing Date: | 11 November 2020 |
DecisionDate: | 11 November 2020 |
Before: | Elkaim J |
Decision: | See [14] |
Catchwords: | CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal against finding of guilt – damage property over $1000 –– appeal allowed |
Cases Cited: | Peverill v Crampton [2010] ACTSC 79 |
Parties: | Steven John Hall (Appellant) Shona Rae Davis (Respondent) |
Representation: | Counsel M Jones (Appellant) K McCann (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | CA 29 of 2020 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 22 July 2020 Case Title: Davis v Hall Court File Number: CC 254 of 2020 |
ELKAIM J:
One 22 July 2020 Magistrate Theakston found the appellant guilty of the offence of damaging property with a value in excess of $1000 contrary to s 403 of the Criminal Code 2002.
The appellant, by a notice of appeal also filed on 22 July 2020 says that the verdict was, in effect, unsafe and unsatisfactory.
The Crown, in its written submissions has correctly set out the manner in which an appeal of this nature should proceed. I will not repeat them other than to quote from the decision of Refshauge J in Peverill v Crampton [2010] ACTSC 79, from [24]:
24.Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
1.The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
2.The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3.The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4.The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5.The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
6.In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
7.The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.
The evidence against the appellant was made up of the following:
(a)Three recordings of CCTV footage.
(b)The concessions by the appellant that he is the person seen in the CCTV footage.
(c)The evidence of the owner of the vehicle to the effect that the damage would have occurred within the two days prior to the events shown in the CCTV footage.
(d)The fact that the appellant and the owner of the vehicle had separated. I note here that there was no evidence of hostility between them.
(e)The presence of a scratch on the back of the vehicle, which can be seen in photograph ‘5’ of the photographs tendered before the Magistrate.
The Magistrate’s decision commences at page 45 of the transcript. After correctly stating the legal approach that he was bound to follow, his Honour then examined the evidence and in particular the CCTV footage. His Honour describes what he sees in the video and ultimately concludes that he was satisfied beyond reasonable doubt that the scratch had been made by the appellant.
Consistent with his Honour’s observations are of course the presence of the appellant and his walking past the area of the scratch.
I was asked to view the CCTV footage which I did, both in its ‘normal’ configuration and with the benefit of the zoom function. There is no doubt that the appellant walks past the rear of the vehicle. There is no doubt that he was at one stage in a position approximate to the area of the scratch.
However, in my view, to go further than the above observations is to make a quantum leap that cannot be derived from the CCTV footage, either on its own or in combination with any of the other evidence in the case.
I accept that the presence of the appellant at the rear of the vehicle gives rise to a suspicion. But of course, that is not enough. I also note that there was, in terms of time, significant opportunity for the offence to have been carried out by another person, noting the notorious prevalence of random ‘keying’ of vehicles in car parks.
It is often said that different persons viewing the same event will reach different conclusions. The fact that I have reached a different conclusion to the Magistrate is not enough for the appeal to succeed. If the Magistrate’s findings were open to him the appeal would fail. However I am of the view that the findings made by the Magistrate, in particular his conclusions about what can be derived from the CCTV footage, were not open to him, to an extent that his conclusions have led to an unsafe and unsatisfactory result.
Accordingly the appeal must succeed and the conviction be set aside.
I note that an application was made to adduce further evidence on behalf of the appellant. It is not necessary to deal with that application.
In contemplation of success on the appeal an application was made for costs of the proceedings before the Magistrate. A form of order was proposed by the Crown which I will adopt.
The orders of the Court are:
(a)The appeal is allowed.
(b)The finding of guilt with respect to charge CC254/2020 made on 22 July 2020 is set aside, and in lieu, order that the charge is set aside.
(c)The informant pay the appellant’s costs of the proceedings in the Magistrates Court in an amount agreed by the parties pursuant to s 4(1)(b) of the Magistrates Court Regulations 2009, or, in default of filing an agreement under s 5 of that Regulation within 6 weeks of the date of this order, in an amount assessed by the Registrar in accordance with the scale of costs as applied under s 4(3)(b) and (c) of the Regulations.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 11 November 2020 |
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