Mackie v Queensland Police Service
[2012] QDC 369
•21 December 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Mackie v Queensland Police Service [2012] QDC 369
PARTIES:
Glen Ross Mackie
(Appellant)
v
Queensland Police Service (Werner Crous)
(Respondent)
FILE NO/S:
Appeal Number D6 of 2012
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Blackwater
DELIVERED ON:
21 December 2012
DELIVERED AT:
Brisbane
HEARING DATE:
3 December 2012
JUDGE:
Kingham DCJ
ORDER:
1. The conviction entered in the Magistrates Court at Blackwater on 26 July 2012 is set aside.
2. A verdict of acquittal is entered.
CATCHWORDS:
APPEAL – PUBLIC NUISANCE – IDENTIFICATION – Whether the findings of the Magistrate were unreasonable or could not be supported having regard to the evidence – Whether the Magistrate misdirected himself as to the principles of identification evidence.
Dominican v The Queen (1992) 173 CLR 555
Gobus v Queensland Police Service [2001] QCA 283
Fox v Percy (2003) 197 ALR 201
Mbuzi v Torcetti [2008] QCA 231
Rowe v Kemper [2008] QCA 175
Teelow v Commissioner of Police [2009] QCA 84Justices Act 1886 Sections 222; 223(1)
Summary Offences Act 2005 Section 6.COUNSEL:
D Kent for the appellant.
K Jones for the respondent.
SOLICITORS:
Howden Saggers Lawyers for the appellant.
Office of the Director of Public Prosecutions for the respondent.
Mr Mackie and others participated in a picket line 21 km from a BMA mine site near Blackwater on 29 March 2012. A car driven by Mr Vine, in which Mr Christison was a passenger, drove through the picket line at about 5.15 that morning. Mr Vine and Mr Christison said Mr Mackie threw something at their vehicle, which caused Mr Vine to take evasive action.
Mr Mackie was charged, and after a summary trial before a Magistrate in Blackwater, he was convicted of the offence of committing public nuisance.[1]
[1] Summary Offences Act 2005 s6.
On appeal, the only issue was whether the conviction could be maintained on the evidence before the learned Magistrate, bearing in mind the caution with which identification evidence is approached by the courts.
Mr Mackie contended the learned Magistrate’s findings were unreasonable and were not supported by the evidence. He also argued that his Honour misdirected himself as to the principles of identification evidence.
In response, counsel for the Queensland Police Service denied the learned Magistrate had failed to have regard to the principles that apply in assessing evidence of identification. Even if he had, counsel argued that this Court would reach the same conclusion on the evidence as did his Honour.
The nature of the appeal
The principles that apply to this appeal are not contentious and can be stated briefly.
The appeal is a rehearing on the original evidence. I should draw inferences from primary facts, including facts found and facts not disputed. I may exercise the powers of the appellate court only where the appellant can demonstrate the decision under appeal is the result of some legal, factual or discretionary error.[2]
[2] Teelow v Commissioner of Police [2009] QCA 84 at p3.
I should not lightly interfere with findings on credit unless it can be shown that the learned Magistrate was in error in law or in fact.[3]
[3] Gobus v Queensland Police Service [2001] QCA 283.
I must afford respect to the decision of the learned Magistrate and bear in mind any advantage he had in seeing and hearing the witnesses give evidence. However, that does not excuse me from my function in rehearing the matter. I must make my own assessment of the evidence and form my own conclusions about the appellant’s guilt, having due regard to the findings and conclusions of the learned Magistrate.[4]
[4]Fox v Percy (2003) 197 ALR 201 at [25]; Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2008] QCA 231 at [17].
The case against Mr Mackie
The following aspects of the Crown case were not disputed:
(a) That something was thrown at the car in which the prosecution witnesses were travelling;
(b) That this caused Mr Vine to take evasive action;
(c) That this act interfered with their peaceful passage along a public road; and
(d) That throwing an item at the car with that result could constitute the offence of public nuisance.
The dispute on the Crown case was whether it was Mr Mackie who threw the item.
The onus rests with the prosecution to prove beyond reasonable doubt that Mr Mackie was guilty of the offence.
In the face of defence evidence that positively disputes the critical factual allegation, that Mr Mackie threw the item, the learned Magistrate would need to have been satisfied beyond reasonable doubt of the truth and reliability of the evidence given by the 2 witnesses, despite the evidence led by Mr Mackie, including his denial. There is no onus on Mr Mackie to establish any fact.
Mr Vine and Mr Christison were both insistent that Mr Mackie was the person who threw something at their car. Both said they actually saw him do it. Both said they had known Mr Mackie for some years and recognised him as he threw the item at the car. Both denied they could have been mistaken about that.
Mr Christison was the passenger in the vehicle. He said he had known Mr Mackie for about 4 years. He had seen Mr Mackie on the picket line the day before. On the Thursday of the alleged offence, he saw Mr Mackie after the picket line in an area where there were two free standing flags, one bearing the CFMEU logo and one bearing a pineapple. Mr Christison said that Mr Mackie stood out from behind the flags, threw something and then stepped back behind.(T1-9)
Before he hid behind the flags, he said that Mr Mackie, who he said was wearing a white cowboy hat, looked at him and put his hands over his face. (T1-10) Under cross-examination he agreed that he had not told police before that he saw Mr Mackie put his hands over his face. (T1-18)
He did not see any chairs on the side of the road. (T1-14) He denied it was in the dark (T1-14) but agreed that it was dark enough for Mr Vine to be using his headlights (T1-12). He said there were coach lights in the picket line area. (T1-12)
At the time he saw Mr Mackie they were travelling at 30 or 40 kilometres an hour (T1-13). There were more than 40 people on the sides of the road. (T1-14) He saw Mr Mackie for maybe five or ten seconds. (T1-15) He thought that he recognised both Mr Mackie and Mr Mackie’s white hat.(T1-15)
He was certain he was not mistaken in his identification of Mr Mackie.
Mr Vine was the driver of the vehicle. He said he had known Mr Mackie for about 4 years. (T1-20) He also recalled seeing Mr Mackie on the picket line the day before the alleged offence. (T1-20)
The next day, the 29th of March, he was driving a vehicle through the picket line. He thought there were 60 or 70 people on the picket line on both sides of the road. (T1-25). He drove through at about 20 to 30 km per hour. (T1-27)
As he was driving through, he glanced to the left-hand side. He saw Mr Mackie in the action of throwing and said he actually saw something leave Mr Mackie’s hand. (T1-20) He could not remember what Mr Mackie was wearing, although he had something on his head. (T1-20 to T1-21) He couldn’t take his eyes off the road for a long time. He only observed Mr Mackie for a few seconds. (T1-25)
Like Mr Christison, Mr Vine was insistent he recognised Mr Mackie and had observed him in the act of throwing something. He made no mention of flags or Mr Mackie stepping out from behind one. He also made no mention of Mr Mackie putting his hands over his face, as Mr Christison had described.
Against that, Mr Mackie agreed he was at the picket line but denied throwing anything at the vehicle. (T1-33; 1-36) He said he had a distinctive hat that Mr Christison might have seen him wear on other occasions but was not sure if he was wearing it that morning. (T1-34)
Mr O’Toole said he was sitting next to Mr Mackie for 10 minutes. Although he did not know what Mr Vine’s vehicle looked like, he sat next to Mr Mackie during the period it passed them on the picket line. He said he did not see Mr Mackie say or do anything in that time when any cars went past. (T1-41; 1-43) He could not remember whether Mr Mackie was wearing a hat. (T1-45)
Mr Kendrick recognised Mr Vine’s car. He did not see anyone throw anything at it.(T1-48) He said Mr Mackie had his back to him, but was sitting in a chair next to someone else. (T1-52; 1-48) He said Mr Mackie and his friend were sitting down having a conversation while Mr Vine’s car went through, although he saw Mr Mackie half get up and sit back down again. He did not think it was possible for Mr Mackie to have done something in that time. (T1-50 to 1-51) He said Mr Mackie was not wearing a hat. (T1-52)
Mr Dwyer also said he did not see anyone throw anything at Mr Vine’s car and said he was in a position to see it if anything had been thrown. He was focussed on the vehicle and would have seen if anything was thrown (T1-55; 1-58)
When Mr Vine’s car drove through, Mr Dwyer said he (Mr Dwyer) stood up, yelled out and waved his placard. He conceded he was not conscious of what everyone around him was doing. It was possible that people were doing things he was not aware of. (T1-57; 1-58)
Nevertheless, he maintained that he would have seen if Mr Mackie had thrown anything because he was to his left and was sitting down and, as the vehicle went past he (Mr Mackie) was still sitting. (T1-58) He was not sure whether Mr Mackie was wearing a hat. (T1-58)
The learned Magistrate’s view of the evidence
The conviction rested on the learned Magistrate accepting the evidence given by Mr Vine and Mr Christison, which he preferred over that given by the defence witnesses. Counsel for the respondent conceded the learned Magistrate’s reasons for accepting their evidence were brief and did not expressly address all the circumstances in which the identifications were made.
The learned Magistrate accepted Mr Vine and Mr Christison’s evidence, stating that it did not have the hallmarks of concoction. In reaching that conclusion, he relied on the fact that Mr Vine did not give evidence that Mr Mackie was wearing a white cowboy hat, which he could easily have done. This assessment goes only to credibility of the witnesses, not to the reliability of their evidence.
His Honour was inconsistent in the inferences he drew from the various accounts given by the witnesses about whether or not Mr Mackie was wearing a hat that morning. The only person who gave evidence that he saw Mr Mackie wearing a white cowboy hat was Mr Christison. All the other witnesses either did not see him wearing a hat or gave uncertain evidence. Mr Vine said he was wearing something, but could not say what. Mr Mackie, Mr Dwyer and Mr O’Toole were not sure if Mr Mackie was wearing a hat. Mr Kendrick said he was not.
The conflicting evidence is important because the learned Magistrate drew a favourable impression of the prosecution witness Mr Vine, because he did not corroborate Mr Christison’s evidence in this regard. Yet he drew on Mr Mackie’s uncertainty about whether he was wearing a hat as a sign that he was selective in his evidence. (T decision 1-3)
The inconsistency in the inferences that he drew unfairly distinguished between the credibility of the prosecution witness, Mr Vine, and Mr Mackie. If Mr Vine was to be given credit for not concocting evidence to support Mr Christison’s recollection that Mr Mackie was wearing a hat, then surely Mr Mackie, who heard the prosecution witnesses give their evidence, should likewise have been given credit for not concocting an account that he was definitely not wearing his akubra that day.
With respect to his Honour, I do not consider the accounts in relation to the hat assist in assessing credibility and certainly cannot justify reaching a positive assessment of Mr Vine’s credibility at the same time as a negative assessment of Mr Mackie’s. I find, with respect, that his Honour erred in his decision to accept or reject evidence on this basis.
Further, his consideration of the prosecution witnesses on that score went only to credibility, not reliability. The reliability of identification evidence is a critical issue.
The dangers of eye witness testimony have long been recognised by the courts. There is a special need for caution before convicting in reliance on identification evidence.[5]
[5] Dominican v The Queen (1992) 173 CLR 555.
The learned Magistrate adverted to some, but, respectfully, not all the factors that are relevant in assessing the evidence of identification.
I agree with the learned Magistrate’s conclusion on the evidence about the state of lighting that morning. Although the natural light was still dark, the learned Magistrate found the artificial light at the picket site was sufficient to enable a witness to recognise a person standing on the picket line.
I agree with that conclusion, given the evidence given by Mr Dwyer, that he clearly saw Mr Vine driving the vehicle (T1-56), and Mr Kendrick, that there was sufficient light for all parties to see each other(T1-52). There was also the evidence given by Mr Vine (T1-9; 1-14; 1-15; 1-21) and Mr Christison that they could see clearly (T1-23;1-24;1-27). Mr Mackie agreed there was sufficient light to see any men standing on the picket line, although he noted that he was sitting behind the line at the relevant time. (T1-35)
His Honour also referred to the fact that both Mr Vine and Mr Christison had known Mr Mackie in a work capacity for some time. To that extent, then, they were not identifying a stranger, but someone with whom they were familiar. That is an important consideration in assessing identification evidence.
However, the learned Magistrate did not advert to other important factors that bore upon his assessment of their evidence. Although he noted that the witnesses only observed the person for five or ten seconds, he did not say what he made of the fact that their view of him was fleeting. Nor did he consider that aspect of the identification in the context that the observation occurred from a moving vehicle, and the driver said he could not take his eyes off the road for long. Nor did he mention what view he took of the witnesses’ certainty they could identify one person in a group of up to 70 people, albeit on both sides of the road.
Finally he did not consider the differences between the evidence given by the eye witnesses, except in relation to the hat, which I have already addressed. Other differences between the evidence of the two prosecution witnesses were whether Mr Mackie emerged from behind a flag and then stepped back behind it after throwing something and whether he covered his face with his hands after throwing the item. His Honour may well have decided that these differences did not raise a reasonable doubt in his mind. However, that is not explicit in his reasons.
An appeal court cannot expect the same precision and comprehension from an ex tempore decision at the conclusion of a summary trial than it would from a reserved decision. Nevertheless, in this case, identification was only one issue on the prosecution case. It is reasonable to infer that his Honour referred to those aspects of the evidence that he considered in deciding to accept the prosecution witnesses’ evidence as reliable as well as credible.
With respect, in failing to consider the other factors I have addressed above, his Honour appears not to have approached the identification evidence with the caution required by the authorities.
Having found his Honour erred in discriminating between prosecution and defence witnesses on the basis of evidence about the hat, and in failing to consider all factors relevant to assessing the reliability of the identification evidence, I must exercise the appellate court’s power to make a decision based on my assessment of the evidence led at trial.
Assessment of the evidence
Other than the inferences which the learned Magistrate drew about the credibility of Mr Vine and Mr Mackie based on their recollection of whether Mr Mackie was wearing a hat, there is nothing in his Honour’s reasons to suggest he drew an adverse view of the credibility of any witness on any other basis.
On my reading of the transcript, I could not identify any particular basis to question the credibility of any of the witnesses, whether called for the prosecution or the defence.
The outcome comes down, then, to an assessment of the reliability of the identification evidence when assessed in the context of all the evidence led at the trial.
Counsel for the QPS made something of the fact that there was no effective contest that Mr Vine and Mr Christensen saw something being thrown at the car, yet some defence witnesses were certain nothing was thrown. The fact that the defence witnesses said they saw nothing thrown at the car does not mean that their evidence about what they did see cannot be relied upon. There may well have been something thrown at the car that they did not see. The critical question is whether it was Mr Mackie who did so. The importance of their evidence is what they observed of Mr Mackie at the relevant time.
Even accepting that Mr Vine and Mr Christison honestly believed they had correctly identified Mr Mackie, I would have a reasonable doubt that was so on the totality of the evidence, for the following reasons.
Mr Vine’s and Mr Christison’s observations of the person they saw throw an item at the car was fleeting and made from a vehicle moving through a picket line along which there were numerous people standing, waving placards and yelling out. Those circumstances would make certain identification difficult.
Neither witness had set out to specifically identify any person on the picket line. They identified Mr Mackie before anything was thrown at the vehicle, because both said they saw him in the act of throwing. However, their attention was not drawn to him in particular, or even to his side of the road, by anything that might have put them on alert that something was about to happen. On their account they just happened to be looking in Mr Mackie’s direction when he threw an item. This suggests they were not prepared for close observation at the time they said they saw Mr Mackie.
Although I would question whether Mr Kendrick and Mr Dwyer kept Mr Mackie under constant observation during the event, they both placed Mr Mackie next to Mr O’Toole on chairs behind the picket line, not standing, or behind any flags.
Further, Mr O’Toole was certain that Mr Mackie did not say or do anything while any cars went through the picket line at the relevant time. He said he was sitting right next to him and was in a position to closely observe Mr Mackie.
Finally, Mr Mackie gave evidence and was unshaken in his denial of the act. I do not share the learned Magistrate’s view that Mr Mackie was selective in his evidence, because of his answer to the question about the hat.
Given the evidence contradicting the prosecution case about Mr Mackie’s position and conduct at the time Mr Vine’s car passed the picket line; the conditions under which the identification took place; and the caution that must be adopted in relation to identification evidence, on the evidence led at trial I would not have been satisfied beyond reasonable doubt that Mr Mackie was guilty of the offence.
Orders
1. The conviction entered in the Magistrates Court at Blackwater on 26 July 2012 is set aside.
2. In its stead, I enter a verdict of acquittal.
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