Marks v. Lynn

[2008] QDC 39

DISTRICT COURT OF QUEENSLAND

CITATION:

Marks v Lynn [2008] QDC 39

PARTIES:

ANDREW JAMES MARKS

(Appellant)

v

WAYNE BRIAN LYNN

(Respondent)

FILE NO/S:

DIVISION:

Appeal

PROCEEDING:

Section 222 Justices Act Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

12 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2008

JUDGE:

Searles DCJ

ORDER:

1.   Appeal allowed;

2.   Convictions be set aside;

3.   Respondent to pay Appellants cost of Trial and Appeal totalling $3911.27

CATCHWORDS:

Judges’ Rules; discretion to exclude confession evidence on ground of unfairness;

COUNSEL:

Appellant – P. Goodwin

Respondent – R. Pointing

SOLICITORS:

Appellant – Skewes & Dempster

Respondent – Director of Public Prosecutions

1. The appellant appeals pursuant to s 222 of the Justices Act 1886 against his conviction on 12 December 2007 of two simple offences in the Longreach Magistrates Court. The appeal is by way of rehearing.[1]

   [1]Justices Act 1886 s 223; Builders’ Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62 per Mason J.

1. The charges were, firstly, of driving a motor vehicle whilst being a disqualified driver, and secondly for driving an unregistered vehicle.  Both offences were alleged to have occurred on 2 March 2007 at Longreach and the vehicle in question was a quad four-wheeler. 

1. His prosecution initially involved a further indictable charge of dangerous operation of the above motor vehicle, but as a result of a voir dire to which I shall later refer, the prosecution of that charge did not proceed.

1. The prosecution case in relation to the simple offences was based entirely upon a taped interview of the appellant conducted by the only Crown witness Sergeant Lynn.

Grounds of appeal

1. The appellant appeals the convictions on three grounds:-

(a)         That the learned Magistrate erred in law in admitting into evidence the Record of Interview between the Complainant and the Defendant at the Longreach police station on the 3^rd March 2007;

(b)         That the said convictions were wrong in and contrary to law;

(c)         That the said convictions were against the evidence and the weight of the evidence.

Voir dire

1. Mr Mumford, counsel for the appellant, objected to the Record of Interview of 3 March 2007 being admitted in evidence against the appellant in relation to all three offences (one indictable, two simple) and a voir dire was held.  Before dealing with the police interview it is of assistance to outline the prosecution’s case.  Sergeant Lynn gave evidence that he saw the appellant driving the vehicle on the morning of 3 March 2007 with two other persons on board and with what appeared to be a stubbie of beer between his legs.  He activated his siren and lights to have the appellant stop but the appellant, according to Sergeant Lynn, ignored that and drove off.  It was that driving which was the subject of the discontinued indictable charge of dangerous operation of the vehicle. 

1. Later in the morning of 3 March 2007 at approximately 9:20 am the appellant presented himself at the police station to report the theft…