Marshall v Smith

[2009] QDC 88

[2009] QDC 88

DISTRICT COURT
APPELLATE JURISDICTION

SENIOR JUDGE TRAFFORD-WALKER

Appeal No 639 of 2008

TONY MARSHALL	Appellant
and
CHRISTOPHER SMITH	Respondent
BRISBANE ..DATE 06/04/2009
ORDER

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HIS HONOUR: In the Magistrates Court held at Petrie on the

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12th of February of 2008 the appellant was convicted of
driving a motor vehicle whilst disqualified. He appeals to
this Court seeking an order quashing the conviction on the

following grounds:

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(1) First of all that the presiding Magistrate erred in his

interpretation of the evidence of the witnesses Smith and

Neville;

(2) That the presiding Magistrate ought to have found that

there were serious inconsistencies between Smith and	20
Neville;

(3) That the presiding Magistrate ought to have found at

least a doubt in relation to the prosecution evidence
and;

(4) The presiding Magistrate ought to have found that the 30

evidence of Smith in relation to his reported
identification of the defendant was inheritably

improbable and was inconsistent with his own notes.

At the hearing of this appeal, the argument for the appellant	40
was that the stipendiary Magistrate relied upon the evidence of Constable Smith to convict the appellant. Counsel argued that there were a number of inconsistencies in evidence of the
two police officers who gave the evidence and argued that
these were not examined properly by the Magistrate, and that	50

he simply accepted the evidence of Smith without giving
reasons.
There was another body of evidence against the appellant, 1-2 ORDER 60

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namely admissions made to the police officers shortly after
the driving of the motor vehicle. The argument of the
appellant's counsel was that these were not specifically
rejected by the stipendiary Magistrate and therefore could not

be relied upon to support the conviction.	10
The circumstances surrounding the offence which were not
contested can be briefly stated: At about 11 a.m. on the 20th
of September of 2006 the appellant and his partner were in a
motor vehicle, a Toyota Corolla, which was being driven on a	20
road; the vehicle was observed by police officers, namely police vehicle subsequently pulled up behind them.
By the time the police vehicle stopped behind the Toyota the	30
persons who had been in the motor vehicle had gone. Shortly after, the appellant's partner was located and shortly after that the appellant arrived back at the vehicle. The only
issue was who was the driver of the Toyota. Senior Sergeant
Neville, the driver of the police vehicle, did not identify	40
the driver, he was looking in the rear-vision mirror and said that the persons in the front were adults.
Constable Smith's evidence was that the driver was a bald
headed male, namely the appellant, and that the passenger was	50
a long-haired female. The evidence of the appellant and his partner was that the partner was driving, not the appellant. The appellant made admissions to the police that he was the

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driver and the prior inconsistent statement of his partner was

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that the appellant was the driver.

In submissions to this Court, counsel for the appellant
pointed out a number of inconsistencies between the evidence

of Neville and Smith and he pointed out inconsistencies in the	10
evidence of Smith. He argued that these were significant and had not been properly examined or examined at all by the stipendiary Magistrate.
In looking at reasons for a decision of the stipendiary	20
Magistrate on an appeal, just as reading a summing-up of a
Judge to a jury, an Appellate Court does not approach its task
as if interpreting a piece of legislation. Now, looking then
at what the stipendiary Magistrate said in his reasons, I find
the following. In page 3 he makes this statement, "The issue	30
remains as to which of those two persons was the driver, the onus of proof being on the prosecution to prove in order for it to sustain a conviction that the occupier driver of the
vehicle was, in fact, the defendant".
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So, clearly, he had in mind the task and onus of proof which
lay upon the prosecution. Then at pages 4 and 5 he refers to
a number of the inconsistencies in the police evidence. He
does not go into them in detail but he refers to them, so
clearly he had these inconsistencies in mind. At page 7, he	50
refers to the conversations with the female passenger and at page 8 he refers to the admissions and says, and I'll quote, this is referring the evidence of Neville, what was said was,

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"Are you the driver of the vehicle?" He said, "Yes". He

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admitted being disqualified for drink driving. The
conversation was recorded in the police note book, the notes

were read over to him and the notes were duly signed."

Then the Magistrate continues, "In essence the prosecution	10
could be said to be this, that on the day in question at the
place in question the police attention was brought to and
directed upon a motor vehicle. The police officer observed
the driver of that vehicle to be a male with a shaved head and
a goatee type beard who was identified in Court as being that	20
person and of his making admissions at the scene which, if accepted as being accurate, are capable of constituting an admission against him therefore clearly admissible in these
proceedings". So, quite clearly, just continuing my comments
about it, the Magistrate had in mind not just the evidence of	30
identification but also the admissions that were made and properly said that if accepted they were admissions against interest.
Then, in relation to page 11, again, the Magistrate refers to	40
the inconsistencies, so he also had in mind these
inconsistencies when he was examining the evidence. In
relation to those matters he said this at page 11, "Now, as I
have indicated, defence sought to make much of the distance
separating the motor vehicles and where they were travelling	50
upon the road and, in particular, the distance separating the
motor vehicles at the time that the defendant's vehicle veered
off the road into the driveway and the like".

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He continues on, "The fact remains that the issue for
determination by this Court is whether the identification of
the defendant as the driver has been proven by the prosecution
and proven beyond reasonable doubt". And a little further on

he said, "This Court, it has been said, as being a Court	10
comprising both Judge and jury, in arriving at issues of fact
is not to leave its commonsense out in the carpark but is to
view all the evidence that has been adduced and is to weigh
that evidence to assess its credibility, its likelihood of
occurrence, and to draw reasonable inferences from the facts	20
which have been proved before it".
And I stress there, of course, again the Magistrate is
referring to all the evidence, not just part of the evidence
and he continues a little later on, "Now, it is" - and he's	30
referring to the duty of the Court - "it is to be satisfied on the whole of the evidence that the prosecution has proved that the defendant at the relevant time is and was the driver of
the vehicle.
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His final comments about the matter were these, "At the end of
the day when having regard to all of the evidence I am
satisfied and satisfied beyond reasonable doubt that I see no
reason whatever to reject the evidence of Senior Constable
Smith as regards to identification. I am satisfied and	50

satisfied beyond reasonable doubt that the driver of the
vehicle was, in fact, the defendant".
In my view, it is clear from the reading of the reasons for 1-6 ORDER 60

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judgment that the Magistrate had in mind inconsistencies; had
in mind the identification; had in mind the admissions that
were made; and all the evidence and on all the evidence he was
satisfied to the proper standard that the driver of the

vehicle was, in fact, the appellant. It is clear on the	10
evidence that there was a very strong case and I see no reason
on the material and on the Magistrate's reasons to interfere
with his decision. So, the appeal is dismissed.
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