Ovenden v Commissioner of Police

[2008] QDC 144

[2008] QDC 144

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE HOWELL

Appeal No. 1 of 2007

NIGEL PETER OVENDEN Appellant/Defendant
And

COMMISSIONER OF POLICE Respondent/Complainant

HERVEY BAY

..DATE 04/04/2008

ORDER
04042008 T(2)02/LJP(CAB) M/T HERV 03 (Howell DCJ)

HIS HONOUR: The appellant was charged, 1

"That on the 11th of September 2005 at Howard in the driver of a motor vehicle, namely a motor car, which was moving on a road, namely William Street, Howard, failed to wear a seatbelt properly adjusted and fastened.".

10

The matter came on for trial in the Hervey Bay Magistrates

Court on the 11th of December 2006.

The evidence for the prosecution was given by a police

officer, Senior Constable Wall, and the evidence for the	20
defence was given by the appellant himself.
The trial was conducted on the basis that there was no dispute
that the appellant was driving the said vehicle at the said
time on the said road.	30
In relation to the functional driving, Constable Wall stated,

"I observed Mr Ovenden pull up at the intersection. He was driving a white Ford Falcon early model car and his window was down. I had clear vision. There were no cars	40
parked in front of me. He was the sole occupant of that
vehicle and I saw him reach for his seatbelt, which was
black in colour, and he obviously was putting his
seatbelt on whilst he was stopped at the intersection. I
observed him travel across the road, up William Street, from the left-hand side of that photo to the right-hand side and I subsequently started my car up and I
intercepted him in Watkins Street, which is possibly two
streets up from where we were and that was outside my
house.".	50

Senior Constable Wall said shortly thereafter,

"I asked him if he had any certificates or exemptions for

not wearing a safety belt. He said, no he hadn’t and he

2 ORDER 60

04042008 T(2)02/LJP(CAB) M/T HERV 03 (Howell DCJ)

said he was putting it on, he'd only just come around the	1
corner. I asked him if he was driving a motor vehicle prior to getting to that intersection, to which he replied, 'Yes.', and he said, 'You're not giving me a ticket are you?', and I said, 'Yes, I am. You were driving a motor vehicle on a road and you just didn’t put your safety belt on.', and he said that he was just putting it on.".

10

Senior Constable Wall said later,

"It was fine conditions, it was a hot clear sunny day.".

He said later,

20

"That the appellant was the sole occupant of the
vehicle.".

The appellant strenuously contested such evidence in his cross-examination. He strenuously disputed that he did not

30

have a seatbelt on, and challenged the capacity or ability of

the police officer to be able to see what he said he saw.

The appellant then gave evidence inter alia,

40

"On this day I went home to have some lunch and that’s when the police officer said to me that I never had my seatbelt on. I swore .. because I had my seatbelt on. I
don’t know why he had to sit there and stalk me .. I had
my belt on, that’s the truth, that’s my testimony. I'm
not going to be blamed for something I didn’t do 'cause

I'm prepared to take it higher than what it is now.".

In cross-examination, the appellant continued to state in 50

strong terms that he did have his seatbelt on. In cross-
examination he said,
04042008 T(2)02/LJP(CAB) M/T HERV 03 (Howell DCJ) 3 ORDER 60

"All I know is that when I got into my car, I put my	1
seatbelt on - hang on a moment, as you can see where Di's restaurant is, there's a railway line at the back there, the only reason I did a u-turn to come back there was because there was a 42 carriage train coming through, so therefore I did a u-turn and went home for lunch and I had my seatbelt on.".

The learned Magistrate then had to make an important and	10
crucial finding of fact. The police officer had sworn on oath
that the appellant was not appropriately wearing a seatbelt
and that he had clear vision thereof, whereas the appellant,
in the strongest terms, swore on oath that he did have such
seatbelt on.	20
30
40
50

4 ORDER 60

04042008 T(2)03/PGO(CAB) M/T HERV03 (Howell DCJ)

In relation to such finding of fact, the learned Magistrate	1
had to resolve that question of credit applying the usual tests of what was actually said, were there any inconsistencies, were there any inherent improbabilities and, not unimportantly, on demeanour, on body language.

10

The learned Magistrate, after referring to some matters of law, including that the respondent bore the onus of proof beyond a reasonable doubt, and referring to the undisputed matters that at the time and place in the charge it was not

20

disputed that the appellant was driving the said motor vehicle on the said road at the said time, referred to the evidence of Constable Wall and his observations. He referred to inter
alia, the constable "is quite adamant that about 12.35 he

observed the white Ford Falcon sedan pull out of William

30

Street, had a clear view and saw him reach for his seatbelt.".

He said later,

"The appellant gave evidence that he pleaded not guilty
and that he had his seatbelt on and that was it and that
he did not come along to the Courtroom to fight something

of which he was guilty.". 40

The learned Magistrate then came to the crucial portion of his finding,

"Obviously the matter has to be determined, really, on

credibility of the witnesses.. I observed the police

50

officer give his evidence. I have considered that evidence. I do not accept what the defendant is saying in relation to how far back the police vehicle was from the intersection and had it been a case where he was alleging that the seatbelt just was not on, maybe he may not have seen anything from that distance but what he alleges is the actions of the appellant in actually attempting to place the seatbelt upon himself. I have no

5 ORDER 60

04042008 T(2)03/PGO(CAB) M/T HERV03 (Howell DCJ)

doubts that that could be clearly seen from that distance	1
and I accept what he said. I find him to be a forthright and honest witness and there is no indication to me that he was conveying an untrue version of events when he gave his evidence."

The learned Magistrate said later,

10

"In relation to the appellant's evidence I accept that he
is not experienced as a witness in Court proceedings and
I accept that he had some difficulties in wording
questions for the appellant however I think his evidence is summed-up when he said to me from the bar table, I am not sure what his exact words were but, to some extent,
that he would be guilty of the offence. In relation to
the evidence where there are discrepancies between the

evidence of a police officer and that of the appellant, I	20
reject those parts of the appellant's evidence and I find that the appellant was not wearing a seatbelt at the time that he entered the intersection although he did have a
seatbelt on at the time of the interception. I find the prosecution has established all elements of the offence beyond reasonable doubt."

For completeness the appellant was fined $300 and ordered to

30

pay $61.25 costs of Court. The appellant appealed from such
decision. His written grounds of appeal in the original

notice are,

"(1) Too many lies on the police side, plus the

Prosecutor;	40
(2) the case was not heard properly; (3) the police officer, Mr Wall, would not answer my questions while on oath; (4) the Magistrate himself was biased."

As I said, I have been greatly helped by the appellant in some detail, providing me with written submissions on which he

50

relied. The written submissions refer to the evidence he gave
and repeated thereon and he makes a number of helpful
submissions on why he should be believed and why the
04042008 T(2)03/PGO(CAB) M/T HERV03 (Howell DCJ) 6 ORDER 60

prosecution should not be and why the appeal should be allowed	1
and that there be an acquittal entered.
In addition, he refers to the following,

10

"On the 17th of November, 2005 I phoned Crime and marked number 1."

Number 1 is a letter of such date whereupon the executive
legal officer of the Crime and Misconduct Commission wrote to

the appellant. The appellant in the written submissions also	20
states,

"Around about the 1st or 2nd of January, 2006, a woman from Hervey Bay Police phoned me, Sergeant M W Wooley, asked what they did. I told her the officer's name, one,

Chris Rawlins, two, David Wall. I told her how much I

had been harassed, victimised by police." 30

He then refers to a warrant. He then refers to,

"On the 23rd of February, 2006, I received a letter from marked number 3."

40

Number 2 shows a receipt for registered post, a customer
receipt, and the letter sent from Howard to Sergeant M Wooley
of the Hervey Bay Police Station and it has the appellant's
signature thereon, as the person who sent it.
04042008 T(2)04/KMW(CAB) M/T HERV03 (Howell DCJ) 50

7 ORDER 60

The document marked number 3 is dated the 23rd of February,	1
2006, signed by the Assistant Commissioner of the North Coast region. In the first letter, the one of the 17th of November, 2004, it states therein,

10

"I refer to your telephone call on the 14th of November,

2005, in which you raised concerns about the conduct of dates. All the information you have provided has been considered and it is understood your concerns are that you're being harassed by the above officer for unknown reasons.".

Ultimately, their letter says, 20

"After considering the principles which apply under the Act it has been decided to refer the information to the police service. You should be contacted by a member of the police service in relation to those concerns in due course.".

30

The third letter, the one of the 23rd of February, 2006, states,

"I refer to your complaint dated the 14th of November, 2005, concerning an allegation of continual harassment against you by Senior Constable Rawlins.".

40

He refers to the enquiries and later says,

"I have examined the facts and circumstances surrounding
the incident and the enquiries conducted by Sergeant
Wooley in relation to your complaint. Upon a
consideration of those matters I am satisfied that police

acted lawfully and reasonably in the circumstances.	50
There is insufficient evidence to substantiate a breach of discipline or misconduct against police. I do not propose to take any further action regarding this matter and now consider it finalised.".

8 ORDER 60

04042008 T(2)04/KMW(CAB) M/T HERV03 (Howell DCJ)

Although certain of these matters are irrelevant for today's	1
appeal, I mention them as part of the appellant's submissions.
What is very clear is that the appellant is thoroughly convinced in his own mind that he was not driving without his

10

seatbelt properly fastened and is concerned and upset that the
learned Magistrate rejected his evidence and accepted that of

Constable Wall.

What I have to decide on appeal is firstly on the findings of

20

fact, were they reasonably open to the Magistrate? It is not
that I am rehearing the matter to the extent of deciding
questions of credit myself. In other words, I am not here to

say,

30

"I accept Constable Wall and reject the appellant's
evidence or I accept the appellant's evidence and reject

the complainant's evidence.".

As a starting point I have to decide if the findings of fact
were reasonably open and supported by the evidence. I also

have to consider if the learned Magistrate made an error of	40
law or whether he acted upon a wrong principle; if he allowed extraneous or irrelevant matters to guide or affect him; if he was mistaken as to the facts and whether he did not take into account some material consideration.
50

At the end of the day, in my view, the finding of fact was reasonably open to the learned Magistrate and was supported by the evidence. He did not make any error of law. He did not 04042008 T(2)04/KMW(CAB) M/T HERV03 (Howell DCJ) 9 ORDER 60

act upon any wrong principle. He did not allow extraneous or	1
irrelevant matters to guide or affect him. He did not mistake the facts and it is not a situation in which he has not taken into account some material consideration.

10

Accordingly, on that basis, it was open to the learned

Magistrate to convict. Accordingly, I dismiss the appeal.

...

20

HIS HONOUR: The order is as follows: The appeal is dismissed.

I make no order as to costs.

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10 ORDER 60