Pavlovic v Commissioner of Police

[2005] QDC 353

DISTRICT COURT OF QUEENSLAND

CITATION:

Pavlovic v Commissioner of Police [2005] QDC 353

PARTIES:

Zoran Pavlovic

(Appellant)

v

The Commissioner of Police

(Respondent)

FILE NO/S:

41/05

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Beenleigh

DELIVERED ON:

14^th October 2005

DELIVERED AT:

Beenleigh

HEARING DATE:

14^th October 2005

JUDGE:

Dearden DCJ

ORDER:

The application for leave to adduce new evidence on appeal is refused.

CATCHWORDS:

APPEAL AGAINST CONVICTION – Justices Act s 222 – Preliminary issue – Whether verdict unsafe or unsatisfactory – Fresh evidence – Admissibility of evidence

Criminal Code s 668E

Justices Act s 222

Chamberlain v R (No. 2) (1984) 153 CLR 521

M v R (1994) 181 CLR 487

MFA v R  (2002) 213 CLR 606

COUNSEL:

Mr Z Pavlovic in person for the appellant

Ms S Farnden for the respondent

SOLICITORS:

Mr Z Pavlovic

Director of Public Prosecutions

HIS HONOUR:  Okay.  I will now give my ruling in respect of the issue of the admission of fresh evidence.  This is an appeal against a conviction by Zoran Pavlovic in respect of one charge of wilful damage.  Mr Pavlovic was found guilty in the Beenleigh Magistrates Court on 14 April 2005 in respect of the offence which allegedly occurred on 3 December 2004.

A preliminary issue which arises in this matter is whether this Court should give leave to adduce fresh evidence.  The relevant provisions are set out in the Justices Act s.223:

"(1)An appeal under section 222 is by way of re-hearing on the evidence (original evidence) given in the proceeding before the Justices.

(2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the Court is satisfied there are special grounds for giving leave.

(3)If the Court gives leave under subsection (2), the appeal is:-

(a)by way of re-hearing on the original evidence;

and

(b)On the new evidence adduced."

At the trial in this matter evidence was given for the prosecution by two police officers, plain clothes Constable William Varga and plan clothes Constable Rebekah Spink, the complainant, Troy Daniel Oliver and his father, and his father Daniel Frederick Oliver.

Evidence was given for the defence by the appellant, Zoran Pavlovic.  Mr Pavlovic sought to tender as evidence a letter dated 4 December 2004 from Ms Aneeta Prince which contained an account of a confrontation apparently involving the appellant and a middle-aged man on 3 December 2004.  Mr Pavlovic initially attempted to tender this letter during the cross-examination of Troy Oliver (transcript pages 39-40) but leave was refused.

Mr Pavlovic informed the Magistrates Court (transcript page 40) that the writer of the letter had moved to Melbourne.  Although the letter contained a mobile phone number for Ms Prince no attempt was made by the appellant to seek to have her give evidence by phone, although the appellant did raise with the Magistrate the existence of the letter (transcript pages 72-73) during the course of the defence case.

The Magistrate ruled, correctly in my view, that the letter could not be tendered in evidence.  The appellant did not seek an adjournment to call Ms Prince to give evidence either in person or by phone nor did he make any attempt on the day during the course of the hearing to have Ms Prince give evidence, presumably by phone.

By agreement between the appellant and Ms Farnden for the respondent a number of documents have been placed before me as potential "new evidence".  Although there are difficulties in respect of many of those documents in that they are not presented by way of attachments or exhibits to affidavits, and there is no sworn evidence as to the relevance of the respective documents, I have proceeded on the basis of submissions made from the Bar table by the appellant and I have taken into account both written and oral submissions by the appellant and Ms Farnden.  Each of those documents has been marked Exhibits "A" - "I" respectively.

The Law

The High Court in Gallagher -v- R (1986) 160 CLR 392, per Gibbs CJ at pages 395-396 set down the relevant test in respect of fresh evidence (referred to in the Justices Act 1886 as new evidence.)

"The authorities disclose three main considerations which will guide a Court of criminal appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial.  The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable vigilance have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal or inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial.  Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict."

Applying that test to the material before me I find respectively as follows:-

Exhibit "A" - letter of Ms Aneeta Prince dated 4 December 2004. 

This letter was present with the appellant at trial and he sought to produce it.  I accept that it is potentially relevant evidence but the appellant did not seek to call Ms Prince to give evidence by phone nor did he seek an adjournment for the purpose of calling her to give evidence personally or by phone on some later occasion.  It is therefore not, in my view, "new evidence".  I do not believe even if it was received that it would have reasonably led the Court to return a different verdict.

Exhibits B and C. 

These are statements respectively of Benjamin Joseph Moore and Robert Moore and both statements are dated 25 September 2005.  As can be noted, these statements were obtained a long time after trial, (some five months) an even longer period than the alleged events.  The appellant accepted in his submissions that there was no impediment to him obtaining this potential evidence before the trial. '  It would seem that his response to losing the trial was then to go looking for potential witnesses to the alleged events.  I therefore find that with "reasonable diligence" the evidence contained or purported to be contained in these two documents could have been located after 3 December 2004 and before the trial on 14 April 2005. 

Although I accept that the evidence may be credible, and I note that it is a difficult exercise to assess such matters when looking at short and brief typed statements which are sworn before a Justice of the Peace but are not otherwise in admissible affidavit form, I do not believe that if received these documents might reasonably have had the Court return a different verdict. I also take the view that the failure to receive such documents as new evidence does not amount to a "miscarriage of justice" as referred to by Gibbs CJ at page 395 of Gallagher v R.

Exhibits D-H.

In my view, these exhibits were available to the appellant as at the date of trial and in addition, neither document is, in my view, relevant to the issue at trial (i.e. whether or not the appellant wilfully damaged the complainant's vehicle).  I find that these documents are not fresh or new evidence, would not have been, in my view, admissible at trial and should not be received as "new evidence" in this appeal.

Exhibit I.

This Exhibit contains three pages. The first page is a page of photographs apparently depicting injuries to the appellant.  Pages 2 and 3 are photographs of graffiti on the appellant's residence.  In respect of the photographs, all were as I understand it, available at the date of trial therefore none of the photographs is "new" or "fresh" evidence. In any event, in my view none of the photographs are relevant to the issues at trial and there is accordingly no basis for the admission of any of the three pages (each of which contains multiple photographs) as evidence.

Pursuant to s 223 of the Justices Act 1886 I decline to grant leave to the appellant to adduce new evidence in respect of any of Exhibits A-I (and in making such a ruling that of course precludes any potential evidence which could flow from those documents or the witnesses who were responsible for producing the documents.)

The appeal will therefore proceed as a rehearing pursuant to s 223(1) of the Justices Act confined to the evidence given at the original trial which is contained in the transcript of proceedings and in the exhibits which were tendered on the original trial.