R v Cerminara
[2006] VSCA 14
•14 February 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 221 of 2003
| THE QUEEN |
| v. |
| RALPH CERMINARA |
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JUDGES: | CALLAWAY, EAMES and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 February 2006 | |
DATE OF JUDGMENT: | 14 February 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 14 | |
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Criminal law – Appeal – Conviction on count of using a false document, s.83A(2) of Crimes Act 1958 – Acquittal on count of attempting to pervert justice – Whether inconsistent verdicts – False document tendered in Magistrates’ Court hearing – Intention – Whether verdict unreasonable and not supported by the evidence – Conviction quashed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| The Applicant in person. |
CALLAWAY, J.A.:
I invite Eames, J.A. to deliver the first judgment.
EAMES, J.A.:
The applicant was presented for trial in the County Court at Wodonga on one count of attempting to pervert the course of justice (a common law offence) and one count of using a false document contrary to s.83A(2) of the Crimes Act 1958. On 6 August 2003 a jury acquitted him on the first count and convicted him on the second. He seeks leave to appeal against conviction. Having been released on a community-based order which has expired, there is no application as to sentence.
The offence arose out of the applicant's appearance before the Magistrates' Court at Wodonga on 15 May 2001. This was a Perin Court hearing at which the applicant appeared without counsel with respect to a penalty notice which had been issued on 4 October 2000. The notice alleged that his vehicle had exceeded the speed limit on 26 September 2000 by travelling at 96 kph in an 80 kph zone. The penalty notified by the notice was $105 and one demerit point.
The applicant did not pay the fine and 30 days later was given a reminder notice and notice in addition that a late payment fee of $16.50 had been imposed. The applicant notified the compliance authority that he wanted the matter dealt with in the Perin Court. There was some dispute in the trial as to whether such notification had been made by the applicant, but he has said today, and there seemed to be no evidence to the contrary below, that he had in fact made such telephone communication advising that he had not received the initial notice.
The applicant has contended from the outset that, having not received the first notice, it was unfair that a late payment fee had been levied against him. He contended at all times that he would have paid the fine on the first notice had he received it.
The charges on which he was presented for trial arose out of his Perin Court appearance. A copy of the prosecution brief had been served on the applicant prior to the Perin Court hearing. That included an A4 photograph which was identical to that which had been produced by the speed camera and which showed the applicant's vehicle travelling at a recorded speed of 096 kph. The camera, the evidence disclosed, can detect speeds of up to 250 kph.
At the Perin Court hearing a civilian traffic operator employed by the LMT gave evidence and produced a photograph (Exhibit C) showing the vehicle travelling at 96 kph. The applicant then produced to that witness a photograph which showed the speed recorded at 996 kph. Upon its production the witness, in response to questions from the magistrate, who thereafter took over all further questioning, expressed his bemusement and he accepted the magistrate’s contention that the charge ought to be dismissed, which it was, without any submission by the applicant seeking that result. The circumstances in which the applicant produced that emerged on the transcript of those proceedings, and I will refer to them shortly. It is the production of that photograph by the applicant and his intention when he did so that were said to constitute the offences dealt with in the County Court. It emerged in the later trial that prior to the Perin Court hearing the applicant had taken his copy of the photograph to a photographer's shop and had asked for the photograph to be scanned and digitally altered to show a speed of 996 kph.
The Perin hearing was audio-taped and a transcript was produced, both the tape and the transcript later being provided to the jury. The accuracy of the transcript has not been disputed, although there are gaps on the transcript itself. It is this material which constitutes the evidence on which the jury had to determine the two counts on the presentment.
The second count, was brought under s.83A(2), which reads:
"A person must not use a document which is, and which he or she knows to be, false with the intention of inducing another person to accept it as genuine and, by reason of so accepting it, to do or not to do some act to that other person's or to another person's prejudice."
In his direction to the jury, the learned trial judge identified the issue in the trial as follows:
"What was the accused man's state of mind at the time that he produced the altered photograph at the court proceedings on 15 May 2001."
The competing contentions of counsel for the prosecution and counsel then appearing for the applicant were summarised by the learned trial judge in a clear and helpful set of directions. Having told the jury that they were being asked to draw an inference as to the state of mind of the applicant, his Honour said, commencing at page 77:
"It seems to me that the issue before you here is whether you are prepared to draw the inference that the Crown says you should be prepared to draw concerning the state of mind of the accused."
His Honour, after referring again to inferences, said this, at page 78:
"The law regarding the drawing of inferences in a criminal case is this. You should only draw an inference against the accused man on the facts otherwise established if it is the only inference reasonably open. If there were other inferences reasonably open on the facts, you would have a doubt about the guilty inference and therefore should not draw it. That issue or that process is squarely before you in this case on behalf of the Crown."
His Honour said that the prosecutor:
"has said that the only conclusion open to you from what the accused man actually did, that is, coming along with the photograph which was doctored and mutilated, whatever words you choose to use, or altered, so as to have the figure 9 where the zero should have been in the top right-hand corner … coupled with what actually was said in the Magistrates' Court - and we have fortunately an accurate record of what was actually said in the Magistrates' Court by reason of a recording that was taken at that time - ought to leave you in no doubt that the accused man had the necessary guilty state of mind, that is, he had an intention to pervert the course of public justice when he produced that photograph in those circumstances."
I note that although his Honour at that passage was referring to count 1 on the presentment, the directions which he gave, as his report today to this Court has made clear, applied to both counts.
His Honour directed the jury as to the defence case as follows:
"The thrust of what [counsel for the applicant] said to you in the course of his defence address was that when you examine what he did and what actually was said in the Magistrates' Court, and particularly when the accused really did not have the option of dictating the way proceedings went in the Magistrates' Court, it was in effect taken over by the magistrate, and he overrode what the accused man was trying to say. Even so, when you look at what he had to say, you cannot be sure that he had the necessary guilty intent."
His Honour continued, at page 80, speaking of defence counsel:
"The competing inference here is that all the accused man was seeking to do was to produce a photograph which was doctored, not with the intention of deceiving the court that this was a real photograph, but to demonstrate the possibility or the feasibility of doctoring these photographs and therefore demonstrating perhaps the lack of reliability in the photograph that was being produced (the genuine photograph that was being produced) because they were not inviolate, they are capable of being altered, being doctored."
The case was conducted on the basis that it was the Crown's allegation that it was the magistrate whom the applicant intended to act to his disadvantage under the belief that the document which had been produced was a genuine one.
There are two grounds of appeal. The second relates to the fact that there is an apparent inconsistency between the verdicts on count 1 and count 2. In his report to the Court, his Honour reported:
"My recollection is that I did direct the jury that the element in issue on the two counts before them appeared to me to be identical and that it was likely that they would return the same verdict in respect of both counts. In the result, they did not."
The fact that there is an inconsistency apparent between the two verdicts does not necessarily demonstrate that the verdict of guilty was unreasonable and could not be supported having regard to the evidence: see McKenzie v. The Queen[1]. It is not, however, necessary to reach a conclusion as to this ground of appeal, having regard to the conclusion that I have reached as to ground 1, which complains that the verdict was unsafe and unsatisfactory.
[1](1996) 190 C.L.R. 348 at 367-368, citing King, C.J. in R. v. Kirkman (1987) 44 S.A.S.R. 591 at 593..
In my opinion, ground 1 should be upheld. A reading of the transcript leads to the conclusion that a reasonable jury could not have excluded the alternative hypothesis, that in producing the altered photograph the applicant was not intending to have the magistrate believe it was a genuine document, but rather he was seeking to make a point in the terms articulated by his counsel before the jury. Indeed, the question which was asked by the applicant at the time when the photograph was produced lends strong support to that alternative hypothesis. Before producing the photograph, the applicant asked the witness:
"Is it possible that this thing, these photos can be faked?"
to which the witness answered:
"No.
The applicant then continued:
"Sir, Your Honour, could you, sir, could you please have a look at that photo there?"
That introduction to the production of the document, and indeed, in my view, the very fact that the document showed an absurd speed of 996 kph, ought to have squarely raised a doubt in the minds of the jury as to the intention of the applicant when the document was produced.
In his submissions to this Court, Mr McArdle, although not conceding the appeal, with his usual fairness, made the following observations in his written submissions:
"It is submitted that it is by no means clear that at the Magistrates' Court he was challenging the commission of the offence. In addition it may have been the opinion of the jury that the magistrate had adopted the running of the case. If that analysis is correct, or could not be discounted by the Crown, the reason for putting the photograph to the witness Hutchins is also by no means clear. It is not relevant to the issue between the applicant and the informant, that is, whether he had received the first letter. The jury may have taken the view, which appears to be the defence position at trial, that the letter was produced to show that documents can be changed and/or are not intrinsically reliable."
It is important when assessing this ground to bear in mind the following matters. Firstly, as emerged on the plea, the applicant was a man with very limited education, appearing without the benefit of legal representation before the magistrate. Any suggestion, for example, that he should have spoken up to correct the apparent misunderstanding on the part of the magistrate as to the significance of the photograph must be considered in the light of that fundamental fact. Secondly, at no time did the applicant say anything to suggest that the magistrate should treat the photograph as genuine. He was never asked why he had produced it. The case was taken out of his hands by the magistrate (I should add, that he did so with the best of intentions, as is apparent from the transcript). Thirdly, as Mr McArdle concedes to be the case, the applicant made clear from the very outset that he would have paid the fine had he received the first notice, and that his complaint then (which he further articulated today) was as to the additional costs and inconvenience which had been occasioned to him by a mistake made by the authorities who failed to serve the original notice on him.
In my view, it is plain from his remarks to counsel after the verdicts were received - and indeed his Honour's report today is not inconsistent with this - that his Honour had some unease about the verdict which was returned.
In this case this Court is in as good a position as the jury to assess the evidence in the case. That evidence is within the very narrow compass that I have described. The applicant did not give evidence at trial; indeed, he complains that he had never had the chance to explain himself. Having not given evidence, however, the jury had no advantage over this Court in assessing the applicant’s evidence because no question of credibility is raised, save to the extent that the document itself and the tape and transcript of the proceedings might raise it.
Whilst giving full weight to the combined wisdom of the jury, this in my opinion is a case where real doubt attends the verdict. The alternative hypothesis of innocent intention on the part of the applicant not having been excluded, the verdict in my opinion is unreasonable and cannot be supported on the evidence. In my view, leave to appeal should be granted, the appeal be allowed and the conviction should be quashed.
CALLAWAY, J.A.:
I agree with Eames, J.A., for the reasons his Honour has given, that ground 1 should be upheld. The conviction should, accordingly, be quashed and a judgment and verdict of acquittal entered.
ASHLEY, J.A.:
I also agree with Eames, J.A. that the application should be granted, the appeal allowed and the conviction quashed for the reasons which his Honour has given.
CALLAWAY, J.A.:
The orders of the Court will be as follows:
The application for leave to appeal against conviction is granted.
The appeal is treated as instituted and heard instanter and is allowed.
The conviction sustained by the appellant in the court below is quashed and the sentence passed thereon is set aside.
The Court directs a judgment and verdict of acquittal to be entered.
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