R v Cerminara - [2006] VSCA 14

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] VSCA 14
Decision Date: 14 February 2006

CaseChat Overview and Summary

The case of R v Cerminara involved an appeal against a conviction for using a false document, under section 83A(2) of the Crimes Act 1958, and an acquittal on a count of attempting to pervert the course of justice. The matter was heard by the Court of Appeal, which was tasked with determining the validity of the conviction, the inconsistency of the verdicts, and the sufficiency of the evidence presented.

The central legal issues revolved around the consistency of the verdicts and whether the conviction for using a false document was unreasonable and unsupported by the evidence. The court was required to examine whether the false document tendered in the Magistrates’ Court hearing could substantiate the conviction, and if the verdict on the charge of attempting to pervert justice was inconsistent with the acquittal on that count. Additionally, the court had to consider the intention behind the use of the false document and whether this was adequately proven.

The Court of Appeal found that the verdicts were inconsistent, and the conviction for using a false document was unreasonable and not supported by the evidence. The court emphasised the need for a clear and unambiguous demonstration of the defendant's intention to use the false document, which was lacking in this case. Consequently, the conviction on count one was quashed, and the acquittal on count two was upheld. The court did not find it necessary to order a retrial given the inconsistent verdicts and the lack of sufficient evidence to support the conviction on the first count.

Orders