R v Okon

[1993] QCA 52

[1993] QCA 052

COURT OF APPEAL

MACROSSAN CJ
McPHERSON JA
BYRNE J

CA No 304 of 1993

THE QUEEN

v.

JOSEPH DAVID OKON

BRISBANE

..DATE 23/02/93

THE CHIEF JUSTICE: The applicant appeals against his conviction after a trial on a charge that on a named day in December 1991 he wilfully and unlawfully damaged a motor vehicle belonging to a person called Fletcher. At the trial which took place following his “Not Guilty” plea the apppellant gave evidence.  The Crown called    a number of witnesses and we observed that in the course of the trial Judge’s summing up the evidence forming the contentions on each side of the issue were quite adequately summarised by the trial Judge.

The grounds of appeal which are specified by the appellant, who appears on his own behalf before us, although he was represented below, are these: that the verdict was unsafe and unsound, given the evidence, and that the - by way of particulars, the evidence was insufficient to justify the conviction or the conviction was contrary to the evidence.  The case arose out of an episode when the appellant was driving his rather large vehicle equipped with a bull-bar, and was in the vicinity of his wife’s house, she being estranged from him and he drove his motor vehicle into the car of the person named Fletcher.

Although the appellant and his wife were estranged, they had a daughter which the appellant had access to under a Court order or arrangement, and whom he used to visit from time to time.  The appellant, therefore, was familiar enough with his wife’s residence.  It seems that this man, Fletcher, was someone who was at least an acquaintance of his wife, and also knew his wife’s sister.  He had parked his vehicle outside the wife’s house on the night in question and other guests who were at the house similarly had their vehicles parked there.

The Crown case which was adduced through the witnesses in particular, Fletcher, a Miss Kohn and the appellant’s wife, was that the appellant was seen to drive his vehicle several times into Mr Fletcher’s car which was a much smaller car and do considerable damage to it.  The description of these three witnesses whom I have mentioned, appears in the trial Judge’s outline in the summing up. The trial Judge speaking of the appellant’s own evidence seems to have drawn from it that the appellant was conceding a number of impacts between the two vehicles but fewer than those of which Mr Fletcher spoke of a total of three impacts, one she heard and two she saw.

Mrs Okon, the appellant’s wife, said she saw and heard three impacts.  One extract which illustrates the strength of some of the Crown evidence appears in the trial Judge’s summing up referring to what Miss Kohn had stated.  We see that her evidence, in part, amounted to this.  She heard something, and she observed the blue car, that was Fletcher’s car, parallel to the street half on the footpath and half on the road, and at that point the white van with the bull-bar, which as it turned out was driven by the appellant, was touching it at an angle at the front.

She saw the driver of the white van reverse.  He went up the footpath on the other side of this street, outside the wife’s house, and then drove into the blue car again, again hitting it at the front.  She said there were people around saying things to the effect, “Stop.  Get out of the car.  Police”, and the like, and some even tried to let out the air from the tyres of the white van, but the driver of that white van reversed again a little further up the road this time and again drove into the small grey car at the front.

Now, the trial Judge also summarised for the jury certain of the evidence which the appellant had given at he trial.

He reminded the jury that the appellant explained his presence in the street that night by saying he had heard rumours that there was a wild party going on a his wife’s residence and he wanted to have a look at it.  It seemed to be involved in what he was suggesting, that he was concerned, amongst other things, about his daughter’s welfare.  Since he wanted to look into the house, he thought he should turn around at one point in the street outside and he said that in doing that , he miscalculated his turn.

He then explained further events by saying that he got into a panic.  People came running out of his wife’s house and knocking on his car and shouting.  He said he lost control of his vehicle due to causes which he specified as objects falling onto the floor and getting caught under the pedals, and also the confusion which caused him to perhaps engage an incorrect gear.

Well, when the police spoke to the appellant, he gave his explanation that the whole event was an accident.  In his evidence below, he conveyed the same thing to the jury.  The jury  had a strong case, however, from the Crown with its implications of a deliberate element in the damage that was being caused.  The appellant before us, in attempting to challenge the jury’s verdict, continues to assert that it was an accident.  In other words, he asserts that the jury’s verdict was wrong, and he adds, “Well, the witnesses whom the Crown called were not telling the truth, but were, in fact, lying.”

Well, all of these were matters essentially for the jury to judge, and as I have already said, it was a strong case suggesting deliberate action on the Crown’s part when the evidence of the various Crown witnesses is examined.  From one of those witnesses, I have quoted some examples of the trend of the evidence.

No other reasons, really, were advanced on the appeal in support of the grounds taken, namely that the verdict was unsafe and unsound and there was insufficient evidence.  In fact, on the face  of the record, the evidence was ample, and indeed more.  In my opinion, with the nature of the task that we have, there is no justification for interfering with the verdict arrived at and I would dismiss the appeal.

McPHERSON JA: I agree.  On the question of whether or not the damage was caused accidentally or deliberately, it is likely that the evidence of Miss Kohn would have proved persuasive with the jury.   The learned Chief Justice has referred to the substance of what she said at the trial.  She was a woman who lived across the road from the estranged wife of the appellant.  She knew her - that is, Mrs Okon - only to say hello to.  There was no reason why she should not have been telling the truth.  Her interest in what happened was aroused by the fact that her own vehicle was parked a little distance away from the complainant’s car that was damaged.

She was concerned that the repeated collisions between the appellant’s vehicle and the complainant’s vehicle had, as she said, the potential to drive the complainant’s vehicle into her own.  In her concern to avoid that , she went court out and called on the appellant to stop.  In all the circumstances, one would have been surprised to find that the jury had not accepted her evidence of what had taken place.  They obviously did accept her evidence, and on the basis of what she said, they would have been justified in convicting the appellant, as indeed they did.

BYRNE J: In my opinion, there was ample evidence to sustain the conviction.  Three prosecution witnesses testified to facts which strongly supported the inference that the damage to the complainant’s vehicle was caused intentionally. 

The appellant gave evidence before the jury to the effect that the several impacts between his vehicle and that of the complainant were unintentional.  His case was put fully and fairly in a comprehensive summing-up.

For the reasons given by the Chief Justice and Mr Justice McPherson, the case presents as one in which the jury was entitled to prefer the testimony of the prosecution witnesses to that of the appellant.  In my opinion, there is no substance in the contention that the conviction was unsatisfactory.

THE CHIEF JUSTICE: The order of the Court will then be that the appeal is dismissed.

APPELLANT : Your Honour, can I go further up to a higher Court?

THE CHIEF JUSTICE: You have to make your own arrangements about that.  That‘s a matter for you, Mr Okon.  You can investigate that and take what steps you think fit.

APPELLANT:Yes.  How many days I have to, because, you know-----

THE CHIEF JUSTICE: I’m sorry?

APPELLANT: How many days I have, like, what period do I have?

THE CHIEF JUSTICE: I can’t hear you.

APPELLANT: How many days I have, like?

THE CHIEF JUSTICE: How many days?  You’ll have to investigate that yourself.  We’re not in charge of- it is not one of our functions to describe the practice of a higher Court and the rules they will apply, but you should do it promptly - I do not mind adding that - if you want to go to another Court.

APPELLANT:  Because I have a family trials, too - family trials in this - so I would - it is strange, because the legal aid did not want to give me for the - for this appeal-----

THE CHIEF JUSTICE: Well, you -----

APPELLANT:----- and I have to do that myself, unfortunately.

THE CHIEF JUSTICE: Yes, yes.  We do not advise of appeals from our decisions.  That is up to you.

APPELLANT: Well, I am innocent.  I will appeal----

THE CHIEF JUSTICE: Right, good.  Well, that is your----

APPELLANT:----because I know that it is injustice.

THE CHIEF JUSTICE: That is your privilege to follow that course.