Richmond v Saunders (Judgment)
[2019] VCC 1963
•3 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-19-1160
IN THE MATTER OF
AN APPEAL AGAINST CONVICTION AND SENTENCE RECORDED AT THE MAGISTRATES' COURT AT DANDENONG ON 13 MAY 2019
BETWEEN
| HANS RICHMOND | Appellant |
| v | |
| DOROTHEA SAUNDERS | Respondent |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October 2019 and 7 November 2019 | |
DATE OF JUDGMENT: | 3 December 2019 | |
CASE MAY BE CITED AS: | Richmond v Saunders (Judgment) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1963 | |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: Appeal against conviction and sentence from orders of Magistrates’ Court – Charges of contravening a Personal Safety Intervention Order by stalking by driving, turning right without indicating, and changing lanes without giving way
Legislation Cited: Road Safety Act 1986; Evidence Act 2008
Cases Cited:
Judgment: Charges 1, 3 and 5 found proven.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Appellant in person | |
| For the Respondent | Dr J Harkess | Solicitor for the Director of Public Prosecutions |
HER HONOUR:
1 This is an appeal from orders made by the Magistrates’ Court at Dandenong on 13 May 2019. On that day, after a contested hearing, three offences were found proven against Hans Richmond (“the appellant”) and the following orders were made:
· On Charge 1, contravening an Interim Personal Safety Intervention Order: Without conviction, adjourned to 12 May 2020 with an order that the appellant pay $300 to the Court Fund.
· On Charge 3, failing to give proper right change direction signal and on Charge 5, failing to give way by moving between marked lanes: Without conviction, fined an aggregate of $400 and an order was made referring the matter to the Director of Fines Victoria for collection management.
THE EVIDENCE
The complainant
2 The complainant in relation to the three charges which are the subject of the appeal, is Gary Delahaye (“the complainant”), a landscaper by occupation. He gave sworn evidence that he knows the appellant because they have been neighbours for five years. The complainant lives at 6 Bevington Crescent, Officer and the appellant lives on the same side of the street, some four houses away, at 14 Bevington Crescent.
3 The complainant stated that on 12 July 2018 at Dandenong Magistrates’ Court, he obtained an Interim Intervention Order against the appellant. A copy of this order and a copy of the certificate of service of it upon the appellant on 12 July 2018 were tendered as Exhibit A. The order prohibits the appellant from stalking the protected person, committing prohibited behaviour towards the protected person, attempting to locate, follow or keep the protected person under surveillance, publishing any material about the protected person, contacting or communicating with the protected person, approaching or remaining within 5 metres of the protected person, and going or remaining within the boundary of any place where the protected person lives, works or attends school or childcare.
4 The complainant gave evidence that, at about 6.12pm on 17 September 2018, he was driving his vehicle, a dual cab Ford Ranger 2018, west on the Princes Highway towards his home in Officer. His vehicle was towing a trailer which was 8 feet by 4 feet in size and full of tools from a job which he had completed in Pakenham. He was travelling home from work in the left hand lane and was approximately 2 kilometres prior to the intersection of the Princes Highway and Denton Drive when he noticed the appellant’s vehicle, a white Holden Colorado dual cab, with personalised number plates “FLBG”. The appellant’s vehicle was travelling in the left hand lane, approximately 100 metres in front of him.
5 The complainant stated that, at that point, he was driving at 80 kilometres per hour and he slowed down to 70 kilometres per hour in order to avoid any confrontation with the appellant. He also moved into the right hand lane in order to be out of the appellant’s line of vision in case the appellant looked into his rear vision mirror. He stated that the appellant’s vehicle then slowed down “to a snail’s pace” and he passed the appellant’s vehicle. As he passed, he could see that the appellant was the driver and the vehicle was that of the appellant’s company, First Line Building Group. He noted that there was a male passenger in the front seat and a female in the rear, but he was not sure if there were any other passengers.
6 The complainant stated that, after passing the appellant, he remained in the right hand lane, still travelling at approximately 70 kilometres per hour. The appellant’s vehicle then passed him in the left hand lane “like a bat out of hell”, travelling at an estimated speed of 90 to 100 kilometres per hour. The appellant’s vehicle then moved from the left hand lane to the right hand lane and back again, without any indication. The complainant stated that the appellant’s vehicle was three to four car lengths in front of him when this occurred. He stated that he knows this because he has adaptive cruise control on his vehicle, which he can set to ensure that his vehicle remains one to four car lengths behind another vehicle, and he had set it to the maximum distance because he was towing a trailer.
7 The complainant stated that the appellant repeated this action of moving from the left hand lane over into the right hand lane, without indication, and back again on four or five occasions. On each occasion, at least two wheels of the appellant’s vehicle came over into the right hand lane in which the complainant was travelling. He stated that the appellant’s vehicle was basically in the middle of the roadway, straddling the two westbound lanes. Each time this happened, the complainant’s adaptive cruise control came into operation and caused his vehicle to shudder and slow. He said this movement of the appellant’s vehicle over into his lane and back into the left lane went on over a distance of about 200 metres. He said he was terrified that there was going to be an accident. It caused him to slow his vehicle down to 40 to 60 kilometres per hour.
8 The complainant stated that the appellant then moved over completely into the left hand lane and he, the complainant, remained in the right hand lane. The appellant was about a car length in front of him at a point on the Princes Highway which was about 500 metres from the intersection with Denton Drive on the left hand side. The complainant stated that he intended to continue to the next turn off to the left, Fairweather Parade, as taking that turnoff enables him to do a loop around and come into his home street, Bevington Crescent, and park his vehicle with the nose pointing out towards Princes Highway to make it easier to leave for work the next day.
9 The complainant stated that, just prior to the Denton Drive turn off, the appellant swerved across into the right hand lane, in which he was travelling, and came to a stop. This action caused his vehicle to almost hit the appellant’s vehicle. The adaptive cruise control and automatic braking device on his vehicle locked up the wheels and threw him around in the car. He said it was terrifying. As his wheels locked up, there was smoke and screeching and, also, his trailer jolted, sending his vehicle further forward. He stated that the consequences would have been worse had he not had a braking system fitted to his trailer. He was very scared and worried as he did not know whether the appellant was going to get out of his vehicle. He stated that both vehicles were stopped in the right hand lane and, then, the appellant turned into the left hand lane and turned left into Denton Drive. He, the complainant, then continued along the Princes Highway to make a left hand turn into Fairweather Parade.
10 The complainant then drove along to Primrose Avenue and turned left and, then, left into his own street, Bevington Crescent. He stated that, as he was turning into Bevington Crescent, he was on the phone to police reporting the incident. As he passed the appellant’s house, he saw the appellant’s vehicle was parked quite a way out from the kerb – by at least half a metre. There was another vehicle parked on the other side of the road, effectively parallel to the appellant’s vehicle, making it very difficult for him to get through. He stated that he was able to drive through, but he had only about 100 millimetres either side, as the trailer which he was towing was slightly bigger than his vehicle. He observed that the appellant was standing on the road by the driver’s door of his white Holden Colorado dual cab. There was a large man, who was 6 feet 2 inches or 6 feet 4 inches tall, who was standing on the road near the right hand side front headlight of the appellant’s vehicle. The latter was the person whom the complainant had earlier observed to be the front seat passenger in the appellant’s vehicle. He also noticed a female standing on the nature strip on the passenger side of the appellant’s vehicle.
11 He stated that he tried to avoid eye contact with the appellant as he passed and pulled up outside his home which was approximately 35 metres further on. He looked in the rear vision mirror and noted that the appellant’s wife was out the front of their property but, was unable to say whether or not she had been in the appellant’s vehicle when the incident on the Princes Highway occurred. He stated that the appellant and the other man, the other woman and the appellant’s wife were all looking in his direction. He remained in his vehicle with the window up and was still on the phone to police.
12 He stated that, about 20 minutes after he got home, he observed that the large man who had been in the front seat of the appellant’s vehicle and the female whom he believed had been in the rear seat of the appellant’s vehicle whilst on the Princes Highway, then left the area in a red car.
13 The appellant appeared for himself at the appeal hearing. In cross-examination of the complainant, the appellant put that, when the complainant drove into Bevington Crescent, the appellant’s white ute was parked in front of the appellant’s house. The complainant agreed with this, but disagreed with the proposition that the appellant’s ute had a trailer attached to it. In response to further questions, the complainant stated that he had called police soon after the incident occurred, but no police were available to come until about 9.00pm that day. It was put by the appellant that he, the appellant, was not driving on the Princes Highway as alleged by the complainant. The complainant responded, “You were there.” The appellant put that he was not there but, rather, driving home from Berwick and that it was only much later that he had driven home along the Princes Highway. The complainant again responded, “You were there.”
The informant
14 The informant, Leading Senior Constable Marie Saunders, stated that on Monday, 17 September 2018, she was on duty with another police officer when she received a message from police Communications to attend at the complainant’s house at 6 Bevington Crescent, Officer. She arrived at that address at 8.46pm and had a conversation with the complainant. He signed a statement concerning allegations against the driver of a white Colorado ute registered FLBG.
15 She stated that she subsequently began an investigation and discovered that the ute registered ‘FLBG’ was registered to a company at 14 Bevington Crescent, Officer. This certificate of registration was tendered as Exhibit “D”. A company search from ASIC’s database revealed that the registered address of the company was 14 Bevington Crescent, Officer and the director of that company was Homa Eliz Richmond of 14 Bevington Crescent, Officer (Exhibit “E”). It is not in dispute that Homa Eliz Richmond is the wife of the appellant.
16 The informant stated that on 15 October 2018, she forwarded a letter to Homa Eliz Richmond at 14 Bevington Crescent which stated as follows:
“Dear Ms Richmond
I am in the process of investigating a traffic incident that occurred on 17/09/2018.
This incident involved a white Holden Colorado ute with registration of FLBG. Previous inquiries made by the police have found that the vehicle is registered to you. I require you to provide me with details of who was driving this vehicle on 17/09/2018 between 5.30 to 6.30 pm in Officer.”
The letter went on to refer to the duty of an owner of a motor vehicle to give information about a driver pursuant to s60 of the Road Safety Act 1986 and the consequences of failing or refusing to provide such information. It went on to state:
“What you are required to do now:
1. Please ring me at the Emerald Police Station on 5954 0200 to arrange a time and place to provide the required information in person OR
2. Forward the information in writing to:
Emerald Police Station
386-390 Belgrave-Gembrook Road
Emerald, Vic 3782”
The letter was signed, “Marie Saunders, Leading Senior Constable 24452”.
17 The informant gave evidence that she subsequently received a faxed note which consisted of a copy of the letter she had sent which had endorsed upon it, in handwriting, the following:
“I, Hans Eric Richmond, D.O.B. 12/06/1950 was the driver of FLBG on 17/09/2018 between 5.30 to 6.30pm.”
This endorsement was followed by a signature. The appellant did not dispute that he had written such endorsement on the letter and signed it. (Exhibit “F”)
18 The informant stated that she then telephoned the appellant and made an appointment to see him at 8.45am on 20 October 2018 at his home at 14 Bevington Crescent, Officer.
19 She stated that she subsequently attended the appellant’s home on that date at approximately 8.35am and had a conversation with the appellant, during which she made handwritten notes of the conversation. She then went back to Emerald Police Station, where she made a statement the same day, which was signed at 11.22am. The appellant did not object to the informant reading out a copy of her statement pursuant to s33 of the Evidence Act or to the tender of the Statement, as he indicated to the Court that he had a copy of it. The Statement was tendered as Exhibit “G”.
20 The informant’s evidence is that, during the conversation with the appellant on 20 October 2018, he indicated that 14 Bevington Crescent, Officer, was his current residential address. He was asked whether he was the owner of a Holden Colorado Ute, registered number FLBG, and he responded “No comment. No I’m not the registered owner”. He was asked whether he was the driver of this vehicle on Monday, 17 September 2018, between 5.30pm and 6.30pm and he answered “Yes. As the note I sent you”. He was cautioned and given his legal rights and he indicated that he had already spoken to a solicitor. In response to all allegations, the appellant answered “no comment”. The informant stated that she read to the appellant a statement which had been made by the complainant on Monday, 17 September 2018, which the informant confirmed was in accordance with the evidence given by the complainant at the appeal hearing. The informant stated that she asked the appellant “Do you wish to say anything about this?” and he answered “No comment”.
The appellant
21 The appellant gave sworn evidence. He confirmed that he lived at 14 Bevington Crescent, Officer, and that his occupation was that of construction manager.
22 He stated that the allegation made by the complainant is totally untrue. On 17 September 2018, at the time alleged by the complainant he was not driving from east to west along the Princes Highway. Rather, his Holden ute was parked in front of 18 Bevington Crescent, Officer, with a trailer attached to it. He stated that 17 September 2018 was a Monday and he had taken time off work to have lunch with friends. He stated that at 1.50pm, he had texted his friend, Mr Reza Van Jallili, the details of a restaurant in Berwick, where he and his wife were going to go to lunch with Mr Reza Van Jallili and his wife. The appellant showed the text message on his mobile phone to the prosecutor and the Court and a photocopy of that text message was tendered as Exhibit “1”. It records that at 1.50pm on 17 September 2018, a text message was sent from the appellant’s mobile phone to a contact “RV Reza” stating “The Main Café Bar and Restaurant 1/4-6 Wheeler Street, Berwick VIC 3806 (03) 97070300.”
23 The appellant stated that Mr Reza Van Jallili and his wife had taken himself and his wife to the Main Café in Berwick in Mr Reza Van Jallili’s red Mercedes Benz, while his (the appellant’s) white ute was left parked in Bevington Crescent. He stated that he and his wife and their friends finished their lunch at the Main Café and he paid the bill. He produced a receipt which he stated was for their lunch. It bears the time of 16.46 on 17 September 2018 and, on its face, shows a payment to “Sevar Pty Ltd, 1/4-6 Wheeler Road, Berwick, VIC 3806” for the sum of $147. A copy of that receipt was tendered as Exhibit “2”.
24 The appellant stated that, after he paid the bill at the restaurant in Berwick, they all went to an area to park and then sat in a park and remained there until about 6.15pm. Then Mr Reza Van Jallili and his wife dropped he and his wife back at their home at 6.30pm, or a little bit after. When I asked the appellant how he remembered what time he had returned home, he stated that he did not remember the time, but at 7.00pm that evening they had to be at the Freemasons Lodge at Cranbourne. He stated that he and his son had gone there in his son’s car and picked up one of their Freemason brothers at Berwick. He stated that his Holden ute stayed parked where it had been all day. He stated that his Holden ute had a trailer on it which was empty. He had used the trailer to take things to a site in Pakenham that morning and, then, brought it home empty around 2.00pm, before he had made the arrangement with Mr Reza Van Jallili to go to lunch. He stated that he had returned from work and waited for Mr Reza Van Jallili and his wife to come and pick them up about 2.30pm.
25 The appellant stated that he had CCTV footage of his Holden ute parked outside his house from 17.21 hours until 18.29 hours on 17 September 2018. He stated that he had had surveillance cameras installed outside his house in June or July 2018 because the complainant had made allegations against them. The appellant produced a USB stick containing a segment of CCTV footage, which on its face, shows a white ute with a trailer stationary in Bevington Crescent from 17.24.39 hours until approximately 18.30 hours. There is no footage prior or subsequent to this timeframe. The appellant said that he had produced a USB stick in the Magistrates’ Court, but he was not given the opportunity to play it.
26 When it was pointed out by the prosecutor, Dr Harkess, that the file containing the footage noted that it had been modified on Tuesday, 18 September 2018 at 4.38.40 hours, the appellant stated that he could explain this because he has “an IT background”. He stated that they record the CCTV footage every night and the time and date of 18 September 2018 was the time that a routine recording of the CCTV footage was made before it gets deleted. The time and date showing the file had been modified was when the footage was automatically recorded onto his (the appellant’s) laptop. He stated that, usually, the recordings are overwritten after three to seven days. He keeps the recordings and, when his computer is full, he deletes them.
27 Under cross-examination, the appellant stated that the vehicle depicted on the CCTV footage which he had shown to the Court was his vehicle registered FLBG and, between 5.30 and 6.30pm on 17 September 2018, it was outside parked in Bevington Crescent. When asked why he had replied to the informant’s letter that he was the driver of that vehicle on 17 September 2018 between 5.30 to 6.30pm, the appellant answered, “I was saying that I had it. But in my language, I wrote ‘driving’,” but stated that he had not been driving it and he meant that he had possession of it. He later reiterated “In my English, I was saying that I had the custody or possession of the car.”
28 In response to further questions, the appellant agreed that, when the informant came to his house he did not provide the names of the people with whom he claimed he had been travelling at the relevant time. He also agreed that he did not provide her with the CCTV footage which he claims shows his vehicle parked in Bevington Crescent at the relevant time. The following cross-examination then took place:
DR HARKESS: So although she asked you to give her whatever information you had, you chose not to?
APPELLANT: No, she didn’t ask me, she said she’s going to charge me, and I said I will, I make no comment. No comment interview.
DR HARKESS: Why did you not give her the video footage if you had recorded it?
APPELLANT: Cos she, she said “you need to take it to court.” She won’t change her mind to charge me on that day. And that was my impression. And then when someone is charging me like her, then I said that will be ventilated in court.
29 In response to further questions, the appellant stated that the CCTV footage which he produced showed that he had arrived home at 17.23 hours because he saw himself on the footage, at that time, go out and get the garbage bin outside his house. When I asked him to explain why he had earlier said that he had got home at 6.30pm, or a bit after that, he simply responded that the footage showed him to have got home at 5.23pm.
30 Dr Harkess put to the appellant in cross-examination that he did not like the complainant and he responded, “No, I have no feelings about him.” He denied that he was driving at the relevant time or that he had wanted to frighten the complainant and insisted that he did not commit any of the offences with which he had been charged.
31 The prosecution took exception to the tender of the USB stick containing the CCTV footage alleged to be taken outside 18 Bevington Crescent, Officer on 17 September 2018 between 5.30 and 6.30pm. Dr Harkess submitted that, on its face, the recording had been modified so that the Court could not be satisfied that it depicted what it purported to depict or, alternatively, the Court should exercise its discretion to exclude it as evidence pursuant to the general discretion in s135 of the Evidence Act. In the light of such submission and the fact that the prosecution had not previously seen or had access to the footage, I made an order on 21 October 2019, releasing the footage to the prosecution so that it could, if it wished, have an expert examine its provenance. However, on reflection overnight, I considered that, given that the appellant sought to have the footage admitted into evidence, he should bear the onus of providing expert testimony as to its provenance. Accordingly, on 22 October 2019, I vacated my earlier order and made a new order that the appellant file and serve an independent expert report confirming the authenticity and provenance of any CCTV footage upon which he sought to rely not later than 5.00pm on 6 November 2019. The matter was adjourned to 7 November 2019.
32 On the morning of 7 November 2019, it became apparent that at 10.21pm the previous evening, the appellant had emailed an affidavit of some eight pages with various certificates of documents exhibited thereto (albeit not the actual documents themselves) to my Chambers. When the matter was brought on for hearing, I made it plain to the appellant that I would not be accepting affidavit evidence. He stated that he had made inquiries of three companies and had been unable to obtain an expert to assist him in relation to proving the authenticity of the CCTV footage.
33 Over the prosecution’s objection, I accepted the USB stick containing the CCTV footage into evidence and marked it as Exhibit “3”, but indicated to the appellant that the weight to be attached to that Exhibit was uncertain given the lack of independent verification of its authenticity.
34 Notwithstanding that the appellant’s wife had been in Court for the appeal hearing on 21 October 2019, the appellant stated that he would not be calling her as a witness as he required her in Court “to assist him”. When asked by me on 7 November 2019, he also indicated that he would not be calling Mr Reza Van Jallili or his wife as there had been a falling out between them. Accordingly, the matter was adjourned for judgment to 25 November 2019. It was subsequently further adjourned administratively to 3 December 2019 due to my unavailability.
ANALYSIS
35 It is clear that there is a direct conflict between the evidence of the complainant and the appellant. The complainant has given evidence that the appellant was driving on the Princes Highway on 17 September 2018 in the manner alleged by him. The appellant has denied that he was on the Princes Highway at that time and that he engaged in any such driving in the proximity of the complainant’s vehicle.
36 The onus is clearly upon the prosecution (respondent) to prove beyond reasonable doubt that the appellant did drive in the way alleged by the complainant. It is not up to the appellant to prove his innocence. In order for the appellant to be found guilty of these offences, it is not sufficient for the court to merely prefer the evidence of the complainant to that of the appellant. It would be necessary for the court to be satisfied beyond reasonable doubt that the complainant’s evidence is truthful and accurate before it could make a finding of guilt on any one of the three charges.
37 Unfortunately, despite my explaining to the appellant that it was necessary to put to both the complainant and the informant the essence of his case, this was not done. Although he put that the allegations were untrue and put to the complainant (but not the informant) his case would be that the vehicle (registered number FLBG) had been parked with a trailer attached to it outside 18 Bevington Crescent, Officer at all relevant times on 17 September 2018, he failed to show to either witness the CCTV footage relied upon by him. However, I do take into account that the appellant was not legally represented at the appeal hearing and draw no adverse inference against him for his failure to show the CCTV footage to the prosecution witnesses.
38 There were a number of aspects of the appellant’s evidence which caused me to doubt its truth and accuracy:
(a) The appellant conceded that he had made the handwritten endorsement on the letter dated 15 October 2018, which had been sent to him by the informant, and had sent it back to police (Exhibit “F”). That is, he admitted that he had written and signed the endorsement which states “I, Hans Eric Richmond, D.O.B. 12/06/1950 was the driver of FLBG on 17/09/2018 between 5.30 to 6.30pm”. Yet, in his evidence, he denied that he had been the driver of that vehicle between those times. Under cross-examination, he stated that by the endorsement he was saying that the vehicle was in his custody. He meant that he was not driving but that he had possession of it.
Although English is not the appellant’s first language, he had sufficient confidence in his skills to conduct his own appeal. I found his command of language to be good and his vocabulary to be quite sophisticated. For example, he stated that because he believed that the informant was going to charge him, he took the view that “it will be ventilated in court”. There was no suggestion that he had trouble in reading and understanding the letter dated 15 October 2018 in which the informant had pointed out that she was investigating a traffic incident that occurred on 17 September 2018 involving that vehicle and, in particular, was seeking details of who was driving that vehicle on 17 September 2018 between 5.30pm and 6.30pm.
The appellant informed the Court that he carries on the occupation of building construction management and has a background in information technology. He stated that he had worked in systems analysis for the Australian Taxation Office and large companies, the ANZ Bank and National Australia Bank and that his work involved applications, designs and experience in mainframe computers. Given such vocational experience and my observation of his command and understanding of English during the appeal hearing, I do not find it likely that he would have had any misunderstanding about the content and significance of the letter sent to him dated 15 October 2018. In that letter, it was clear that police were wanting to investigate whether the driver of the vehicle on 17 September 2018 between 5.30pm and 6.30pm had been involved in a traffic incident.
In these circumstances, I regard the endorsement made by the appellant as an admission that he was the driver at the relevant time.
(b) The appellant gave evidence that the CCTV footage which he tendered into evidence (Exhibit “3”) showed his vehicle (registration number FLBG) stationary outside 18 Bevington Crescent, Officer on 17 September 2018 between 5.30pm and 6.30pm. He stated that the time shown on the footage itself (17:21:22 hours to 18:30:12 hours) on 17 September 2018 was the time at which the recording on camera 8 at his house was made.
The prosecutor asked for an explanation as to why the file was shown to have been last modified on 18 September 2018 at 16:38:40 hours. He stated that the CCTV recording is routinely transferred each night to his computer, and the date of 18 September 2018 is the date of that routine recording. He stated that the recording unit usually keeps recordings for three to seven days and then recordings are overwritten. He keeps recordings on his computer until his computer is full, and then he deletes them. He claimed to have downloaded material from his computer onto a USB for the purpose of a Magistrates’ Court hearing, but the magistrate did not give him an opportunity to play it. He then downloaded the footage again on a USB on 20 October 2019, the day before his appeal was listed in the County Court on 21 October 2019.
If, in fact, the appellant was completely unaware of the incident on 17 September 2018, as he claims, and his first knowledge of anything involving his white Holden Colorado ute with the registration number FLBG, was after he received the letter from the informant dated 15 October 2018, it is difficult to understand why he would have deemed it appropriate to continue to store footage from 17 September 2018. As an aside, I note does not show any car dropping the appellant and his wife off at their house, although the appellant stated that he had 8 cameras outside his house and maybe Camera 8 which picked up the CCTV footage shown to the Court would not have picked up Mr Reza Van Jallili’s vehicle.
The appellant did not dispute the evidence of the informant about the conversation that she had held with him when she arrived at his house on 20 October 2018, which was embodied in a statement made by her on that same day. (Exhibit “G”) This conversation included a question by the informant: “Were you the driver of this vehicle on Monday the 17th of September 2018, between 5:30pm and 6:30pm?” to which the appellant answered, “Yes, as the note I sent you”.
It was put to the appellant that he had not told the informant about the existence of what he claims to be the exculpatory CCTV footage of his vehicle being parked outside 18 Bevington Crescent, Officer between 5.30pm and 6.30pm on 17 September 2018. He stated that he told the Pakenham Police that he was installing a CCTV camera because of some allegations that the complainant had made against him. He agreed that he did not give the police any CCTV footage until the day of the appeal hearing in the County Court. He also agreed that he did not give the informant the names of his alleged passengers at the time the alleged incident had occurred. He stated that she had not asked for that information and, because he believed she was going to charge him anyway, he said “no comment” to her questions. He stated that when someone was going to charge him, it will be ventilated in court. I here interpolate that it is clearly the appellant’s legal entitlement not to answer police questions.
In this case, I find the CCTV footage tendered as Exhibit “3” to be of no probative value. Apart from the fact that there is no evidence independent of the appellant showing when this footage was saved, first accessed, edited or updated by way of a log file, I am unable to make out either the logo on the vehicle nor its registration plate on the footage.
(c) The evidence of the appellant contained a significant inconsistency in relation to his whereabouts between 5.30pm and 6.30pm on 17 September 2018. He had initially stated that, after paying the bill at the café at Berwick, which Exhibit “2” shows to have been at 4.46pm that day, he and his wife, and Mr and Mrs Reza Van Jallili, had gone to an area to park their vehicle and then sat at a park until approximately 6.15pm. They were in Mr Reza Van Jallili’s red Mercedes Benz and he was dropped back at his house at 6.30pm or a bit after that.
The appellant then stated that the video footage showed his vehicle (registration number FLBG) being parked outside his house between 17:21 hours until 18:29 hours on that day. When the video footage was shown to the court, he pointed to a white vehicle with a trailer at the kerb which he said was his vehicle shown in the footage. At a time which appears, on the face of the footage, to be 17:23 hours, a man is shown outside the appellant’s house getting a wheelie bin. I asked the appellant who that person was. The appellant responded that that man was him and, so, he had got home at 5.23pm. This was after he had previously given specific details of what he did after he left the café in Berwick. The appellant was unable to offer any satisfactory explanation for why he had earlier said that he arrived home at about 6.30pm or a bit after.
(d) In the course of his evidence, the appellant stated “I have been subject to impulsive allegations and lies by Mr Delahaye.” He also claimed that he had eight surveillance cameras installed at his home in June or July 2018 because of those allegations. Given such evidence, I found unconvincing his answer to the prosecutor’s suggestion that he did not like the complainant, namely, “No, I have no feelings about him”.
39 In the light of these aspects of the appellant’s evidence to which I have referred, I find that I cannot accept the appellant’s evidence as being a truthful and accurate version of his whereabouts and the whereabouts of the white Holden Colorado utility registration FLBG at the time of the alleged offences. I here interpolate that, although the appellant gave no explanation for failing to call his wife as a witness when she was present and available in the court, other than that he required her “to assist” him, I do not consider it appropriate to draw an adverse inference against him, bearing in mind that as an accused person, he has no obligation to call evidence or prove anything.
40 Putting the appellant’s evidence to one side, I have considered the evidence of the complainant.
41 I found the complainant’s version of events to be a careful, detailed, logical and measured one. He impressed me as a person who was particularly safety-conscious in circumstances where he was driving a vehicle towing a loaded trailer. I would expect in those circumstances that he would have been aware if the other vehicle which caused him concern was also towing a trailer and he was emphatic that it was not doing so. I found the complainant’s evidence to be clear and compelling. I accept it as truthful and accurate evidence.
42 There is evidence from the informant that the complainant made a complaint to police that evening, and she attended at his home at 8.46pm and had a conversation with him, and he signed a statement. This is conduct consistent with a person who has been aggrieved by another’s wrongdoing.
43 In addition, I have found that the handwritten endorsement on the letter dated 15 October 2018 sent to the appellant’s address, which was returned to police signed by the appellant on 18 October 2018 (Exhibit “F”), is an admission by the appellant that he was the driver of his vehicle (registration number FLBG) on 17 October 2018 between 5.30pm and 6.30pm. I am also satisfied beyond reasonable doubt that the appellant made a further oral admission to being the driver at that time to the informant when she attended his home on 20 October 2018.
44 I am satisfied, beyond reasonable doubt, on the basis of the evidence of the complainant, the informant and the admission in writing in Exhibit “F”, that at approximately 6.12pm on 17 September 2018 the appellant did engage in the driving of his vehicle on the Princes Highway as described by the complainant.
45 I am satisfied beyond reasonable doubt that the conduct of the appellant in slowing down to a snail’s pace and then overtaking the complainant’s vehicle at a fast speed and then moving from the left hand lane to the right hand lane over the dividing line without indicating did occur. I am further satisfied beyond reasonable doubt that the latter manoeuvre was repeated by the appellant, so that on four or five occasions over a distance of approximately 200 metres, the appellant effectively veered into the right hand lane in which the complainant was driving, causing the complainant to slow down his vehicle to 40-60 kilometres per hour, and that he failed to indicate on each occasion. Finally, I am satisfied beyond reasonable doubt that, shortly prior to the turnoff into Denton Drive, the appellant swerved into the right hand lane and came to a stop, causing an emergency situation as described by the complainant, during which his wheels locked up and his trailer jolted.
46 In the circumstances, I find that the behaviour of the appellant has contravened the Personal Safety Intervention Order by way of stalking in the way that he drove his vehicle (Charge 1). In addition, Charge 3, turning right without indicating, and Charge 5, changing lanes without giving way, are also made out.
I will hear from the appellant as to any circumstances in mitigation of the offending.
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