Sait v Gow

[2010] QDC 292

[2010] QDC 292

DISTRICT COURT

JAMIE PAUL SAIT	Appellant
and
ERIN GOW	Respondent
..DATE 16/07/2010 ORDER

APPELLATE JURISDICTION
JUDGE BRITTON SC
No 32 of 2010

ROCKHAMPTON conviction following a summary trial in the Magistrates Court at Rockhampton on the 13th of January 2010 on a charge of breaking and entering premises and committing an indictable offence.

The appellant was convicted and fined the sum of $750, and a conviction was recorded. The grounds of appeal are that the Magistrate failed to give sufficient weight to the evidence.

On the hearing of the matter in the Magistrates Court, the appellant was self-represented, and he has been self-represented in respect of the appeal.

On the hearing of the appeal today, the respondent was represented by an officer of the Director of Public Prosecutions, and I was informed, orally and in writing, that the appeal was conceded, and that the appropriate order was that the matter be remitted to the Magistrates Court.

I have not read the transcript in detail, although I have quickly perused it. Relevant passages in the evidence are set out in the outline of submissions filed on behalf of the respondent, and the officer of the Director of Public Prosecutions who appeared for the respondent informed me that they were the relevant parts.

It does not seem to me that it is necessary, in view of the fact that the relevant parts of the evidence are set out in the outline, and because the appeal is conceded, to undertake

2   ORDER

any further perusal of the transcript.

The prosecution case was a circumstantial one. Some fingerprints were found on a louvre blade from a set of louvres in the room from which the property the subject of the charge was taken. That property consisted of a digital camera and a memory card.

Sergeant Craig Ogden, an officer attached to the Fingerprint Section of the Police Service in Rockhampton, was able to identify four latent impressions developed on the outside of one of the louvres, and one latent impression on another louvre. He was able to identify the four latent impressions on one louvre as belonging to the appellant. He was not able to identify the print found on the other louvre.

…

HIS HONOUR: Sergeant Ogden gave evidence that there was no way that an age estimate could be given in respect of the fingerprints. Sergeant Ogden was not cross-examined at the trial in the Magistrates Court, and his evidence was unchallenged.

The respondent, who is the arresting officer, located the appellant on the 26th of May 2009, which was about two months after the offence was alleged to have been committed, and the appellant voluntarily participated in an interview with her. During the interview, the appellant said that he had not been to the complainant's premises, that is, Saint Mary's School, and he denied committing the offence. Constable Gow, the respondent, was also not cross-examined. 3 ORDER

Because the prosecution case was a circumstantial one, it was necessary for the prosecution to establish that guilt was not only a rational inference, but also the only rational

inference that could be drawn from the circumstances (Shepherd
[1990] 170 CLR 573, 578). If there was a reasonable
hypothesis consistent with innocence, then the prosecution
must fail (Perera [1986] 1 Qd R 211, 217).

As the respondent concedes, the only evidence to link the appellant to the offence was his fingerprints found on the outside of a louvre near the point of entry.

Lynda Patricia Harth, a prosecution witness who was a prep teacher at Saint Mary's School, gave evidence that she had left the "prep room" (the room from which the property was found to be missing) at about 3.30 p.m., after placing the camera and memory card in the drawer at about 2.30 p.m. When

asked if there would be any reason for another person to be in
the prep room after that time, her response was, "Cleaners,

and, um, that would be it, yeah." (Transcript, page 16).

The respondent concedes that on the state of the evidence before the Magistrate, it could not be excluded that cleaners removed the camera and memory card, and it is conceded on behalf of the respondent that this amounts to a reasonable hypothesis consistent with innocence. Further, the respondent acknowledges that there was no evidence indicating the appellant's presence inside the classroom. 4 ORDER

In those circumstances, it was conceded that whilst the evidence of the appellant's fingerprints was highly suspicious, particularly coupled with his denial that he had been to the school, it was submitted that the conviction was not according to law, and should be set aside.

I therefore propose to allow the appeal, and set aside the conviction, and remit the matter to the Magistrates Court. In my view, whilst I have no power to order that any retrial be before a different Magistrate, this would clearly be desirable.

The orders are:

1. That the appeal be allowed.

2.  I set aside the conviction and sentence imposed at the Magistrates Court, Rockhampton, on 13 January 2010.

3.  I order that the matter be remitted to the Magistrates Court at Rockhampton for determination according to law.

4. I make no order as to costs.

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5   ORDER