Shambayati v Le Pla

[2012] QDC 200

DISTRICT COURT OF QUEENSLAND

CITATION:

Shambayati v Le Pla [2012] QDC 200

PARTIES:

SASAN SHAMBAYATI
(Appellant)

AND

JASON JAMES LE PLA
(Respondent)

FILE NO/S:

544/2012

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

18 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

18 June 2012

JUDGE:

Samios DCJ

ORDER:

1.   Appeal against conviction dismissed.

2.   Appeal against sentence dismissed.

CATCHWORDS:

INFERIOR COURTS – Magistrate Court – Appeal – findings of fact - approach of appellate court - appeal dismissed.

Devries v. Australian National Railways Commission (1993) 177 CLR 472, 479, applied.
Fox v. Percy (2003) 214 CLR 118, [25]-[26], applied.
Mbuzi v Torcetti [2008] QCA 231, [17], applied.
Rowe v. Kemper [2008] QCA 175, [5], applied.

COUNSEL:

SOLICITORS:

Mr. Shambayati was self-represented.

Ms. Farine of the ODPP appeared for Mr. Le Pla

1. This is an appeal against the decision of the learned Magistrate who, on the 31st of January 2012, found the appellant guilty of the offence of unlawful assault.  The offence was alleged to have been committed on the 20th of November 2010. 

2. The ground of appeal against the learned Magistrate is that the conviction of the appellant is unsafe and unsatisfactory and contrary to law.  The appellant also told me today that he appeals against the sentence.  He wants that overturned as well. 

3. The prosecution relied on the complainant's evidence together with photographic exhibits, a record of interview and a disc showing time lapsed photographs which were also in still form.  The prosecution case relying upon the complainant is that the complainant, Mr Kaler, was a taxi driver.  He said on 20 November 2010, he picked up a fare from Fortitude Valley and was proceeding along the freeway and as he was proceeding along the freeway, he noticed a car going in the middle lane and it was slow.  It was a maroon coloured sedan. 

4. He reached this car and he said that it was going carelessly like from left lane to right lane and was travelling at about 60 kilometres per hour in what he said was the 90 kilometre per hour zone.  He said it was swerving.  He beeped the horn.  He then, as did other traffic, overtake this vehicle and he beeped the horn and flashed his lights and he proceeded in the right lane.  He said this vehicle that he had beeped the horn at started to chase him and was flashing its lights and also beeping his horn. 

5. Mr Kaler said he took the exit to Mains Road and the other vehicle tried to stop him by initially being parallel to him and then coming in front of him to a stop.  He pulled up his car as the other vehicle had blocked the two lanes.  Then he said a person came from the driver's side of this other vehicle and then he first punched the window and then opened the door and then punched him on the face and caused him "a big injury on my lower lip."  This person then returned to his vehicle and left.  There was swearing and yelling at him.

6. Mr Kaler said there was a lot of blood flowing.  He said in evidence that his whole shirt was full of blood.  He had a handkerchief that was full of blood.  Other taxis arrived and he wrote down the registration number as did his customer and his customer was also watching the registration plate.  It should be stated that the taxi driver said there was a passenger in his taxi when these events took place. 

7. The taxi was fitted, obviously, with cameras and the photographs are available.  From these photographs, Mr Kaler said this person that punched him approached him when the vehicles were stationary in the Mains Road exit and he was swearing and yelling at him and shows this other person was still aggressive. 

8. He said he got a bruise.  His lip was swollen from the "big punch."  He was shown photographs that were taken a couple of days later.  It should be said that he is in a different shirt when these photographs were taken, although, the previous photograph taken from the security camera of the taxi show Mr Kaler standing outside his cab holding his face with a hanky up to his lip area.  He is wearing a different shirt than in the other set of photographs that were taken by the police a couple of days later. 

9. He said he did not give the defendant any permission to hit him.  He did not say anything to this person to hit him.  The complainant, Mr Kaler, was strenuously cross-examined and it was suggested to him the photograph did not support what he was claiming happened.  That is, the photograph did not show blood on his shirt.  Further, the photographs did not show swelling and bruising to his face and, in particular, his mouth area. 

10. It appeared from cross-examination of the complainant that the appellant accepted he was there at the time the vehicles were stationary in the Mains Road exit.  However, he said in the form of questions, that the photos do not lie and he denied punching the complainant and said there was no proof from any photographs that he had punched the complainant, nor that there was blood on his shirt, nor that there was swelling or bruising to his face and, in particular, the lip area. 

11. The appellant said that it might be that what the photographs showed a couple of days later is that the complainant, Mr Kaler, had a cold sore, or something else.  In submissions here today, he told me it might have been some gum problem or disease, or something that was aged.  Also, there were no dark eyes as might be expected if he had been punched. 

12. It was put to the complainant by the appellant that there was no swelling and, again, it was put that it was an old sore or a cold sore or some sort of thing to him that he was trying to pull.  The photographs taken a couple of days later of the complainant do show some imperfection of the lips.  In my opinion, it is consistent with some sort of injury.  In my opinion, the Magistrate could come to the same conclusion.

13. The prosecution did not call the passenger in the complainant, Mr Kaler's taxi.  It appears he might have been available on a previous occasion, but on this occasion, he could not be contacted. 

14. I've listened to the record of interview.  It seems that, in my opinion, the appellant accepted that he was involved in something that occurred on the exit from the freeway to Mains Rod, but he said that he did not punch the complainant, Mr Kaler.  Further, that his witness in his car was there and he did not punch Mr Kaler and that the police could contact the passenger in the appellant's motor vehicle, Mr Paul Azemikhah. 

15. The appellant gave evidence and he said that there was no evidence of blood in any of the photos.  Also, even if the photos of the complainant were taken a couple of days later, they show no swelling or anything that can be seen.  There could be no bruising and/or bleeding.  That he did not punch the complainant. 

16. He said that he pulled up next to the complainant's vehicle because he thought that it might have been his friend, Zarbi, and that his friend might have been in distress and the appellant, having been a taxi driver for eight years himself, has seen things and that was the reason he pulled up. 

17. He also said that the photographs did not show his hand anywhere near the inside of the taxi and that his hand is far away from the taxi and there was no evidence that he had assaulted the complainant.  He did not hit the person. 

18. Despite being cross-examined, he would not agree that he assaulted the complainant.  He thought the complainant was a taxi driver in distress.  When he realised it was not his friend, Zarbi, and that there was no reason to stay, he and his friend, Paul, left.

19. The appellant also called Mr Azemikhah and he said that on that night, the vehicle, being the taxi, was following them and putting on his high beam on and off.  That the vehicle driven by the appellant changed lanes to let the taxi go past and that the taxi changed lanes as well and was signalling them. 

20. He said he thought it might have been somebody was in distress.  He said that the taxi driver was tail-gating them at one stage and putting his high beam on and off.  He beeped the horn and they were close to having an accident and the taxi took off and went to the Mains Road area and he said to the appellant that it might be the appellant's friend, Zarbi, who also drives a cab and he might be in trouble or something, distressed, in trouble, and he needed their help.

21. He said that the appellant and he then pulled into the Mains Road and they got out and the taxi driver kicked the door and he had his high beam on and they asked what was going on, why was he flashing their lights at them on the highway and doing what he had been doing and that this taxi driver started cursing and so he told the appellant, "Let's just leave before he does something else because we don’t want any trouble."

22. He said this taxi driver was not assaulted at any stage.  He also did not see any blood and when cross-examined, maintained that the appellant did not at any time punch the taxi driver.  That was the evidence then before the learned Magistrate.  The learned Magistrate in coming to his decision said that he had the very great benefit of observing and listening to each of the witnesses give their evidence.  He considered the evidence of the two police officers were honest and reliable and he found the arresting officer had conducted the interview with the appellant which became an exhibit.  The learned Magistrate had the opportunity to listen carefully to the contents of that record. 

23. Although the learned Magistrate does not say it, in the course of that record of interview when I have heard it, during the course of the interview, the appellant said that his friend, Paul, did not get out of the vehicle.  A little later he said he might have got out of the vehicle, but he did not approach the car.

24. He accepted that he was wrong about saying to the investigating police during the record of interview that his passenger did not get out of the vehicle.  The learned Magistrate also accepted Constable Wheatley's evidence that early on the morning of the 20th of November, she received a complaint from the complainant and observed that he had the appearance of blood on his handkerchief and shirt. 

25. She indicated that blood appeared on the front of his shirt.  The Magistrate accepted that the photos did not indicate or depict any evidence of blood either on the handkerchief that the complainant was holding or on his shirt. 

26. However, he accepted the evidence of Constable Wheatley as to what her observations were, in fact, in that she - and he found that she observed blood on the handkerchief of the complainant and on his shirt.  He also accepted her evidence that she did not see any evidence of swelling or bruising to the complainant's face. 

27. The learned Magistrate acknowledged the two versions, that of the complainant and that of the appellant.  He also noted the evidence of Mr Azemikhah.  The learned Magistrate said that the two police officers who gave evidence did not actually witness the relevant events.  It came down to a contest between Mr Kaler, the complainant, and the appellant and his witness on the other hand.

28. However, he found the appellant to be evasive and his explanation unsatisfactory as to why he was at the driver's side of the taxi.  He did not accept the appellant's evidence that the driver's door was open in the way that he says it was. 

29. He also found Mr Azemikhah's evidence to be interspersed with inconsistency and he found it difficult to accept.  He said he would be cautious in accepting any of his evidence.

30. He acknowledged that the complainant was somewhat excitable in relation to the events that occurred.  However, he found in the main his evidence was consistent, believable and reliable.  He, therefore, found that the appellant did unlawfully assault the complainant by striking him in the mouth region.  He was fortified to come to this finding he said by Constable Wheatley's evidence.  He, therefore, found the appellant guilty as charged. 

31. Where there is an appeal of this kind, the law is that the Court should afford respect to the decision of the Magistrate and bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence, but the Judge is required to review the evidence, weigh the conflicting evidence and draw his or her own conclusions.  Fox v. Percy (2003) 214 CLR 118 at [25], Rowe v. Kemper [2008] QCA 175 at [5] and Mbuzi v Torcetti [2008] QCA 231 at [17].

32. Further, in Devries v. Australian National Railways Commission (1993) 177 CLR 472 at 479, Bram, Gaudron and McHugh JJ said:

    “More than once in recent years this Court has pointed out that a finding of fact by a trial Judge based on the credibility of a witness is not to be set aside because an Appellate Court thinks that the probabilities of the case are against even strongly against that finding of fact.  If the trial Judge's finding depends to any substantial degree on the credibility of the witness the finding must stand unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence of which was glaringly improbable."

33. Gleeson Chief Justice, Gummow and Kirby Justices and their reasons in Fox v. Percy at paragraph 26 refer to Devries as one of the three cases in which the High Court has reiterated its earlier statements concerning the need for appellate respect for the advantages of trial Judges and especially where their decisions might be affected by the impression about credibility of witnesses whom the trial Judge sees but the Appellate Court does not.

34. In this matter, the learned Magistrate has accepted the evidence of the complainant.  The appellant's submissions are that the photographs did not bear out the allegations made by the complainant and, therefore, there was doubt on the whole of the evidence.  In the circumstances, the learned Magistrate could not, it was submitted, be satisfied beyond reasonable doubt that the appellant had punched the complainant as the complainant alleged.

35. Regarding blood on his shirt, it is my opinion that the two photographs numbered 23 and 22 in the bundle which is Exhibit 1, may not show blood, but that is because of the quality of the photograph in the circumstances in which it was taken. 

36. These photographs do show the complainant holding his face with a handkerchief.  This, in my opinion, could be consistent with Constable Wheatley's evidence which the learned Magistrate accepted.  Also, it does not follow merely because there was no swelling or bruising at a later stage that there was not a punch to the face.  Also, this series of photographs in Exhibit 1, while they may be taken in quick succession, the appellant said "second by second", they do not, in my view, exclude the appellant striking the complainant as the complainant alleged. 

37. Further, it is my opinion that it does not follow that because the appellant was able to call another witness, that it should follow that the Magistrate should accept the appellant's evidence, or that of his witness, or have a reasonable doubt about the prosecution case.  In my opinion, on the contrary, the learned Magistrate could accept the evidence of the complainant and be satisfied beyond reasonable doubt that the charge was established.

38. As the authorities that I have cited show, reviewing the evidence, I have come to the conclusion that it was open to the learned Magistrate to make the findings that he made.  As they were findings on credibility, they should stand in all the circumstances. 

1. Therefore, in relation to the appeal against conviction, I dismiss the appeal.  With respect to the sentence imposed, in my view, there has been no error demonstrated on the part of the learned Magistrate.  This was an offence committed by a mature man upon a taxi driver and it had elements of road rage.  The penalty imposed was well within a proper exercise of discretion in the circumstances.  Therefore, the appeal in relation to the sentence is also dismissed.