Vale v Wilkinson
[2012] QDC 109
•24 May 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Vale v Wilkinson [2012] QDC 109
PARTIES:
PATRICE MONICA VALE
(Appellant)v
MARK ANDREW WILKINSON
(Respondent)FILE NO/S:
238/2011
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Maroochydore
DELIVERED ON:
24 May 2012
DELIVERED AT:
Maroochydore
HEARING DATE:
18 May 2012
JUDGE:
Long SC, DCJ
ORDER:
The appeal is dismissed and the conviction of the appellant is confirmed.
CATCHWORDS:
APPEAL – Findings of fact at trial based on demeanour of witness – Appeal by rehearing – Whether the appellate court ought exercise its power to set aside findings by the Magistrate.
CASES:
Abalos v Australian Postal Commission (1990) 171 CLR 167.
Devries v Australian National Railways Commission (1993) 177 CLR 472.
Fox v Percy (2003) 214 CLR 118.
Jones v Hyde (1989) 63 ALJR 349.
Mbuzi v Torcetti [2008] QCA 231.
Rowe v Kemper [2008] QCA 175.
Warren v Coombes (1979) 142 CLR 531.
LEGISLATION:
Summary Offences Act 2005, s 6.
Justices Act 1886, ss 222(8), 223(1), 225(1).
COUNSEL:
S.T. Courtney on behalf of the appellant.
A.Q. Stark on behalf of the respondent.
SOLICITORS:
Neilson Stanton & Parkinson on behalf of the appellant.
Director of Public Prosecutions on behalf of the respondent.
Introduction
By notice of appeal lodged on 15 November 2011 the appellant appeals against her conviction of an offence of committing public nuisance, under s 6 of the Summary Offences Act 2005. That offence was charged in the following terms:
“That on the 7th day of May 2011 at Marcus Beach in the Magistrates Courts District of Maroochydore in the State of Queensland one Patrice Monica Vale committed a public nuisance offence”.
On 18 October 2011 the appellant was found guilty of this offence in the Maroochydore Magistrates Court, on the basis, as had been alleged against her, that her public nuisance offence involved her behaving in an offensive way (by use of offensive, obscene, indecent or abusive language) and which behaviour was likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public.
This finding was made on the basis of the Magistrate accepting the evidence of the complainant, Mr Wallis, that as he was walking his dog along Redwood Avenue, Marcus Beach at about 10.05 am on Saturday, 7 May 2011, the appellant uttered the words: “There’s fucking Wallis, that fucking Victorian cunt, he’s come up here to fuck Queensland”; so that these words could be and were heard by Mr Wallis in a public place, being the street.
The Appeal
Pursuant to s 222 of the Justices Act 1886, the appellant appeals against that decision and her resultant conviction. As required by s 222(8) the notice of appeal sets out the grounds of appeal, which in this case is a singular ground expressed:
“That the finding of guilt was unreasonable in that it cannot be supported having regard to the evidence.”
Such a ground is apt to invoke a review of the entirety and sufficiency of the evidence given and the basis upon which the appellant was convicted.
As there was no application for leave to adduce new evidence, the appeal proceeds under s 223(1) of the Justices Act 1886. In respect of that process, the Court of Appeal observed in Mbuzi v Torcetti [2008] QCA 231 at [17] that:
“The appeal proceeded under s 223(1) on the evidence given in the Magistrates Court. On such an appeal the judge 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, to weigh the conflicting evidence, and to draw his or her own conclusions: Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2008] QCA 175 at [5].”
The reference to the court’s earlier judgment in Rowe v Kemper at [5] is a reference back to a finding of McMurdo P, in the circumstances of that case, that there had been an error of law requiring the intervention of the Court of Appeal to correct an injustice, because a District Court judge had not conducted “a real review of the evidence drawing his own inferences and conclusions as he was required to do”[1]. However, it is necessary to understand that this finding was made in the context of the President’s earlier observations, at paragraph [3]:
“The appeal to the District Court judge under s 222 Justices Act 1886 was by way of rehearing: see s 223 of that Act. The District Court judge was required to make his own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Although the magistrate had the benefit of seeing the police officers give evidence, that advantage is not as significant as in many cases because the crucial events were, as Constable Kemper agreed, recorded on the audiotape. This court, like both the Magistrate and the District Court judge also has the advantage of the videotape of events surrounding Constable Kemper’s arrest of Mr Rowe.”
[1]As well as a reference to Warren v Coombes (1979) 142 CLR 531 at 551, the same passage at paragraph [25] of the High Court’s decision in Fox v Percy was also cited.
The potential difficulty which arises here is that the Magistrate’s decision depended very substantially, if not almost entirely, upon an assessment of credibility of the evidence of witnesses given viva voce and in determination of what was effectually a “word against word” case. The approach to be taken by the court in such circumstances requires a more detailed consideration of the passage which has been cited from the High Court’s decision in Fox v Percy and the immediate context to that passage, in that judgment.
First in Fox v Percy at [25] it was said:
“[25]Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’. In Warren v Coombes, the majority of this Court reiterated the rule that:
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’
As this Court there said, that approach was ‘not only sound in law, but beneficial in ... operation’.” (citations omitted)
“[T]he constraints marked out by the nature of the appellate process” are subject of observation in the immediately preceding passage, at paragraphs [20]-[24] and include observations to the effect that:
(a) An appeal by way of rehearing is generally to be distinguished from a rehearing de novo or “a completely fresh hearing by the appellate court of all the evidence”;[2]
[2] Fox v Percy (2003) 214 CLR 118 at 124 [20] and 125 [22].
(b) Rather and subject to particular statutory provisions, an appeal court generally proceeds “on the basis of the record and any new evidence exceptionally admitted and that an appeal process involves ‘natural limitations’, including ‘the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share”;[3]
[3] Ibid, at 125-126 [22]-[23].
(c) That, in part, appeals were introduced to prevent and cure miscarriages of justice that may occur due to mistakes “including serious mistakes [that] can occur at trial in the comprehension, recollection and evaluation of evidence” and that the reasons for decision required of judicial officers enhance the utility of such a process[4]; and
(d) An “appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance”.[5]
[4] Ibid, at 126 [24].
[5] Ibid, at 125 [23].
After the passage at [25] (as set out above) the judgment proceeds to note a series of cases decided subsequently to Warren v Coombes (1979) 142 CLR 531, being the cases of Jones v Hyde (1989) 63 ALJR 349 at 351-352, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, [482]-[483] and observed:
“[t]he continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal”.
In respect of those cases it was further observed (at [26]) that:
“This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.”
The passages cited from the most recent of those decisions, included the observations:
· “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 (or her) advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable"….”(Citations omitted)[6]
[6]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ.
· “An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The "value and importance" of that advantage "will vary according to the class of case, and, ... (the circumstances of) the individual case"…”(citations omitted)[7]; and
· “In these circumstances, the members of the Full Court were necessarily at a great disadvantage in considering whether the trial judge had been wrong in making that finding and accepting that explanation. Indeed, the circumstances of the case were such that, consistently with the obligation to make full allowance for the advantage which the trial judge had enjoyed, the Full Court could properly overturn the trial judge's finding only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the effect of the overall evidence was such that it was not reasonably open to the trial judge to accept Mr Devries as a witness of truth.” [8]
[7] Ibid, at 479-480 per Deane and Dawson JJ.
[8] Ibid, at 482-3 per Deane and Dawson JJ.
The judgment in Fox v Percy also proceeds (at [27]) to emphasise that an appeal conducted by way of rehearing is for the purpose of correction of identified error:
“… courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”
This was also recognised by the Court of Appeal in Mbuzi v Torcetti at [18], when it was observed that:
“the applicant complains that the judge erred in observing that the magistrate’s conclusion that there was a continuous white line around the traffic island was an inference that was ‘open to him’. It was submitted that the judge should have decided for himself whether that conclusion was correct. It is, however, apparent from the transcript of the argument and the judge’s reasons that his Honour conducted a detailed review of the evidence and concluded that there was no error in the magistrate’s conclusion.”
However, it must also be recognised that the majority judgment in Fox v Percy also emphasised that:
· “…the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute.”[9]; and
· “… in every appeal by way of re-hearing, a judgment of the appellate court is required both on the facts and the law.”[10]
Accordingly, it would be an error to focus on the establishment of error to the exclusion of, or instead of, conducting a real review of the trial and this court making a judgment as to the appellant’s guilt.[11]
[9] (2003) 214 CLR 118 at 128 [28].
[10] Ibid, at 128 [29].
[11] Eg. See Gobus v Queensland Police Service [2011] QCA 283.
Application
The allegation in this case depended upon proof that the words quoted above were directed at Mr Wallis as he walked past the appellant’s residence on the Saturday morning. The question for the Magistrate was as to whether he accepted the evidence of Mr Wallis, beyond reasonable doubt.
In this regard, an error in the nature of an abuse of the advantage of a decision-maker, in hearing and seeing the witnesses and deciding to accept a witness in preference to another, might be discerned from the making of a simple choice, without proper regard to the onus and standard of proof.[12]
[12] Eg, see: R v G [1994] 1 Qd R 540 at 543.
However, it can be noted from reference to the Magistrate’s reasons, that he expressly noted the requirement of proof beyond reasonable doubt of the allegation and that he was obviously aware that this depended upon the acceptance of the evidence of Mr Wallis and the rejection of that of the defendant. It was not and could not be submitted that it was not open to the Magistrate to accept Mr Wallis’ evidence beyond reasonable doubt, notwithstanding that there may have been no independent evidence to directly support it and notwithstanding that there was the evidence given by way of denial of what Mr Wallis alleged, by the appellant.
Accordingly, and as the argument for the appellant was developed, it centred on a contention that error was to be discerned by reference to the failure of the Magistrate to give specific reasons for rejecting the appellant’s evidence, as opposed to stating his acceptance of the evidence of the prosecution witness, Mr Wallis. On that basis it was further contended that less or no weight should be given to the Magistrate’s findings.
I do not accept these contentions. First, it can be observed that the evidence of those witnesses was diametrically opposed and a determination of acceptance of Mr Wallis’ evidence beyond reasonable doubt, necessarily imputed a rejection of the appellant’s evidence, for no further or distinct reason.
Secondly, the Magistrate made specific observations as to his impression of Mr Wallis’ evidence, finding him to be “a fairly impressive forthright witness” and that “he seemed to be fairly particular in his evidence”.
Thirdly and most importantly, the Magistrate gave more than a perfunctory explanation of his reasons for accepting that the prosecution allegation was proven.
At the outset of his reasons he noted the background of neighbourhood disputation, which had placed the two witnesses on different sides. In the case of Mr Wallis, this was in his role as neighbourhood watch “block coordinator” and, in respect of issues that had arisen involving the appellant and another neighbour, had resulted in earlier court proceedings. In the appellant’s written submissions it was contended:
“The evidence revealed the informant had taken the side of the Ms Waddell against the appellant. He had organised meetings at his home to discuss the appellant,[13] he had witnessed a statement used in the dispute[14] and he attended the court hearings at the request of Ms Waddell”.[15]
[13] Transcript 1-14.
[14] Transcript 1-15.
[15] Transcript 1-14.
Although in part, this evidence was admitted in order to support a foundation for the evidence of Mr Wallis that he recognised the appellant’s voice in uttering the critical words, the evidence also had relevance to establishing a potential motive for the appellant to say them and therefore as part of the circumstantial case in proof of what she did say. As conceded on the appeal by the appellant and notwithstanding that the issue of voice identification loomed larger at trial, in reality and on the entirety of the evidence, the case against her depended on circumstantial proof that she uttered the words, rather than upon the fact of voice identification by Mr Wallis.[16] This is particularly because the evidence established that the appellant lived alone[17], did not have anyone else living at her residence on 7 May 2011[18] and did not have visitors attend her residence regularly[19]. Further, she did not suggest that anyone else was at the house on the Saturday morning.[20]
[16]There being at least a lack of evidence of any lengthy or extensive familiarity with her voice and speech, leading to differing submissions as to the extent of opportunity for Mr Wallis to be familiar with those features.
[17] Transcript 1-34.
[18] Transcript 1-34.
[19]Transcript 1-12 and 1-17; cf: Transcript 1-34.
[20] Transcript 1-35.
On the appeal hearing, the appellant conceded the relevance of this evidence to motive for the appellant to have used these words but otherwise contended that the evidence could also establish a motive for Mr Wallis’ evidence. However and although Mr Wallis was challenged on the basis that the appellant had not said the words he had ascribed to her,[21] it was never expressly suggested to him that he had fabricated the incident or that he had a motive to do so and his evidence was that whilst he did have a dim view of the appellant from her behaviour to the community and his family, he had only taken the side of trying to resolve harmony in the community.[22]
[21] Transcript 1-22.
[22] Transcript 1-21.
The critical finding of the Magistrate was:
“He has certainly taken sides in relation to the matter, but I accept his evidence as an honest and reliable version of it, and as a consequence of finding in favour of Mr Wallis’ evidence, I do not favour Ms Vale.
Ms Vale has denied the evidence, but just on the facts, I have gone through the photographs and had a look at whether or not it’s possible for Ms Vale to see. I’ve also considered the issues of the – that the cameras were working. I really make no specific finding in that.
My finding is simply that Ms Vale uttered the words and they were offensive and it was in a public place and therefore find her guilty of the charge.”
It can be noted that the reference to the photographs and the cameras were in regard to an issue specifically raised in Ms Vale’s evidence and in her defence. Although she fairly conceded that it would not have been impossible for her to have seen Mr Wallis in the street and near her property, from some limited vantage points from within her property[23], she otherwise in her evidence and particularly through the production of photographs of her residence[24], sought to present a position that this was an unlikely consequence and she maintained that she would only have been able to see him if he was on the other side of the road from where he said he was[25]. This was to support a contention that she was unlikely to have seen Mr Wallis and therefore make the statement alleged against her. The point being made by the Magistrate is that the photographs do not entirely bear out this contention. The reference to the cameras was as to suggestions as to her ability to see Mr Wallis on the security cameras mounted in her yard, which were denied by her.
[23] Transcript 1-26 – 1-27.
[24] Exhibits 1 to 7.
[25] Transcript 1-27.20
It can therefore be seen that the Magistrate was alive to the issues arising from the evidence and did make specific findings in respect of those issues. Obviously he was in the superior position of hearing and seeing the witnesses giving evidence before him, which advantage was important to his conclusion. Further, the allegation accepted by him was not attended by inherent improbability, was amply supported by the evidence which he accepted and there appeared to be no sufficient reason to doubt the evidence of Mr Wallis.
Conclusion
Accordingly and on a review of this trial and the evidence given at it, I am not satisfied that any error has been demonstrated in the Magistrate’s decision or that any different decision ought to have been given.
Therefore the appeal is dismissed and pursuant to s 225(1) of the Justices Act 1886, the conviction of the appellant is confirmed.
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