Dukic v McCarthy

[2017] ACTSC 381

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dukic v McCarthy

Citation:

[2017] ACTSC 381

Hearing Date:

14 December 2017

DecisionDate:

14 December 2017

Before:

Elkaim J

Decision:

See [12]  

Catchwords:

APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against conviction – drive using hand held mobile phone – whether the evidence was capable of establishing the offence beyond reasonable doubt.

Legislation Cited:

Australian Road Rules r 300

Cases Cited:

Peverill v Crampton [2010] ACTSC 79

Parties:

Stanko Dukic (Appellant)

Benjamin McCarthy (Respondent)

Representation:

Counsel

Mr T Sharman (Appellant)

Ms K McCann (Respondent)

Solicitors

Sharman Robertson Solicitors (Appellant)

Office of the ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 59 of 2017

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Cook

Date of Decision:         10 July 2017

Case Title:  R v Dukic

Court File Number:       CC 10723 of 2016

ELKAIM J:

1. On 10 July 2017, the appellant was convicted of the offence of driving while using a hand held mobile phone, contrary to r 300 of the Australian Road Rules. The appellant received a six month Good Behaviour Order.

1. The appellant filed a Notice of Appeal on 31 July 2017. He appeals against conviction.

1. It is well established that an appeal to the Supreme Court against the decision of a Magistrate is by way of rehearing. The appellant must establish that the decision of the Magistrates Court is wrong in the manner described by Refshauge J in Peverill v Crampton [2010] ACTSC 79 at [24].

1. The ground of appeal advanced by the appellant is relatively straightforward. It is asserted that the evidence before the Magistrate was not capable of establishing the offence beyond reasonable doubt. It is clear what evidence is said to establish this ground. 

1. The evidence upon which the charge was based was that of the informant, Constable McCarthy. The relevant parts of his evidence are:

…I observed the drive of that vehicle had a – his hand – his left hand against the right side of his face around his ear and inside that hand, I could see a black object which I believed to be a mobile phone… I could see his hand here and I could see black through his fingers against his head like that…

…The defendant disputed that. He said he was scratching his neck sort of lower than his ear around this sort of area, that he had – I can’t remember if he said lesions but he said he had some irritation that was down there that he was scratching… I did not see any sort of lesions or marks. It may have been red but…

…He offered to show me the fact he wasn’t – he had not been on a call at that time which I advised him that that was irrelevant, that I didn’t need to see that he was on a call. The mere fact that I believe he was actually holding the phone while driving was the offence…

…I believe he referenced scratching his neck.

1. The respondent has cautioned me that the Magistrate’s decision should not be “picked over”, noting that it was made ex tempore in the course of a very busy day. I agree.

1. However, the appellant has not actually asked me to engage in such an exercise, but has requested that I look at the evidence upon which the conviction was based. The appellant asks me to conclude that the Magistrate could not have properly found that the offence had been proved beyond reasonable doubt.

1. In my view, the evidence before the Magistrate was not capable of sustaining a conviction. This is not an example of the Court simply reaching a different conclusion to the presiding Magistrate. Rather, the error lies in the acceptance of a prosecution case, which is too weak to justify the conviction. The conviction on the evidence amounts to a miscarriage of justice.

1. The entire case was based on the observations made by a police officer, who thought he saw the appellant holding something like a mobile phone. Under cross-examination, the officer, appropriately and fairly, made concessions which should have engendered a reasonable doubt in the prosecution case. There was no part of the prosecution case that relied upon on any specific advantage that the Magistrate gained by seeing the officer give evidence.  

1. In addition, although the making or receiving of a call is not a necessary element of the offence, it is relevant that the officer declined the offer to inspect the appellant’s phone to see whether it had been in use. This is relevant because the description given by the officer is of a person using a mobile phone. Evidence of whether or not the phone had recently been used, which presumably would have been evident on inspection of the phone, was absent.

1. The situation may have been different if the officer had seen the appellant holding the phone in a different position – for example, if he had seen the phone being picked up and moved towards the appellant’s ear. However, the officer gave evidence that the phone was being used. The Magistrate also seems to have concluded that the officer’s observation was of a person actually using the phone. His Honour remarked:

…but it seems to me entirely plausible that a person could be using a mobile phone in the left hand holding it [to] their right ear while they drove their motor vehicle…

1. Accordingly, I make the following orders:

(a)The appeal is allowed.

(b)The conviction recorded and sentence imposed by Magistrate Cook on 10 July 2017 are set aside.

(c)Pursuant to s 244 of the Magistrates Court Act 1930 (ACT), an order having been made in favour of the defendant, the Court orders that the informant pay the defendant’s costs as follows:

(i)The informant pay the defendant’s costs in an amount agreed by the parties pursuant to s 4(1)(b) of the Magistrates Court Regulation 2009 (ACT) or, in default of the filing of an agreement under s 5 of that Regulation, within 6 weeks of the date of this order, in an amount assessed by the Registrar in accordance with the scale of costs as applied under s 4(3)(b) and (c) of the Regulations.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 15 December 2017