This is an appeal against a finding made by Magistrate Farnham, sitting in the Downing Centre Local Court, on 23 August 2017. I stress the point that the appeal is against a finding. Her Honour found the offence proved but dismissed the charge without proceeding to conviction pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. Her Honour did, however, order the appellant to pay the costs of Roads and Maritime Services in the sum of $6,600.
The offender was charged with driving a motor vehicle, registered number CD83GV, on Eastern Valley Way, North Willoughby, at a speed greater than 30 kilometres above the permitted speed limit. The speed limit was 60 kph, and the vehicle was being driven at a speed of 95 kph.
The defence mounted was firstly, that the offender was not the registered owner or operator of the vehicle and, if that were held to be incorrect, that in any event, the vehicle had been stolen and that the offender was not the driver. The appellant told me that his defence was that the vehicle had been stolen. It is common ground that because of the deeming provision in the legislation, that to succeed in his defence, the appellant must prove on the civil standard of proof, that is on the balance of probability, that the motor vehicle had in fact been stolen and therefore he was not the driver of it at the time of the offence which was at 8.55pm on 22 December 2016.
The circumstances of this case could be described as bizarre. The vehicle in question was a white 1999 Ford utility truck. As I said, the registered number of the vehicle, was CD83GV. A prior owner of the truck was Ms Racquel Ann Bridge, who was called to give evidence by the prosecutor. She gave evidence that she had purchased the utility truck in question on 20 October 2015 from a dealer in Burwood. That is consistent with documentary evidence before the Court, that the owner of vehicle antecedent to Ms Bridge, was Drydel Pty Limited, 428 Parramatta Road, Burwood. That dealership had acquired the vehicle on 8 September 2015.
The vehicle was a manually driven one. Ms Bridge was unable to drive a manually operated vehicle. She offered it for sale. She offered it for sale by parking the vehicle on "Newport Hill" which I understand to be a physical feature on Barrenjoey Road at Newport, where it is common for vehicles for sale to be parked with signs on them, indicating that they are for sale. This vehicle was spotted by the appellant. According to Ms Bridge, she was advised by the appellant through "Gumtree" that the appellant had seen the car parked on Newport Hill. There were then some telephone conversations and on the same day, 9 November, a meeting was organised with the appellant at Narrabeen at a service station.
The utility truck was driven to the service station by Ms Bridge's life partner, identified merely as Brayden. Ms Bridge said that the only persons present at the service station were herself, her partner Brayden and a man who identified himself as James. It is really common ground that the person who identified himself as James was in fact the appellant, Alan Markarian. Ms Bridge denied that there were any other persons present, which is inconsistent with the evidence of the appellant but was not the subject of any cross‑examination of Ms Bridge.
According to Ms Bridge the appellant handed over $1,500 in cash and was given the sole set of keys to the vehicle. Ms Bridge, in cross‑examination, said that the "paperwork" was delivered to James/the appellant by herself and her partner who was with her at the time. Later evidence indicates that the service station at Narrabeen was in fact a 7‑Eleven.
The end of the cross‑examination of Ms Bridge was this:
"Q. Is it possible that you're mistaken about this person called James being Alan [Markarian]?
A. No. No.
Q. You say you were present at the 7‑Eleven?
A. Yes.
Q. You handed the papers to James?
A. Yes.
Q. Isn't it the case that you arrived at 7-Eleven in two separate cars?
A. My partner Brayden drove the Ford and I was in my car.
Q. Isn't it the case that you were seated in your car throughout the whole of the transaction?
A. No.
Q. According to your statutory declaration, you say that the car was disposed of on 9 November?
A. Correct.
Q. Are you sure about?
A. One hundred per cent.
Q. If I put to you that the transaction took place sometime in late November or early December, what do you say?
A. No."
The learned magistrate who had the advantage of seeing and listening to the witnesses formed a favourable impression of Ms Bridge and accepted her evidence, and there is no reason why I should not do exactly the same thing. After all, she was completely independent of Roads and Maritime Services, the police and the appellant.
Ms Bridge had sought to transfer the ownership of the vehicle on the RMS records by operating the website available to her to do so. However, the website would not accept the details that had been provided to her by the appellant. Eventually she contacted the Manly Police Station and was given the details of the appellant who had told the police at Manly that he was the owner of the vehicle. The police provided the details of the appellant, that his name, address and the like, to her and she completed a notice of disposal which was filed at the Warriewood office of RMS on 8 March 2016.
The appellant's evidence was that he was present at the purchase of the vehicle to assist a friend of his brother, a man whom he merely identified as Col, who, it appears, was Mr Colin Robinson who was called in the appellant's case and gave evidence on 3 April 2017 and also on 23 August 2017. The appellant explained in his evidence that he was a panel beater by trade and he often had people seeking his assistance when they purchased a vehicle, for the appellant to inspect the vehicle to check for any damage or any defect that might interfere with the operation of the vehicle or its value. Yesterday during submissions the appellant told me that his brother is in fact a motor mechanic but that is not in evidence. However, part of his evidence was that not only was he often consulted by a purchaser of vehicles, but his brother also involved him in that process.
The appellant referred to "we" going to the 7-Eleven at Narrabeen, but the number of persons was only two, himself and the gentleman identified at Col. It was never put to Ms Bridge that Col was with the appellant when the vehicle was purchased. According to the appellant, he checked the car out and told Col what work needed to be done on it, in particular that there was rust in the vehicle. He said that Ms Bridge was in a different car than the one being purchased, that she was merely waiting for her boyfriend, her life partner, and that he in essence dealt with Brayden.
The appellant said twice, "I didn't even see her" referring to Ms Bridge. How could he say she was there if he never saw her? According to the appellant, Col handed the $1,500 in cash to Brayden and he handed the "paperwork", by which I assume is meant the registration papers, to Col. According to the appellant he then drove to his home.
On the first day that Mr Robinson gave evidence, this was said:
"Q. Mr Robinson, would you like to tell her Honour what happened after the transaction completed? Did you take the car home? What happened?
A. No, we - after the money was paid, I - Alan came down and we just had a few words and - Jesus. Sometimes..(not transcribable)..we - Jesus Christ, now I've got to try and remember how this goes now. We - he gave me the registration and the other fellow had already sort of taken off and met his friend round the corner sort of thing, and I put the registration [papers] in the glove box and then we decided to - well, just go back to my place and have a coffee and that and we had a chat about the car, which we did, which I live in Petersham."
A little later the witness said that there was a discussion while they were taking coffee at his home in Petersham about the work that needed to be done, that there needed to be some rust cut out and attention to some paintwork and that the appellant quoted a price of either $600 or $700 for the necessary repairs and that then:
"… instead of me then having - keeping the car at my place at Petersham" he thought "it's stupid for me to keep the car and Alan not be able to get back to his house, so I let him just drive me back to the - because then he could do the work on the car. Yes, so anyway that's about it. Really."
One might be forgiven for thinking that after the car was purchased by Mr Robinson, that it was driven to his home at Petersham, that there was then the taking of coffee and a chat, and then he permitted Mr Markarian to drive the vehicle back to Mr Markarian's home because Mr Markarian had undertaken to repair the vehicle for either $600 or $700.
However, on the second day that Mr Robinson gave evidence he said the car was driven not to his home at Petersham, but to the appellant's home at either Dee Why or Narraweena. The street address was 92 Victor Road, but sometimes the suburb is given at Narraweena and sometimes it is given as Dee Why.
The learned magistrate told the world, when giving her judgment, that she did not accept the appellant as a credible witness and she had sincere doubts also about the credibility of Mr Robinson. From what I have just quoted there must be sincere doubts about the credibility of Mr Robinson. The bizarre fact about the evidence of Mr Robinson is that he says he outlaid $1,500 in cash for this vehicle and the only time he saw it was at the service station at Narrabeen. He never saw it again and did not appear to be in the least concerned that a vehicle which he wanted the Court to believe was beneficially owned by him, had disappeared into the ether and that he was completely unaware of whatever happened to it.
Accepting as I do the evidence of Ms Bridge to be accurate, then she disposed of the vehicle to the appellant on 9 November 2015. The appellant would not accept that as being truthful. He sought to maintain that the vehicle came into his possession about two weeks before it was stolen on 22 December 2015. In other words it came into his possession in early December rather than early November 2015. Accordingly one must have sincere doubts about this evidence, for example, given on 3 April,
"I only had possession of the car for about two weeks before it got stolen. Not even two weeks so it could have been some time in December but, yeah."
After giving that evidence the offender was asked by the solicitor for the RMS how good was his memory in relation to the events in question. He said it was "pretty good, yes" but that is quite inconsistent with a large number of his other answers. For example the preceding question and answer were these:
"Q. It may not have even been the end of November. You say it could have been December?
A. Yeah, well, I was only about a couple of - well, that was a long time ago but, yeah, it was the end of November some time, yeah".
The mantra "it was a long time ago" is one usually used by witnesses to indicate that their recollection or memory is not particularly good because of the effluxion of time. Another question answered was when did the registration of the vehicle expire. The first thing the witness said was "no idea", then volunteered it was the month of May.
Later in cross-examination the appellant said that he sought to report the theft of his vehicle to Manly police on 23 December 2015 the day after it was stolen. There is no record of any such approach to the police at Manly. On p 1 of the transcript of 3 April 2017 the appellant said that he went to the police station at 8am and about 11am and about 1pm on 23 December 2015. Of that he was absolutely certain. He also said that on the 23rd he was given an event number by the police. When asked "which officer did you speak to on the 23rd", the witness replied "Too far back", that same answer was given to another question concerning the identity of the officer with whom he spoke on 23 December and he said that he was unable to remember which officer it was. Later he said it was a senior officer who was female who eventually took his report. When asked whether she had a notebook in which she recorded the information the offender maintained that it was "too long ago".
When making submissions to me yesterday, the offender said that it was a female police officer, perhaps a sergeant, or acting sergeant, who directed Constable Van Zyl to take his details on 24 December 2015. However that was never suggested to Constable Van Zyl who was called and gave evidence on behalf of the Prosecutor. Furthermore that is completely inconsistent with the tenor of Constable Van Zyl's statement which was admitted as exhibit 5. The statement is this:
"On Thursday 24 December 2015, Alan Markarian came into Dee Why police station. I began speaking with him, where he stated that his vehicle had been stolen (CD83GV Ford Falcon Ute 1999). Alan stated that his vehicle was stolen from outside his house between Tuesday afternoon 22 December 2015 and Thursday morning 24 December 2015.
5. I checked on the RTA system and found out the vehicle was registered to Racquel Bridge of Newport. I explained to Alan that the vehicle was not in his name on the system.
6. He stated he bought the vehicle about one month prior but had not completed the change of ownership forms at the RMS. I told him to complete this because as he didn't have paperwork or proof that he owned the vehicle I could not list it as stolen on the police systems.
7. Alan stated that he will do that and then come back.
8. At about 1am on Friday 25 December 2015 an anonymous informant contacted police saying that there was a [dodgy] car at Forestville. Checks revealed that it was the vehicle in question CD83GV. Police contacted Alan who picked up his vehicle, he stated there was no real damage to the vehicle. Police did not sight the vehicle at any stage, as the vehicle was not listed as stolen."
Exhibit 6 in the Local Court was a COPS event E59249070. That event was created by Constable Van Zyl on 24 December 2015, at 12.31. It records material that was earlier stated in the Constable's statement but clearly this document was more contemporaneous than the statement. That records that the vehicle went missing sometime between the afternoon of 22 December 2015 and the morning of Thursday 24 December 2015. The narrative is this:
"About one month ago the victim brought the vehicle from the RTA owner but has not yet transferred it into his name yet.
The last time the vehicle was seen was at the location, on Thursday afternoon 22 December 2015. On Thursday 24 December 2015, the victim went to drive the vehicle and he was not at his house where he left it.
The vehicle is worth about $2,000. Police have made all enquiries to get in contact with the old owner however she is unreachable.
Police explained that only the owner as per RTA system can report the vehicle as stolen, and he needs to have [done] the transfer of ownership before it can be listed as stolen.
The victim said he will go to the RTA and change it into his name. Then notify police. The victim could not get it transferred into his name as he was going to make enquiries with the old owner.
About 1am on Friday 25 December 2015 an anonymous informant contacted police saying that there is a [dodgy] car in Forestville. Police ran the plate and realised the vehicle was reported as stolen. Police contacted the owner who picked up his vehicle and said there is no real damage to the vehicle".
That clearly was a document that was added to from time-to-time. For example, the details about the reported finding of the vehicle at 1am on Friday 25 December 2015, can only have been entered sometime after the initial event was generated, but he is clear that the event number was generated not by a female police officer but by Constable Leslie Jason Van Zyl.
There are clear admissions made by the appellant to the Constable that he was the owner of the vehicle, that he wished to have its ownership transferred into his own name, that he was seeking to do so, and that he had brought the vehicle one month prior to reporting it as stolen. It is also clear that he told the Constable that he only discovered the vehicle stolen on the morning of 24 December 2015, and here he was at about noon, at about 12.30pm on 24 December 2015, talking with Constable Van Zyl at the Dee Why Police Station.
There are a large number of other inconsistencies. For example, in evidence the appellant volunteered that initially had not driven the vehicle at all other than from the service station where it was purchased to his home, but then he did admit driving it because he said there were Christmas presents in the vehicle and they were stolen with the vehicle. He admitted that he must have driven the vehicle in order to leave the Christmas presents in the vehicle. However there was no mention at any time by the offender that he had left Christmas presents in the car, and that they were stolen. He did not mention it to Constable Van Zyl nor did he mention at any time prior to giving evidence.
The next inconsistency which is of some moment is that the offender said in evidence that the vehicle was damaged. According to the appellant, he did not retrieve the vehicle but he merely called his brother and gave his brother the key so that his brother could recover the vehicle. The appellant said this:
"Q. After it was purportedly stolen, when did you find the vehicle?
A. I didn't find the vehicle. The police rang me. I rang me brother. He came and picked up the key. He was upset because it was his [mate's] and he went with his mate and picked up the car. Whatever they've done I don't know.
Q. You had the key the whole time?
A. Yes, I was in possession of the car, that's why I went to the police station.
Q. Did you ever see the car after that?
A. Yeah, I did.
Q. When?
A. Sometime after that. A long time after that, two weeks after that, or something like that".
The appellant said that he could not remember where he saw the car but he went on to give this evidence:
"Q. You agree you just said that you saw it with your brother?
A. I saw it with somebody. I can't remember.
Q. At that time did you have a look at the ignition bolt of the vehicle?
A. Yeah, it was busted.
Q. It was busted?
A. That's correct. The column was busted. When the cops rang me they told me that. They said the steering wheel column was busted. There's something missing out of the centre console, which was the stereo, and there's a few components of the vehicle missing, and I know that wasn't on the statement but that's what the police officer said".
No police actually inspected the vehicle. The appellant told Constable Van Zyl that there was no real damage to it. Later Mr Robinson gave evidence that he did not accompany the offender's brother to pick up the vehicle but he thought that it would be necessary to tow the vehicle, which was inconsistent with what the offender told me in submissions yesterday.
With the utmost respect to the appellant, neither Magistrate Farnan believed him nor do I. The simple fact is that the car was in his possession, custody and power on 22 November. The only evidence to suggest that it was stolen comes from the appellant himself. His evidence about the vehicle's being damaged is not corroborated by anything or anyone. There was no evidence called from his brother to say that when he found the vehicle it was damaged. There was no evidence from the police that it was damaged, in fact according to what the appellant told the constable there was no real damage to the vehicle at all.
Another issue which I do not intend to waste much more time on is this: a question arose as to exactly where the vehicle was at the time it was alleged to have been stolen, was it parked out the front of the appellant's home, or was it parked a few houses down, or was it parked around the corner in a side street? All three versions of where the vehicle may have been have been given in evidence. Again the inconsistencies are legion and the evidence of the appellant is completely untrustworthy.
In the circumstances I accept the finding of the learned magistrate that the offender was responsible for the vehicle at the relevant time, and I reject his contention that he has persuaded the Court on the balance of probabilities that the vehicle had been stolen. For the those reasons the appeal is dismissed.
The RMS seeks costs. Mr Wozniak for the respondent to the appeal, the RMS, referred me to the decision of Simpson J (as she then was) in Director General NSW Department of Agriculture v Temmingh [2003] NSWSC 598. At [15] her Honour said this:
"I am satisfied that none of these matters is relevant to the determination of whether the costs claimed by the prosecutor are just and reasonable. I accept that it is unusual, in criminal proceedings, for a defendant to be required to pay the costs of the prosecution. However, it is not unique, and, as the Summary Jurisdiction Act makes specific provision for that to happen, I cannot take the unusual nature of the jurisdiction into account. An award of costs is not intended as a punishment. It is, rather, intended as some indemnification of the successful party in respect to the expenditure incurred in bringing the proceedings, which, by the results, are shown to have been justified. The quantification of costs to be ordered is not, and cannot be, mitigated by reference to matters of the kind relevant to the mitigation of the penalty imposed."
Of course under the Crimes (Appeal and Review) Act 2001 the Court has power to order costs in an appeal. Section 70(1) limits the power of the Court to order costs against a public prosecutor, and s 72 provides that an Appeal Court that orders an appellant or a respondent to pay costs must state a time within which the costs or other amount must be paid. Implicit is the power to order costs in the first place. That overcomes the common law position that the Crown neither seeks costs or pays costs.
I accede to the submission put to me by Mr Wozniak that the appellant ought pay the defendant's costs. The costs have been estimated by Mr Wozniak to amount to $5,445. His assessment has been marked one for identification. Accordingly I order the appellant to pay the respondent's costs in the sum of $5,445 within three months of today's date.
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Decision last updated: 31 August 2018