Pavlovic v The Commissioner of Police [2006] QCA 134

Director of Public Prosecutions (Queensland) for the respondent

[1] THE COURT: On 14 April 2005, in the Magistrates Court at Beenleigh, the applicant was convicted of a charge of wilfully and unlawfully damaging a motor vehicle the property of Mr Troy Oliver. The applicant was fined $450 and ordered to pay $350 restitution. The applicant appealed to the District Court pursuant to

s 222 of the Justices Act 1886 (Qld). His appeal was dismissed. The applicant now seeks leave to appeal to this Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).

[2] The applicant has at all times represented himself in these proceedings. It is not apparent whether the applicant has chosen to represent himself or whether that role was forced upon him by his financial circumstances. Whatever the reason may be, it is plainly unfortunate that the applicant has not had the benefit of legal representation. It is apparent that the applicant has experienced difficulty meeting the demands which the adversarial system places upon a person without professional skill and in understanding the role of the court within that system.

[3] In the course of the hearing before this Court, the applicant was most concerned to emphasise that, in his view, there has been a miscarriage of justice because the Magistrate acted upon evidence which was false. As with almost every piece of litigation, there was a contest between the evidence of the opposing parties. In this case, the applicant's version of the relevant events was rejected by the magistrate who heard the evidence in favour of the evidence of other witnesses. At the trial, the applicant did not call any other witnesses to support his version of events.

[4] Subsequently, in his appeal to the District Court, and again before this Court, the applicant attempted to adduce further evidence in support of his version of events. The difficulty which the applicant has encountered in seeking to rely upon that further evidence arises from the limitations upon the ability of appellate courts to act upon evidence which has not been evaluated by the trial process. These limitations stem from the need for finality in litigation and the primary importance of the trial in the resolution of issues of fact especially where the credibility of witnesses is involved.

[5] The applicant, as we have mentioned, appealed to the District Court. There he was once again unsuccessful. An appeal may now be brought to this Court from the District Court only by leave. This requirement serves to ensure that litigants who have had the benefit of two hearings within the judicial system, but remain dissatisfied with the outcome, should be able to make further claim on the scarce resources available to the administration of justice only if they are able to demonstrate both a reasonably arguable case of error on the part of the lower courts, and that the error has resulted in substantial injustice to the applicant.[1] In this case, neither of these requirements is satisfied.

[6] The evidence at trial was to the effect that the applicant had engaged Troy Oliver and his father, Mr Daniel Oliver, to undertake plumbing work at his residence at Crestmead. A dispute arose over payment for the work. On 3 December 2004, at the applicant's home, this dispute came to a head.

[7] Troy Oliver gave evidence that the applicant said that he was not going to pay the moneys which the Olivers claimed were outstanding, and ordered them to get off his property. The argument continued while the Olivers were packing up their equipment. The applicant kicked the back of Troy Oliver's utility and then the back quarter-panel of the car. Troy Oliver said that the applicant screamed: "Get off or I'm going to keep wrecking this car." The police arrived shortly thereafter.

[8] Troy Oliver's evidence was corroborated by his father, Daniel Oliver, who said that he heard a thump and when he turned around he saw damage to the utility.

[9] Police Constables Varga and Spink, who attended at the scene of the incident, also gave evidence which supported the evidence of Troy Oliver. They said that they saw the damage to the rear of the utility and a footprint on the back of the vehicle.

[10] Photographs of the damage to the utility were tendered at the trial. Troy Oliver gave evidence that damage to the rear of his vehicle had not been present before the applicant kicked it. He obtained a quote for the repair of the damage to his car at $1,281.25 which was admitted into evidence.

[11] Troy Oliver said that the car was insured, and he was out of pocket for the insurance excess which was $350. That is the amount for which the applicant was ordered to make restitution.

[12] At the trial the applicant denied the evidence of the Olivers. He said that they behaved aggressively and attacked him. He said that he put his foot on the rear bumper of the car but did not do so with any force and did not cause any damage to the rear and side panels. The applicant in his evidence also complained of his treatment by the police who investigated the incident.

[13] The learned magistrate accepted the version of events given by the Olivers. He found that, following the Olivers' initial refusal to leave his property, the applicant became upset and aggressive and deliberately kicked the rear of Troy Oliver's car thereby damaging it.

[14] The applicant's appeal to the District Court was heard on 14 October 2005. The principal basis for the appeal to the District Court was that the Olivers had given false evidence. The learned District Court judge held that the facts found by the magistrate were "clearly open to him and were not unreasonable".[2]

[15] In reaching that conclusion the District Court judge was clearly correct,[3] in that there was a conflict between the oral evidence of the Olivers and that of the applicant. It was the duty of the magistrate who saw and heard the parties to come to a view of the facts on the basis of that evidence. There was nothing unreasonable in the magistrate preferring the evidence of the Olivers as more reliable than the evidence of the applicant. There was no basis on which the District Court judge would have been justified in coming to a different conclusion.

[16] The applicant agitated other grounds of complaint in relation to the trial in the Magistrates Court. The first of these was that the magistrate had ruled inadmissible a letter purporting to be from a Ms Prince who was evidently living interstate at the time of the trial. The letter, which was not actually tendered as evidence at the trial but which has been placed before this Court with the applicant's written submissions, asserted that on the occasion of the incident of 3 December 2004, the Olivers were aggressive towards the applicant who "did not raise his voice or get physical at all". The letter also contained what appeared to be Ms Prince's telephone number.

[17] The magistrate refused to admit the letter into evidence. As the learned District Court judge held, it was hearsay[4] and was, therefore, not admissible in evidence.

[18] Before we discuss the applicant's other complaints about the decision of the magistrate which were agitated in the District Court, it is convenient to mention now a matter of complaint about the trial which was not raised on the appeal to the District Court. In this Court, it was contended for the first time in the applicant's written submissions, apparently prepared for him by some other person and adopted by him, that the magistrate erroneously refused to allow the applicant to show the letter from Ms Prince to the Olivers in the course of cross-examination.

[19] In this regard, the transcript of the hearing at trial shows that, during the applicant's cross-examination of Troy Oliver, he sought to show the witness Ms Prince's letter. The police prosecutor asked to see the letter, and upon being shown the letter, advised the magistrate that it was a letter by an apparent witness to the incident who was not being called to give evidence. The magistrate told the applicant that he could not give the letter to the magistrate, and the applicant replied: "No problem." The applicant did not then seek to show the letter to the witness.

[20] The applicant was not ordered by the magistrate not to show the letter to either witness for the prosecution. The only ruling was that the magistrate declined to accept the letter into evidence. Insofar as he did not show the letter to either of the Olivers, that was not due to a ruling by the magistrate, but to the unfortunate circumstance that the applicant apparently failed to appreciate that the ruling by the magistrate did not prevent the applicant from showing the letter to the witness and asking him whether, having seen the letter, he adhered to his story.

[21] It may be noted that the applicant has not complained that the magistrate should have advised him more fully of the position and, in particular, advised him that the applicant was at liberty to show the letter to the witness. In our view, any such complaint would have been baseless.

[22] It is well established that the fundamental importance of the neutrality of the trial judge in the contest between adversaries means that the judge should refrain from giving a party advice as to how to run his case.[5]

[23] It is also well-established that in a criminal trial involving an unrepresented defendant, the duty of the trial judge to ensure that the trial is fair may necessitate the giving of advice to the defendant to ensure that the trial is fair. In MacPherson v The Queen,[6] Brennan J, in speaking of the duty of the trial judge to ensure a fair trial, said:

"That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case."

[24] In the same case, Mason J said:[7]

"Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial."

"There is no limited category of matters regarding which a judge must advise an unrepresented accused - the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial."

[26] These statements of principle were made in the context of a failure on the part of a trial judge to inform an accused of his right to ask for the voluntary nature of any confession he is alleged to have made to be determined on voir dire in the absence of the jury. That is a far cry from the question whether the magistrate should have advised the applicant that he was at liberty to show Ms Prince's letter to the witness. It can hardly be said that it was essential to the fair trial of the applicant that he be apprised of this particular technique of cross-examination.

[27] Further in relation to this point, it is difficult to see that the applicant suffered any real prejudice by reason of his failure to show Ms Prince's letter to the Olivers. It is unlikely that the Olivers would have changed their evidence if they had been shown the letter. Not the least of the reasons for taking this view is that the terms of the letter were not such as to challenge their evidence on the crucial issue of damage to the utility.

[28] The applicant also complains, now for the first time, that he was not advised by the magistrate that he could seek to adduce Ms Prince's evidence by telephone. It may be unfortunate that the applicant did not appreciate the need to make arrangements to enable Ms Prince's evidence to be given to the court, or how this need might be met. The magistrate was, of course, unaware of the terms of the letter and of the reference in the letter to Ms Prince's telephone number. As the tribunal of fact, it was entirely proper that the magistrate did not read the letter which had been ruled, quite correctly, to be inadmissible in evidence. The applicant did not raise with the magistrate the possibility of taking Ms Prince's evidence by telephone. He did not seek assistance from the magistrate in relation to the available modes of adducing the evidence which he wished to elicit from Ms Prince. It should also be noted here that the applicant did not request an adjournment of the case to enable him to consider his position further, or to arrange for Ms Prince's attendance. In these circumstances, it cannot be said that the magistrate failed to discharge his duty to ensure that the applicant had a fair trial.

[29] In the appeal to the District Court the applicant sought to tender new evidence. This evidence included Ms Prince's letter and what purport to be sworn statements from other persons said to have witnessed the accident. The statements were from B J Moore and R Moore. At the hearing on 14 October 2005, the learned District Court judge refused to grant leave to adduce additional evidence pursuant to s 223 of the Justices Act 1886 (Qld).

[30] In explaining why leave should not be granted, the learned District Court judge cited the "three main considerations" described by Gibbs CJ in Gallagher v The Queen[9] as being relevant to a determination of "whether a miscarriage of justice has occurred because evidence now available was not led at the trial."[10] It is clear that the reference in s 223(2) of the Justices Act to "special grounds" indicates that there must be good reason identified to justify a departure from the application of the rule in s 223(1) that an appeal under s 222 of the Justices Act is "by way of rehearing on the evidence given in the proceedings before the justices". While Gallagher did not involve consideration of s 223 of the Justices Act, it is nonetheless a useful guide for the purposes of identifying the kind of "special grounds" which might be said to justify the grant of leave under s 223(2).

[31] The first consideration described by Gibbs CJ is whether "the evidence relied on could with reasonable diligence have been produced by the accused at the trial".[11] This consideration reflects the primary importance of the trial in the administration of justice. A trial cannot be regarded as a dress rehearsal or as the first step in a process which inevitably leads to an appeal and a possible retrial.

[32] Ms Prince's evidence was clearly available to the applicant at trial. The other witnesses, whose evidence the applicant sought to adduce before the District Court judge, appear to have been relatives of a neighbour of the applicant. Before the District Court judge, the applicant did not identify any reason why this evidence was not available at trial. Indeed, before the District Court judge the applicant claimed to have talked to some of his neighbours prior to the Magistrates Court trial.

[33] On the hearing of the applicant's application in this Court, the applicant relied upon a statement by the grandmother of B J and R Moore. According to this statement, the applicant approached her on 5 December 2004 to inquire whether she had seen the incident of 3 December 2004. She told him she had not seen the incident, but omitted to mention that her grandsons may have seen it. The applicant approached her again "in late April 2005" when a neighbour had suggested to the applicant that her grandsons may have seen the incident. The trial occurred on 14 April 2005. The applicant was capable of seeking evidence from potential witnesses in his neighbourhood before the trial, and it is clear that he did so. The evidence which he now seeks to adduce was available by the exercise of reasonable diligence. That this is so is apparent from the fact that the applicant was able to ascertain the identity of these witnesses, bearing in mind that there is no reason to suppose that the inquiries which led him to these witnesses could not have been made successfully prior to trial. It is unfortunate that the applicant did not pursue with more vigour prior to trial the inquiries which he made after the trial. That the applicant failed to marshal the evidence which was available from these two young men prior to the trial may well be unfortunate from the applicant's point of view; but it does not serve as a sufficient basis on which to allow the further evidence to be adduced on appeal rather than at trial.

[34] Thus, the first consideration identified by Gibbs CJ falls against the applicant, but this consideration is not "a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial."[12] It is, therefore, necessary to address the second and third of the Gallagher considerations.

[35] The second consideration identified in Gallagher is whether "the evidence is apparently credible (or at least capable of belief)."[13] In this case, as the learned District Court judge found, the form and brevity of the statements makes difficult any real assessment of the evidence's credibility. The credibility of the evidence is not assisted by the lapse of time between the incidents of 3 December 2004 and the making of the statements on 25 September 2005, or by the distinct similarities in the language used in the two statements. The learned District Court judge accepted "that the evidence may be credible", but did not reach a final conclusion on the issue of credibility. That may have been partly because of his Honour's conclusions on the third Gallagher consideration.

[36] The third consideration identified by Gibbs CJ in Gallagher was whether the evidence, if believed, "might reasonably have led" the tribunal of fact "to return a different verdict."[14] The District Court judge said:

"Although I accept that the evidence may be credible, and I note that it is a difficult exercise to assess such matters when looking at short and brief typed statements which are sworn before a Justice of the Peace but are not otherwise in admissible affidavit form, I do not believe that if received these documents might reasonably have had the Court return a different verdict ..."

In our respectful opinion, it was open to the District Court judge to reach that conclusion.

[37] It may be noted immediately that Ms Prince's letter did not say whether the applicant came into contact with Troy Oliver's vehicle; and it did not assert that Ms Prince saw that the applicant did not damage the rear of the vehicle. It is also important to study closely the evidence contained in two statements of the Moores which the applicant sought to adduce before the learned District Court judge. Both statements purport to provide accounts of the events preceding the incident which is the subject of the charge, and the events immediately following the incident. The statements, however, focus on the argument between the applicant and the Olivers, rather than the crucial issue of damage to the utility. As a result, they provide only limited evidence as to the crucial facts of the charge. The statement of R Moore says nothing about whether or not the applicant placed his foot on the complainant's vehicle; the statement of B J Moore acknowledges that the applicant "put his foot on the back of the ute". The statements assert, using almost identical language, that "it is absolutely not possible" that the applicant "did any damage" or "made any damages to the ute". The similarity in the language of these statements may tend to excite the suspicion that the statements may not be the actual words of the persons whose statements they purport to be. More importantly, however, for present purposes, is the objection that these are general statements of the witnesses' conclusions about the ultimate issue in the case, rather than statements of what the witnesses actually saw. Neither statement establishes a basis for the conclusion which is asserted. Neither statement asserts that the maker is able to say from his own direct observation that the vehicle was not, in fact, damaged by the applicant's actions. Neither says that the maker of the statement actually saw that the vehicle was not damaged.

[38] Accordingly, these statements do not rebut the specific evidence of the Olivers that the applicant caused the damage to the vehicle. In these circumstances, the District Court judge was entitled not to be satisfied that the statements might reasonably have led the magistrate to reject the evidence of the Olivers and to return a different verdict. In any event, the District Court judge was clearly entitled to reject the new evidence on the basis that it was not sufficiently strong to warrant its reception despite the fact that the first consideration mentioned by Gibbs CJ in Gallagher had been resolved against the applicant.

[39] It may be said in this regard that the District Court judge took a strict view of the statements of the Moores; but the strong public interest in the finality of litigation means that when a party seeks to impugn the integrity of the outcome of a trial by new evidence, an appellate court may insist that the new evidence on which it is asked to order a retrial is stated in sufficiently precise terms to satisfy the court that this new evidence, if believed, might reasonably have led the original tribunal of fact to a different verdict.

[40] The applicant invited this Court to "speak" to Mr B J Moore about his evidence to resolve the dispute "in a friendly way". Such a course is not open to the Court. It is not the role, either of this Court, or of the District Court, to interview Mr Moore to see if he is now willing to say that he actually saw that the applicant inflicted no damage to the complainant's motor vehicle. In an adversarial system, it is not the function of the Court to gather evidence for one of the adversaries, or to seek to supplement that evidence where it is deficient. The parties are not engaged in friendly conversation, but in a dispute as to their respective rights and duties which must be resolved formally according to law.

[41] In written submissions before this Court, the applicant suggested that the learned District Court judge should not have "confined himself to applying the test ... in Gallagher ... as the test for admission of further evidence under s 223." The applicant further suggests that there are two additional "special grounds" that should have led the learned District Court judge to allow the new evidence to be adduced. Neither of these grounds - which address the relevance and potential effect of the evidence - raises a consideration different from the second and third considerations under the Gallagher test. The applicant provided no authority to suggest that considerations beyond those in Gallagher should be taken into account, nor did he identify what such considerations might be.

[42] In our view, the learned District Court judge was entitled to conclude that "no special grounds for giving leave" under s 223 of the Justices Act to adduce the new evidence had been established by the applicant.[15] No miscarriage of justice was caused by the refusal to admit this evidence.

[43] It was also contended in this Court, for the first time, that the trial miscarried because the magistrate failed to consider a defence under s 277 of the Criminal Code 1899 in relation to the removal of disorderly persons from premises. It is contended that the learned District Court judge also erred in failing to hold that the trial had miscarried for this reason.

[44] The crucial aspect of s 277 of the Criminal Code for present purposes is that it renders it lawful for a person to use "such force as is reasonably necessary ... in order to remove therefrom" a person who wrongly remains there. On the evidence before the Magistrate, there was no basis for a possible conclusion that the kicking of the vehicle was reasonably necessary to remove the Olivers from the applicant's property. While it is not necessarily conclusive of this issue, it is significant that the applicant, in his evidence, did not suggest that any force he may have applied to the vehicle was applied in order to remove the Olivers from his property.

[45] The applicant has not shown that it is reasonably arguable that he has suffered a miscarriage of justice as a result of error on the part of the courts below so as to warrant the grant of leave to appeal.

[46] We would dismiss the application for leave to appeal.

[1] Pickering v McArthur [2005] QCA 294 at [3].

[2] Pavlovic v Commissioner of Police, [2005] QDC 341; DC No 41 of 2005, 20 October 2005 at [20].

[3] Cf MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606.

[4] Pavlovic v Commissioner of Police [2005] QDC 341; DC No 41 of 2005, 20 October 2005 at [15].

[5] Escobar v Spindaleri (1986) 7 NSWLR 51; Burwood Municipal Council v Harvey (1995) 86 LGERA 389.

[6] [1981] HCA 46; (1981) 147 CLR 512 at 547.

[7] [1981] HCA 46; (1981) 147 CLR 512 at 534.

[8] [1981] HCA 46; (1981) 147 CLR 512 at 524.

[9] [1986] HCA 26; (1986) 160 CLR 392.

[10] [1986] HCA 26; (1986) 160 CLR 392 at 395. See also 396.

[11] [1986] HCA 26; (1986) 160 CLR 392 at 395.

[12] [1986] HCA 26; (1986) 160 CLR 392 at 395.

[13] [1986] HCA 26; (1986) 160 CLR 392 at 395.

[14] [1986] HCA 26; (1986) 160 CLR 392 at 396.

[15] Cf Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.