District Court New South Wales Medium Neutral Citation: R v White [2021] NSWDC 577 Hearing dates: 25 October 2021 Date of orders: 26 October 2021 Decision date: 26 October 2021 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 71 Catchwords: CRIMINAL LAW – conviction appeal – going onto or remaining on running lines and intentionally damaging train carriages – whether appellant intentionally or recklessly encouraged or assisted in damage to train carriages Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 11 Crimes Act 1900 (NSW) s 195 Evidence Act 1995 (NSW) s 138 Graffiti Control Act 2008 (NSW) s 4 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 35, 36 Passenger Transport (General) Regulation 2017 (NSW) s 68J Cases Cited: Charara v R (2006) 164 A Crim R 39 De Silva v The Queen (2019) 268 CLR 57 Fox v Perry (2003) 214 CLR 118 Grajewski v Director of Public Prosecutions (NSW) (2019) 264 CLR 470 Liberato v The Queen (1985) 159 CLR 507 Lunney v DPP [2021] NSWCCA 186 M v The Queen (1994) 181 CLR 487 R v Murray (1987) 11 NSWLR 12 Walton v Salmon (NSWSC, Loveday J, 24 April 1992) Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (respondent) Lukas White (appellant) Representation: Counsel: Mr E Freelander (solicitor advocate) for the Director of Public Prosecutions (NSW) Appellant in person Solicitor: Solicitor for Public Prosecutions (NSW) File Number(s): 2017/00367447 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 26 April 2021 Before: Magistrate M Connell File Number(s): 2017/00367447 Judgment Background 1. The appellant appeals against convictions against him by the Sutherland Local Court on 26 April 2021, arising from conduct between 12:01am and 12:11am on 5 December 2017 at Sutherland. The first offence (seq 2) was that contrary to s 68J(1)(b) of the Passenger Transport (General) Regulation 2017 (NSW) ('the Regulation'), he had gone on to or into or remained on or in running lines. The second offence (seq 5) was that contrary to s 195(1)(a) of the Crimes Act 1900 (NSW), he intentionally damaged property, being carriages 5255, 5256 and 6256 that formed part of a Tangara-class rolling stock train, being the property of Sydney Trains. 2. The appellant was acquitted of two other charges associated with the above conduct; being driving a vehicle (belonging to his father) in excess of the speeding limit, contrary to road rule 20; and driving the said vehicle through a red traffic light (road rule 59). This alleged conduct had occurred after the offending conduct. 3. The appeal is brought pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). 4. On the appeal, the Crown put forward the evidence before the Magistrate (Exhibit A). The Crown also played to the Court film taken from Exhibit 3 from the Local Court, without objection. The appellant, who represented himself in the appeal (with a McKenzie friend, without objection by the Crown), did not apply to adduce fresh evidence before the Court despite the opportunity granted to him to apply to do so being brought to his attention. The Magistrate's reasons 1. The proceeding in the Sutherland Local Court was protracted. The hearing occupied 5 hearing days regrettably spaced out over several years. It is pertinent to note that for most of that time, there was a co-accused with the appellant, until the co-accused changed his plea. 2. It is convenient to set out the reasoning which led to the Magistrate's conclusion. It is well-established that in appeals of this kind, having regard to the nature of the appeal, the Court is entitled to have regard to those reasons: Charara v R (2006) 164 A Crim R 39 at [23] ("Charara") and, having regard to the recent observations of the Court of Criminal Appeal in Lunney v DPP [2021] NSWCCA 186, to which I will later return, which confirms the requirement of demonstration of error, it is practically indispensable. 3. But it is as well to begin by identifying what was not in issue before the Magistrate. That is, what elements of the subject offences were accepted as having been committed by the appellant. 4. Thus, it was not in issue that: 1. there was damage to property, being to carriages 5255, 5256 and 6256 that formed part of a Tangara-class rolling stock train, for the purposes of s 195(1) of the Crimes Act; and 2. at the date and time alleged, the appellant (with the then co-accused) did go on to rail land, running lines or associated rail infrastructure, that the appellant knew that he was not allowed to enter, but remained there for a period of time, for the purposes of the offence under the Regulation. 1. What remained in issue for the Magistrate's determination, given the way that the case was conducted before his Honour was: 1. Whether for the purposes of the offence under the Crimes Act: 1. the property belonged "to another"; and 2. the appellant intentionally encouraged or assisted damage being inflicted to that property. The appellant's position was that although he was on rail land, he had no connection to the people who were inflicting the damage on the train. 1. Whether for the purposes of the offence under the Regulation, the appellant had a 'reasonable excuse' for going on to the running line or the associated part of railway infrastructure and remained there. This in turn depended on whether the Crown could negative the appellant's defence that he was only on the running line or associated rail infrastructure as a result of duress perpetrated against him. 1. In the Director's submissions on appeal, it was acknowledged that the Crown case in the Local Court was by nature circumstantial. It was that the appellant was filming, on his digital camera, the conduct of others who were defacing the stationary train and, more than this, he acted as a lookout for them. The circumstances pointing to his being an aider or abetter, or otherwise having involvement in the enterprise, through which damage was inflicted upon the train featured, in combination: his arrest minutes after the offending conduct and after he had left the scene driving a vehicle owned by his father only a couple of hundred metres from the scene; the discovery of a glove (with paint stains) and a spray paint nozzle in the boot of the appellant's car; the film clip and photographs taken of the train being 'graffitied' (especially film clip C0028.MP4 in Exhibit 3, in which the appellant's voice is heard talking to those applying the graffiti); the discovery of an SD card from the camera in a concealed position within the car driven by the appellant after his vehicle had been pulled over for arrest, which contained the film clip. It was also part of the case, at trial, but not emphasised in this appeal, that the appellant had tried to speed away from the scene; away from police vehicles that he knew were at or approaching the scene and, after he was pulled over by a Crown witness, Inspector Merrit, and arrested, the SD card was eventually detected. 2. In closing submissions to the Magistrate, the Police Sergeant had emphasised the inherent implausibility of persons engaging in the acts of damaging asking the appellant to 'come over', the absence of any threat to sustain the appellant's defence of duress; and the absence of contemporaneous complaint, or perhaps report, by the appellant to Inspector Merrit of what he had observed and his explanation for being in the vicinity. He also pointed to what he depicted as a recent invention in the appellant's evidence as to his desire to go to a gathering of friends with a 'Toby'. 3. To interpose, somewhat, it is of some significance given the way that the Crown has approached this appeal, and the importance it placed on the film in support of its case in the Local Court, to note that there was argument in the Local Court about the admissibility of the SD card (and contents of goods in the appellant's motor vehicle) before the Magistrate on the basis of whether Inspector Merrit conducted a lawful search of the vehicle in which the SD card was located. This argument occurred on 24 May 2019, when the learned Magistrate admitted the SD card containing the film and photographs, and also evidence of what was contained in the boot of the appellant's vehicle (24/5/19, T 31 -39). One difficulty for the appellant, if he is taken to be seeking to set aside the Magistrate's evidentiary ruling to admit into evidence the SD card and the chattels in the boot of the car, is that the appellant refrained, when he had the opportunity, from giving evidence on the voir dire in opposition to Inspector Merrit's account (24/5/19, T 27-31), which may have brought out the factual basis, or bases, of that opposition to the admissibility of that evidence. It appears from the transcript that written submissions were supplied to the Magistrate about the admissibility of the evidence. They were not, however, placed before this Court. 4. The Magistrate determined that for the purposes of s 138 of the Evidence Act 1995 (NSW), this evidence was not obtained improperly or in contravention of an Australian law. To the contrary, it was obtained consistently with the requirements of ss 35-36 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ('LEPR Act'). The Magistrate determined that Inspector Merrit had overwhelming evidence to suspect, on reasonable grounds, that the circumstances in these particular statutory provisions had been engaged, which justified the search. As indicated, the appellant did not indicate how, or in what way, this decision was wrong. 5. The appellant's case in defence in the Local Court, in broad summary, was that he and the then co-accused (who later changed his plea), attended the scene partly to see a gathering of friends in the Sutherland area; but more specifically, also partly out of a desire by the appellant to photograph a locomotive steam train, which the appellant had learnt was to pass through Sutherland. The appellant (and the co-accused) were spotted by the persons responsible for applying the spray on to the train and, being concerned that they might be spotted and identified by police, prevailed upon the appellant to cross a fence whose dimensions were no higher than the fence one might find on a soccer field, and to cross over on to a proscribed area. The appellant said he felt scared and intimidated by this group. His representative in the Local Court argued that it was unnecessary for there to be any overt threat: it was enough that the appellant genuinely believed that he was under threat at the time. He had a heart condition in respect to which he received prescribed medication. Being outnumbered, he did not feel that he could run away. He felt coerced into providing information to these people until he could safely get away. Whilst he accepted filming the graffiti being applied, those who were applying the graffiti did not know of this: the appellant had persuaded them that he was only there to take photographs. His motive for filming what was occurring was only to protect himself if any harm should later come to him. The appellant called his father to give evidence for the purpose of corroborating the appellant's long-standing fascination with trains and to corroborate the explanation that the appellant gave to him about why he was going out in the evening including social purposes. The appellant also relied upon his evidence of prior good character, based on the absence of prior convictions. His father additionally spoke of his good son's character in positive terms. 6. The appellant also attacked the Crown case especially to deal with the charges for speeding and driving through a red light and vigorously challenged the evidence that the Crown led through Inspector Merrit in relation to those charges. 7. After summarising the evidence at length, the learned Magistrate essentially reasoned to find that the offences were made out by the following steps: * the video footage within the SD card and photographs indicated that there was no doubt that the appellant went over the fence separating the 'railway land' (which he was proscribed from entering) from the land from which the appellant could lawfully use; and the appellant did film and take photographs of people applying paint to the train. He remained on the land for a period of time; * the actions of those persons resulted in three carriages, with the identified numbers, as set out in the court attendance notices, being damaged; * the Magistrate rejected the appellant's version that he was filming or taking photographs by duress, or that he was filming without the others' knowledge. Contrary to the appellant's version, he did not act as if they were complete strangers, but even if that was not so, he appeared very comfortable in their company and there was no hint of his being scared or intimidated by them. He was providing information to them without their prompting; * one of the photographs he took, at the rear of the train, was of three persons applying graffiti, when he was on the railway track itself; * it was not the case that when the appellant said things to the gang of men, he was relaying what had been passed back to him, by someone else; that he was, effectively, being told what to say. Observation and hearing of the film clip indicated that the appellant was a willing participant in what was occurring; * the appellant's evidence that he was unaware of police vehicles being in the vicinity at about the time of the incident was rejected: they were highly visible and passed close to his vehicle when he was driving away; * the appellant was in a hurry to get away from the scene and he probably exceeded the speed limit when doing so. The Magistrate accepted the evidence of Inspector Merrit, who was a very good and believable witness with considerable experience in estimating the speed of vehicles. Nevertheless, the Magistrate was not satisfied to the requisite standard that the speeding charge was made out; * the appellant's account was rejected as amounting to a reconstruction, trying to match the objective evidence which was highly incriminating. He tried to hide the SD card, which he knew was highly incriminating. His evidence was inconsistent with what was depicted in the film. If he was genuinely acting in duress, it would have been expected that he would ring or message someone to assist him, at various points, but he did not do so. His account that he was coerced into jumping the fence was unbelievable, untruthful and unlikely: he was trying to explain away what had occurred and attempted to deflect blame onto others. The SD card was compelling evidence; indicating a calm voice of the appellant and manifesting no sign of distress. He was freely walking up and down engaging with others who were there. Contrary to his account, it was the appellant who was supplying instructions to those applying paint to the train and discussed such details as time and otherwise offering assistance. His role was, as the Crown submitted, to keep a lookout. He actively assisted the others. The mental element for the offence under the Crimes Act was established; * the appellant was under no threat and therefore had no 'reasonable excuse' for the offending under the Regulation. 1. In the appellant's written submissions, the following grounds of error were identified and the argument in respect to those grounds was as follows. 2. First, the Magistrate failed to take into account relevant matters. The appellant's first argument did not actually reflect this stated ground. The argument was that in circumstances where the Magistrate acquitted the appellant of both the speeding charge and the charge of his going through a red light, centred as those charges were upon the evidence of Inspector Merrit, the Magistrate should have rejected the balance of his evidence. 3. His second argument to support this ground was that the Magistrate did not take into account the fact that the appellant commenced to film the application of paint at a time when the 'works' were already significantly under way. In effect, it was said, the property damage was done before the appellant arrived on the scene. 4. His third argument was that none of the persons applying the graffiti were in the appellant's car as he drove away; which is what might have been expected if it was suggested that he was complicit with their engaging in unlawful conduct. 5. His fourth argument was that the Magistrate did not address the appellant's evidence, and that of his father's, as to why the appellant had gone to the location, being to photograph the steam train. This showed that he was there for other purposes unrelated to the complicity in the offending. 6. His fifth argument is that the Magistrate did not address the appellant's account that the SD card had been in his pocket and had fallen out after he had been forcefully and inappropriately dragged out of his car by Inspector Merrit. 7. His sixth argument was that the Magistrate should have, but did not, found that Inspector Merrit engaged in unprofessional and unlawful conduct, especially in the way that he treated the appellant in his interactions with him. This meant that the Inspector was not a credible witness. 8. Secondly, the Magistrate took into account irrelevant matters. The first argument on this ground was essentially a restatement of his last argument on the first ground: that Inspector Merrit engaged in discreditable conduct and therefore should not be believed. 9. The second argument on this ground was that the Magistrate wrongly construed, or gave excessive weight, to the filming depicted. 10. Thirdly, the Magistrate did not properly apply the legal test to evidence given by the appellant. The appellant referred the Court indirectly to the Liberato direction (considered recently in De Silva v The Queen (2019) 268 CLR 57) and says that the Magistrate should have accepted the appellant's account was credible and reliable or, at least, should have found that there was doubt about what the true position was. 11. In support of this argument was that the Magistrate did not advert to impolite or derogatory language directed to him by one of the men involved in causing damage. 12. Fourthly, the Magistrate failed to properly assess the defence advanced by the appellant. 13. The appellant's first argument, again, focussed upon his point that Inspector Merrit was untruthful or incompetent. 14. The appellant's second argument is that the Magistrate did not properly address the defence of duress. It is said that the Magistrate should have found that he was met by five unknown males larger and taller than himself and told to do certain things in a dark and isolated occasion. His ability to refuse was 'non-existent'. 15. Fifthly, for the charge under the Regulation, the prosecution did not prove an essential element. The appellant's point is that the prosecution did not prove as an essential element of the offence who owned the property the subject of the offence under the Crimes Act. 16. Sixthly, the Magistrate was wrong to convict at law as it was unsafe to do so. No additional argument was advanced to support this ground. The Crown's submissions 1. I noted earlier the Crown's description, in this appeal, as to its case before the Magistrate. 2. In its written and oral submissions on this appeal, the Crown apparently took the view that it was part of the appellant's case on this appeal, that the evidence of Inspector Merrit obtained from his search of the appellant's vehicle, including principally the content of the SD card, but also inferentially the chattels located in the boot of the motor vehicle, was improperly obtained or obtained in contravention of an Australian law. This view, it seemed to me, was overly generous to the appellant. No 'ground' or argument was identified in the appellant's written submissions to this effect. 3. I have commented on this earlier in these reasons. I have reviewed the evidence on the voir dire regarding the admissibility of the evidence, the argument, and considered the Magistrate's reasons for rejecting the appellant's objection that the evidence fell afoul of s 138(1) of the Evidence Act 1995 (NSW). The Magistrate noted that the appellant's then representative did not allude to any legislative provisions said to be infringed, but went on any way to consider the application of the LEPR Act. Given the scope of re-hearings of appeals against conviction to this Court and the absence of any articulation by the appellant as to how this evidentiary ruling was erroneous, in my view, it is unnecessary for this Court to review the correctness of that ruling. 4. The Crown submitted that once it is accepted that the Magistrate was entitled to consider the content of the SD card, there was little trouble for this Court to hold that the two contested charges were proved to the requisite standard of proof. In particular, the filming showed that the appellant acted freely, voluntarily and was familiar with the persons who perpetrated the damage to the train. 5. On the separate legal point raised by the appellant, the Crown also submitted, in relation to the offence under the Crimes Act, that it was not an essential element of the offence for the Crown to prove who was the owner of the property that was damaged, citing the unreported decision of Walton v Salmon (NSWSC, Loveday J, 24 April 1992). The appellant's submissions in reply 1. In oral submissions, the appellant (again, assisted by a McKenzie friend) submitted that a number of the 'strands in the cable' making up the Crown's case in the Local Court, as identified to this Court, were not established to the requisite standard of proof. That meant that if any one of more of them failed, so too the Crown case failed. 2. He argued that: 1. the evidence showed that the appellant was not arrested minutes after the offence and a couple of hundred metres away, but rather was arrested 20 minutes after the offending and over a kilometre away; 2. the SD card was not secreted in the belt buckle after the car was pulled over; 3. the discovery of the glove with paint stains and spray paint nozzle in the appellant's vehicle after the arrest were irrelevant matters for the Magistrate to consider. Consideration Principles for review 1. An appeal against conviction in the Local Court is a rehearing based on the evidence given in the Local Court proceeding. It is not an appeal de novo. 2. The content of the appeal "by rehearing" was recently re-examined by the Court of Criminal Appeal in Lunney v DPP [2021] NSWCCA 186. Salient points that emerged from the leading judgment of McCallum JA (at [24]-[44], with whom Meagher JA and White JA agreed) is that: * the jurisdiction in this Court on appeal is error based such that the appellant is required to demonstrate that the Magistrate's decision was the result of some legal, factual or discretionary error; * the proper approach for the Judge on appeal is to form his or her own judgment of the facts, whilst recognising the advantages of the Magistrate who heard and saw the witnesses and was generally across the evidence as a whole, in the Local Court; * there is no requirement of the Judge on appeal in this Court to undertake a free-standing review of all of the evidence in the absence and guidance and submissions from the parties. The extent of the review which the Judge on appeal is to undertake is shaped by the circumstances of the case and the kind or error alleged. This last observation indicates that close attention should be paid to the submissions made by the appellant as to the manner in which it is suggested the Magistrate erred. Those submissions were MFI 1. 1. It is not enough, in other words, for the appellant to simply invite this Court to form its own view of all the evidence, with reference to the arguments of the appellant and the Crown. 2. In connection with the second point above, although it is true that the Court is not relieved of the task of conducting a real review on the basis of appellate deference to the advantages of the Magistrate, especially where demeanour-based findings are made, it remains the case that findings by the Magistrate, based on the credibility of a witness, may generally only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrates that the conclusions are erroneous, glaringly improbable or contrary to compelling inferences: Fox v Perry (2003) 214 CLR 118 cited in the relevant context in Charara per Mason P at [18]. 3. A further matter worthy of note, and reflective of some of the submissions of the appellant is that simply because an evidentiary matter or argument was not expressly referred to by the Magistrate does not meant that it was 'overlooked' by him. In a trial by jury, a Judge in a summing up does not need to refer the jury to every fact or argument made by an accused. No ground was stated that inadequate reasons were supplied by the Magistrate, so as to amount to an error in law requiring this Court's intervention. In this case, the Magistrate had reserved, after a five-day hearing. Although the reasons of the Magistrate were not ex tempore, nevertheless, they were prima facie voluminous in scope. This included (at T9-20) on 26 April 2021 a particularly thorough account of the evidence of the appellant and his father. The Magistrate had specifically set aside the date for decision to enable him to consider the transcript. As a whole, the reasons reflect considerable deliberation. 4. Further, some of the criticisms made by the appellant against the Magistrate partly fall to be assessed against the conduct of the appellant's case and, in particular, the (relatively) brief submissions (exclusively verbal) which were made on the appellant's part in the Local Court (2/3/21, T 18-20), some of which did not raise or address points now complained of in this appeal. Analysis of the appellant's 'grounds' First Ground: not taking into account relevant matters 1. Much of the appellant's submissions constituted a reprise of arguments which justified the appellant's acquittal on the speeding and driving through the red light charges. As the appellant's submissions note, the Crown's case on those charges substantially depended upon the evidence of Inspector Merrit. The appellant seeks to use his success on those charges as the platform for his challenge to the charges on which he was convicted. 2. However, it was not incumbent upon the Magistrate, having acquitted the appellant of the speeding and driving through the red light charges, to reject the entirety of Inspector Merrit's evidence; and, materially, his evidence as to the circumstances in which the search of the appellant's motor vehicle proceeded. The learned Magistrate was appreciative of the demanding standard of proof that attended each and every charge and separately considered them, as he was required to do: success for the appellant on one or more charge did not necessarily presage acceptance on all the others. Thus the Magistrate's reasoning was carefully described: although he was suspicious, indeed even found that it was probable that the appellant was likely to have exceeded the limit, he was not satisfied that this was so beyond reasonable doubt. It remained the case, however, and the Magistrate was entitled, on the basis of Inspector Merrit's evidence, to find that the appellant was in a hurry to leave the area. 3. Contrary to the impression created by many of the appellant's submissions, acceptance of Inspector Merrit as a Crown witness was not indispensable to the Crown's success on the offences for which the appellant was ultimately convicted; even if he was in relation to those on which the appellant was acquitted. This is not a case where the Magistrate needed to effectively administer to himself a Murray direction (R v Murray (1987) 11 NSWLR 12 at 19). The most important function Inspector Merrit's evidence served was to prove the physical evidence – the SD card and equipment in the boot of the car. Once that evidence was admitted, circumstances which concerned his justification for conducting the search were not particularly material to the Crown case. An exception to that might have been Inspector Merrit's evidence of seeing the appellant reaching behind him whilst in the car after his vehicle had been stopped and the Inspector's evidence of how he came to find the SD card; which might have been utilised in some forensic way to the Crown's advantage. In the event however, given the SD card and other physical evidence was admitted, it did not even become necessary for the Police Sergeant to refer to Inspector Merrit's evidence in his closing submissions on the subject offences (2/3/21, T 14-15). 4. It is true, however, that the Magistrate found that the appellant had tried to hide the SD card, and although his Honour did not say so, that could only have been based upon preference for the evidence of the Inspector over the appellant. It was unnecessary, however, for the Magistrate to accede to the appellant's argument that because some doubt attached to whether the appellant exceeded the speed limit or ran the red light, the Inspector should be treated as a liar or incompetent such that none of his evidence could be accepted. The Magistrate was entitled to accept Inspector Merrit's evidence of where he saw the SD card, and how it was placed within the vehicle and to compare that evidence with the appellant's account of how it got there. The Magistrate's acceptance of Inspector Merrit's evidence in this particular respect is not shown to be glaringly improbable. 5. There is no merit in the argument that because most of the damage had been done by the time the appellant arrived at the scene meant that the Crimes Act charge failed. Section 195(1) contains no element which quantifies the damage. It is enough that a person has intentionally or recklessly destroyed or caused damage to property; not all damage to property. 'Damage', in this sense, means some alteration to the physical integrity of the property, which might be relatively minor and temporary: Grajewski v Director of Public Prosecutions (NSW) (2019) 264 CLR 470 at [53]. His Honour was justified in regarding the appellant's taking of photographs and filming, as the spraying of the train carriages was taking place, amply made out that requirement. 6. As to the appellant's third argument on this ground, it is not a compelling inference that any or all of the persons applying the graffiti, as the appellant had filmed, could be expected to have driven away from the crime scene. Plainly, not all five (the number which the appellant had himself identified) could fit in the vehicle. The Crown did not need to establish all the particulars of the appellant's relations with the persons inflicting the damage. It needed to demonstrate his intention to encourage and assist them. The physical evidence through the filming and photographs taken by the appellant, the appellant's admitted presence, and the chattels found in the appellant's vehicle was compelling when considering that mental state. In the latter respect, and contrary to the appellant's submissions in reply, the evidence of the equipment found in the boot of the appellant's motor vehicle after he left the scene was probative of the involvement of either the appellant or the co-accused, or both, in the conduct itself. To some extent it facilitated the inference of direct involvement or participation in the conduct of damaging the property. 7. Similarly, in relation to the appellant's fourth argument, it was not necessarily or even logically inconsistent with the prior purpose of taking a photograph of a locomotive steam train that the appellant would encourage or assist the perpetrators inflicting this kind of damage to trains. That was especially so, in circumstances where there was physical evidence – the SD card and the chattels in the boot of the vehicle – redolent of participation. 8. As to the appellant's final argument, there was clearly a contest, as between Inspector Merrit and the appellant, as to the circumstances in which the search of the motor vehicle and arrest had occurred. As it was, at best, the appellant only had his account of what occurred against Inspector Merrit's account. The Magistrate determined, and not solely on the basis of comparable demeanour findings concerning both witnesses, that Inspector Merrit was a generally credible witness and the appellant was anything but. This Court should not intervene by acceding to this argument, particularly in the circumstances where, as I have indicated, the evidence of Inspector Merrit was not so material for the success of the Crown's case that the appellant suggests that it was. At any rate, at least in relation to that part of his evidence which might have been material – what he saw of the appellant in the motor vehicle and his discovery of the SD card – it has not been demonstrated that the Magistrate's acceptance of Inspector Merrit's account in those respects, in comparison to the appellant's account, was incontrovertibly wrong or glaringly improbable. Second Ground: taking into account irrelevant matters 1. I have already rejected the argument that Inspector Merrit's evidence about speeding or the appellant driving through a red light compelled rejection of the balance of his evidence and/or that his 'unprofessional' conduct towards the appellant produced the same result. 2. On the second argument, the Magistrate was entitled to place such weight on the content of the filming as he did, having regard to all of the contextual circumstances. As it happens, without objection of the appellant in this appeal, the Crown played the film that was before the Magistrate. This Court's own view coincided with the Magistrate's view that the film did not suggest a person who was intimidated or scared with what the persons applying the graffiti might do. To the contrary, the Court's own view of the film on the SD card coincided with the Magistrate's determination that the appellant was a willing participant; that he spoke calmly and issued a number of instructions to others involved in applying the graffiti. Contrary to the appellant's case, this was not some sort of contrived exercise. The appellant was also seen to be moving freely about. There was nothing objectively persuasive to support the idea that he was being coerced to join the group out of a concern on anyone's part that the appellant not draw attention to them. 3. Further, the appellant's argument that it was absurd for the Magistrate to reject the appellant's account that the perpetrators of the graffiti did not know that he was filming them should be rejected. Having listened to the audio of the filming, that submission is almost unarguable. Third ground: not applying Liberato 1. There was no statutory requirement for the Magistrate to direct himself along the lines of Liberato (Liberato v The Queen (1985) 159 CLR 507 at 515). His Honour plainly recognised the significance of the appellant electing to give evidence. His Honour considered, and rejected, the appellant's account. 2. This was not only the result of the objective evidence his Honour weighed but a credit-based rejection of the appellant's evidence. It was up to the Magistrate to determine what to make of the appellant's account, not only with the natural advantage of hearing and seeing him, but weighing his evidence against all the other evidence in the case, including the physical evidence and (to an extent) Inspector's Merrit's evidence. 3. This did not mean that his Honour relieved himself of his obligation to consider, having regard to the evidence as a whole, including any doubt generated by the appellant giving evidence, whether the Crown discharged its onus of proof of the two contested charges and there is nothing to indicate that his Honour departed from that obligation. 4. It is tolerably plain from the reasons (26/4/21, T 22-23) that the Magistrate did not singularly reason from rejection of the appellant's evidence alone to the conclusions of guilt. 5. There is no merit in the second argument that the comment telling "Gary" to hurry up was the clearest evidence that the people were acting in a threatening manner, even if the most elastic construction is given to the notion of a threat. 6. Nor is there merit in the third argument about the choice of rude language by one or more persons towards the appellant. That was plainly ambiguous, at best for the appellant. The choice of words alone says little about the context in which they are uttered. Fourth ground: failing to assess the appellant's case 1. The arguments in support of this ground duplicate earlier arguments. Again, the Magistrate was not bound to proceed from acquitting the appellant of the speeding and red light charges to a wholesale rejection of Inspector Merrit's evidence. He was entitled to accept some parts of his evidence whilst rejecting other parts. 2. The Magistrate clearly and closely considered the appellant's defence of duress. The Magistrate (26/4/21, T 20) directed himself as to the test for duress in terms substantially identical to the test the appellant submits was appropriate in this Court. Those terms reflect the direction in the Criminal Trial Courts Bench Book (at [6.160]). Contrary to the appellant's submissions that were before the Magistrate, it is not a purely subjective exercise to determine whether duress is made out. There must be a threat. That is not to say that the threat must be express. It may be implied: it might involve, for example, the pointing of a weapon, coupled with an ostensibly innocuous request. It also required, in paraphrase, demonstration that a person with similar characteristics as the person claiming duress would have yielded to the threat. The matters referred to in paragraph 63.2 of the appellant's submissions in this appeal barely surpass the threshold, but it was open to the Magistrate to find that the Crown negated the defence; given that this defence almost entirely rested upon acceptance of the appellant's evidence and the Magistrate did not accept that evidence. As the Magistrate recognised, that still meant that his Honour needed to be satisfied of the appellant's guilt on the basis of the evidence as a whole. 3. The appellant has not demonstrated that the adverse credit findings he made of the appellant were contrary to incontrovertible facts or glaring testimony to the contrary. Fifth ground: no proof of ownership 1. I accept the Crown's submission that it is not an element of the offence that the Crown was required to demonstrate who owned the train. It was plainly obvious that the train did not "belong" to the appellant. In accordance with the authority cited by the Crown, that is sufficient to make out that element of the offence. Reference to the text of a different statutory offence (s 4 of the Graffiti Control Act 2008 (NSW)) did not assist with the task of construction. Sixth ground: conviction unsafe 1. No additional matters are relied upon by the appellant to make out his final ground of suggested error by the Magistrate. 2. The test for whether a verdict is unsafe or unsatisfactory is whether on the whole of the evidence, it was open for the Magistrate to be satisfied beyond reasonable doubt of guilt of the two charges (M v The Queen (1994) 181 CLR 487 at 493). Since none of the foundational grounds of appeal have succeeded, neither does this one. 3. I am not persuaded that this ground is established, nor any of the other grounds of error identified in the appellant's written submissions. 4. In summary, returning to the real issues that the Magistrate was required to determine, in light of the way that the parties had conducted the case, the Magistrate was justified in finding, beyond reasonable doubt, that: 1. for the purpose of the sequence 2 offence under the Regulation, the appellant had no reasonable excuse for going onto or remaining on the running lines; and 2. for the purposes of the sequence 5 offence under the Crimes Act, the appellant intentionally encouraged and assisted others to damage property belonging to another so as to sustain the conviction on the subject charges. 1. In the result, the appeal against conviction of the two offences is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2021