Milson v R (No 3) [2013] NSWDC 269

District Court New South Wales

Medium Neutral Citation: Milson v R (No 3) [2013] NSWDC 269 Decision date: 28 August 2013 Before: Cogswell SC DCJ Decision: Conviction appeals dismissed. Catchwords: CRIMINAL LAW - Particular offences - drive while disqualified; police pursuit - not stop - drive recklessly - circumstantial evidence - decoding of words not appropriate - strong Crown case. Cases Cited: Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307. Category: Principal judgment Parties: Jason Milson (Appellant) Regina (Respondent) Representation: Counsel: P M Strickland SC (Appellant) Solicitors: Armstrong Felton (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): DC 2011/121417

Judgment 1I will now give my reasons for the orders I made on 19 July 2013 dismissing appeals by Mr Milson against convictions for driving whilst disqualified and driving recklessly without stopping in a police pursuit. 2Mr Milson was charged with two offences. The first was driving whilst disqualified and the second was an offence involving a police pursuit. Both offences are said to have occurred on 6 January 2011. The first is said to have occurred between 8.20 am in the morning and 9.00 am. The second between 8.45 am and 9.00 am. 3It is claimed by the prosecution that Mr Milson was riding a motorbike. The only issue is whether the prosecution has proved beyond reasonable doubt that Mr Milson was the rider. It is not in dispute that he was the registered owner of the motorbike and that he was at the relevant time disqualified from driving it. What is also not in dispute is that Mr Milson made a phone call to a person named Maria at 7.45 am that morning. He said in the phone call that he was coming over to her place. He was told to come in the back way and that the gate was unlocked. He was given directions to the back gate and a driveway off Chapman Street. He said that he would "see you soon". 4At around 8.00 am police were watching the unit of the woman named Maria on Chapman Street. They saw Mr Milson's motorbike down the driveway that provides access to the rear yard of Maria's unit. A short time afterwards they saw Mr Milson's motorbike being driven out of the driveway. They could not see the rider's face but they were able to say that the rider was "of a large build, with black jacket and white coloured motorcycle helmet." 5I entertain no reasonable doubt that it was Mr Milson who rode his motorbike to Maria's unit after announcing his intention to do so. The contents of the telephone call appear to be spontaneous and not contrived to suggest that someone other than Mr Milson might be arriving. His motorbike arrived at the agreed point of access shortly after his announced intention to do just that. I am satisfied beyond reasonable doubt by the prosecution that Mr Milson is guilty of driving whilst disqualified on that occasion. 6So far as the second offence is concerned, the case for Mr Milson being involved in the police pursuit is largely circumstantial. There is a description of the rider as being "of a large build" which appears to be consistent with Mr Milson. Otherwise it is a circumstantial evidence. 7There are two pieces of circumstantial evidence I need to deal with first. The first is evidence of a phone call made from Mr Milson's telephone at 8.48 am. It is made to a number which the prosecution says belongs to one Alan Garner. But Police Officer Quinn said in evidence that that police officer could not with certainty say that the phone call was made to Mr Garner. I am not satisfied beyond reasonable doubt that the call was made to Mr Garner. 8The second piece of circumstantial evidence concerns some words used by Mr Milson in a telephone call which he made to an unidentified man. The learned Magistrate decoded the words so that they were saying that Mr Milson just got chased and he needed to change his clothes. The words that were decoded were "chased" and "clothes". I do not myself decode those words. I do not, for the reasons put forward by Mr Strickland SC who appeared for Mr Milson, regard the decoding process as knowledge which is not reasonably open to question because it is common knowledge. I rely also on the passage in Haydon J's judgment in Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at 513 ([619]). 9Putting aside those two pieces of evidence, the balance of the prosecution's case as argued by Ms C Black on behalf of the Director of Public Prosecutions is still very powerful. We know that a man of similar build to Mr Milson left Maria's house on Mr Milson's motorbike sometime after Mr Milson himself had arrived. The bike was ridden to Mr Garner's house in another street. We know that Mr Milson made a phone call to a number shortly before leaving Maria's place. We do not know whose number that is. But about a quarter of an hour later Mr Milson made another phone call to a man saying that he is "at your house". He reported to the man in some sort of code that something had happened and that he needs to "get out of" something. Previously he phoned a woman, Maria, at a number. Now he was phoning a man at another number saying that he was at the man's house. We know that Mr Milson said that his sister was not at home. His sister lived in Chapman Avenue. Five minutes later he made another phone call to a woman - there is no suggestion that it is Maria - and he needed her to "jump in your mum's car and come and get me". In addition, he needed some footwear. He was guarded in his responses to the woman and in explaining what was going on. 10I have no difficulty in concluding that the only reasonable possibility is that it was Mr Milson on the motorbike and he reported the chase to a man and then asked a woman to pick him up from the suburb he was riding towards (when last sighted) and to provide him with footwear. 11I am satisfied beyond reasonable doubt of Mr Milson's guilt of the offence involving the police pursuit. 12It is for those reasons that I made the orders which I did on 19 July 2013.