An Indigenous man from a remote Cape York community was wrongly convicted of a traffic offence by a magistrate who repeatedly talked over the defence lawyer’s questions and made a series of “inappropriate” and “intemperate” remarks, an appeal has found.
The magistrate, sitting in a circuit court in Aurukun, took about 10 minutes after the hearing to find Rex Austin Ngakyunkwokka guilty of an evasion offence.
But a district court judge overturned the conviction last week, finding Ngakyunkwokka not guilty and ruling there were significant errors and other issues with the initial trial.
They include that the verdict was not supported by the evidence; the magistrate made multiple errors of law; the magistrate failed to give adequate reasons for his decision; and that the magistrate “impermissibly” sought to bolster his reasons for conviction by referring to the applicant’s criminal history.
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The appeal decision, handed down by district court justice Tracy Fantin, found the magistrate “misstated [Ngakyunkwokka’s] evidence” and had unfairly drawn an adverse inference against him.
Fantin ruled that the “conduct of the trial was such that a fair-minded and reasonably informed observer might consider that the magistrate was not approaching his task with a sufficient level of impartiality”.
“The transcript of hearing discloses the magistrate repeatedly interrupting appellant’s solicitor’s questioning.
“He prevented the appellant’s solicitor asking permissible questions. He repeatedly interrupted the appellant’s solicitor while she was making submissions. He told the prosecutor to object to her questions.
“He made inappropriate and intemperate remarks to the appellant’s solicitor, describing the defence as ‘something from Bart Simpson’, ‘very wrong’ and ‘fanciful’, saying ‘Jesus Christ’ and ‘my God’, telling the appellant’s solicitor she was running cases (plural) in a ‘very, very odd’ way, and that the magistrate was ‘not the only one to say that’.
“A consequence of this conduct was that the appellant’s solicitor was not able to properly advance her submissions.”
Fantin described the prosecution case as “not strong” and found there were no grounds to convict Ngakyunkwokka, who was the owner of a car that was the subject of a stop by police outside Aurukun at about 8.30pm on 6 November 2024.
Two police officers were patrolling the main road into Aurukun when the vehicle drove past. They could not see the make, model or registration number.
The police attempted to stop the vehicle by activating their lights and sirens. The vehicle did not stop.
The officers contacted other police officers in Aurukun, who set up a tyre deflation device about 5km from the community. A vehicle drove across the tyre deflation device and continued for about 2km, where it was abandoned. There was no sign of the driver.
Ngakyunkwokka told the trial that he owned the vehicle but was not the driver. He said he usually left the keys on the wall of his home and that the car was accessible to more than 20 extended family members.
Under Queensland law, if the driver of a vehicle is accused of evading police, they are required to provide a statutory declaration naming the person they believe was driving, or alternatively giving as much information as possible about the location of the vehicle and who had access.
Police told Ngakyunkwokka: “If you don’t do the stat dec [statutory declaration] and name a person, you can be charged”. He was not told that he had to complete the statement even if he could not nominate the driver.
The trial magistrate convicted Ngakyunkwokka on the basis he did not provide a statutory declaration.
The appeals court found the evidence supported a conclusion he “did not comprehend or appreciate” the requirement to do so.
In finding Ngakyunkwokka guilty, the initial magistrate said he was satisfied the vehicle police tried to intercept “was the same vehicle stopped by the tyre deflation device”, and that the police vehicle’s lights and sirens would have been seen by a reasonable person.
The appeals court said the evidence did not support either conclusion.
“The prosecution case was not strong,” the appeal judgment said.
The appeals court found that the first element the prosecution required to prove the offence was that police had been exercising a power under the Police Powers and Responsibilities Act. But Fantin found police gave no evidence of the reason for seeking to stop the car.
“There was no evidence that the vehicle was speeding or otherwise driving in a manner that attracted police attention,” she said.
“It would not have been difficult to adduce such evidence. But it was not adduced.”
The appeals court also found the magistrate made an error of law by finding the offence occurred “at night”, which is considered an aggravating factor in the offence. The offence occurred at 8.35pm. Under the statutory definition used in such cases, “night” begins at 9pm.
