A v Roughan
[2019] TASSC 17
•10 May 2019
[2019] TASSC 17
COURT: SUPREME COURT OF TASMANIA
CITATION: A v Roughan [2019] TASSC 17
PARTIES: A, C M
v
ROUGHAN, Anthony Laurence
FILE NO: LCA 3319/2018
DELIVERED ON: 10 May 2019
DELIVERED AT: Launceston
HEARING DATE: 6 May 2019
JUDGMENT OF: Brett J
CATCHWORDS:
Traffic Law – Offences – Generally – Evading police – The applicant, a youth, was charged with evading police with aggravated circumstances when he and a passenger decamped a stolen motorised golf cart and fled after seeing an approaching police vehicle – Magistrate found the applicant not guilty of evading police with aggravated circumstances but guilty of evading police simpliciter – Magistrate's finding of guilt in respect of the offence of evade police simpliciter was consistent with, and justified by, his findings of fact.
Police Powers (Vehicle Interception) Act 2000 (Tas), s 11A.
Aust Dig Traffic Law [1102]
Magistrates – Appeal and review – Motion to review – Tasmania – Procedure and evidence – Matters relating to decision – Ground that finding of guilt on alternative charge is inconsistent with the conclusions reached by the magistrate in respect of the primary charge – Magistrate applied an incorrect test in relation to the primary charge, but the correct test with respect to the alternative charge – Considerations of inconsistent jury verdicts are not applicable in this case.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: A Hilly
Respondent: S Thompson
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2019] TASSC 17
Number of paragraphs: 26
Serial No 17/2019
File No LCA 3319/2018
C M A v SERGEANT ANTHONY LAURENCE ROUGHAN
REASONS FOR JUDGMENT BRETT J
10 May 2019
The applicant, a youth, was charged with a number of offences relating to the theft and subsequent driving of a motorised golf cart. The allegation was that the applicant and his brother had stolen the golf cart from the Launceston Golf Club in the late afternoon of 3 October 2018, driven the cart around public roads for a period, and then decamped from the cart and fled when they saw an approaching police vehicle. The applicant did not dispute that he had stolen the golf cart, nor that he had driven it as alleged without a licence. However, he pleaded not guilty to a charge of evading police with the aggravated circumstance of doing so while he was the driver of a stolen motor vehicle. The charge arose pursuant to s 11A(2A) of the Police Powers (Vehicle Interception) Act 2000 ("the Act"). I will refer to the offence arising under this subsection as "aggravated evade police". The offence of evade police simpliciter, which arises by virtue of s 11A(1) of the Act, will be referred to as "evade police".
The charge was heard by Magistrate Brown on 15 November 2018. On 21 November 2018, his Honour dismissed the charge, but found the applicant guilty of the offence of evade police. This course is authorised by s 11A(3A) of the Act, which provides that if the court is not satisfied that a person is guilty of the charged offence of aggravated evade police, but is satisfied of evade police, it may find the person guilty of the latter. The applicant seeks a review of the decision to find him guilty of this offence.
The evidence was in short compass and there was little dispute about the underlying facts. The relevant events occurred on Penquite Road at Norwood. A civilian driver saw the golf cart emerge from a street which led from a housing subdivision, onto the road. The witness described the cart as coming "around the centre isle up on two wheels and then hit the fence over near the sewerage plant on the left". The witness said that he saw the two occupants jump out of the golf cart and run off. Prior to that, he had seen a police car coming down the hill towards the location of the cart, with its emergency lights activated. In testimony largely consistent with this version, the police officer driving the police vehicle, Constable Fenton, said that when he was at the top of the hill on Penquite Road, he saw the golf cart cross the road at the bottom of the hill and drive onto the footpath. He activated his emergency lights, overtook the civilian car in front of him, and drove down the hill in an attempt to intercept the cart. He lost sight of it for a brief second as he overtook the civilian vehicle. When he saw the golf cart again, it was coming towards the police vehicle on the opposite footpath. There were two people in it. Each of them jumped out and ran away from the cart while it was still moving. The cart continued, unoccupied, onto the road and then stopped.
The applicant and his brother each gave evidence, and an interview between the applicant and police was played to the magistrate. The applicant's version was that he was driving the golf cart, and his brother was the other occupant. He agreed that he drove the golf cart onto the road and then onto the footpath. He said that two wheels slid off the footpath and "then I seen the cop car ... the top of the cop car and stopped and then ... hit the brake, and I jumped out and ran". He said that at the point he jumped out of the golf cart, the police car was still at the top of the hill. His version was, in essence, supported by the evidence of his brother, and, in any event, would seem to be entirely consistent with the observations of the police officer and, to a large extent, the civilian witness.
The argument before the magistrate and before me on this review focussed on the question of whether the evidence was sufficient to establish the offence of evade police. The charged offence was aggravated evade police, but the circumstance of aggravation was uncontroversial. The real issue was whether the proved conduct amounted to evade police. In his reasons, the magistrate concluded that "for a person to be guilty of evading police in aggravating circumstances, the evasion in question must involve the evading of a police officer in the performance of his duties or one who was exercising his powers ... by an act of driving or involving the driving of a vehicle". After referring to the evidence, his Honour then said:
"... there is evidence that he continued to drive, perhaps to complete the crossing of Elphin Road and to head southward briefly on Elphin Road, sorry, Penquite Road, once sirens sound – once lights were on, but its [sic] seems to me that I can't be satisfied that that driving occurred in that circumstance at a point where that driving was done with intention to evade. So while there is some evidence that there was a continuation of driving once it became plain to even [the applicant] that police were after him, I'm not satisfied, bearing in mind the tight timeframes and the short distances, as to when it is – as to whether that in fact is the factual scenario here.
It does – it is also in my view open and indeed probably more likely that once the [applicant] became aware that police were on the scene he essentially got off the vehicle as soon as he could. So in all the circumstances I'm not satisfied that there was an act of driving (indistinct words) here."
On this basis, his Honour dismissed the primary charge.
His Honour then considered whether an offence of evade police had been made out. In relation to that question he said:
"Now in my view that plainly is, because plainly on his own evidence [the applicant] was the driver of a vehicle. He continued to be a driver of a vehicle once he realised police were in the area and plainly realised that they were essentially after him and he then decamped from the vehicle obviously as fast as possible and ran away in an area where obviously a police car could not follow and where he had to be chased on foot, where he was eventually frankly bought [sic] to heel."
The magistrate concluded, therefore, that the applicant was guilty of the alternative offence of evade police.
By virtue of amended grounds of review, the applicant argues that in order to be found guilty of evade police, the action to avoid apprehension or interception must occur contemporaneously with, and be constituted by the act of driving. In other words, it is argued, the magistrate ought to have applied the same test to the offence of evade police as he did to aggravated evade police. Accordingly, it is argued, his Honour's finding that he could not be satisfied that the applicant was evading police while he was driving the golf cart, and hence could not be guilty of the offence of aggravated evade police, precluded a finding that he was guilty of evade police.
The respondent argues that neither offence requires that the act constituting the evasion be contemporaneous with the act of driving, and that the concepts of evading and driving are not co-extensive. The respondent further argues that on the uncontested evidence, at some point, the applicant has taken action during the course of driving to evade police, even if it was only to stop the cart for the purpose of decamping.
Evade police
The relevant provision of s 11A(1) is as follows:
"(1) The driver of a vehicle must not take action to avoid apprehension or interception by a police officer who is exercising his or her powers or performing his or her functions under any Act."
The submissions of each counsel were based on what was contended to be the proper interpretation of this provision. The starting point of statutory interpretation must be to give legal effect according to the plain and ordinary meaning of the text, read in the context of the surrounding provisions and the legislative scheme: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. Although the provision is inelegantly drafted, there does not seem to be any great difficulty in attributing meaning to the simple words contained in s 11A(1). Accordingly, in order to establish the offence of evade police, the prosecution must prove that:
(a)the driver of a vehicle;
(b)has taken action to avoid apprehension or interception by a police officer;
(c)who is exercising his or her powers or performing his or her functions under any Act.
The term "driver" is defined by s 3 of the Act to mean "a person having control over the steering, movement or propulsion of a vehicle and includes a person riding a vehicle". This definition suggests a clear nexus between the driving of the vehicle and the taking of action to avoid apprehension or interception by a police officer. This conclusion is consistent with the long title of the Act which is as follows:
"An Act to confer additional powers on police officers to stop and search vehicles and to obtain information concerning the identity of drivers and owners of, and passengers in or on, vehicles used in connection with the commission of certain offences, and to provide for related matters."
I am not satisfied, however, that the nexus requires the evasion be constituted solely by an act of driving, nor that the evasion and the driving must be contemporaneous and co-extensive. The requirement is that the driver of the vehicle takes action to avoid apprehension or interception. Taking action can involve a single act or a course of conduct. The use of that term without qualification is consistent with a legislative intention to prohibit any form of action which is intended to achieve evasion of a police officer who is acting within the law. The focus is not on the nature or effectiveness of the action, but rather its purpose. It is immaterial that the action is, or is not likely to be successful, in achieving the evasion of the police officer. In the second reading speech which accompanied the amending Act which inserted s 11A into the Act, the then Minister for Police and Emergency Management gave examples of the type of situation in which the section might operate:
"This provision will apply to situations where a driver becomes aware of a police presence and then takes action to avoid apprehension or interception by a police officer. An example of such an offence includes drivers who turn their vehicle around, or pull over and run from their vehicle, when they are approaching a random breath test site, or drives in such a manner as to attempt to evade, elude and or prevent police from speaking to the driver or occupants."
Accordingly, provided that the court is satisfied that the action taken by the driver of a vehicle is for the purpose of avoiding apprehension or interception by a police officer, it is not necessary that the evasion occur by the driving of the vehicle, nor that the vehicle is being driven throughout the act of evasion. It is necessary only that the purpose of the action taken be to avoid apprehension or interception by a police officer. The required nexus between the driving of the vehicle and the taking of action to avoid apprehension or interception will be satisfied if the court can conclude that the action was taken by a person in his capacity as a driver of the vehicle, but this does not necessarily mean that he or she must actually be driving the vehicle at all times, or even at any time, throughout the evasion. Generally, as a practical consequence of this nexus, some contemporaneity can be expected between the actual driving of the vehicle and the action in question. However, because the taking of action can be constituted by a course of conduct, it is not necessary that the entirety of the relevant action be constituted by the driving of the vehicle. Hence, as in the example given by the Minister in the second reading speech, it would be sufficient if the driver has stopped the vehicle and decamped from it in order to avoid apprehension or interception. It is also possible to contemplate circumstances in which the evasive action commences after the driving has come to an end. An example might be a driver who leaves the scene immediately after an accident, for the purpose of evading apprehension by police who are approaching or already present at the scene, but who prior to the driving coming to an end upon the occurrence of the accident was not evading police.
The requirement that the evasion be of a police officer performing his or her functions under any Act, imports a requirement that the taking of action must be for the purpose of avoiding apprehension or interception by an actual police officer. The prosecution must prove that there is a police officer, that he or she is exercising power or performing functions under any Act, and that it is the apprehension or interception by that police officer that the defendant has taken action to evade. It would not be sufficient, for example, that the person believes that police might be in the area, when that is not actually the case. On the other hand, it is not necessary for that police officer to have formed an intention to, nor be actually attempting to apprehend or intercept the driver. The power or function does not necessarily need to relate to the apprehension or interception of the driver. The requirement that the driver take action to avoid apprehension or interception by the police officer refers to the subjective purpose of the driver, and does not rely upon or circumscribe the intentions of the police officer. It must be independently shown that the police officer is exercising powers or functions under an Act and, provided that is shown, it is irrelevant whether the driver has correctly determined that the police officer intends to apprehend or intercept him or her. The offence is established when the driver of the vehicle takes action for the purpose of avoiding apprehension or interception, whether or not that prospect is, in fact, about to occur.
In this case, a fair reading of the magistrate's reasons is that his Honour was not satisfied that at any point while the cart was being driven, the applicant was doing so with the purpose of evading police. However, the magistrate was clearly satisfied that the applicant's purpose in alighting from the vehicle and running away was to avoid apprehension by police. Although his Honour's reasons do not clearly express a finding that the applicant was specifically evading the vehicle being driven by Constable Fenton down the hill towards him, as opposed to avoiding police whom he suspected may be in the area, I am satisfied that the former is the only rational interpretation of the whole of the magistrate's reasons. This conclusion would seem to be consistent with the evidence of the prosecution witnesses. Constable Fenton's description of the occupants alighting and running from the vehicle as it was travelling towards the police car along the footpath, suggests that it can be safely inferred that that action was taken in order to evade the approaching police. This had also been conceded in evidence by the applicant and his brother, and the magistrate had expressly referred to their evidence. I am satisfied that his Honour found that the applicant left the cart and ran away to avoid apprehension by the occupants of the police vehicle, who included Constable Fenton.
I am satisfied that these findings established that the applicant, as a driver, had taken "action to avoid apprehension or interception by a police officer". The nexus between driving and the evasive action is, in my view, clearly present where a driver alights from the vehicle while it is still moving or immediately after it has stopped, for the purpose of running away so as to avoid apprehension or interception by a police officer. That was the situation which the magistrate found occurred in this case.
It follows that his Honour's finding of guilt in respect of the offence of evade police was consistent with, and justified by his findings of fact. The further issue raised by the applicant's grounds, however, is that this finding is inconsistent with the conclusions reached by the magistrate in respect of the primary charge of aggravated evade police.
Aggravated evade police
This offence is defined in s 11A as follows:
"(2A) The driver of a vehicle must not take action to avoid apprehension or interception by a police officer, who is exercising his or her powers or performing his or her functions under any Act, if, at the time the driver takes the action —
(a)the vehicle being driven by the driver is stolen ...".
It is apparent that this offence incorporates all of the elements of evade police, but requires proof of an additional element. That element is that at the time the driver takes the action, the vehicle being driven by the driver is stolen.
His Honour considered that this aggravating factor required proof that the evasion must be "by an act of driving or involving the driving of the vehicle". In my view, this conclusion erroneously overstated the requirement of the section. The elements of the basic offence, which is subsumed within the aggravated charge, have already been explained above. The only extra requirement added by the circumstance of aggravation is that the vehicle being driven by the driver is stolen. This requires proof of a quality relating to the vehicle in question. The only temporal requirement is that this quality be in existence at the time that the driver takes the relevant action. Because a nexus is already required between the driving of the vehicle and the taking of action, nothing further should be read into the words "… the vehicle being driven by the driver ..." [my emphasis]. In the circumstances of this case, at the time that the applicant took the action which constituted the offence of evade police, that is, decamping from the vehicle, the vehicle he was driving was stolen. In my view, this was all that was required to establish the circumstance of aggravation.
The effect of the applicant's argument is that the verdicts are inconsistent, that is, they cannot stand together. See MacKenzie v The Queen (1996) 190 CLR 348. The applicant's counsel argues that it should be assumed that his Honour understood and correctly applied the law as I have explained it. This would lead to a conclusion that by finding the primary charge not proved, his Honour was not satisfied that at the time of decamping from the vehicle, the applicant was attempting to avoid apprehension or interception by a police officer. The remaining elements were clearly established. There was no dispute that the vehicle had been stolen. Hence, it is argued, as the magistrate was not satisfied that the evasion as defined by subs (1) had occurred at that point, there was no basis upon which he could have found the alternative charge proved.
However, I have already concluded that the magistrate did find that the applicant decamped from the vehicle because he was aware of the approach of the police vehicle and was evading apprehension by its occupants. How then can the different verdicts be explained? The answer is simply that his Honour applied an incorrect test in relation to the primary charge, but the correct test with respect to the alternative. This has already been explained. His Honour's comments make it clear that he interpreted the aggravating circumstances as requiring a direct link between the driving and the action of evasion. In particular, the reasons suggest that the magistrate considered that the evasion must be by an act of actual driving, but that he could not be satisfied that the applicant was evading police until he made the decision to, and did, decamp from the vehicle. I reiterate that his Honour was in error in concluding that the primary charge required proof that the evasion be necessarily constituted by, and coextensive with, an act of driving. This error explains the decision to dismiss the primary charge but not the alternative.
The considerations which apply in the case of inconsistent jury verdicts are not applicable in this case. An appeal court cannot and will not go behind a jury's verdict of acquittal, and a verdict of guilt which is inconsistent with a not guilty verdict on another charge, will be set aside. However, the magistrate's reasons in respect of both verdicts must be and have been exposed, and both findings, including the decision to dismiss the primary charge, are amenable to review. Neither party has sought review of the decision on the primary charge. However, the identification of the magistrate's error explains the apparent inconsistency between the decisions, in a manner that does not establish error in respect of the decision on the alternative charge.
It follows that the grounds which attack his Honour's finding of guilt in relation to the offence of evade police have not been made out. Accordingly, the motion will be dismissed.
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