Appeal of Judith Walsh

[2006] NSWDC 104

CITATION:	Appeal of Judith Walsh [2006] NSWDC 104
HEARING DATE(S):	19/09/06
EX TEMPORE JUDGMENT DATE:	09/19/2006
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Prosecution has proved offence beyond reasonable doubt
CATCHWORDS:	Criminal Law - Conviction Appeal from Local Court - Driving with High Range PCA - issue one of whether Appellant driving.
LEGISLATION CITED:	Road Transport (Safety and Traffic Management) Act 1999.
PARTIES:	Judith Walsh (Appellant) Regina (Respondent)
FILE NUMBER(S):	06/22/1165
SOLICITORS:	Mr H Weller (Appellant) Ms Graham (Respondent)

JUDGMENT

1 HIS HONOUR: On 2 July 2005 Judith Walsh was charged that she was driving with a high range prescribed concentration of alcohol.

2 On 3 April 2006 she pleaded not guilty in the Local Court at Windsor. Magistrate Cullen found her guilty.

3 Her defence was that she was not driving the relevant vehicle. She also argued before the Local Court that his Honour could not be satisfied beyond reasonable doubt that the breath-testing machine had accurately recorded the grams of alcohol per one hundred millilitres of blood in her veins.

4 The prosecution case comprised two witnesses; one as to the circumstances of apprehension and testing, the other as to the accuracy of the reading and correctness of procedures used with the breath-testing machine.

5 The defence had three witnesses; Judith Walsh, her husband Russell Walsh and Dennis Jordan, a friend of her husband.

6 Judith Walsh has appealed against her conviction. The Court’s task is to rehear the matter upon the transcripts and such other exhibits as are admitted by leave to determine whether the Crown has proved the guilt of the appellant beyond reasonable doubt. Leave has been given for road directory maps of the Wiseman's Ferry area and of the Central Coast area to be tendered.

7 During the course of the appeal the sole focus has been whether the Crown has proved beyond a reasonable doubt that the appellant was the driver of the vehicle.

8 On that issue the prosecution case depends entirely upon the evidence of Senior Constable Fancy. His evidence on this aspect was that at about 4.30pm he observed a vehicle, XLT 227, being driven by the appellant along Old Northern Road, Wiseman’s Ferry. He said that it was on the incorrect side of the road and then merged to its right, by which I think he meant made a right-hand turn, into the turning bay of the main vehicular ferry.

9 He was invited by his Honour in the Court below to draw a map or a diagram, which he did. The diagram has a number of cars positioned in the left-hand lane of the road, facing north, and a vehicle coming out of that line of traffic, across what would appear to be drawn as two solid lines, travelling down the right-hand side of the road and making the right-hand turn into a turning bay. Thus explained, it does not appear to me that any complaint can be made about the fact that the vehicle was travelling on what the officer said was the incorrect side of the road.

10 At this particular point in time it would seem, on either case, that the ferries were not running and there was not likely to be traffic coming up that side of the road. Further, the diagram suggests that the street was straight.

11 Senior Constable Fancy’s evidence continues that when the vehicle stopped, the appellant got from her car, walked around the back of her car and was leaning, with her right arm, on the back of her vehicle. He walked over to her and said, “Are you all right, Judy?” She said, “Yes.” He noted that, from a distance of two metres, her eyes were bloodshot and he said to her, “Have you been drinking today?” She said, “No.” He then looked inside the vehicle and noted a six-pack of VB stubbies sitting on the passenger floor area. The packet was open and a bottle of VB sitting on the console area. The appellant is recorded as saying, “That’s yesterday's beer.” The police officer said, “Have you been drinking whilst you have been driving?” The appellant said, “No.” He detected a smell of intoxicating liquor, touched the open bottle of beer and felt that the beer was warm.

12 It would appear he then determined to go to the police vehicle. He said to the appellant, “I won’t be a moment”, returned to the police vehicle and obtained an alcometer and returned to the appellant. He required her to breathe into what he said was a random breath test in accordance with the Road Transport (Safety) Act. Query whether it was so random at this point in time but, in any event, he required her to exhale air from the lungs calmly and continuously until told to stop. The appellant agreed she understood that instruction. She blew into the alcometer, which returned a positive reading, was placed under arrest for the purpose of breath analysis and was told that she was to be taken to Wiseman’s Police Station for the test.

13 The officer said to the appellant, “Would you accompany me to the police vehicle please.” The appellant said, “Can I lock up my car?” and the officer said, “Yes.” Thereafter she was taken to the police station and after some difficulties a reading of 0.205 grams of alcohol per one hundred millilitres of blood was given. That reading is now no longer, as I say, in dispute.

14 The appellant’s case was this. That she lived in Blacktown but her husband lived in Gundeman, which was some thirteen kilometres from the Wiseman’s Ferry area. On the relevant date she was driving her vehicle to Wiseman’s Ferry.

15 She left home around eleven. Her evidence was that she arrived at Wiseman’s Ferry just after lunch. Both ferries (apparently two ferries run there) were out, due to debris and, as a consequence, she was not able to cross the river because of debris on both cables and the ramps. She turned around and was going to Webb’s Creek Ferry to cross over there. It would appear that she did cross at Webb’s Creek and was then to do a loop to go to Gundeman through St Albans but got lost.

16 For reasons not quite explained she chose to have a beer at The Settler’s Arms, had the one and continued on her journey. She left the pub at which she was drinking, The Settler’s Arms, about 1.30pm and arrived at the Wiseman’s Ferry just after 2 o’clock. At that time apparently her husband started his shift. She noted a backlog of vehicles there and she went down the wrong side of the road and parked in the parking bay.

17 Having parked in the parking bay she walked up to the ferry to see her husband and Dennis Jordan, inquired of them how long the ferries were going to be out and said to her husband that if it was going to take too long she would go to the pub for a little while and that Mr Walsh or Jordan could drive her vehicle home because they had only travelled to work in the one car.

18 She walked ten to fifteen minutes to the Wiseman’s Ferry Hotel with a view, as I have understood her evidence, that some of the locals would be able to offer her a lift. Whether the lift was back to Blacktown or back to Gundeman was not made clear, to me at least, in the evidence. Whether there were specific people that she was going to ask or whether she was taking potluck, also was not made clear in the evidence to me.

19 She remained, on her account, at the hotel until twenty past four or so and then walked back down from the hotel to the ferries. Again, her purpose in so doing has not been explained. But she noticed her husband working on the ferry and that Dennis Jordan was near a gate in the area where her motor vehicle had been parked.

20 The motor vehicle had been moved since she had last parked it because it would seem, on the defence account, the debris that was in the river was being dumped in the car park area by front-end loaders. The vehicle had been moved by her husband. As she was talking to Jordan, he being on the inside of the fence and she being on the outside of the fence near this gate, she noticed in the corner of her eye Senior Constable Fancy walking her way. He asked to speak to her and Jordan walked away.

21 The officer asked if she had been drinking. She said, “Yes, but I wasn’t driving.” He said to me that he had seen her [drive] and that she was under arrest and asked for her licence. She gave him her licence and he breath-tested her there, without returning to the police vehicle.

22 Jordan, it would seem, when he left walked down the ramp to the ferry. That was the main ferry.

23 The appellant’s case was that Fancy asked how was she, and where was she going. The appellant had said, “Well I’m not going anywhere cause the ferries are out.” He asked whether she had been drinking and she said, “Yes, but I’m not driving.” He said that he had seen her, seemed quite agitated. She was not going to argue with him. He breath-tested her and told her she was under arrest, took her to the police station. Before she went the police station she agrees with his evidence that she asked if she could lock the car up and he said, “No”. What she asked, was whether she could get her stuff out of the car. But she agrees that she did lock the car and took the keys with her.

24 The accounts given by her witnesses, while they may not have had the detail of the account given by the appellant, were generally in tune with the account given by the appellant.

25 This is a case, as I said to the Crown, where the only evidence of criminal acts against the appellant comes from the one witness. It seems to me that I am required to scrutinise his evidence with care.

26 That task has been made the easier for me in this sense that Mr Weller, who appears for the appellant, has taken me through the police officer’s evidence chapter and verse. There are certainly blemishes in the officer’s evidence. It is the significance of the blemishes that I suppose needs to be analysed.

27 The most significant of the blemishes, it appears to me, is a proposition given by the officer that all of the conversation he had with the appellant was taken down in writing in his notebook. It is not established in the evidence directly whether the note was contemporaneous or subsequent, but looking at the note, my own view is that it was not contemporaneous but rather a record made shortly after the episode.

28 The use of the past tense is what persuades me that is so. On page 44, “Also noticed open packet of six-pack.” and just below that, “Obtained alco number 5256.” Immediately above that, “Looked inside vehicle.” What is clear is that some of the conversation referred to in his statement, which was made a month later, does not appear in that contemporaneous note. Particularly this exchange, “Have you been drinking today?” She said, “No.” [however see next paragraph] That conversation is said to have occurred after he walked over to the appellant and said to her, “Are you all right?”

29 His statement was tendered by the defence and is, of course, evidence of the facts contained in it. Well one of the facts contained in it is the name of the appellant, her address and some other details, which would appear to be date of birth. I do not know what “29/12/07” means, but then “Seen driving motor vehicle - with a registration number - not on Old Windsor Road.” There is evidence of conversation, including “Asked if she had been drinking today? No.” [page 43 and 44], which I thought was a conversation that we did not see.

30 The submission was that the evidence was not acceptable because Senior Constable Fancy was less than a satisfactory witness. He was apparently unable to recall a man by the name of Bruno Jordan, and that he continually responded to cross-examination questions with “I don’t recall that.” It was submitted that they were examples of him being evasive.

31 My own view of that is that the propositions were being put to him by a solicitor of the Supreme Court. He entertained the possibility that those propositions could have been the fact, said he did not recall. It must be remembered that the lapse of time between the hearing before the magistrate and the event was some nine months. It is not likely in those circumstances that he would have remembered a great deal of detail.

32 The appellant gave, as I say, an account which Mr Weller has conceded can only make sense if one accepts the proposition that Senior Constable Fancy was “loading-up” the appellant with a drink-driving charge, in circumstances where he approached her with an alco test already in his hand and, on the defence case, in circumstances where she had not been driving and was engaged in a conversation with what I might call an independent witness, and while her husband was near at hand and within eyesight. That proposition seems incredible to me.

33 If that were all then it may well be that, particularly given past history of at least New South Wales detectives, I may have been persuaded to hold a reasonable doubt.

34 But there are other problems with the defence case that make it incredible. The appellant had arranged for her husband to drive her vehicle home, or if not him then the man Jordan. Yet when in the process of being arrested she locks her vehicle and takes the key with her, demonstrating what I would have thought was appropriate security consciousness. But in the circumstances of this case absolutely contrary to all of the other evidence, because the other evidence from her and, indeed, from her husband that she left the key in the motor vehicle. The husband said she had left it in the ignition and left it in the ignition, in circumstances where, it would seem, he was going to be at times on one side of the river, the car on the other, and people not far from the hotel about the place.

35 She left the Wiseman’s Ferry Hotel, having drunk there for two hours, in circumstances unexplained and inconsistent with her initial purpose in going there, which was to drink for a while and then get a local to take her wherever it was she was going. I do not know the area very well and I certainly do not know whether Gundeman is on the main road out of Wiseman’s Ferry, but what the evidence discloses is it is thirteen kilometres away. There is no indication of her knowledge of anybody who was going to that place. The other place that she may have gone to was Blacktown and there is even less indication of anybody that she knew likely to be going there. That suggests to me that the story or the account is incredible. A third matter of some difficulty for the defence case is that the witness Jordan hears three things of significance. The first is the accusation by Senior Constable Fancy that the appellant had been driving the vehicle, at least in the sense of being questioned about it, a demand being made upon her to blow into a breathalyser unit of some kind and her arrest for having failed the roadside breath test. He appears to do nothing to protest in respect of the appellant who is, as I say, the wife of his “good mate”.

36 The appellant also was cross-examined as to the professionalism and courteousness of Senior Constable Fancy. But for his unfairly targeting her initially, her position is that he was always professional and always courteous.

37 The motive, it is said, for this “load-up” was an issue of domestic violence said to have occurred between the appellant and her husband and reported to the police officer in a hearsay report some time later. He was motivated, it was said, to say something to the effect that he did not want her in the town, meaning Wiseman’s Ferry. He denied that. It was said that the officer had a history with each of the three witnesses in the defence case but even so, if one takes an overall view of policemen’s rounds, it is likely that the officer, given the incident of domestic violence in the community, would have on many occasions dealt with many other people for domestic violence. I cannot for the life of me accept that as a proposition to motivate an officer to behaviour of this level of corruption.

38 Notwithstanding that there are three witnesses who give sworn evidence contrary to the evidence of the officer I am of a view that their evidence is evidence that has come about as a result of conversations between themselves as to the incident. There is evidence, which I accept from Jordan that conversations did occur. It would not be surprising if such conversations had occurred. It is no part of my task to determine whether the appellant and her witnesses were deliberately lying. My task is solely to focus on whether the Crown has proved the guilt of the appellant beyond a reasonable doubt.

39 I reject the appellant’s account. I reject the account of her witnesses.

40 That leaves me then to examine the Crown evidence and I am satisfied beyond reasonable doubt that the officer did observe the appellant driving at about 4.30pm on the relevant afternoon.

41 One final matter which I should have mentioned as I reviewed the facts was that the description of the manoeuvre undertaken by the appellant of leaving a line of traffic and driving down what he called the wrong side of the road is a manoeuvre that the appellant concedes in her own evidence did occur, although she puts that incident as occurring two hours earlier.

42 In all the circumstances I find the Crown case proved and I find it proved beyond a reasonable doubt.

The Court then went on to confirm the orders made by the Learned Magistrate in the Local Court.

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