Atkins v O'Hehir
[2016] WASC 31
•10 FEBRUARY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ATKINS -v- O'HEHIR [2016] WASC 31
CORAM: LE MIERE J
HEARD: 18 NOVEMBER 2015
DELIVERED : 10 FEBRUARY 2016
FILE NO/S: SJA 1049 of 2015
BETWEEN: ROBERT ATKINS
Appellant
AND
ANGELA GAIL O'HEHIR
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R D YOUNG
File No :PE 11328 of 2015
Catchwords:
Criminal law - Application for leave to appeal conviction - Failure to give information - Error of law - Miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr M R Gunning
Respondent: Mr J D Berson
Solicitors:
Appellant: Gunning Barristers & Solicitors
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
LE MIERE J: On 7 February 2015 a female drove a Daihatsu sedan erratically in North Beach, suddenly stopped, got out and left the vehicle in the middle of the road. It was alleged that an offence had occurred of which driving the vehicle was an element. The appellant was the registered owner of the vehicle. On 12 February 2015 a police officer conducted a written record of interview with the appellant. In answer to the question 'I now require you, under s 58 of the Road Traffic Act, to give me the details of the possible drivers', the appellant answered 'Don't know. Could be anyone'.
The appellant was subsequently charged and convicted in the Magistrates Court of Western Australia of failing to give the information requested by a member of the Police Force contrary to Road Traffic Act 1974 (WA) (the Act) s 58(1), fined $700 and ordered to pay the costs of the prosecution.
The appellant now applies to this court for leave to appeal against his conviction.
Prosecution evidence
The prosecution called two witnesses. The first witness, Senior Constable Daniels, gave evidence that at approximately 11.39 pm on 7 February 2015 he telephoned the appellant and informed the appellant that his car had been abandoned at North Beach and a female had been seen leaving it. In evidence‑in‑chief Senior Constable Daniels said that the appellant had said, and the Senior Constable had recorded, he had lent the car to a female but would not disclose anything further. In cross‑examination the Senior Constable agreed that the appellant might have said that he thought his car was out the back and then walked out the back with his phone and the appellant might have said that his car may have been borrowed by his flatmate who lives with him.
The second prosecution witness was First Class Constable Gilmore who conducted the written record of interview with the appellant. The record of interview was received in evidence as an exhibit. The record of interview included the following questions and answers:
(Q.03)Who was driving the vehicle at the time of this offence?
(A.03)Not sure. Was taken from the yard.
(Q.04)I have made the requirement upon you as to the 'responsible person' for that vehicle under the provisions of Section 58 of the Road Traffic Act to give information which may lead to the identification of the driver or person in charge of the vehicle at the time of the alleged offence. I consider that you have, or could reasonably have ascertained, the information; and you have failed to give the information. I will ask you once again, who was the driver at the time of the offence?
(A.04)Don't know who was driving.
(Q.05)How are the vehicle Keys Secured?
(A.05)Left the keys in it. I was at home then got a phone call at 12pm saying it was at North Beach from police.
(Q.08)How have you ENSURED that the driver of a vehicle can be identified?
(A.08)Going on that I'm unsure. From the photo.
(Q.09)I now require you, under Section 58 of the Road Traffic Act, to give me details of the possible drivers. [Name, Current Address, D.O.B., MDL No, Contact Phone(s)].
(A.09)Don't know. Could be anyone.
(Q.10)If you weren't the driver at the time of the offence where were you?
(A.10)Here at home. 396 Great Eastern Highway, Ascot.
(Q.11)Can someone verify where you were at the time of the offence?
(A.11)Yes.
(Q.12)If someone can verify where you were, what is their full name, address and contact number?
(A.12)Mick Goode. 'Cheech'. 0449 770 735. Lives with mother near Orrong Rd.
(Q.13)How many people had access to the vehicle and could have used the vehicle at the time of the offence?
(A.13)Only the two of us home at that stage.
(Q.14)How would someone gain access to the vehicle on the day of the offence?
(A.14)Unlocked, keys left in it. Temporarily.
(Q.15)Why would someone else need to use your vehicle at the time of the offence?
(A.15)Don't know. Stealing it.
Constable Gilmore showed the appellant a photograph of the driver of the vehicle before the appellant answered the questions. The respondent admits that the photograph is a not a photograph of the appellant's flatmate.
Defence evidence
The appellant gave evidence as follows. On the evening of 7 February he had been out at a party with a friend, Mick Goode. They returned home. The appellant left the car at the back of the house with the key in the ignition. The appellant and Mick Goode had a cup of tea. The appellant received a phone call from a police officer telling him that his car had been found at North Beach. The appellant said, 'How in the hell did it get there?' and went to look for his car. He walked with the mobile phone to the back of the property and then confirmed to the police officer that the car had been taken. The police officer asked him if he knew who took it and he said, 'No idea. It must have been stolen'. The appellant also said that possibly his housemate had borrowed the car but he had not seen her for a couple of days so he was not sure. The housemate, who the appellant called Bella, is Belinda Tysoe. Bella and a friend of the appellants, Peter Sowalski, occasionally borrowed the car. Bella usually asks before she borrows the car. The appellant asked Bella and Peter whether they had borrowed the car. They said they had not. The appellant arranged to collect the car from North Beach and bring it back to his house.
On 12 February the appellant was interviewed by Constable Gilmore. The Constable showed him a photograph of the driver. He had never seen the person in the photograph before. The appellant did not think that he would be able to ascertain the driver of the vehicle if he made other enquiries.
The appellant was cross‑examined about various aspects of his evidence. In the course of cross‑examination the magistrate asked the appellant to look at question 9 in the written record of interview and then asked the appellant questions as follows:
HIS HONOUR: So, Mr Atkins, you were asked that question. What did you understand that question was directed towards?---It's a - I was required to name the driver of the vehicle on the night.
Well, it doesn't say the driver, it says possible drivers. Is that right? Or any possible - - -?---I had to give the details of the possible drivers. Yes. Well, I had ascertained that neither of my friends had borrowed the car. So it could have been anyone.
So you're saying you understood that question to mean that if you had made your own enquiries - - -?---Yes, I did.
- - - and eliminated, to your satisfaction, that the people weren't driving, then you were no longer required to give those names to the police?---That's right (ts 39).
The prosecutor put to the appellant that he did know who was driving the car. The appellant said he did not. The prosecutor put to the appellant that he had not complied with the request by the police and did not want to give some detail. The appellant said he did not know who was driving the car that night.
Ms Tysoe gave evidence. She said she was not driving the car that night. She said that on the weekend of 7 February the appellant had asked her if she had borrowed the car and she said no. In cross‑examination she said she was not at the house at 11.00 pm, which was the time the appellant said he returned to the house. Ms Tysoe said she had gone out for Friday and Saturday.
Magistrate's reasons for decision
The magistrate found the charge proven beyond a reasonable doubt for the following reasons. The appellant was the responsible owner of the vehicle used in the commission of an offence. There was a request made of the appellant to give information which may lead to the identification of the driver at the time of the alleged offence. Question 9 of the written interview required the appellant to give details of the possible drivers. The answer to that question is, 'I don't know. It could be anyone'. That answer was somewhat disingenuous. There may be cases in which the range of potential drivers is so wide as to make it impracticable for a responsible person to name them. It is difficult to imagine a circumstance in which there are so many potential drivers that it would not be practicable for a responsible person to name them, but if that were theoretically possible, this is not such a case, nor is it a case where the vehicle was self‑evidently stolen. Notwithstanding the evidence from the appellant that Belinda normally asks, he obviously contemplated the possibility at one point that she was the driver. The point which really compels the finding that the appellant failed to give information he was required to give is that the section is clearly directed towards providing the police with sufficient information to enable them to make appropriate enquiries. It would defeat the purpose of the section if the responsible owner could, before being spoken to by the police, make his or her own enquiries and eliminate to that person's satisfaction the fact that a small range of people may have driven the car and therefore feel as though they were not obliged to give those names to the police and could sincerely tell the police, 'Don't know. It could be anyone'. The appellant's response was disingenuous. It must have been apparent what the question was directed towards. The enquiry made by the appellant was to ask Belinda if she was the driver. She said no. The police enquiry might be more detailed than that. The issue is not whether it was Belinda driving or the identity of the driver in question, but giving the police enough to go and speak to somebody and ask questions that the police would need to ask. It does not matter who was driving. It does not matter what Belinda may have told the police. The point is that the line of enquiry must be one made by the police and not one made by a responsible person prior to police involvement. It would defeat the purpose of the section if that were regarded as overcoming the requirements of s 58. The police required the appellant to provide the details of possible drivers. He did not provide the details of possible drivers and that makes it beyond doubt that the prosecution has proved its case.
The magistrate found that the appellant's answer to the request to give details of the possible drivers was disingenuous. However, the magistrate did not say what the appellant knew but failed to disclose. The magistrate did not find that the appellant knew who the driver was. The magistrate did not find that the vehicle was not stolen. The magistrate's finding was that it was not self‑evidently stolen. I take that to mean that the car may have been stolen but that was not obvious from the evidence. Immediately after saying that the appellant's response was disingenuous the magistrate said that it must have been apparent what the question was directed towards and then referred to the appellant asking Belinda whether she had driven the car on 7 February. The magistrate then referred to the enquiries the police may have made of Belinda. The magistrate said it did not matter who was driving and the point was that the police could have made their own enquiries of Belinda. Therefore it appears that the magistrate found that the appellant was disingenuous because Belinda was a possible driver of the vehicle, or the appellant should have responded on the basis that Belinda was a possible driver of the vehicle, and should have answered the question by giving Belinda's name and details.
Statutory provisions
At the time of the offence s 58(1) of the Act provided as follows:
A responsible person for a vehicle commits an offence if -
(a)an offence against any written law is alleged to have occurred of which the driving or being in charge of the vehicle is an element; and
(b)a member of the Police Force requests the responsible person to give information which may lead to the identification of the driver or persons in charge of the vehicle at the time of the alleged offence; and
(c)the responsible person has, or could reasonably have ascertained, the information; and
(d)the responsible person fails to give the information.
The appellant's ground of appeal is that it was not open to the magistrate to find that the appellant had, or could reasonably have ascertained, the information requested - details of the possible drivers.
The magistrate said that it would defeat the purpose of s 58 of the Act if the responsible owner could, before being spoken to by the police, make his own enquiries, eliminate to his satisfaction that a small range of people may have driven the car and therefore not be obliged to disclose their names and details to the police. That is correct but not determinative of the matter.
The information which the responsible person is obliged to give to the police must depend upon the questions asked and the circumstances in which the response is given. If the appellant had been asked who had driven the vehicle within the last year he would have been obliged to provide the name and details of his flatmate, Ms Tysoe. Of course, he was not asked that question. He was required to give the details of 'the possible drivers'. In the context in which the question was asked it would reasonably have been understood by a person in the position of the appellant to be asking who were possible drivers of the vehicle at the time of the alleged offence, not who were possible drivers of the vehicle from time to time. If objectively Ms Tysoe was a possible driver at the time of the alleged offence then the appellant was obliged to give her name and details notwithstanding that he had asked her if she was the driver and she had said no. That would be so even if the appellant believed Ms Tysoe. However, Ms Tysoe was not a possible driver at the time of the alleged offence. The police had a photograph of the driver which they showed to the appellant. It is common ground that the photograph is a photograph of a female other than Ms Tysoe. Therefore, Ms Tysoe was not a possible driver, the appellant knew that Ms Tysoe was not a possible driver and the objective circumstances excluded Ms Tysoe from the class of possible drivers.
There is no evidence that, or from which it can be inferred that, the appellant could give details of possible drivers beyond his answer 'Don't know. Could be anyone'. At the time that the appellant answered the questionnaire the appellant did not have and could not reasonably have ascertained the requested information - details of the possible drivers.
Appeal should be allowed
Section 8(1) of the Criminal Appeals Act 2004 (WA) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to this court on, amongst others, the grounds that the court of summary jurisdiction made an error of law or fact, or of both law and fact or that there has been a miscarriage of justice. In my opinion the magistrate made an error of law and there has been a miscarriage of justice because there was no sufficient evidence to sustain the finding that the offence had been proved. There was no evidence to sustain the finding that the appellant had, or could reasonably have ascertained, the information requested, that is details of possible drivers.
Leave is required for each ground of appeal. There is only one ground of appeal, that the magistrate erred in finding that the appellant could reasonably have ascertained the information in satisfaction of s 58(1) of the Act. Leave to appeal should be granted in respect of that ground, the appeal should be allowed and the decision of the Magistrates Court should be set aside.
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