Benisz v Police
[2022] SASC 120
•27 October 2022
Supreme Court of South Australia
(Magistrates Appeal: Criminal)
BENISZ v POLICE
[2022] SASC 120
Judgment of the Honourable Justice Kimber
27 October 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - ADMISSIBILITY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE
The appellant against findings of guilt by a Magistrate in respect of two offences: failing to stop at a red light contrary to rule 56(1) of the Australian Road Rules (SA) (Count 1) and failing to submit to an alcotest as a directed by a member of police contrary to s 47E(3) of the Summary Offences Act 1953 (SA) (SOA) (Count 3).
Count 1
In respect of Count 1, it was alleged the appellant was the driver of a vehicle which failed to stop at a red traffic light on Smart Road, Modbury. The only issue at trial was whether the appellant was the driver of the vehicle. The prosecution case was circumstantial. An aspect of the evidence was exculpatory statements by the appellant to police.
Count 3
In respect of Count 3, it was alleged that about an hour after the driving the subject of Count 1, the appellant failed to submit to an alcotest as directed by a police officer pursuant to s 47E(3) of the SOA. There was no dispute at trial that the appellant refused to submit. The only issue was whether the evidence of the refusals should have been admitted.
Grounds of Appeal
The appellant effectively put forward two grounds of appeal. The first with respect to Count 1 and the second with respect to Count 3. The effect of the grounds of appeal were:
1. The reasons of the Magistrate for finding the appellant to be the driver at the time of Count 1 were inadequate; and
2. The Magistrate should have excluded the evidence of the refusals to submit to an alcotest.
Held, per Kimber J, dismissing the appeal with respect to both Counts 1 and 3:
1. The reasons of the Magistrate with respect to Count 1 were inadequate in one respect. Nonetheless, the conclusion the appellant was the driver was correct.
2. Neither of the grounds advanced for the exclusion of the evidence of the refusals were made out. The evidence was properly admitted.
Australian Road Rules (SA) r 56(1); Summary Offences Act 1953 (SA) s 47E(3), s 74AB(2)(b), referred to.
Barry v Police (2009) 197 A Crim R 445; R v Keyte (2000) 78 SASR 68, applied.
R v Webb and Hay (1992) 59 SASR 563; R v Dolan (1992) 58 SASR 501, considered.
BENISZ v POLICE
[2022] SASC 120Magistrates Appeal: Criminal
KIMBER J:
This is an appeal against findings of guilt by a Magistrate. The appellant was charged on an Information with three offences allegedly committed on 15 March 2019 at Modbury. The Information was in the following terms:
1. On the 15th day of March 2019 at MODBURY in the said State, being the driver of a vehicle namely a grey Mazda station wagon S/A S734AOF on a road namely Smart Road, traffic lights which were showing a red traffic light, and at which there was a stop line at or near the traffic lights, you did not stop as near as practicable to, but before reaching the said stop line.
Rule 56(1)(a) of the Australian Road Rules.
It is further alleged that the said traffic lights and stop line applied to you as the driver on the said road.This is a summary offence
2. On the 15th day of March 2019 at HIGHBURY in the said State, gave an answer in response to a question put to him by a police officer for the purpose of obtaining information which may have led to the identification of the person who was the driver of a vehicle on a particular occasion or at a particular time, and it is alleged that the answer given was false.
Section 74AB(2)(b) of the Summary Offences Act 1953.
This is a Summary offence.
3. On the 15th day of March 2019 at HIGHBURY in the said State, being a person who was required under Section 47E of the Road Traffic Act 1961, to submit to an alcotest, refused to comply with all reasonable directions of a member of the Police Force in relation to that requirement.
Section 47E(3) of the Road Traffic Act 1961.
This is a Summary offence.
The Magistrate found the appellant guilty of Counts 1 and 3, but not guilty of Count 2.
The appellant appeals against the findings of guilt of Counts 1 and 3. I dismiss the appeal with respect to both Counts 1 and 3. My reasons follow.
Background
Count 1
There was no dispute at trial the prosecution witness Mr Beaumont‑Holmes had seen a vehicle fail to stop at a red light on Smart Road, Modbury. The only issue was whether the appellant was driving. The evidence the appellant was the driver was circumstantial. In essence, the prosecution case was that Mr Beaumont‑Holmes had observed a man enter the driver’s seat of the vehicle shortly before the driving the subject of the alleged offence, the man observed was the appellant and there was no opportunity for another person to be the driver at the time of the offence.
It is necessary to say more about the evidence. At about 2.00pm on 15 March 2019, Mr Beaumont‑Holmes was in the Service SA office at Modbury (the office) when he saw a male whom he believed was intoxicated. There was no dispute the appellant was in the office and was served at 2.07pm. Mr Beaumont‑Holmes said the male went towards the counter to be served. CCTV footage from within the office was tendered and Mr Beaumont‑Holmes pointed out the man he saw. The transcript does not describe which man was pointed out by Mr Beaumont‑Holmes but having viewed the footage, and having considered the evidence of Mr Beaumont‑Holmes, he was the man served at 2.07pm (1.07pm on the CCTV Footage).[1] On the evidence of Mr Beaumont‑Holmes, and as can be seen in the footage, that man had been leaning forward in his chair and another customer had pointed out to him that there was something on the ground and then pointed at the screen in the office. On the evidence of Mr Beaumont-Holmes, the customer was pointing to a ticket on the ground and the screen was displaying the number of the next customer. While the appellant did not formally admit he was the man served at 2.07pm, there was no dispute he was the man pointed out in the footage by Mr Beaumont-Holmes and served at 2.07pm.
[1] Exhibit P6 ‘CCTV footage’.
Mr Beaumont‑Holmes did not say he saw the male leave the office. Mr Beaumont-Holmes said he waited what might have been a few minutes to be served himself, then he left the office. Having done so, he said he saw the same male crossing the road towards Tea Tree Plaza. Mr Beaumont‑Holmes said he was walking to his vehicle when he saw the male he had earlier seen in the office approach a vehicle parked immediately alongside his own. Mr Beaumont‑Holmes said he saw the male get into the driver’s seat of the vehicle next to his. He said the male was the same person he had seen in the office ‘only minutes earlier’.[2] Mr Beaumont‑Holmes then reversed his vehicle from its park. He said he saw the car of the male ‘pull out behind’ him, said it ‘was pulling out immediately after’[3] him and said that ‘we hoped (sic) in our car, we didn’t linger in the carpark so we hoped (sic) in our car and drove off and the car was yeah only metres behind us’.[4] Having reversed his vehicle, Mr Beaumont‑Holmes then drove through the carpark. He said the other vehicle was ‘directly behind’ his vehicle. He said he had not seen anyone else in the other vehicle. When asked if he saw anyone near the other vehicle, he said ‘no, not that I recall’.
[2] Appeal Book, p. 16.
[3] Appeal Book, p. 10.
[4] Appeal Book, p. 15.
Once on the road and after turning left, Mr Beaumont‑Holmes said he approached what he described as the hospital crossing to Tea Tree Plaza. There was more than one lane in the direction he was travelling. He saw an elderly woman using the crossing. Concerned the male in the vehicle had not seen that woman, he used his horn and the woman stopped. Mr Beaumont‑Holmes then observed the driving the subject of Count 1. He said ‘the cars (sic) continued through the intersection on a red light’.[5] By that time the vehicle was to his right‑hand side. Mr Beaumont‑Holmes did not say that he saw the driver at that time.
[5] Appeal Book, p. 10.
The following exchange occurred during the cross-examination of Mr Beaumont-Holmes:[6]
[6] Appeal Book, p. 16.
QIs it possible that person was in fact getting into the back seat of the car, rather than the front.
ANo, he was, he had his, his bum on the driver’s seat and his feet on the pavement still.
QYou’re certain this was the same man.
AYes.
QCouldn’t have been someone that looked like him.
ANo I wouldn’t think so.
QWhen was it that you first noticed the man again. So you said you’ve come out of Service SA, lost sight of him, were you at your car when you first saw him.
AWe were on the way to our car. He had like a bag and I reckon he dropped that because his keys jingled in it. That’s what made us look around from memory.
QIf I suggested to you, it was possible that you were mistaken as to the driver of the car it could have been someone else.
QNot that I suspect no, I didn’t see anybody else.
QWhen you say you suspect, does that mean you were uncertain and it could have been somebody else.
ANo, it was him we saw in Motor Reg only minutes earlier.
In addition to the evidence of Mr Beaumont‑Holmes and the CCTV footage, the prosecution tendered an affidavit of an employee in the office which established the appellant had been served at 2.07 pm and led evidence that later the same day the appellant told a police officer his son may have been driving the vehicle.
The appellant did not give evidence.
Count 3
The events the subject of Count 3 occurred at the home of the appellant at about 3.00pm the same day. Constable Cruikshank was tasked to investigate the driving the subject of Count 1 and part of his responsibility was to identify the driver of the vehicle. Constable Cruikshank had obviously been provided with a registration number of the vehicle seen by Mr Beaumont‑Holmes, but Mr Beaumont‑Holmes did not give any evidence of the appearance of the vehicle, nor its registration number.
Constable Cruikshank attended the front door of the house which was answered by the appellant. There was no dispute the appellant was the registered owner of the vehicle which Constable Cruikshank understood to have been driven through the red light. Constable Cruikshank told the appellant that pursuant to s 74AB of the Summary Offences Act 1953 (SA) (SOA) he was required to inform him as to the identity of the driver of the vehicle at 2.15pm (the time of the driving the subject of Count 1). As set out above, the appellant said his son was the driver. The appellant said his son lived with him, but he was not sure where he was. Constable Cruikshank then entered the house and the appellant looked for his son. There does not appear to be any dispute the son was not present.
The evidence of Constable Cruikshank was the appellant was intoxicated and that he formed the view the appellant had been driving the vehicle involved in the offence the subject of Count 1. Constable Cruikshank told the appellant he required him to submit to an alcotest, but the appellant refused more than once. It was the refusals of the appellant to submit to an alcotest which was the conduct the subject of Count 3.
The Grounds of Appeal
The grounds of appeal as they appear in the Notice of Appeal are as follows:
1. (Abandoned).
2. The learned Magistrate erred in accepting the identification evidence of Mr Beaumont‑Holmes.
3. The learned Magistrate erred in failing to take into account the appellant’s denial of the offending or otherwise in failing to explain why the denial was rejected.
In relation to count 3 only
4. The learned Magistrate erred in declining to exclude the evidence of Constable Cruickshank as:
4.1.1.The evidence of Cruickshank was obtained unlawfully.
4.1.2.The evidence of Cruickshank should have been excluded as unfair.
Grounds 2 and 3 – Inadequate Reasons
The contentions of the appellant were further defined in his written submissions and during the hearing of the appeal. As argued, the two grounds merged into a single complaint, namely that the reasons of the Magistrate were inadequate. I will deal with these two grounds on that basis. The appellant submitted the reasons were inadequate in two respects. First, as to why the appellant was found to be the driver of the vehicle. Second, the Magistrate failed to consider the exculpatory statements of the appellant (i.e. – that the son may have been driving).
Submissions of the parties
The appellant submitted that as Mr Beaumont‑Holmes did not know the appellant and did not see the person who was driving the vehicle at the time of the driving the subject of Count 1, the following matters were required to be proved beyond a reasonable doubt:
1.The appellant was the man in the office (the man) seen by Mr Beaumont‑Holmes (the first issue);
2.The man seen by Mr Beaumont-Holmes inside the office was the same man seen by him outside and who then entered the driver’s seat of the vehicle (the second issue);
3.The man was driving the vehicle at the time of the driving the subject of Count 1 (the third issue).
I understand the appellant to have accepted during the hearing of the appeal that the reasons of the Magistrate were adequate with respect to the second issue, but to have maintained the reasons were inadequate with respect to the first and third issues. As to the third issue, the appellant particularly emphasised that the observations of Mr Beaumont‑Holmes in seeing the male enter the vehicle and later seeing the driving the subject of the offence were not continuous and did not exclude that another might have been driving at the time the subject of Count 1. The appellant also complained about the failure to consider the statements of the appellant about his son.
As I understand it, the respondent submitted the reasons of the Magistrate were inadequate on the first and third issues. As to the first issue, the respondent submitted that as Mr Beaumont‑Holmes did not know the appellant, his evidence alone could not prove the appellant was the man in the office and the Magistrate did not explain how that conclusion was reached. As to the third issue, the respondent submitted adequate reasons required the Magistrate to explain why that man was driving at the time of the conduct the subject of Count 1 but did not do so. Notwithstanding those concessions, the respondent submitted it was open to this Court to come to its own view and dismiss Ground 1. As for the statements about the son, the respondent accepted there was no reference by the Magistrate to those statements but submitted that was not required for the reasons to be adequate.
Adequate reasons – principles
A failure to give adequate reasons is an error of law.[7]
[7] Barry v Police (2009) 197 A Crim R 445, [9].
In R v Keyte, Doyle CJ cited with approval the following passage from the judgment of Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd:[8]
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.
[8] R v Keyte (2000) 78 SASR 68, [48] citing with approval Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259.
The relevant reasons of the Magistrate
As for why the Magistrate found the appellant was the driver of the vehicle, the Magistrate said:[9]
…I am persuaded by the evidence of Mr Beaumont‑Holmes that Mr Benisz was the driver of the vehicle. I consider Mr Beaumont‑Holmes to be a reliable witness and I am satisfied the person he saw in the office of Services SA and the person he saw getting into the car was the same person. According to defence Mr Beaumont‑Holmes’s evidence is “dangerous and seductive” according to the principles of identification evidence given by witnesses before a jury. Defence refers to the principles stated in Alexander v The Queen and Festa v The Queen. I remind myself of the principles stated in those cases and of the inherit unreliability which comes from factors such as the time gap between seeing the offender and subsequent identification, the “displacement effect” where a witness substitutes the memory of the person they saw commit the crime and the photograph shown to them, whether the opportunity for observation was “fleeting” and the presence of suggestibility. Mr Beaumont‑Holmes’s observations do not suffer any temporal disadvantage or displacement effect and the opportunity to make observations was not in any way “fleeting”.
I am satisfied Mr Benisz was the driver of the motor vehicle and I am satisfied that he failed to observe the lights at the pedestrian crossing and drove through the pedestrian crossing against the red light. I find that charge proved.
(Footnotes omitted)
Discussion
[9] Appeal Book, p. 79-80.
The first issue
I turn to the first issue. The Magistrate did not explain how he found the appellant was the male in the office described by Mr Beaumont‑Holmes. That said, for more than one reason, it is not clear that was really in dispute at trial. There was no dispute the appellant was in the office and was served at about 2.07pm. Mr Beaumont‑Holmes was shown CCTV footage from within the office and pointed out the male he described. The transcript does not describe the man indicated, but immediately after Mr Beaumont‑Holmes did that, he was cross‑examined. It was not suggested to Mr Beaumont‑Holmes that he might have been mistaken as to the person he pointed out. It was also not suggested in closing submissions (made in writing) that the man pointed out by Mr Beaumont‑Holmes might not have been the appellant. On my reading of the closing submissions of the appellant, the focus was on whether the male seen by Mr Beaumont-Holmes in the office and pointed out in the CCTV footage was the same male who entered the vehicle and, if so, whether that man was the driver at the time of Count 1. Given the way the trial was conducted, the approach of the appellant at trial is not surprising. There was no dispute the appellant was in the office at the same time as Mr Beaumont‑Holmes and behaving as described by him. Mr Beaumont‑Holmes described how the man was seated before being served and the actions of another customer who interacted with that man. Having viewed the CCTV footage, I can see those interactions and a man being served at 2.07pm (1.07pm in the footage). The undisputed evidence established that man was the appellant. First, it was open to the Magistrate to compare the appearance of that man in the CCTV footage[10] to the appellant when spoken to by Constable Cruikshank about an hour later. Having compared the appearance of the man served at 2.07 pm in the CCTV footage to the appearance of the appellant in the ‘body cam’ footage,[11] and bearing in mind the care which must be taken with such a comparison, they are the same person. Second, the affidavit of Ms Clay was tendered as exhibit P1 without objection. Ms Clay was working in the office on 15 March 2021. In her affidavit, Ms Clay sets out that on that day:[12]
At about 2.07pm I conducted enquiries on the Services SA database in relation to the holder of South Australian driver’s licence number W69606 which relates to a Pawel Ryszard BENISZ.
I do not recall this particular transaction due to the amount of transactions I do on an average day but to complete these transactions I would be required to, and would have, either sighted the enquirer’s photographic driver’s licence or I would have identified the enquirer by the drivers licence photograph from out database.
[10] Exhibit P6 ‘CCTV footage’.
[11] Exhibit MFI P7 ‘Bodycam footage’.
[12] Exhibit P1 ‘Affidavit of Vikki Clay’ dated 3 May 2021, [3]-[4].
Given the way the trial was conducted, I am not satisfied the reasons were inadequate on the first issue.
The second issue
As set out above, I understand from the submissions of the appellant during the hearing of the appeal that he did not press the reasons were inadequate on this second issue. The position of the appellant was appropriate. As can be seen in the passage from the reasons set out above, the Magistrate explained why he accepted the evidence of Mr Beaumont‑Holmes that the man he saw in the office was the same man that he saw outside. In doing so, the Magistrate considered the matters relevant to the reliability of the evidence of Mr Beaumont‑Holmes.
The third issue
Consistent with what is set out above, this was a real issue in the trial and an essential step in the prosecution case. The observations of Mr Beaumont‑Holmes were not unbroken and Mr Beaumont‑Holmes did not say he saw the driver at the time of Count 1. In my view, the Magistrate was required to explain how he reasoned from accepting that the man seen by Mr Beaumont‑Holmes inside the office (i.e. – the appellant) and the man seen at the car were the same person, to his conclusion the appellant was the driver at the time of Count 1. With respect, the Magistrate he did not deal with this issue at all. Having found the man seen by Mr Beaumont‑Holmes inside and outside the office were the same person, he immediately concluded the appellant was the driver at the time of Count 1. Given the observations of the car in the park and the car at the time of the driving the subject of Count 1 were not continuous, the Magistrate was obliged to explain why he found the appellant was the driver at the time of the driving through the red light. With respect, the Magistrate did not do so and I am satisfied the reasons are inadequate on that basis.
The statements about the son
As to the statements of the appellant about his son, at least two matters weigh in favour of the reasons being inadequate for this reason. First, the Magistrate made no reference to the statements in his reasons. Second, although not on oath, the statements were part of the evidence in the trial and exculpatory. At the same time, the way the trial was conducted weighs against the submission of the appellant. At trial, the appellant was represented by counsel who made detailed closing submissions in writing. Those submissions addressed what counsel described as the facts of Count 1 and arguments as to why that offence had not been proven. Those submissions made no reference to the statements of the appellant the subject of this ground, let alone contained a submission that they might cast doubt on the prosecution case. In those circumstances, while it would have been better had the Magistrate expressly considered the statements before determining guilt, I am inclined to the view the Magistrate was not obliged to do so. Nonetheless, given that I have determined the reasons were inadequate for another reason, it is not necessary for me to reach a final view.
Whether the appeal should be allowed on Count 1
I turn to whether the appeal should be allowed. This is an appeal pursuant to s 42 of the Magistrates Court Act, 1991 (SA).
In Barry v Police, Kourakis J (as he then was) held:[13]
It is now well settled, in this State at least, that a magistrate’s failure to provide adequate reasons for conviction or sentence is an error of law. Nonetheless, an appeal from a magistrate’s decision is one by way of rehearing.
…
Of course, there are cases where it is impossible for the appeal court to make findings on the written record of the evidence alone. The failure of the magistrate to provide adequate reasons, or the nature of the issues and evidence at trial, may render a conclusion made on the transcript alone unreliable and unjust. In those cases the appeal must be allowed and the appellant’s conviction quashed or the matter remitted to the Magistrates Court for retrial.
(Footnote omitted)
[13] Barry v Police (2009) 197 A Crim R 445, [9]-[10].
The reasons of the Magistrate being inadequate, the approach to be taken is that it:[14]
…becomes the responsibility of this Court to consider for itself the evidence and to determine whether the error in failing to provide adequate reasons prevents this Court fulfilling its function of appellate review or, if appellate review remains possible, whether on the evidence the magistrate’s conclusion was the correct one. If the former is shown then the appropriate order is generally to allow the appeal and remit the matter for rehearing. In the latter case the conclusion may be affirmed, a different order may be substituted or the matter may again be remitted. If, notwithstanding the error of law in failing to give adequate reasons, this Court is, after its own review of the evidence, satisfied that the adjudication of the magistrate is correct, then the appeal will be dismissed.
[14] Ibid [30].
The Magistrate found Mr Beaumont‑Holmes was a reliable witness. I proceed on the basis that assessment was made on the content of his evidence and his demeanour. I have read his evidence. It reads coherently. There is nothing within his evidence that appears to detract from its reliability. I also proceed on the basis that Mr Beaumont‑Holmes was a credible witness. Although the Magistrate made no express finding about credibility, it was not suggested at trial, nor on appeal, he was not credible. Further, there is nothing in my review of the evidence of Mr Beaumont‑Holmes which might suggest an absence of credibility.
There is no dispute on the afternoon in question the appellant was in the office and in a position to be seen by Mr Beaumont‑Holmes. The evidence establishes the appellant was there and served by an employee at 2.07pm.[15] Mr Beaumont‑Holmes had reason to pay attention to the man he saw in the office as he was visibly intoxicated. I am satisfied beyond a reasonable doubt the man Mr Beaumont‑Holmes saw in the office was the appellant. The appellant was in the office at the relevant time, Mr Beaumont‑Holmes pointed out a man in the CCTV footage, the appellant did not challenge the man he pointed out was him, Mr Beaumont‑Holmes described the man as behaving in the same way as the man served at 2.07pm (i.e. the appellant).
[15] Exhibit P1 ‘Affidavit of Vikki Clay’ dated 3 May 2021.
The next issue is whether the appellant was the same man seen by Mr Beaumont‑Holmes outside the office. Mr Beaumont‑Holmes did not know the appellant, increasing the risk of mistake. Nonetheless, as I have said, Mr Beaumont‑Holmes had reason to pay attention to him in the office and said he had been observing him for ‘at least a few minutes’. Further, Mr Beaumont‑Holmes’ evidence was consistent with the break in observation inside and then outside being brief. As for what happened outside, there is no suggestion Mr Beaumont‑Holmes might have lost sight of the man between his first sighting of him outside and reaching the respective vehicles.
The evidence of Mr Beaumont‑Holmes is evidence requiring careful evaluation. He purported to recognise outside of the office a man previously unknown to him. His observation in the office may have been over as little as a few minutes and it is not clear he was observing him continuously in that place. There is a real risk of an honest witness like Mr Beaumont‑Holmes giving evidence in a convincing way but nonetheless being mistaken, despite being unshaken in cross-examination. There is a danger of assumption and displacement. Nonetheless, like the Magistrate, I am satisfied beyond a reasonable doubt the two men were the same. Only a short period of time had passed between the observations inside and outside the office and while inside the office, Mr Beaumont‑Holmes had reason to pay attention to the man he saw in the office as he was intoxicated.
The only evidence about which part of the vehicle the appellant entered and then sat down in was that of Mr Beaumont‑Holmes. His evidence was the man entered the driver’s seat. In cross‑examination, Mr Beaumont‑Holmes rejected that the man might have entered another part of the vehicle. In doing so, he gave detail of seeing the person place his bottom on the seat with his feet still outside of the vehicle. I accept that evidence beyond a reasonable doubt.
From that point, the issue is whether the evidence excludes any reasonable possibility the appellant moved from that position so that it might be driven by another. That possibility falls to be evaluated given the following matters: the failure of Mr Beaumont‑Holmes to see anyone else, the time which passed before the car moved away, where the true driver might have been and the exculpatory statement. The failure of Mr Beaumont‑Holmes to see anyone else in, or near, the vehicle is of limited significance. His attention appears to have been on the appellant and he had no reason to look for anyone else in the vehicle, or nearby. Significantly in my view, the evidence of Mr Beaumont‑Holmes permits of very limited opportunity for another person to have entered the driver’s seat and put the vehicle in motion. Mr Beaumont‑Holmes said the vehicle ‘pulled out behind us’, was ‘pulling out immediately after us’ and pulled out of its park ‘seconds after we have’. Further, if there was another person available to drive the car, there is no obvious reason why that person would not have been in the driver’s seat when the appellant arrived at the vehicle. On the evidence, in particular how soon after the appellant’s arrival at the car it then left, any other potential driver must have been waiting for the appellant and ready to leave. That being so, one would expect them to have been in the driver’s seat, particularly given how quickly the vehicle left.
However, no conclusion can be reached as to whether the evidence establishes beyond a reasonable doubt the appellant was the driver at the time of Count 1 without considering the exculpatory statements. That they were not statements on oath did not mean they had no weight. The respondent must exclude that the statements might have been honest and reliable. As the statements were recorded and the recording tendered at trial, I am in as good a position as the Magistrate to evaluate the statements. Having viewed the recording, I have drawn nothing from the demeanour of the appellant nor from the way he spoke.
Having accepted Mr Beaumont‑Holmes as both an honest and reliable witness and having considered the whole of the evidence, including the statements of the appellant to Constable Cruikshank about his son having driven, I am satisfied beyond a reasonable doubt the appellant was driving the vehicle at the time of Count 1. While Mr Beaumont‑Holmes did not see the appellant put the vehicle in motion, nor later see the driver and say it was the same man he had seen earlier, given how quickly the vehicle left as described by Mr Beaumont‑Holmes, I am satisfied beyond a reasonable doubt that no other person entered the driver’s seat before the vehicle drove away. From that point, there was no opportunity for another person to become the driver before the driving the subject of Count 1. I am satisfied beyond a reasonable doubt that the exculpatory statements to Constable Cruikshank were false.
I dismiss the appeal with respect to Count 1.
As a matter of completeness, I make a further observation about the evidence. On the evidence of Mr Beaumont‑Holmes and Constable Cruikshank, it is open to conclude the appellant was intoxicated at the time of the driving the subject of Count 1. The driving observed by Mr Beaumont‑Holmes at the time of Count 1 might be consistent with a driver in such a state. He described the vehicle as ‘swerving’ to some degree after it exited its park. Further, the driving the subject of Count 1 might be consistent with a person not paying proper attention or being prepared to take an unnecessary risk while intoxicated. However, the possibility the car might have been driven by a person who was intoxicated is not a matter I have brought to account in concluding the appellant committed Count 1 beyond a reasonable doubt.
Ground 4 – The Learned Magistrate should have excluded the conduct the subject of Count 3
Background
There is no dispute that after being at the home of the appellant for about twenty minutes, Constable Cruikshank told the appellant he believed he had been the driver of the vehicle and required him to submit to an alcotest. That requirement was imposed pursuant to s 47E(1) of the Road Traffic Act 1961 (SA) (RTA) which provides:
(1)Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—
(a) is driving, or has driven, a motor vehicle; or
(b) is attempting, or has attempted, to put a motor vehicle in motion; or
(c) is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
There is also no dispute the appellant refused to submit to an alcotest more than once. It was the refusals to submit which were the conduct the subject of Count 3, that offence created by s 47E(3) of the RTA.
As I understand the submissions of the appellant, he advanced two separate factual ‘scenarios’ said to be open on the evidence which he submitted called for the exclusion of the refusals. Before turning to the submissions of the appellant in any detail, it is helpful to say more about the evidence of Constable Cruikshank.
The evidence
Constable Cruikshank gave evidence that he was tasked to make enquires about a Mazda said to have been driven through a red light. He described those enquiries in the following way. Constable Cruikshank went to the front door of the home of the appellant, which was answered by the appellant. Constable Cruikshank explained to the appellant there had been a complaint of an intoxicated person committing a road traffic offence and he was following that up. Constable Cruikshank told the appellant that, under s 74AB of the SOA, the appellant was required to inform him as to whom had been the driver of the vehicle at about 2.15pm. In response, the appellant said, ‘my son’, ‘probably my son’ and gave a Christian name. Constable Cruikshank took down the details of the son including his mobile number, asked to speak to him and enquired whether he was at home. Having been invited to do so, Constable Cruikshank also entered the house. The son was not inside. Constable Cruikshank said the appellant was clearly intoxicated.
Constable Cruikshank said he had a description of the driver before he arrived at the house but having spoken to the appellant and having entered the house, he contacted his Sergeant by phone seeking clarification of the description. That call took place about 11 minutes after Constable Cruikshank had arrived at the house. In examination in chief, Constable Cruikshank agreed that before making this phone call, he held an ‘opinion’ about the enquiries he had been tasked to make. When asked what that opinion was, Constable Cruikshank said he ‘believed [the appellant] was the driver of the vehicle, based upon the information from the tasking and the description listed on the tasking’.[16] Constable Cruikshank said he contacted his Sergeant to ascertain a description of the driver ‘to better ascertain whether I was looking for possibly a younger man or an older man that matched the description’. It appears the Sergeant contacted a witness to the alleged driving and that person confirmed the description of the driver. The Sergeant passed that confirmation on to Constable Cruikshank in a second call about six minutes after the first. Constable Cruikshank said that having received information in the second call, he formed ‘the belief [the appellant] was the driver of the vehicle’ at the time of the alleged offence about which he was making enquiries. It was then that the appellant was asked to submit the alcotest and refused.
[16] T21-22.
In cross‑examination, Constable Cruikshank denied that when he arrived he suspected the appellant had committed the offence/s about which he was making enquiries. Constable Cruikshank said he held that ‘opinion’ but drew a distinction between having an opinion and suspecting something. He said ‘I class them as two different things’.[17] Constable Cruikshank said that he only suspected the appellant was the driver after speaking to his Sergeant. To that end, the following exchange occurred during cross examination:
[17] T30.
QAnd so when you arrived you did not suspect that Mr Benisz was involved in those offences.
ANot at the time.
QWhen was it during your conversation that you came to suspect that he was involved.
AWhen I received the information from my sergeant by phone that he had spoken to one of the witnesses that was in the vehicle at the time of the incident. At that time I moved straight to requesting the alcotest.
QWould you agree that - you said, well, you spoke to your sergeant on two occasions.
AYes.
QAnd do you agree in your evidence earlier today that you were asked prior to your conversation with your sergeant you formed an opinion and your answer to that question was yes. You were asked what that opinion was and you said that Mr Benisz was the driver of the vehicle. Do you remember saying that.
ANot exactly.
QDo you agree that that was the effect of your evidence.
ACan you re-do the question please.
QCertainly. The question was, you were asked whether you formed an opinion and you said yes. Then you were asked what that opinion was and this is prior to the conversation with your sergeant that you formed an opinion, you said yes and you said that the opinion was that Mr Benisz was the driver of that vehicle.
AYes, that would be accurate.
QAnd so when you’ve said just a second ago that you formed an opinion that Mr Benisz was the driver after the phone call with your sergeant, that’s not accurate, is it.
AMy opinion and then me suspecting that he was the driver of the vehicle, I class as two different things.
QHow so.
AHe matched the description given on the tasking and it wasn’t until I had it confirmed from the witness because I hadn’t had an opportunity to speak to the witness directly and because I was dealing with Mr Benisz at the time, that then when I received that information then I then suspected he was - I believed that he was the driver of the vehicle.
QIs there a difference between you having an opinion that someone was the driver and you suspecting that someone was the driver.
AA small difference, yes.
QIs that difference the difference between whether or not you need to issue that person a caution.
AYes.
QSo if you are of the opinion that someone is the driver of a vehicle that was seen driving through a red light and nearly hitting a pedestrian, if it’s your opinion that you’re speaking to the driver you don’t need to caution.
OBJECTION:
QIs there a difference between you believing that Mr Benisz was the driver of the vehicle that had committed offences and you suspecting he was the driver of the vehicle.
AYes.
QDoes that difference or is that difference enough for you to issue a caution in the latter but not the former.
AI was investigating as to whether I had formed my suspicions that he was the driver at the time.
QYou also used the word ‘belief’ then as well. Did you believe that Mr Benisz was the driver.
AYes.
The submissions of the appellant
In submitting the evidence of his refusals to submit to an alcotest should have been excluded by the Magistrate, the appellant submitted that two approaches to the evidence were open. The appellant described the approaches to the evidence as ‘scenarios’, both of which he said called for the exclusion of his refusals to submit.
The ‘scenarios’
The appellant submitted the first scenario was that upon arriving at the house, Constable Cruikshank ‘did not suspect the appellant’ but only came to that position ‘after speaking to the appellant for a period of time’. The appellant submitted that if this scenario applied, Constable Cruikshank had acted unfairly in more than one respect before asking him to submit. First, it was unfair for Constable Cruikshank to speak to the appellant as he was intoxicated. Second, it was unfair of Constable Cruikshank not to explain a number of matters, including: that the appellant did not have to answer his questions or permit him entry to the house and that he was only required to answer a single question pursuant to s 74AB of the SOA (i.e. ‑ about whom had been the driver). Third, it was unfair of Constable Cruikshank not to advise the appellant he was recording their conversation and was engaging in an investigation. The appellant submitted that if the first scenario were accepted, the formation of the belief on reasonable grounds by Constable Cruikshank for the purposes of s 47E(1) of the RTA was only derived as a result of conduct which was unfair. The appellant submitted the asserted unfair conduct called for exclusion of the evidence of the refusals.
The appellant described the second scenario as being: that Constable Cruikshank ‘suspected the appellant from the moment of his arrival’. The appellant submitted that if this scenario existed, Constable Cruikshank had failed to caution the appellant and in doing so had ‘either deliberately or negligently departed from his usual practices’. The appellant submitted that in this scenario, there had been an unlawful interview (i.e. –‑one without a caution) before the use of s 47E(1) of the RTA and that called for exclusion of the evidence of the refusals.
Consideration of the two factual ‘scenarios’
The Magistrate did not make any finding about the credibility or reliability of the evidence of Constable Cruikshank nor did he make any finding about the two ‘scenarios’ posed by the appellant. In those circumstances and given Constable Cruikshank gave oral evidence, I am not able to choose one scenario over the other. Nonetheless, it is not necessary for me to do so, because for reasons to be given, neither scenario called for the exclusion of the refusals. The appellant and the respondent both made detailed submissions about the ‘unfairness’ and ‘public policy’ discretions. Nonetheless the disposition of this appeal does not require consideration of the circumstances in which evidence might be excluded for reasons of ‘unfairness’ or ‘public policy’. For reasons I will give, there was not any ‘unfairness’ nor was there any improper or unlawful conduct which might have given rise to consideration of the ‘public policy’ discretion.
First scenario
I turn to the first scenario which assumes the relevant belief on reasonable grounds arose sometime after Constable Cruikshank arrived at the house and was formed as a result of what was learned after that arrival. On this scenario, the appellant submits the matters which caused the belief on reasonable grounds to be formed came only after Constable Cruikshank had acted unfairly in more than one way. It is necessary to consider each aspect of the alleged conduct of Constable Cruikshank said to call for exclusion.
I do not consider there was any unfairness in Constable Cruikshank continuing to investigate and speaking to the appellant while he was intoxicated.[18] There is nothing to suggest the intoxication of the appellant made anything he said unreliable. To the contrary, the appellant does not abandon that the statements about his son might have been true. There was no evidence which suggests the appellant had difficulty in understanding and answering any questions. Given the obvious purpose of s 47E(1) of the RTA, it must be a very rare case, if ever, that intoxication may stand in the way of a refusal to submit being admitted.
[18] R v Webb and Hay (1992) 59 SASR 563, 573.
As for the submission of the appellant about the need for a caution at some point before the requirement pursuant to s 47E(1) of the RTA, the following observations may be made. First, while gathering information and in doing so giving a possible suspect a chance to clear themselves, there is no need for the caution. [19] The conduct of Constable Cruikshank in contacting his Sergeant and seeking further information is more consistent with him still gathering information than with him having a reasonable suspicion at the time of that call. The appellant had told Constable Cruikshank his son had been driving. What Constable Cruikshank said to his Sergeant in the first call was recorded and is consistent with him not dismissing the possibility the son might have been driving as when speaking to the Sergeant Constable Cruikshank said ‘if I can’t prove he’s lying to me, just follow up enquiries in relation to the son?’. Between the first call and the second, the appellant agreed to show Constable Cruikshank the keys to the car and agreed that the son had dropped them at the house and left on foot. It was only then Constable Cruikshank spoke to his Sergeant a second time and only after that call was the appellant asked to submit. On the evidence at trial, I am unable to conclude whether the point of a reasonable suspicion had been reached before Constable Cruikshank had spoken to his Sergeant a second time and received confirmation about the description of the driver. Second, if there had been a failure to give a caution before utilising s 47E(1) of the RTA, the only relevance of that was whether anything said by the appellant from that point should be admitted as evidence to be considered on Count 1. The aspects of the conversation of particular relevance to Count 1 were the statements about the son, the last of which was made only about a minute before the second call with the Sergeant. The appellant did not want those statements excluded, leaving only about a minute before the second call with the Sergeant, immediately after which the request pursuant to s 47E(1) of the RTA was made. I cannot see that Constable Cruikshank learned anything in the minute after the last statement consistent with the son being the driver which might have been a result of him behaving unfairly. Third, a failure to caution with respect to Count 1 provided no basis to exclude the refusal to submit the subject of Count 3. There is no obligation to caution a person before exercising the power in s 47E(1) of the RTA.
[19] R v Dolan (1992) 58 SASR 501, 505.
Given I am not satisfied there was a need to caution at an earlier time, it was not unfair not to tell the appellant the only question he had to answer was the question pursuant to s 74AB of the SOA.
As for the suggestion Constable Cruikshank was trespassing when he entered the house, that is not supported by the evidence. I have available to me the recording made by Constable Cruikshank tendered at trial. The appellant invited Constable Cruikshank inside the first time. The second occasion was after the appellant had said he would show him the keys to the car. Given the previous invitation to enter and the offer to show the keys, I am not satisfied Constable Cruikshank was a trespasser at the time of the second entry either. At the very least, the clear implication from the recording is the earlier invitation to enter had not been revoked and the appellant was happy for Constable Cruikshank to enter. It follows that neither of the two entries into the house by Constable Cruikshank was unlawful. As for the suggestion that Constable Cruikshank was obliged to explain the appellant did not have to permit him entry, given what I am satisfied occurred on each occasion, there was no such obligation.
I reject that it was unfair of Constable Cruikshank not to tell the appellant he was recording the conversation, or unfair not to tell him he was conducting an investigation. As for recording, in my view, there was no obligation on Constable Cruikshank to advise the appellant he was recording. Even if I were wrong about that, I would not find it was an unfairness that should have resulted in exclusion of the refusals. Rather, it resulted in an accurate record of the interactions, including a contemporaneous record of what the appellant submits were exculpatory statements requiring evaluation with respect to Count 1. As for investigating, if there was that obligation, it was sufficiently discharged. There is no suggestion the appellant could have doubted Constable Cruikshank was a police officer. On the evidence, the appellant was told when Constable Cruikshank arrived that a complaint about an intoxicated driver committing a traffic offence had been received.
Second scenario
I turn to the second scenario. On this scenario, it is to be assumed Constable Cruikshank believed on reasonable grounds the appellant had been the driver at the time of Count 1 when he arrived at the house. I commence by considering the terms of s 47E(1) of the RTA set out above. There is nothing in s 47E(1) of the RTA which demands a police officer require the person to submit to an alcotest as soon as they have the necessary belief on reasonable grounds. There is nothing which suggests a police officer holding the relevant belief is unable to continue with an investigation and, in doing so, delay before exercising the power in s 47E(1) of the RTA. On the assumption involved in this second scenario, I would not find Constable Cruikshank acted unlawfully by delaying before exercising the power in s 47E(1) of the RTA.
As for the submission of the appellant that Constable Cruikshank was obliged to caution the appellant immediately after he believed the appellant had driven a vehicle, and that any delay in doing so is in some way relevant to the admissibility of the refusals, I do not agree. In my view, the question of a caution was not relevant to the exercise of the power given by s 47E(1) of the RTA, nor to whether any refusal should be admitted into evidence in a trial of an alleged breach of s 47E(3) of the RTA. First, the appellant was not obliged to say anything when submitting to the requirement imposed by Constable Cruikshank pursuant to s 47E(1) of the RTA. The obligation was to submit. Second, the appellant did not have a right to refuse to submit. To the contrary, s 47E(5)(a) of the RTA provides:
(5)No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that—
(a)the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against themself
At best for the appellant, the absence of a caution might have given rise to an argument as to the admissibility of anything he said in response to the request in proof of an offence other than an alleged breach of s 47(3) of the RTA. That is a very different issue.
For the above reasons, I reject the submissions of the appellant the refusal to submit should have been excluded. I dismiss Ground 3.
Orders
1.I dismiss the appeal with respect to Count 1.
2.I dismiss the appeal with respect to Count 3.
3.I will hear the parties with respect to any further orders.
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