Bethune v Robinson
[1999] WASCA 224
•8 OCTOBER 1999
BETHUNE -v- ROBINSON [1999] WASCA 224
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 224 | |
| Case No: | SJA:1130/1999 | 8 OCTOBER 1999 | |
| Coram: | McKECHNIE J | 8/10/99 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | MATTHEW ALLEN BETHUNE DARREN EDWARD ROBINSON |
Catchwords: | Road Traffic Observations at scene Credibility of witnesses Reasons for decision No new principles |
Legislation: | Nil |
Case References: | Garrett v Nicholson [1999] WASCA 32 Petty & Maiden v R (1991) 173 CLR 95 Australian Securities Commission v Schreuder (1994) 14 ACSR 614 Devries v Australian National Railways Commission (1993) 177 CLR 472 Domican v R (1992) 173 CLR 555 Stojkovski v Fitzgerald [1989] WAR 328 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Weissensteiner v R (1993) 178 CLR 217 Woon v R (1964) 109 CLR 529 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DARREN EDWARD ROBINSON
Respondent
Catchwords:
Road Traffic - Observations at scene - Credibility of witnesses - Reasons for decision - No new principles
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr J D Allanson
Respondent : Mr P D Quinlan
Solicitors:
Appellant : Greg Smith
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Garrett v Nicholson [1999] WASCA 32
Petty & Maiden v R (1991) 173 CLR 95
Case(s) also cited:
Australian Securities Commission v Schreuder (1994) 14 ACSR 614
Devries v Australian National Railways Commission (1993) 177 CLR 472
Domican v R (1992) 173 CLR 555
Stojkovski v Fitzgerald [1989] WAR 328
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Weissensteiner v R (1993) 178 CLR 217
Woon v R (1964) 109 CLR 529
(Page 3)
1 McKECHNIE J: In the early hours of 26 September 1998 Constable Palmer was on patrol with Constable Georgiou doing random breath tests near the Parkerville Hotel on Byfield Road. He pulled a car over by flashing a torch with a red cone attached. The car, a Holden Commodore registration number 8KR-292, complied with the instruction and pulled over. Who was driving it at the time became the central issue at a subsequent trial held in June this year.
2 The learned Magistrate was satisfied beyond reasonable doubt that the appellant Mr Bethune was the driver. In essence the issue on this appeal is whether it was open for him to be so satisfied and whether his reasons for concluding that the appellant was the driver were sufficient.
3 The prosecution case depended entirely on the accuracy and reliability of the observations of Constable Palmer. He gave evidence that after noticing the car decelerate and the driver pull up on the left side he said:
"It was parked about directly under a street light and was about 30 metres down from my location, and I had a very good clear view straight down the road towards the vehicle, and it was illuminated very clearly as it was under a street light. It was at this time that I saw the driver's door open and I saw a male person who was wearing a black jumper with red stripe. This person was 180 cm tall, of medium build, and was wearing blue jeans. This person I now know as Matthew Allen Bethune, the defendant present in court. As he got out from the vehicle, he fell to the ground, stumbled to the ground and started laughing. I then saw the passenger door, that is the one that is behind the driver, on the driver's side, passenger door open, and a much taller, thinner male person alight from that side - - from out of the passenger's side, and to assist the driver, the defendant, up from the ground. I kept watching the defendant at all times, not losing sight of him for one second, and I saw the two of them move over to the rear of the vehicle and onto the left side of the vehicle that's now onto the gravel verge, and to near the passenger door on the left side. I've then seen the defendant urinate on the side of the road. I have then directed my partner, Constable Georgiou, who had the breath - - the preliminary breath testing unit, to tend to the defendant and I pointed him out to my partner, and said to Constable Georgiou, 'Can you go breath test that person there?' "
(Page 4)
4 He then gives evidence that there was a short conversation between Constable Georgiou:
"… they had a short conversation and have then they walked up towards where I am. The defendant has then approached me and said, 'What's going on? I wasn't driving', and I said, 'I saw you get out from the driver's door, and I was watching you the entire time.' "
5 He did not see the boot open at all. He was watching Mr Bethune when he went to the back of the car. His evidence was that the area was under a street light, it was a clear night and there were no problems with vision.
6 In cross-examination his memory was tested as to other vehicles and drivers already pulled over. He was challenged as to the lighting. He conceded there were no interior lights on the Holden when the doors opened. He was adamant that he kept Mr Bethune in view at all times from the moment he stepped from the driver's door. He said he was only watching Mr Bethune, he was not watching what was going on behind or off to the side. He was cross-examined as to the number of people in the car and asserted that there was only Mr Bethune, his brother Michael and a woman called Jackie McDonald.
7 Constable Georgiou was not able to add to Constable Palmer's evidence as to who was driving the vehicle because he first saw Mr Bethune walking towards him in company. Mr Bethune appeared drunk and said that he was not driving and that all he could be charged with was street drinking. When Constable Palmer told Mr Bethune he had seen him get out of the car door Mr Bethune said: "It wasn't me. I got out from the back."
8 Constable Georgiou along with Constable Palmer only noticed two other people connected with the vehicle. He saw Mr Bethune's brother Michael and his girlfriend. In cross-examination Constable Georgiou said that they had parked their police car about 30 metres past the street light and that the Commodore connected with Mr Bethune was under the street light although the street light was on the other side of the road.
The defence case
9 Mr Bethune gave evidence that he went to the Parkerville Hotel with his brother Michael Bethune, Jackie McDonald, Trevor Noske and
(Page 5)
- Matthew Emerson. Miss McDonald drove there in Michael's car. They stayed until closing time. When they left he (the appellant) was pretty drunk. Before they left they bought a carton and chucked it in the boot. Michael Bethune had stayed in the car, sleeping, while the rest were in the hotel. Michael Bethune drove, while Mr Bethune sat in the back seat on the driver's side.
10 When the car was pulled over and Mr Bethune fell out of the back seat, he hit the boot handle, opened the boot to grab a stubby and walked around to where he thought the accident was. There was a street light about 10 metres on the opposite side of the road. One of the police walked up. He denied he was driving.
11 In cross-examination Mr Bethune said he was wearing a black and red Bombers' football jumper. When he got out of the car he fell over laughing. The car stopped under a street light. He described the flicking of the boot latch. He opened the door, his door, walked to the front door and just flicked the latch. He agreed that the first time he said Michael was driving was in court.
12 Trevor Noske gave evidence that when the group went to the Parkerville Hotel Michael Bethune drove the car. He believed all five people - that is, including Michael Bethune - went into the hotel. His evidence was contrary to that of Mr Bethune. When they left Michael Bethune was driving. Matthew Emerson was in the front passenger seat. When the car was stopped Mr Bethune and Michael got out. He saw Mr Bethune go round to the back to get the boot open. He was not sure how he actually got the boot open. He pulled a beer from the carton and walked up to where he reckoned the cops were. He was not sure what Michael Bethune did. He did not remember if Mr Bethune fell over laughing. He did not remember whether Mr Bethune urinated.
13 Matthew Emerson gave evidence that he was 15. He said that Jackie McDonald drove to the Parkerville Hotel. They all went inside but after a while Michael Bethune came out and went to sleep in the car. When they left Michael was driving and the witness was in the front passenger seat. Mr Bethune was behind the driver. When the car stopped Michael and Mr Bethune got out. They went around the car for a bit. He thought Mr Bethune had got a beer out of the boot when the car pulled up. In cross-examination he described some blue flashing lights. He did not know why Michael had pulled over. He did not remember Mr Bethune urinating. He agreed he had a very vague memory.
(Page 6)
14 Michael Bethune gave evidence that he was the driver of the car. When it stopped he and Mr Bethune got out. Mr Bethune went to the boot and they walked up to the police officers. He did not volunteer that he was the driver because he was afraid that if he was over the limit he would lose his licence. He got Trevor Emerson to drive to the police station. He did not want to incriminate himself by saying he was the driver.
15 In cross-examination he said that he didn't see flashing blue lights. He saw someone shining a torch. He got out of the car because he was afraid the police would breathalyse him. He said for the first time in cross-examination that Mr Bethune fell out of the car. Also for the first time in cross-examination he volunteered that Mr Bethune had gone to the driver's door for the boot latch. He told police throughout the night that he was not the driver. Portions of a video record of interview were put to him with which he agreed. Essentially, during the video he maintained that Mr Bethune was the driver.
16 I have briefly summarised the evidence. Clearly, there was a fundamental conflict between Constable Palmer's evidence for the prosecution that Mr Bethune got out of the driver's door and the evidence of the defence witnesses that he got out of the back door.
The reasons for decision
17 This was, in truth, a simple case. The question of identification did not arise. Constable Palmer gave direct evidence that he saw Mr Bethune get out of the driver's door and thereafter kept him in continual observation in conditions of adequate lighting.
18 The Magistrate referred to a number of inconsistencies between the defence witnesses which might justify him rejecting their version. Nevertheless, he properly reminded himself of the onus of proof. He accepted Constable Palmer as a witness of truth. He said he was not shaken with regard to his evidence as to the observations on the particular night. In my judgment it was open for him to do so.
19 The way in which the Magistrate approached the issue focused his attention on Constable Palmer's observations at the time the driver's door opened. Constable Palmer's reliability and observations as to who else was in the car was not, on the approach taken by the Magistrate, a detraction from his observations as to who got out of the driver's door at the commencement. Therefore the Magistrate did not have to make findings as to the number of people in the car. He rejected the evidence of
(Page 7)
- all the witnesses due to the inconsistencies in their testimony and other matters going to credit.
20 In any event, as I have said, the Magistrate did not consider this aspect affected the reliability of the police evidence and in my judgment it was open for him to make that finding. The Magistrate has exposed his reasoning processes sufficiently, albeit briefly, and I bear in mind the appropriate test; see, for example, Garrett v Nicholson [1999] WASCA 32 at par 28 to 35.
21 As I have remarked this is not a case of any great complexity. The Magistrate sufficiently explained why the evidence of Constable Palmer was accepted and that of the defence witnesses was rejected. I consider that he has sufficiently disclosed the intellectual processes by which he came to that conclusion and his explanation does not show error.
22 Complaint is made that the Magistrate used the exercise of the right of silence as a basis for adverse findings on credibility. During the course of his judgment the Magistrate said this:
"When the defendant was cross-examined, he was asked the question as to why he had not disclosed, until the day of the hearing, that his brother in fact was the driver of the motor vehicle. What that does of course is go towards whether or not the credibility of him and his brother is challenged in some way with regards to the evidence. There was also, of course, the evidence of Trevor Noske, who says that he was in the rear passenger seat, that is, on the passenger side, the left-hand side of the motor vehicle, and he saw nothing with regards to what was in front of him when the car stopped; only a comment about the police being up ahead.
The significant part of his evidence was that he said that he wasn't paying 100 per cent attention to what was transpiring on this particular night. I might also mention again the evidence of Michael Bethune, who says that he was the driver. …"
23 The comment made by the Magistrate carried with it the risk that the right to silence in respect of Mr Bethune was being eroded: see, Petty & Maiden v R(1991) 173 CLR 95, particularly at 101. To that extent it involved an impermissible mode of reasoning. The comment also included a reference to the brother Michael's evidence. The brother's non-disclosure does adversely affect his credibility.
(Page 8)
24 Although the Magistrate posed an impermissible question he does not appear to have answered it. The rejection of the evidence of the defence was put on this basis:
"… on the other hand, of course, the observations with regard to the credibility of the witnesses, and the witnesses who were called by the defence, which included the defendant, was in my view serious flaws in their evidence and their credit with regards to the manner in which they gave evidence."
25 That appears to suggest that in his actual process of reasoning he did not rely on the possible adverse inference that could have been drawn from Mr Bethune's failure to disclose the name of the driver of the car but relied instead on the actual evidence given in court which was the defence evidence in conflict. Ultimately his reasoning involved acceptance of Constable Palmer as a witness of truth, as he necessarily had to do in order for him to be satisfied beyond reasonable doubt.
26 Consequently, I do not consider that the impermissible question posed by the Magistrate has led to a substantial miscarriage of justice. I do not consider that the appellant has lost a fair opportunity of acquittal by this one aspect of the decision and in consequence the appeal is dismissed.
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