Bonde v Lewis

[2004] TASSC 146

[2004] TASSC 146

CITATION:         Bonde v Lewis [2004] TASSC 146

PARTIES:  BONDE, Michael Andrew
  v
  LEWIS, Samantha-Jo

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Appellate
FILE NO/S:  LCA 11/2004
DELIVERED ON:  9 December 2004
DELIVERED AT:  Launceston
HEARING DATE/S:  15 November 2004
JUDGMENT OF:  Evans J

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Error of consequence.

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  L Goodsell
           Respondent:  M J Brett
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Director of Legal Aid

Judgment ID Number:  [2004] TASSC 146
Number of paragraphs:  8

Serial No 146/2004

File No LCA 11/2004

MICHAEL ANDREW BONDE v SAMANTHA-JO LEWIS

REASONS FOR JUDGMENT  EVANS J
  9 December 2004

1. The prosecutor appeals against the dismissal of charges that the respondent drove whilst disqualified, and drove with alcohol in her body whilst not holding an appropriate licence.

1. The respondent denied that she was the driver of  the vehicle in question. 

1. The evidence of Constable Ockerby, the police officer who charged the respondent (the defendant in the Court of Petty Sessions),  included the following:

"At approximately 3am on Saturday, the 9^th March 2003, I was on mobile patrol in the Launceston area.  At that time I observed a blue Datsun station wagon registered EN 4880 exit the laneway adjacent to the Batman Fawkner Inn onto Cameron Street.  I observed the vehicle proceed in an easterly direction along Cameron Street.  I intercepted the vehicle a short distance along Cameron Street in a car park.  I observed a female person now known to me as the defendant present in Court, Samantha‑Jo Lewis exit the driver's seat of the vehicle.  She was the sole occupant of the vehicle."

1. The respondent was not legally represented on the hearing in the Court of Petty Sessions.  In response to the respondent's only question in cross-examination Constable Ockerby said:

"I saw the vehicle come to a halt, I saw it in one movement the vehicle come to a halt and the defendant exit the driver's seat of the vehicle.  I saw her driving ..."

1. In response to a question from the learned magistrate as to whether he saw anyone else exit the vehicle Constable Ockerby said:  "No she was the sole occupant of the vehicle".

1. No other witnesses were called by the prosecution.  The respondent gave evidence but called no witnesses.  The respondent said:

"What actually happened was my mate rang me and asked me to meet him in the small car park across the road from the Batman Fawkner.  So I left a party that was up near the City Park walked down, met him next to a white Falcon ute, I was waiting there when he pulled up.  He got out of the car, he was arguing on the phone with his ex-girlfriend.  He left his lights and everything on, so I got in the car, switched the lights and everything off and that's when the police officer pulled up and asked me to be put on the breatho."

1. The learned magistrate dismissed the charges because he was not satisfied beyond reasonable doubt that the respondent was the driver of the vehicle.  In the course of his reasons for dismissing the charges the learned magistrate said of Constable Ockerby's evidence:

"He did not say that at any time he had the vehicle under observation prior to the car park and that the defendant was the only occupant of the vehicle as it was driven along Cameron Street."

These observations by the learned magistrate are wrong.  Constable Ockerby did say that he had the vehicle under observation prior to the car park.  His evidence was that he observed the vehicle exit the laneway adjacent to the Batman Fawkner Inn onto Cameron Street, he observed the vehicle proceed in an easterly direction along Cameron Street and he intercepted the vehicle a short distance along Cameron Street in the car park.  Constable Ockerby also gave evidence to the plain effect that the respondent was the only occupant of the vehicle as it was driven along Cameron Street.  He on two occasions said that the respondent was the sole occupant of the vehicle and on one occasion said she was the driver.

1. Counsel for the respondent submits that these errors are of no consequence as the learned magistrate found in favour of the respondent because of his assessment of her credibility. In explaining his decision, the learned magistrate said he was impressed with the respondent’s evidence.  Nevertheless, the learned magistrate's errors go to the heart of whether the respondent was driving the vehicle.  His assessment of the reliability of the respondent's evidence must have been affected by his misapprehension that he did not have evidence from Constable Ockerby that he had observed the vehicle proceeding in Cameron Street prior to the car park, that the respondent was the sole occupant of the vehicle and he saw her driving.  In my view these errors are fundamental and this is not a case in which it could be said for the purposes of the Justices Act 1959, s107(ab), that notwithstanding the errors there has been no substantial miscarriage of justice. The appeal is allowed. The orders of the learned magistrate dismissing the charges are quashed and I direct that the complaint be remitted for re-trial before a different magistrate.