Chol v Frick
[2025] ACTSC 316
•22 July 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Chol v Frick |
Citation: | [2025] ACTSC 316 |
Hearing Date: | 5 February 2025 |
Decision Date: | 22 July 2025 |
Before: | Burns AJ |
Decision: | (1) The appellant’s appeal on charge CAN 2051/2023 is dismissed. (2) The appellant’s appeal on charge CAN 2052/2023 is upheld. The finding of guilt made by the Magistrate is set aside and a verdict of acquittal is entered on the charge. (3) The result of this appeal may raise questions as to whether costs should be awarded either regarding this appeal or regarding the proceedings in the Magistrates Court. Unless either party makes an application for a different costs order within 21 days of delivery of this decision, I will order that there be no order as to costs in each proceeding. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from ACT Magistrates Court – appeal against conviction – refusing to undergo an alcohol screen test – failing or refusing to provide a sample of breath in accordance with the reasonable directions of a police officer – collision of vehicle into a wall to a residential unit – whether the magistrate erred in finding police had reasonable cause to suspect – whether verdict was unsafe and unsatisfactory having regard to the evidence – appeal on one charge dismissed – appeal on second charge upheld – conviction reversed |
Legislation Cited: | Human Rights Act 2004 (ACT), ss 21, 22(b), 40B, 40C(6) |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49 |
Parties: | Atem Makoul Chol ( Appellant) Adam Frick ( Respondent) |
Representation: | Counsel A Williamson ( Appellant) M Howe ( Respondent) |
| Solicitors Hugo Law Group ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 71 of 2023 |
Decision Under Appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Temby Date of Decision: 18 December 2023 Case Title: Police v Chol Court File Number: 232722 |
BURNS AJ:
Introduction
1․On 18 December 2023 the appellant was found guilty by a Magistrate of the following charges:
(a)Refusing to undergo an alcohol screening test on 24 February 2023 contrary to s 22C(1)(b) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the RTAD Act) (CAN 2051/2023).
(b)Failing or refusing to provide a sample of breath in accordance with the reasonable directions of a police officer on 24 February 2023 contrary to s 22(d) of the RTAD Act (CAN 2052/2023).
2․By a Further Amended Notice of Appeal filed 15 January 2025 the appellant appeals from the findings of guilt made by the Magistrate. Noting that a number of grounds of appeal were not pursued, the grounds ultimately argued by the appellant were:
1.Ground 1: The Magistrate erred in finding Constable Adam Frick held a “reasonable cause to suspect” pursuant to Div 2.2 of the RTAD Act.
2.Ground 2: The Magistrate erred in finding the appellant drove a motor vehicle on a road or road related area at the relevant time.
3.Ground 3: The verdicts are unsafe and unreasonable and cannot be supported having regard to the evidence.
4.Ground 4: The Australian Federal Police (AFP) acted incompatibly with, and failed to give proper consideration to, the appellant’s human rights at ss 21 and 22(b) of the Human Rights Act 2004 (ACT) (HRA) in failing to make full disclosure to the appellant which deprived him of the right to a fair trial.
5.Ground 5: The breach of the duty of disclosure occasioned a miscarriage of justice.
3․The orders sought by the appellant are:
(a)The appeal be upheld.
(b)That the verdicts entered by the Magistrate be set aside.
(c)That the charges against the appellant be dismissed.
(d)Declarations pursuant to s 40C(6) of the HRA that –
(i)The appellant’s right to a fair trial as provided at s 21 of the HRA was breached;
(ii)The appellants right to have adequate facilities to prepare his defence as provided at s 22(b) of the HRA was breached;
(iii)Adam Frick and Aaron Mills acted unlawfully in contravening the public authority’s duty at s 40B of the HRA.
(e)The respondent pay the appellants costs for the proceedings in the Magistrates Court.
4․Very briefly, the factual circumstances relevant to the proceedings before the Magistrate are that late in the evening on 24 February 2023 a white Jeep Cherokee (the Jeep) motor vehicle collided with and penetrated the wall to a residential unit, being [redacted] (the Unit). The owner of the Unit got out of bed and walked to the lounge room and saw that the Jeep had driven straight through the wall and partially into the Unit. The Jeep then reversed out through the hole in the wall. It was subsequently driven off onto Kosciusko Avenue. The prosecution case was that a short time later the Jeep was parked in front of nearby residential premises. A resident of those premises saw an individual sitting in the Jeep for about five minutes. She observed someone to get out of the driver’s seat of the vehicle and walk around it. She then lost sight of that person. A few minutes later police cars arrived. The appellant was located in the vicinity of where the Jeep was located on Kosciusko Avenue.
5․At the time that he was located by police, the appellant was visibly intoxicated and there was no one else located in close proximity to the Jeep. The appellant confirmed to police that the Jeep was his. A police officer required the appellant to undergo an alcohol screening test under s 8 of the RTAD Act. The appellant failed to undergo the screening test. This is the basis of charge CAN 2051/2023. The appellant was arrested and conveyed to the ACT Watch House. At the Watch House, the appellant was required to provide a sample of his breath for breath analysis. The appellant either failed or refused to provide a sample of his breath. This is the basis of charge CAN 2052/2023. He was subsequently charged with the offences that were dealt with by the Magistrate.
Jurisdiction on appeal
6․This Court’s appellate jurisdiction in relation to conviction appeals from the Magistrates Court is derived from ss 207 and 208 of the Magistrates Court Act 1930 (ACT). The principles applying to such an appeal were recently summarised by Baker J in Inglis v Adamson [2024] ACTSC 4 at [47]-[49]:
[47]The appellant’s conviction appeal was brought pursuant to ss 207 and 208(1) of the Magistrates Court Act 1930 (ACT), which confers jurisdiction on this Court to hear and determine an appeal from a person who has been convicted of a summary offence in the Magistrates Court.
[48] An appeal under ss 207 and 208 of the Magistrates Court is by way of rehearing: Alexander v Bakes [2023] ACTCA 49. On this rehearing, “the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact”: s 214 of the Magistrates Court Act. This task requires that the Court undertake a “real review” of the evidence: Alexander v Bakes at [13], citing Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 and Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56].
[49] The onus is on the appellant to identify and demonstrate error in the Magistrate’s findings: Alexander v Bakes at [22], citing Allesch v Maunz [2000] HCA 40; 203 CLR 172at 180 [23] and Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 at [19].
[50] As the proceedings in the Magistrates Court proceeded by way of the tender of unchallenged evidence, the principles concerning the deference to be afforded to credibility findings of a Magistrate are not relevant to the determination of the present appeal; cf Alexander v Bakes at [13] and [20].
7․This Court has not had the advantage possessed by the Magistrate of hearing and seeing the witnesses as they gave their evidence. This fact raises further considerations which were summarised in Alexander v Bakes [2023] ACTCA 49 at [13] and [20]:
[13] Where an appeal is by way of rehearing, generally an appellant may succeed only by demonstrating material error in the decision below, whether legal, factual or discretionary: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Allesch) at [23]. This is noting that a court on a rehearing is to conduct a real review of the evidence given at first instance and the judge’s reasons for judgment and, while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, reinforced by the High Court in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56].
…
[20] In determining whether there is a material legal, factual or discretionary error, the appellate court must observe the ‘natural limitations’ of proceeding on the record, including, as observed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23]:
... the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witness’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share.
The evidence before the Magistrate
Mr K
8․Mr K was the occupant of the Unit with which the Jeep collided. During examination in chief he stated that some time approximately between 10pm and 11pm he was in bed watching television when he heard a sound “like a bomb going off”. He got out of bed and walked to the dining room where he observed bricks everywhere. He observed a white Jeep vehicle partially within the unit. At that time, the Jeep was attempting to reverse out of the unit. The Jeep managed to reverse out of the hole in the unit wall.
9․Mr K stated that he saw a person in the driver’s seat. Mr K stated that less than 3 minutes passed from the point where he first saw the vehicle in the dining room to the point where the vehicle reversed out of the unit. Mr K stated that during that time he saw other people in or around the Jeep. He was not sure whether there were three or two other people. Mr K believed that two of those people ran off back on to Kosciusko Avenue towards an area that he described as “like a park”. He was able to testify that these were males.
10․He said that when he first saw those males they were inside the Jeep. One was in the front passenger seat and the rest were in the rear. He described the two or three people who ran away from the Jeep as “five foot 10, five foot 11, medium build, African to Sudanese description”. Mr K was unable to give a description of the driver at that point.
11․Outside the unit, the driver got out of the Jeep and he had a short conversation with the driver. Mr K told the driver that he was going to call the police, and the person responded “No, no, no bro, we’ll sort it out”. Mr K reiterated that he was going to call the police. At this point, Mr K was able to give a description of the driver as “around five 10, medium build, again African to Sudanese, of course black hair” which “was very short”. Mr K stated that the driver was slurring his speech, and he could smell alcohol on the driver. The driver wasn’t walking straight.
12․After Mr K reiterated that he was calling the police, the driver got back into the Jeep and managed to drive out onto Kosciusko Avenue. Mr K stated that from the point where he exited his unit through the hole in the wall until he stopped speaking to the driver and the driver drove off would have been less than three minutes. As the vehicle turned into Kosciusko Avenue, Mr K could hear the engine “roaring” and tyres “squealing”. Mr K waited at the driveway of his residence until police arrived. Police arrived within “a couple of minutes”. Between the time Mr K saw the two or three people exit the Jeep and run from the scene, he saw no one else around the Jeep other than the driver. When police arrived, Mr Kennedy stated that he saw two or three people running towards the park. Mr K gestured towards the white Jeep as police arrived and the police vehicle went directly towards the Jeep.
13․Mr K later provided a statement to police.
Janine Maryanne Darley
14․In 2023, Ms Darley was a resident of a premises on Kosciusko Avenue, Palmerston in close vicinity to where the collision occurred. She testified that at about 10:15pm on 24 February 2023 she heard “really loud screeching … like someone doing burnouts up and down Kosciusko Avenue”. She described that it went on for what “felt like 10 minutes or so”. Ms Darley said that the noise “got really loud in [her] house” and she “ran to the front of [her] house and looked out the front window and saw a white vehicle that had stopped in front of [her] house, with brake lights on”. She said, “no one had come out of the vehicle for about five minutes”. She then:
[S]aw someone get out of the driver’s seat, walk around the back of the vehicle, around the boot, opened up the left-hand side back passenger car door and then walked down the road.
15․Ms Darley testified that it was dark and there was not much lighting, but the person who got out of the car appeared to be tall. She could not describe what that person was wearing “because it was really dark”. She estimated that the person was more than six foot tall. She said that no one had come out of the car for about five minutes when she was watching before the person got out and walked around the back of the car. She was not able to see anyone in the car because it was dark. She recollected that the brake lights were on. She lost sight of the person as he walked away.
16․Ms Darley said that it was probably around two minutes or less after she lost sight of this person that the police cars arrived. Police got out of the vehicle and looked at the white vehicle that the person had got out of.
17․Ms Darley agreed that she had told police that night that she had thought “maybe the person had dark skin, but I wasn’t too sure". She said that it was too dark to be certain of anything other than the person who got out of the vehicle appeared to be tall. In cross-examination, Ms Darley stated that she definitely did not see a person walk back to the vehicle after the person had got out of the vehicle and walked away. She watched the vehicle continuously from when the person got out of the vehicle and walked away until police arrived. Ms Darley also agreed that she told police on 24 February 2023 that it was about five minutes from the time that the person walked away from the white vehicle until police arrived.
Constable Rachel Smith
18․Constable Smith attended the incident at Kosciusko Avenue, Palmerston on 24 February 2023. She arrived at the scene with Constable Leanne Graverik. She saw other police officers further down Kosciusko Avenue speaking to the appellant. Constable Smith immediately went to the Unit and observed the damage to the Unit. She spoke to Mr K and later conducted a record of conversation with him. She also took photographs of damage to the unit.
19․Constable Smith stated that Mr K told her that the person he saw get out of the Jeep was someone he recognised as living at another unit at the same address, but that he did not know that person’s name. She agreed that at no time did Mr K nominate the appellant by name as the driver of the Jeep. Constable Smith agreed that Mr K told her in the record of conversation that he never saw the driver in the driver’s seat of the Jeep (presumably at the time that the Jeep was still partially within his unit), but he only saw a person in the rear seat of the Jeep. Mr K formed a belief that the person in the rear seat of the Jeep had been the driver.
Constable Benjamin Simms
20․Constable Simms attended at the scene on Kosciusko Avenue on 24 February 2023. He was dressed in full police uniform. In evidence, he said:
About 10:20pm, or thereabouts, we heard a radio transmission saying that there was a collision at Kosciusko Avenue and the vehicle had gone into a house. We travel there, from Mitchell, it didn’t take us too long to get there. Once we arrived there was, as I observed, there was a male who was waving us down on the left-hand side of the road, near where the incident was said to have happened. I could also see further down, another male, that I now know to be the defendant, and a Jeep. As we stopped near the male who waved us down initially, he said words to the effect of, ‘That’s the car and that’s him’ or, ‘They’re involved’. I have driven our caged vehicle a bit further forward, stopped and got out and gone and inspected the vehicle and saw there was some damage on the front driver side corner. It was quite minor damage.
21․Constable Simms was unable to say whether the male who initially waved him down was Mr K, but he agreed that was possible.
22․After inspecting the damage to the Jeep and the damage to the wall of the Unit, Constable Simms had conversations with other police and with an unknown male witness. Constable Simms then returned to the Jeep by which time Constable Frick and Detective Acting Sergeant Leeson were having a conversation with the appellant.
23․At the Jeep, Constable Simms heard Constable Frick and Detective Acting Sergeant Leeson “make some demands to the [appellant] to submit to a roadside breath screening.” Constable Simms was unsure if “[t]he [appellant] either provided no answer or he refused to answer.” Constable Simms “tried to explain to the [appellant] that [he was] required to provide a breath screen” and that if he didn’t provide a sample “he’ll be treated as a high risk”. The appellant made no response at which time Constable Frick placed the appellant under arrest.
24․Constable Simms conducted a search of the appellant and located a set of Jeep keys on him. The appellant was then placed in a caged police vehicle. He was taken to the ACT Watch House. He was then offered the opportunity to undertake a breath analysis which he declined, stating that he had not been driving.
25․In cross-examination, Constable Simms agreed that prior to the appellant being given a direction to provide a sample of breath for a breath screening, he was told by Sergeant Aaron Mills about “some males he saw running off elsewhere”. Constable Simms agreed that initially he didn’t really know if the appellant was the driver of the Jeep. He agreed that it was common practice for police to share information when they were at the site of an incident such as that which they attended on 24 February 2023.
26․Constable Simms agreed that whatever the unknown male witness had said to him did not leave Constable Simms with a confident impression that the unknown witness knew who the driver of the Jeep was.
27․Constable Simms was cross-examined regarding his failure to caution the appellant, and effectively responded that it was his belief that he was not required to caution the appellant. At that time, Constable Simms said, his mind was focused on traffic offences that may have occurred.
Detective Acting Sergeant Dean Leeson
28․Detective Acting Sergeant Dean Leeson attended at the scene at Kosciusko Avenue, Palmerston on 24 February 2023. He “received a radio transmission from ACT Police Operations” informing him “that there was a vehicle that had allegedly crashed into a house” at that scene “and that the driver of the vehicle was trying to leave” .
29․On arrival at the scene, other police were already on location. They informed him that the driver had driven the vehicle up the road, at which time they pointed to the Jeep. Detective Acting Sergeant Leeson saw the appellant standing near the Jeep. He went over to the appellant and had a conversation with him. He asked the appellant whether he was the driver of the vehicle, to which the appellant responded that he wasn’t. Detective Acting Sergeant Leeson asked who the driver of the vehicle was, and the appellant “pointed further up the road”. The appellant again denied that he had been driving, after confirming he owned the vehicle. Detective Acting Sergeant Leeson then issued the appellant with a direction under s 60 of the Road Transport (General) Act 1999 (ACT) requiring the appellant to inform him who the driver of the vehicle was.
30․Detective Acting Sergeant Leeson testified that in his interactions with the appellant at that time he could smell “intoxicating liquor” on the appellant, and he “was somewhat unsteady on his feet.” Detective Acting Sergeant Leeson expressed the opinion that the appellant was “may be moderately intoxicated”.
31․After issuing the s 60 direction to the appellant, Detective Acting Sergeant Leeson explained to the appellant that it is an offence not to comply with that direction. Detective Acting Sergeant Leeson testified that the appellant refused to answer. However, Detective Acting Sergeant Leeson went on to say that the appellant “initially said that somebody else was driving and he didn’t know who it was and then he further pointed up the road”. The appellant then said, “he did know who the driver was” before saying “I’m not saying anything”.
32․Detective Acting Sergeant Leeson testified that he suspected that the appellant had been the driver of the vehicle. He recalled that the initial direction to the appellant to provide a sample of breath for a screening test was made by Constable Frick. When the appellant declined to provide a sample of breath, Detective Acting Sergeant Leeson also advised the appellant that he was required to provide a sample of his breath and that if he failed to do so it was an offence. At this time, Detective Acting Sergeant Leeson observed that the appellant “had some injuries to his hand”, which were apparently bleeding.
33․Detective Acting Sergeant Leeson testified that a number of police present informed the appellant that he was required to provide a sample of his breath for a screening test. He did not comply with any of those directions.
34․Detective Acting Sergeant Leeson in cross-examination agreed that at the time that he spoke to the appellant he recognised that a number of offences may potentially have been committed, depending upon the circumstances. These included damage to property, not exchanging details at the scene of a crash and drink-driving. He said that he did not believe that he was required to caution the appellant before speaking to him, despite the fact that one of the possible offences which may have been committed was an offence of damaging property. Detective Acting Sergeant Leeson agreed that the appellant informed him that the appellant did not know who the driver of the vehicle was.
Constable Adam Frick
35․Constable Frick attended the scene at Kosciusko Avenue on 24 February 2023 having received communications via police radio. His partner that evening was Constable Simms. When they arrived, police were already in attendance and it was “relatively dark”, being “lit up by the flashing lights of the police car.” As they pulled up, they were waved down and spoken to by someone on the side of the road. This person said to them, words to the effect of:
The car’s down there and the guy's down there, the one who drove the car. The driver’s down there with the car, he hasn’t left, he’s just hanging around down there.
36․Constable Simms drove the police car to the vicinity of where the Jeep was located and took a roadside breath screening device to where other police officers were talking to the appellant. Constable Frick recalled Detective Acting Sergeant Leeson making a demand under s 60 on the appellant, requiring the appellant to tell Detective Acting Sergeant Leeson who the driver of the vehicle was. Constable Frick noticed “that there was a strong smell of alcohol coming off the [appellant]”. He also noted that the appellant was a “bit unsteady” on his feet and his “eyes were bloodshot and a bit glassy”.
37․Constable Frick asked the appellant to blow into the roadside breath screening device and the appellant provided no response. Shortly after, Detective Acting Sergeant Leeson said to the appellant words to the effect of “[i]t’s an offence if you don’t provide a breath sample”. Then Constable Frick gave the appellant somewhere between a further two and four opportunities to “provide a sample of his breath, but he didn’t”. Constable Frick stated that he placed the appellant under arrest and the appellant was searched. A set of Jeep keys were found in his pocket.
38․The appellant was conveyed to the ACT Watch House. Constable Frick testified that he observed Constable Simms give the appellant a direction to accompany him upstairs to the breath analysis device for the purpose of undertaking a breath analysis. The appellant would not go with them.
39․In cross-examination, Constable Frick stated that he had been informed over the radio at the scene that the appellant was the registered operator of the Jeep. This formed part of his suspicion that the appellant had been the driver of the Jeep. Subsequently, Constable Frick said regarding the formation of his suspicion that the appellant had been the driver of the Jeep:
What gave me that belief was when I pulled upon [sic] the side of the road and someone told me that the driver of the car is down there, with the car, that’s what gave me the belief. It had nothing to do with whether it was his car, his mate’s car, the next door neighbour’s car, the bloke down the road’s car, that had nothing to do with it.
40․Constable Frick agreed that when he arrived at the scene on Kosciusko Avenue he was made aware that people had run away from the Jeep. It appears to have been Constable Frick’s understanding that the unidentified witness was referring to the driving of the Jeep from the point of collision with the Unit to where it was located on Kosciusko Avenue. He understood that the information that people had been seen running from the car related to the scene of the collision of the Jeep with the unit.
Decision of the Magistrate
41․After hearing submissions by the parties, the Magistrate gave an ex-tempore decision. With regard to the first charge, the charge of refusing to undergo an alcohol screening test, the Magistrate, after referring to the provisions of the RTADAct, said (at Transcript, 18 December 2023, page 26):
[T]here is no dispute, as I understand it from the defendant, that he was required to undergo a screening test. There’s no dispute that he failed to do so in the sense that he refused to do so. What is in dispute is whether Constable Frick who made the requirement – issued the requirement, reasonably suspected that the defendant was the driver of a motor vehicle on a road or road-related area shortly before the requirement was made.
42․After referring to the evidence which I have summarised, the Magistrate said (at Transcript, 18 December 2023, pages 27-28):
It was Constable Frick who made the requirement of the defendant to undergo the alcohol screening test. He relied on the information given to him by the unidentified male in forming a suspicion that the defendant was the – or had been the driver of the motor vehicle shortly before the request was made. In my view, Constable Frick genuinely held a suspicion that the defendant was or had been the driver of the motor vehicle.
In addition to the information he’d been given by the unidentified male, which I don’t accept was unreliable. In the circumstances, it was information that was given by a person whom Constable Frick could expect being in the vicinity of the area may have known who the driver of the vehicle was. In addition to that evidence, Constable Frick was present when Detective Leeson was asking the defendant about his car and was present when the defendant admitted that it was his car before Detective Leeson made a section 60 demand.
Defendant also denied, I should say in that exchange, being the driver of the vehicle and said the driver was up the road or down the road. Constable Frick made a request that he undergo a screening test. He said, ‘no’. Constable Frick said, ‘I have a witness down there who says you were the driver of the motor vehicle’. I accept as the party submitted that refers to the unidentified male … It is also clear that the defendant was the only person around the car at the time.
43․The Magistrate concluded that the facts available to Constable Frick provided him with a reasonable basis for his suspicion that the appellant had been the driver of the Jeep on Kosciusko Avenue after it was driven from the scene of the collision with the unit. The Magistrate went on to say that (at Transcript, 18 December 2023, page 28):
[I]t is the ordinary experience of people that … if someone is the … owner of a vehicle they [will] ordinarily be the driver if there is a group of people. The fact that there were people running away [from the Jeep after the collision] does not take away substantially or in any real way from the principal facts that Constable Frick had been told that the driver was up the road and that the car was owned on the defendant’s submission that he owned the car on his admission.
44․For these reasons, the Magistrate found the offence of refusing to undergo a screening test proven.
45․Turning into the second charge, the charge of failing or refusing to provide a sample of breath in accordance with the reasonable directions of a police officer, the Magistrate recognised that it was an element of that offence that the prosecution must prove beyond a reasonable doubt that the appellant had been the driver of the Jeep on Kosciusko Avenue when it was driven from the scene of the collision to the point where it was located. The Magistrate said that based upon the evidence he was so satisfied. The Magistrate expanded on his finding (at Transcript, 18 December 2023, page 29):
As I said, it is clear that [Mr K] saw someone driving away with the tyres screeching. Ms Darley hears the tyres screeching, is watching out of her window, sees the defendant’s car, observes that car, observes no-one else around, observes the person get out of the car. Police arrive shortly after. She sees the person get out of the car and start walking down the road.
In combination with the fact that it is the defendant’s car, and as I say, the ordinary course is that the owner of the car would be the one who drives it, it leaves insufficient time for – to put it the other way, if it was not the defendant who got out of the car, there would be insufficient time for him to have walked somewhere else and for someone to take his spot before police arrived.
In my view, the unavoidable conclusion from the chronology of events and the timing of events is that he must have been the defendant whom Ms Darley observed as having driven from [Mr K]’s place to the front of hers and whom the police saw on the street once they arrived. The consequence of that conclusion is that the elements of the second defence are also made out …
Appeal Ground 1: The Magistrate erred in finding Constable Adam Frick held a “reasonable cause to suspect” pursuant to Div 2.2 of the RTAD Act.
46․The driving of the Jeep alleged by the prosecution with regard to the charges is the driving from the scene of the collision with the Unit to the point on Kosciusko Avenue where the Jeep was located in front of Ms Darley’s home. This was made clear in the opening address of the prosecutor in the proceeding before the Magistrate where he said (at Transcript, 2 November 2023, pages 4-5):
Your Honour will also receive into evidence body-worn camera footage of several police officers, photographs, not only of the vehicle but also have significant damage occasioned to a house, at 190 Kosciusko Avenue, and the prosecution case will lead evidence, primarily from [Mr K], who was the occupant of that house, as to his observations when he heard the collision occur at his address and his observations of the vehicle which caused the damage and the subsequent movement of that vehicle. And the prosecution case being the vehicle being driven by the defendant, from the point that [Mr K] was able to make those observations.
(Emphasis added.)
47․There are two provisions of the RTAD Act which may apply in the present circumstances to give police the authority to require the appellant to provide a sample of his breath for a breath screening. These are ss 8 and 9 of the RTAD Act. These sections relevantly provide:
8 Power to require alcohol screening test if vehicle not involved in accident––driver and driver trainer
(1)A police officer may require a person to undergo 1 or more alcohol screening tests in accordance with the directions of that officer if—
(a)the person is––
(i) the driver of a motor vehicle on a road or road related area; or
(ii) the driver trainer in a motor vehicle on a road or road related area; or
(b)the police officer has reasonable cause to suspect that, shortly before the requirement is made, the person was––
(i) the driver of a motor vehicle on a road or road related area; or
(ii) the driver trainer in a motor vehicle on a road or road related area.
…
9 Power to require alcohol screening test if vehicle involved in accident––driver
(1)If a motor vehicle is involved in an accident on a road or road related area, a police officer may require a person to undergo 1 or more alcohol screening tests in accordance with the directions of that officer—
(a)if the police officer has reasonable cause to suspect that the person was the driver of the motor vehicle at the time of the accident; or
(b)if—
(i) the police officer does not know or has doubt as to who was the driver of the motor vehicle at the time of the accident; and
(ii) the police officer has reasonable cause to suspect that the person was in the vehicle at the time of the accident.
…
48․It is clear from the terms of these provisions that s 8, relevantly for present purposes, provides a power to a police officer to require a person to undergo an alcohol screening test in circumstances where the vehicle allegedly driven has not been involved in an accident if the person falls within one of the following two categories:
(a)the person is the driver of a motor vehicle on a road or road related area; or
(b)the police officer requiring the person to undergo an alcohol screening test has reasonable cause to suspect that, shortly before the requirement is made, the person was the driver of a motor vehicle on a road or road related area.
49․On the other hand, the provisions of s 9 only apply if a motor vehicle is involved in an accident on a road or road related area. The provisions of s 9 authorise a police officer to require a person to undergo an alcohol screening test where:
(a)the police officer has reasonable cause to suspect that the person was the driver of the motor vehicle at the time of the accident; or
(b)the police officer has reasonable cause to suspect that the person was in the vehicle at the time of the accident and the police officer either does not know or has doubt as to who was the driver of the motor vehicle at the time of the accident.
50․On the evidence before the Magistrate, there was only one “accident”. This was when the Jeep collided with the wall of the Unit. On the evidence, there would be a live issue whether this accident occurred on a road or road related area. This is because it may be inferred that the collision with the wall of the Unit occurred on the property of the units complex. In my opinion, where the prosecution case is based upon alleged driving of the Jeep from the scene of the accident to the point where it was located on Kosciusko Avenue in front of Ms Darley’s home there can be no doubt that the only power available to the police to require the appellant to undergo an alcohol screening test was that contained within s 8 of the RTAD Act, as it is not alleged that any accident occurred in the course of that journey.
51․As was recognised by the Magistrate, the question to be resolved was whether the police officer who required the appellant to undergo an alcohol screening test had reasonable cause to suspect that, shortly before the requirement was made, the appellant was the driver of the Jeep on Kosciusko Avenue. Before the Magistrate, the appellant submitted that the material available to Constable Frick would not, as a matter of law, permit him to have reasonable cause to suspect that the appellant was the driver of the Jeep on Kosciusko Avenue.
52․The relevant law is not in dispute. It was accepted by both parties that the law applicable to determining whether the evidence permitted Constable Frick to have reasonable cause to suspect that the appellant was the driver of the Jeep on Kosciusko Avenue was explained by Loukas-Karlson J in Tran v Stapleton [2021] ACTSC 1 (albeit with regard to the provisions of s 13A of the RTDA Act regarding the power to require a person to undergo a drug screening test):
[48] Section 13A(3) permits a police officer to effectively detain a person if a drug screening device is not immediately available and the officer has “reasonable cause to suspect that the person has a drug in the person’s body”. This is the power purported to have been used by the officers on 22 April 2019 in relation to the appellant.
[49] The full bench of the High Court in George v Rockett (1990) 170 CLR 104 stated at 112:
When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
[50] In Hyder v Commonwealth of Australia [2012] NSWCA 336 at [15], McColl JA (Hoeben JA agreeing) outlined the following propositions in relation to reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind. These statements of principle are similarly relevant in the present case, in relation so s 13A:
(1) When a statute prescribes that there must be "reasonable grounds" for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (at 112);
(2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified in s 3W (the "arresting officer"); the arresting officer may not "discharge the ... duty [of forming the relevant opinion] parrot-like, upon the bald assertion of the informant": George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J;
(3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that "[t]he arresting officer is held accountable ... [and] is the compromise between the values of individual liberty and public order": O'Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing);
(4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn;
(5) "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof": George v Rockett (at 116);
(6) "Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture": George v Rockett (at 116);
(7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O'Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope;
(8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O'Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is "[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?": Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J;
(9) "The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist": New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 (at [134] - [135]), per McClellan CJ at CL. Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL's conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319;
(10) In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words "may arrest without warrant" conferred on a public official "an executive discretion" whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That aspect of Lord Diplock's reasoning was applied in Zaravinos v State of New South Wales (at [28]) where Bryson JA (Santow JA and Adams J agreeing) held that that the validity of an exercise of the statutory power to arrest, in that case under s 352(2) of the Crimes Act 1900 (which provided that "[a]ny constable or other person may without warrant apprehend"), was "not established conclusively by showing that the circumstances in s 352(2)(a) exist[ed], and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word 'may' "; see also Bales v Parmeter (1935) 35 SR (NSW) 182 (at 188) per Jordan CJ. Holgate-Mohammed v Duke has not been followed in Australia to the extent that Lord Diplock held that an arrest for the purpose of asking questions was lawful: see Zaravinos v State of New South Wales (at [31] - [33]); Williams v The Queen (at 299) per Mason and Brennan JJ.
(Emphasis added.)
[51] In Azar v DPP [2014] NSWSC 132; 239 A Crim R 75 at [27], Adamson J considered the difference between a suspicion and a belief, stating:
… suspicion is more than a possibility and less than a belief. Reasonable grounds for suspicion can include information that the officer concerned has been told by another officer. It can include material of a hearsay nature.
(Emphasis added.)
[52] What is important is the information in the mind of the police officer at the time of stopping the vehicle. Having ascertained the information, the question is whether that information afforded a reasonable ground or cause for the suspicion which the police officer formed. In answering the question, regard must be had to the source of the information and its content which is seen in light of the whole of the surrounding circumstances: R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 at [53].
53․What information was known to Constable Frick, or was reasonably capable of being known to him, at the time that he required the appellant to undergo the alcohol screening test, and which was relevant to the issue of whether the appellant had been the driver of the Jeep on Kosciusko Avenue? That information consisted of:
(a)the unidentified male witness who spoke to Constable Frick upon his arrival at the scene at Kosciusko Avenue who said to him words to the effect of “[t]he car’s down there and the guy’s down there, the one who drove the car. The driver down there with the car, he hasn’t left, he’s just hanging around down there”;
(b)the appellant was located in close proximity to the Jeep at that time;
(c)there was no one else located in close proximity to the Jeep;
(d)the appellant confirmed that the Jeep was his;
(e)the appellant is of Sudanese appearance, and other males of Sudanese appearance had been observed in the vicinity of the accident scene when police initially arrived;
(f)the person who drove the Jeep away from the scene of the accident was described as of Sudanese appearance;
(g)a number of males of Sudanese appearance were observed by Mr K in the Jeep at the scene of the accident immediately after it occurred;
(h)a number of males of Sudanese appearance were gathered in or around another unit at 190 Kosciusko Avenue at or about the time of the accident and onwards;
(i)some males have been seen running from the scene of the accident; and
(j)the appellant denied being the driver.
54․Some of this information potentially implicates the appellant as the driver of the Jeep on Kosciusko Avenue, and some of it is consistent with some other person having been the driver of the Jeep. The weight to be attributed by Constable Frick to each of these pieces of information at the time he required the appellant to undergo the breath screening test is something courts should be reluctant to critically address in hindsight. None of the pieces of information were obviously outlandish or capable of being dismissed out of hand. A consequence of this is that there was, on the information available to Constable Frick, a possibility that the appellant had been the driver and a possibility that someone else had been the driver.
55․The terms of s 8 of the RTAD Act, unsurprisingly, did not require Constable Frick to resolve this impasse. Police who attended the scene at Kosciusko Avenue were there to investigate the driving of the Jeep. It was no part of their function to determine which inference that could be drawn from the available information was the most likely, let alone which was, in fact, correct. The terms of s 8 of the RTAD Act do not require a police officer to be satisfied that a person was the driver of a motor vehicle as a precondition to the police officer requiring the person to undergo a breath screening test. What the RTAD Act requires is that the police officer has reasonable cause to suspect that the person was the driver of a vehicle.
56․Police cannot reasonably be expected to resolve conflicting pieces of information at the scene of an investigation such as that which was being conducted on Kosciusko Avenue on the night of 24 February 2023. That is, I would suggest, one reason why the legislature did not make it an element of the offence under s 22C of the RTAD Act that the prosecution prove that an accused person was the driver of a motor vehicle. This may be contrasted with the offence created by s 22(d) which does require proof of that fact. The legislative intention was to allow police to preserve evidence of a potential offence by authorising a police officer to require a person to undergo an alcohol screening test so long as there was reasonable cause to suspect that the person had been the driver of a motor vehicle.
57․It is not necessary for police to identify a single individual regarding whom there is reasonable cause to suspect that he or she had been the driver of a motor vehicle before police are authorised to require a person to undergo an alcohol screening test. For example, if police identified three persons as having been in a motor vehicle at a time and that it was driven on a public road, but are unable to determine which of the three was the driver, police would be entitled to require all three to undergo an alcohol breath screening test on the basis that there was evidence that all of them had been in the vehicle at the time that it was driven on the public road. This enables potential evidence to the secured whilst enquiries continue to ascertain who had been the driver.
58․In his written submissions, the appellant advanced the proposition that Constable Frick should have obtained further information from his colleagues and from witnesses before making a decision to require the appellant to undergo an alcohol breath screening test. It was submitted:
Had Constable Frick done so, it would have been apparent to him that multiple other males fitting the appellant’s description were in or near the vehicle when it crashed. In those circumstances, an objective observer acting fairly and in a detached manner would have formed the view that whilst it is possible that the appellant was driving or a passenger in the vehicle, the available information did not elevate that possibility to the level of reasonable suspicion.
59․One of the difficulties with this submission is that it introduces a term into the analysis which is not found in s 8 of the RTAD Act and invites a comparison between the term not found in the provision and that which is. The concept of the “possibility” of a person having been the driver of a motor vehicle is not one found in s 8. Having introduced this concept, the appellant then invites comparison between the possibility that the person had been the driver and a reasonable suspicion that the person had been the driver. This is not a useful analysis.
60․It is not to the point that there was information available to Constable Frick supporting the possibility that someone other than the appellant had been the driver of the Jeep. Accepting for the purpose of argument that the information that a number of males of Sudanese appearance were seen in or around the Jeep at the time of the accident to be accurate, if all such males had remained at the scene until police arrived, or had been apprehended by police as they fled the scene, it cannot be doubted that police would have been entitled to require all of them to undergo alcohol breath screening tests. The fact that there was information supporting the possibility that someone other than the appellant had been the driver of the Jeep does not mean that Constable Frick could not form a reasonable suspicion that the appellant had been the driver of the Jeep.
61․In my opinion, it was clearly open to Constable Frick to form a reasonable suspicion that the appellant was the driver of the Jeep on Kosciusko Avenue from the point where it collided with the wall of the Unit to the point where it was located outside Ms Darley’s residence. This finding is sufficient to dispose of Ground 1 of the appeal.
Ground 2: The Magistrate erred in finding the appellant drove a motor vehicle on a road or road related area at the relevant time.
Ground 3: The verdicts are unsafe and unreasonable and cannot be supported having regard to the evidence.
62․It is convenient to consider these grounds together. It is not clear whether Ground 3 is intended to apply only to the verdict on the charge of refusing to supply a sample of breath for breath analysis (CAN 2052/2023) or to the verdicts on both charges. Ground 3 as pleaded refers to “verdicts” whereas the written submissions filed by the appellant refers to only the verdict on charge CAN 2052/2023 as being unreasonable. I will proceed on the basis that this Ground is intended to apply to both verdicts.
63․The law governing a determination whether a verdict is unreasonable is not in dispute. It was authoritatively stated in M v The Queen [1994] HCA 63; 181 CLR 487 at pages 492 to 495:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe”, or “dangerous or unsafe”. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s. 6(1) [of the Criminal Appeal Act 1912 (NSW)]. The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v. The King [ [1919] HCA 45; 27 CLR 13 at 23], Isaacs J. said:
“If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.And as the Court observed in Davies and Cody v. The King [ [1937] HCA 27; 57 CLR 170 at 180], the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:
"not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled."
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
It was with those considerations in mind that some members of this Court have thought it necessary to qualify the statement by Barwick C.J. in Ratten v. The Queen that: "It is the reasonable doubt in the mind of the court which is the operative factor.” Barwick C.J. went on to say:
"It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court’s mind upon its review and assessment of the evidence which is the operative consideration.”
The qualification was that no circumlocution was involved in speaking of a doubt which a reasonable jury ought to have entertained because account must be taken of the advantage which a jury has in seeing and hearing the witnesses. To ask only whether the court has a doubt may place insufficient emphasis upon the fact the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
But it is, we think, possible to make too much both of the view expressed by Barwick C.J. and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.
(Emphasis added.)
(Citations omitted.)
64․It must be recollected that the above extract relates to appeals from a jury verdict. The present appeal is from the decision of a Magistrate and is, as discussed earlier, a rehearing. In the present proceeding error on the part of the Magistrate must be demonstrated.
65․One could quibble with the statement made by the Magistrate that he did not find the information provided to police by the unidentified male to be “unreliable” but, in context, it is clear that his Honour was stating that there was nothing in the evidence which would, or should, have caused Constable Frick to dismiss that information as unreliable. I agree.
66․I cannot endorse the Magistrate’s reasoning that it is the “ordinary experience of people” that if someone is the owner of a vehicle, they will ordinarily be the driver if there is a group of people who may potentially be the driver at a particular time. All that can rationally be said, for present purposes, is that the fact that a person, who is one of a number of people who could have been the driver of a vehicle at a particular time, was the owner of the vehicle is a relevant circumstance in determining whether it is open to a police officer to form a reasonable suspicion that he or she was the driver of the vehicle. This error of reasoning, however, was not critical to the Magistrate’s finding that Constable Frick had reasonable cause to suspect that the appellant was the driver of the Jeep on Kosciusko Avenue.
67․Having conducted a review of the evidence there is nothing which establishes that the Magistrate made an error of law or fact or a material error of reasoning when concluding that the appellant was guilty of the charge of refusing to undergo an alcohol screening test. As such, Ground 3 fails with regard to that charge.
68․The situation regarding the charge of failing or refusing to provide a sample of breath for breath analysis is different. The reasons delivered by the Magistrate for finding this offence proved are set out at [45] above and may be summarised as:
(a)The appellant was the owner of the Jeep and would ordinarily be expected to be the person who drives it.
(b)The chronology of events from the time that the Jeep was seen to drive from the scene of the accident to the point when police arrived and observed the appellant in the vicinity of the Jeep did not permit any inference other than that the appellant was the driver.
69․It appears reasonably clear that in saying, “the ordinary course is that the owner of the car would be the one who drives it” at [45] above, the Magistrate was harking back to his Honour’s earlier observation that it is the “ordinary experience of people” that if someone is the owner of a vehicle, they will ordinarily be the driver if there is a group of people who may potentially be the driver at a particular time. While the fact that the appellant was the owner of the Jeep was a circumstance which the Magistrate was entitled to take into account in determining whether the prosecution had established to the required standard that the appellant was the driver, it was not open to his Honour to reason from that fact alone that the appellant had been the driver. It may well be that his Honour did not do so.
70․In circumstances where there was evidence that a number of males of similar appearance to the appellant had been seen in or around the Jeep immediately after the collision, and that the appellant appeared to be intoxicated when spoken to by police a short time later, the fact that the appellant was the owner of the vehicle could carry little weight in proving that he had been the driver of the Jeep. It is not unusual for persons too intoxicated to drive safely to permit sober persons to drive their vehicle.
71․The case placed before the Magistrate was circumstantial. No witness who gave evidence in the proceeding purported to identify the appellant as the driver of the Jeep. The Magistrate was asked to infer the guilt of the appellant from the evidence of the circumstances surrounding the driving of the Jeep and the observations of the witnesses. It may well be that in saying, “the ordinary course is that the owner of the car would be the one who drives it” the Magistrate was simply acknowledging that the circumstance that the appellant was the owner of the Jeep was relevant and needed to be considered with the other circumstances in order to determine whether it had been proven to the requisite standard that the appellant was the driver.
72․The Magistrate correctly stated that in a circumstantial case, the guilt of the accused could not be inferred unless that inference was the only reasonable or rational inference consistent with the evidence. It must be accepted that the fact that the appellant was the owner of the Jeep was a circumstance relevant to drawing the inference urged by the prosecution.
73․The second circumstance identified by the Magistrate as permitting the inference to be drawn that the appellant was the driver of the Jeep was the timeline of relevant events as revealed by the evidence. The Magistrate recited aspects of the evidence but did not specifically make findings of fact, so I will review the evidence of the relevant timeline.
74․Mr K said that the collision occurred sometime between 10pm and 11pm “approximately”. He went to the front of his unit and saw the Jeep in his dining room. The Jeep was inside his unit for less than three minutes before it reversed out of the Unit. The Jeep stopped outside the Unit and he had a short conversation with the person who reversed the Jeep out of the Unit.
75․From the point where Mr K followed the Jeep out of the Unit to the time that the Jeep then drove off, no more than three minutes elapsed on Mr K’s evidence. At the end of the conversation between Mr K and the driver of the Jeep, Mr K went back into his unit to get his phone and called police, returning back outside in “a minute”. Once back outside the Unit, the Jeep was still outside the hole in the wall of the Unit. The Jeep then drove out of the driveway and turned left onto Kosciusko Avenue and Mr K could hear its engine roaring and tyres squealing.
76․Mr K stated that police arrived within a couple of minutes of the Jeep driving onto Kosciusko Avenue.
77․It was accepted by both the prosecution and defence in the proceeding before the Magistrate that Mr K was an unreliable witness. In his reasons for finding the offences proved, the Magistrate also found that he was an unreliable witness. Constable Simms said that he received a radio transmission about this incident “about 10:22pm”. There was no clear evidence of the time of police arrival at 190 Kosciusko Avenue, but the Magistrate said that “a notebook suggested they arrived at 10:30pm”. This suggests that a period of about 8 minutes elapsed between Mr K telephoning police and police arrival at the scene.
78․There was some confusing evidence about the time that police arrived at the scene. Constable Smith testified that she arrived at the scene with another officer (who was not called to give evidence) at 10:22pm and saw other police already speaking to the appellant. This seems difficult to reconcile with the evidence of Constable Simms that he received the radio transmission at 10:20pm. Constable Smith later referred to an entry in her notebook that she arrived at the scene at 10:30pm. This is probably the notebook entry referred to by the Magistrate.
79․Ms Darley gave evidence that she heard “loud screeching”, like someone doing burnouts on Kosciusko Avenue for about 10 minutes. This grew to the point where she went to the front of her residence and saw the Jeep already stationary in front of her residence. If the “loud screeching” heard by Ms Darley was the squealing of the Jeep’s tyres as it left 190 Kosciusko Avenue as described by Mr K, this would suggest a longer period between the Jeep leaving 190 Kosciusko Avenue and the arrival of the police than was suggested by Mr K. This may indicate that Mr K’s evidence as to when he called police was inaccurate.
80․When Ms Darley gave evidence that, “I saw a white vehicle that has stopped in front of my house, with brake lights on, and no one had come out of the vehicle for about five minutes”, I do not understand her to be speculating about what had happened in the five minutes before she began to observe the vehicle. I understand her evidence to be that no one got out of the vehicle for a period of five minutes after she commenced observing it. This was confirmed later in her evidence in chief.
81․Ms Darley said that the person that got out of the vehicle walked away from it. She was able to continue to observe that person for about 20 or 30 seconds before losing sight of him. She believed that it was “probably around two minutes, or less than” until police arrived. Ms Darley said “there wasn’t too much” lighting in the area where the white vehicle was parked. When the prosecutor brought to her attention that other evidence had been led in the proceedings that a male person was at the car when police arrived, Ms Darley said that she didn’t see a man at that time.
82․In cross-examination, Ms Darley agreed that when interviewed by police on 24 February 2023 she told them that the period which elapsed between the man walking away from the vehicle to the arrival of police was “about five minutes”.
83․It is obvious that the evidence of times that events occurred and the duration of events given by the various witnesses was potentially unreliable. It is also obvious that the evidence of Ms Darley permits of the possibility of the appellant not being the driver of the Jeep from the point of the collision to the place where it was parked outside her residence but having approached the vehicle as, or after, the driver left the scene. On Ms Darley’s recollection on the day that the incident occurred, a period of about five minutes elapsed between the occupant of the Jeep (inferentially the driver) walking away from the Jeep and police arriving and finding the appellant near the Jeep.
84․It is clear from the police evidence that the appellant was near the Jeep when they arrived. As such, the fact that Ms Darley did not see him approach is not significant. Ms Darley was either wrong about seeing the driver walk off, if it is to be supposed that the appellant was the driver, or she failed to see the appellant approach the Jeep and await police arrival.
85․In order to convict the appellant of the charge of failing or refusing to supply a sample of breath for breath analysis, the prosecution was required to prove beyond reasonable doubt that he had been the driver of the Jeep on Kosciusko Avenue when it was driven from the point of the collision at 190 Kosciusko Avenue the short distance to where it was located in front of Ms Darley’s residence. The prosecution case was circumstantial, meaning that the prosecution were obliged to establish that there was no reasonable hypothesis available on the evidence other than the guilt of the appellant.
86․The evidence clearly could not preclude the possibility that the appellant had been one of the passengers in the Jeep who had initially fled when it collided with the wall of Mr K’s unit but subsequently returned because the Jeep was his vehicle. Alternatively, a reasonable possibility existed that the appellant had loaned the Jeep to someone else and was one of the males of Sudanese appearance in the other unit when the Jeep collided with the wall of the Unit and was then driven by the person to whom it was loaned, or another occupant of the vehicle at the time of the collision, to the point where it was parked outside Ms Darley’s residence.
87․It simply was not open on the evidence for the Magistrate to be satisfied beyond reasonable doubt that the appellant was the driver of the Jeep. A clear window of opportunity existed in the period between Ms Darley seeing the male walk away from the Jeep and the police arrival for the appellant, not having been the person observed by Ms Darley to walk away from the Jeep, to have arrived at the Jeep and been found there by police when they arrived.
88․I am satisfied that the appellant’s appeal on charge CAN 2052/2023 must be upheld on this ground.
Ground 4: The Australian Federal Police acted incompatibly with, and failed to give proper consideration to, the appellant’s human rights at ss 21 and 22(b) of the HRA in failing to make full disclosure to the appellant which deprived him of the right to a fair trial.
Ground 5: The breach of the duty of disclosure occasioned a miscarriage of justice.
89․It is accepted by the respondent that there was a failure to make proper disclosure of all relevant material to the appellant prior to his trial in the Magistrates Court. Of significance, the material which was not disclosed to the defence included body worn camera footage from that evening from four of the police officers who attended the scene on Kosciusko Avenue on 24 February 2023. It may be accepted that the appellant by reason of this failure lost the opportunity to identify persons depicted in the footage and to request that the police interview those persons regarding their knowledge of who was driving the Jeep, or, alternatively, to conduct his own investigations.
90․On 7 May 2025, the High Court delivered judgment in Brawn v The King [2025] HCA 20 which involved an alleged miscarriage of justice in a jury trial due to a prosecution failure to disclose relevant material to the defence before trial. The Court summarised the relevant principles at [3]:
[W]here it has been shown that there was an error or irregularity in a criminal trial, such as the breach of the prosecution’s duty of disclosure that occurred in this case, then to establish a miscarriage of justice it must be shown that the error or irregularity was material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to its verdict.
91․Accepting that the same principles apply, mutatis mutandis, in a summary trial before a Magistrate, a miscarriage of justice will arise from a breach of the prosecution’s duty of disclosure where that breach could realistically have affected the reasoning of the Magistrate as the tribunal of fact.
92․I am satisfied that the prosecution’s breach of its duty of disclosure in the present case was not material to the finding of guilt by the Magistrate with regard to the charge CAN 2051/2023. Any enquiries or investigations that may have been possible had the prosecution complied with its duty of disclosure could not be relevant to determining whether Constable Frick had reasonable cause to suspect that the appellant had been the driver of the Jeep on 24 February 2023.
93․It is unnecessary to consider whether the prosecution’s breach of its duty of disclosure would have resulted in a miscarriage of justice on charge CAN 2052/2023 had it been open to the Magistrate, on the evidence before his Honour, to find that offence proven. The evidence was not sufficient to permit the Magistrate to find the offence proven, so that the question of miscarriage of justice by reason of the prosecution’s breach of its duty of disclosure is academic.
94․It is inappropriate to make the declarations sought by the appellant under the HRA in the light of the public acknowledgement by the respondent that the prosecution had breached its duty of disclosure.
Orders
95․For those reasons the following orders are made:
(1)The appellant’s appeal on charge CAN 2051/2023 is dismissed.
(2)The appellant’s appeal on charge CAN 2052/2023 is upheld. The finding of guilt made by the Magistrate is set aside and a verdict of acquittal is entered on the charge.
(3)The result of this appeal may raise questions as to whether costs should be awarded either regarding this appeal or regarding the proceedings in the Magistrates Court. Unless either party makes an application for a different costs order within 21 days of delivery of this decision, I will order that there be no order as to costs in each proceeding.
| I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Burns Associate: Date: 22 July 2025 |
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