CONDOS v Police - [2012] SASC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CONDOS v POLICE
[2012] SASC 86
Judgment of The Honourable Justice White
31 May 2012
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - OTHER MATTERS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - SUFFICIENCY
TRAFFIC LAW - OFFENCES - GENERALLY
Appeal against conviction for misusing a motor vehicle by driving it in a public place so as to cause engine and tyre noise which was likely to disturb nearby residents.
Whether conviction was against the weight of the evidence - whether the Magistrate reversed the onus of proof.
Held, dismissing the appeal: the Magistrate's decision did not involve an error of law - his findings were not glaringly improbable or inconsistent with incontrovertible facts and he did not reverse the onuse of proof.
Road Traffic Act 1961 (SA) s 44B(3), referred to.
Fox v Percy (2003) 214 CLR 118; Browne v Dunn (1893) 6 R 67, considered.

CONDOS v POLICE
[2012] SASC 86
Magistrates Appeal

WHITE J. The appellant was found guilty by a Magistrate of the offence of misusing a motor vehicle by driving it in a public place so as to cause engine and tyre noise which was likely to disturb nearby residents.[1] He appeals against his conviction, contending that the Magistrate’s finding was against the weight of the evidence. In addition he contends that the Magistrate’s reasons disclose an unwitting reversal of the onus of proof.
[1] Contrary to s 44B(3) of the Road Traffic Act 1961.
The prosecution case was that at about 10.00 pm on 9 June 2011, the appellant had driven his V8 Holden Statesman on Irene Avenue at Fulham Gardens. As he did so, he revved the motor excessively, causing a loud noise. In addition he caused a sustained spinning and screeching of the car’s wheels and the car itself to fishtail.
There were two prosecution witnesses (both police officers) and two defence witnesses, including the appellant. In addition, the Magistrate had the benefit of a view at the location of the alleged offence, albeit during daylight hours.
The police officers’ evidence was to the following effect. They were on The Parkway at Fulham Gardens, approximately 20 metres from its junction with Irene Avenue. They had taken steps not to make their presence apparent. One officer, Constable Boyes, was standing outside his vehicle. The other, Snr Constable Mitchell, was in the driver’s seat of a second police vehicle. Constable Boyes said he could see two cars (one dark and one light in colour) in the carpark of the Caltex Service Station to the southeast of their position. Both police officers thought that the service station carpark was about 100 metres from their position but the Magistrate found that they were mistaken in that respect, as the distance was more like 160 metres.
Constable Boyse saw the light coloured car exit the carpark in a northerly direction. The dark coloured car then drove out of the service station carpark and turned left on to Irene Avenue. It travelled on Irene Avenue towards the position of the two police officers.
Both police officers said they heard the vehicle revving excessively and the screeching sound of tyres made by spinning wheels, and that they saw smoke and the vehicle fishtailing. Snr Constable Mitchell followed the vehicle and stopped it. The appellant was the driver of the vehicle.
The appellant agreed that he had exited the service station at about 10.00 pm and that he had driven northeast on Irene Avenue. He denied, however, that there had been anything untoward about his driving. The appellant acknowledged that his car was loud but denied any revving, screeching, wheel spinning or fishtailing. His passenger, Mr Dimasi, gave evidence to similar effect.
A significant issue in the trial was the ability of the two police officers in their position to see a vehicle exiting from the carpark. A clear and unobstructed view was not possible because of a line of trees on the northeast side of that portion of Irene Avenue between The Parkway and the service station. The line of trees has some breaks in it and not all trees were of the same size and shape. The photographs tendered at trial suggest that the trees were of three different species. Some appear to be evergreen, although that may not be true of all. The Magistrate did not make a finding on that topic. I note that Constable Boyse, whose evidence the Magistrate generally accepted, said at the trial in March 2012 “at that time of year it was June and so the trees weren’t as much in bloom as they are now”.
Relying both on the evidence which he received at trial and his observations on the view, the Magistrate concluded that a vehicle exiting the service station carpark in the manner of the appellant was visible to a person standing in the position which Constable Boyse described. The Magistrate also found that the breaks in the lines of trees allowed the police to maintain a view of such a vehicle as it travelled in a northeast direction on Irene Avenue towards the police vehicle. It was possible, the Magistrate found, for persons in the position of the police officers to be able to say confidently that they had observed a car’s passage down Irene Avenue towards them.
There is no basis upon which this Court could, on appeal, interfere with these findings.
The Magistrate considered that each of the police officers had given his evidence in a satisfactory manner and considered that each was doing his best to give an honest account. He regarded their evidence as truthful.
On the other hand, the Magistrate considered that the manner in which the appellant had given his evidence was not persuasive and that he was not a convincing witness. The Magistrate also referred to the apparent discomfort of Mr Dimasi in answering certain questions and considered his evidence to be “unconvincing in a general sense”. He rejected relevant aspects of the appellant’s and Mr Dimasi’s evidence as being untrue.
On the appeal, the Court is required to conduct a real review of the evidence, making due allowance for the advantages of the Magistrate in seeing and hearing the evidence given. If there are incontrovertible facts or uncontested testimony or the Magistrate’s conclusion is glaringly improbable, the Court will intervene and substitute its own judgment. Similarly, if the question is one of inferences to be drawn from facts found or from evidence accepted by the Magistrate, this Court can substitute its decision if it comes to a different conclusion as to the correct inferences to be drawn.
I have reviewed the entire transcript of the evidence at trial. I recognise that I do not have the advantage of the view undertaken by the Magistrate, nor the Magistrate’s advantage in seeing and hearing the witnesses. These are important considerations.
The appellant’s counsel emphasised the mistaken estimate by the police officers of their distance from the service station carpark. Like the Magistrate, I do not regard this matter as being particularly significant. Neither police officer had measured the distance and the evidence of each was an estimate only. In the experience of the courts, estimates of this kind are commonly inaccurate. The important consideration, however, is that even at a distance of approximately 160 metres, it was still possible for the police officers, and in particular Constable Boyse, to observe the exit of the appellant’s vehicle from the carpark and its passage down Irene Avenue.
There is no basis on which this Court could interfere with the Magistrate’s conclusion that there were a sufficient number of gaps in the line of trees to allow the police to observe the movement of the appellant’s car on Irene Avenue. The tendered photographs confirm the existence of these gaps. I note that the photographs were taken in March 2012 when it is to be expected that there would be more foliage than existed in June 2011.
The appellant tendered a photograph of a portion of Irene Avenue which he said was taken on 10 June, ie, the day following the alleged offence. He contended that it does not show any tyre marks of the kind which one would expect if he had driven in the manner alleged by the police. It was said that this was an item of incontrovertible evidence which was inconsistent with the prosecution case. The appellant also noted that the prosecution had not produced any photographs taken contemporaneously which may have confirmed the presence of skid marks.
As I understand the Magistrate’s ex tempore reasons, he accepted that the photograph had been taken on 10 June 2011. However, the Magistrate regarded the photograph as equivocal, saying that it was not possible to say that skid marks on the road were visible but, on the other hand, saying that he was unable to conclude from the photograph that there were no skid marks.
I have examined this photograph myself. In my opinion, it is not possible to discern any “fishtailing” skid marks in the photograph. However, there are other marks which are consistent with those of the kind commonly seen from spinning car tyres. One cannot be certain that the marks are of that kind because they may also be attributable to dampness on the road’s surface. Shadows from the adjacent trees also make it difficult to discern the nature of all the marks on the road.
For these reasons, I do not think that the photograph can be characterised as a piece of objective evidence which was inconsistent with the Magistrate’s findings. In particular, although one cannot be certain about this, there are some marks which do appear to be marks of the kind left by spinning tyres.
In relation to the submission that the Magistrate had reversed the onus of proof, the appellant relied upon a number of aspects of the Magistrate’s reasons. First, the Magistrate commented twice that Mr Dimasi had declined to give a statement to the police on the night of 9 June 2012.
Secondly, the Magistrate referred to the appellant’s evidence that he left the service station carpark intending to drive a loop, ie, along Irene Avenue, into Bruce Street, into Caroline Drive, and then back to the service station. The Magistrate noted that the appellant had not given any explanation for the performance of a loop, saying that he found its absence “surprising”. Counsel for the appellant contended that there was no requirement for the appellant to provide any explanation unless he was asked, and he had not been.
Next, counsel referred to the Magistrate’s statement concerning the appellant’s evidence:
There was a certain simplicity about his evidence in that he denied the salient points of the prosecution case, which left me unable to assess his evidence by reference to any great extent to matters of detail, but I did not find him to be a convincing witness.
Counsel submitted that this passage in particular indicated the subtle reversal of the onus of proof by the Magistrate in that he had required the appellant to adduce sufficient evidence or sufficient detail to allow his evidence to be assessed.
I have considered these aspects of the reasons closely. I am not satisfied that the Magistrate attached any significance to the fact that Mr Dimasi had declined to give a statement to the police on 9 June 2011. The first reference to Mr Dimasi declining to give a statement appears in the Magistrate’s narrative summary of Snr Constable Mitchell’s evidence, and the second by way of linking Mr Dimasi to the passenger in the appellant’s car to whom Snr Constable Mitchell had spoken. In any event, it is clear that there was some antagonism between the appellant and Mr Dimasi, on the one hand, and the two police officers when Snr Constable Mitchell stopped the appellant’s car. The appellant had immediately protested his innocence of the conduct alleged by the police and, in the context of the antagonism, it is quite understandable that Mr Dimasi did not wish to give a formal statement to the police. In any event, he was under no obligation to do so. It is reasonable to infer that the Magistrate took account of those matters.
It can be inferred from the Magistrate’s reference to the appellant’s intention to perform a loop that he was alert to the possibility that the appellant was engaging in some form of otherwise aimless driving for the purpose of showing off or “hooning”. The police evidence was that Irene Avenue was a well‑known location for this kind of driving and, indeed, that was the reason for their presence.
On one reading of the Magistrate’s reasons, they can be understood as indicating a view that the appellant had to justify his conduct. However, I do not consider that that is an appropriate view. I consider that the Magistrate is instead conveying some surprise that this was not a line of cross‑examination pursued by the prosecutor. It is not readily to be supposed that the Magistrate would draw an adverse inference against the appellant on a matter which had not been the subject of cross‑examination.
I do not regard the third passage upon which the appellant relied as indicating an unconscious reversal of the onus of proof. Such a reversal would be surprising as the Magistrate referred twice to the requirement that he be satisfied of the prosecution case beyond reasonable doubt. These references should not be understood as mere statements of lip service. Further, on my understanding of the passage to which counsel referred, it is part of the Magistrate’s explanation of the context in which he had considered the appellant’s evidence. That is to say, the Magistrate was endeavouring to assess the appellant’s evidence by reference to the other evidence which he had received in the case.
Counsel for the appellant submitted that the Magistrate’s rejection of the evidence of the appellant and Mr Dimasi seemed to be based very much on their demeanour in the witness box. He referred to the unreliability of such assessments – see, for example, Fox v Percy.[2] Counsel submitted that it was almost inevitable that the appellant and Mr Dimasi, being young men and unused to the court environment, would present less favourably than the older police officers who may be expected to have had some previous experience in giving evidence.
[2] [2003] HCA 22 at [30]-[31]; (2003) 214 CLR 118 at 128-9.
There is force in these submissions but there is no reason to suppose that they were overlooked by the Magistrate. The considerations to which counsel referred are well understood, and the judicial cautions about reliance on demeanour do not mean that it ceases altogether to be a relevant consideration.
There were, in any event, aspects of the appellant’s evidence which were unsatisfactory or implausible. First, he gave an account which allowed for the hypothesis that the police had confused his vehicle with another vehicle immediately preceding his, which exited the service station carpark in the manner described by the police. He described it as a “dark green car”. However, neither police officer had seen such a car. In any event, both the appellant and Mr Dimasi said that the car in front of them had turned right onto Irene Avenue after leaving the service station carpark, whereas they had turned left. Accordingly it is not plausible that the police witnesses confused the appellant’s car with another car as it drove towards them.
Secondly, the appellant said that when stopped by Snr Constable Mitchell, he had taken him to the back tyres of his car and told him to feel them because he knew that they were not hot. He said that Snr Constable Mitchell had refused to feel the tyres. Snr Constable Mitchell, on the other hand, said in his examination in chief that he had felt the back tyres of the appellant’s vehicle and had noted that they were hot, consistent with them having been spun in the way he described.
The appellant’s claim was not put to Snr Constable Mitchell in his cross‑examination, although the appellant was represented by an experienced trial counsel who had, on other topics, been careful to comply with the rule in Browne v Dunn.[3] In this context, the appellant’s account seems improbable and is suggestive of recent invention.
[3] (1893) 6 R 67.
As indicated, I have reviewed the entire evidence in light of the criticisms of the Magistrate’s reasons made by the appellant. I am unable to conclude that the Magistrate’s conclusion is glaringly improbable or inconsistent with incontrovertible facts. The Magistrate had the advantage of seeing and hearing the evidence as it was given as well as making observations on the view. In my opinion, the appellant has not established that the Magistrate’s decision is wrong.
Accordingly, the appeal is dismissed.