D'ANDREA v Police

[2010] SASC 135

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

D'ANDREA v POLICE

[2010] SASC 135

Judgment of The Honourable Justice Kelly

7 May 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

Appeal against conviction and sentence - appellant convicted of one count of driving in a manner dangerous to the public s 46 of the Road Traffic Act 1961 - appellant fined $650 and disqualified from holding a driver’s licence for 14 months - whether the conviction is unsafe and unsatisfactory - whether the offence was proved beyond reasonable doubt - whether the sentence is manifestly excessive.

Held: appeal allowed - Magistrate's reasons inadequate - findings as to credit critical to proper consideration of the charge - no sufficient reasons given why the appellant's evidence rejected - matter remitted to Magistrates Court for retrial.

Road Traffic Act 1961 s 46, referred to.
Papps v Police (2000) 77 SASR 210, applied.

D'ANDREA v POLICE
[2010] SASC 135

Magistrates Appeal:   Criminal

KELLY J:

Introduction

1. After a trial in the Magistrates Court at Port Adelaide the appellant, Kyle Emil D’Andrea was convicted of one count of driving in a manner dangerous to the public contrary to s 46 of the Road Traffic Act 1961.  On 4 March 2010 the Magistrate fined the appellant the sum of $650 and disqualified him from holding or obtaining a driver’s licence for a period of 14 months.

2. The appellant now appeals against both conviction and sentence.  The main ground of appeal is that the conviction is unsafe and unsatisfactory.  The appellant complains that the offence was not proved beyond reasonable doubt by virtue of the fact that the prosecution failed to exclude a reasonable explanation consistent with the appellant’s innocence. 

3. The appellant also complains that the sentence is manifestly excessive. 

   Background

4. Evidence was led from two police officers who claimed to have observed the appellant’s vehicle travelling at a vey fast rate of speed in streets around Brompton.  The police pursued that vehicle for a distance of just under two kilometres around the streets of Brompton.  They lost sight of the vehicle on two occasions, however claimed to have seen the vehicle ultimately slow down and come to a halt in West Street Brompton.  The prosecution also called a civilian witness who observed two young men run from West Street into Third Street, Brompton in the direction of South Road.  About four seconds after his observations two police officers pulled up in West Street. 

5. The appellant gave evidence in his own defence.  He admitted that he had been driving in the general area at about the same time when the police officers made observations of the vehicle being driven at a fast rate of speed, but denied that it was his vehicle that the police had seen in Hawker Street.  He claimed to have been driving in circumstances and via a route which was quite different to the route followed by the police officers in pursuit of the speeding vehicle.  The appellant gave a version of events accounting for why his vehicle was found in the position it was by the police.  That account conflicted with the evidence given by the two police officers both as to the movement of the appellant’s vehicle and the behaviour of the two persons seen running away from the vehicle.  The evidence from the civilian witness who observed the two young men run from West Street into Third Street was broadly supportive of the two police officer’s evidence.  The two police officers claimed to have observed the vehicle later identified as the appellant’s pull up in West Street.  They then saw the silhouette of two people emerging from the vehicle. 

6. As the account given by the police officers was diametrically opposed to the account given by the appellant, the resolution of the issue of credit of the police officers and of the appellant was critical to a proper consideration of the charge.  It was also necessary for the Magistrate to resolve a number of factual issues before he could find the appellant guilty of the offence.

   The Magistrate’s reasons

7. The Magistrate provided reasons in a relatively lengthy document, although the bulk of the Magistrate’s reasons consisted of a recitation by way of summary of each of the prosecution and defence witnesses called at the trial.  There is nothing in that recitation of the evidence which elucidates in any way the Magistrate’s reasoning on any of the critical issues at the trial. 

8. In Papps v Police (2000) 77 SASR 210 this Court discussed the principles which apply in determining whether a magistrate has given adequate reasons in a particular case. As Gray J observed the courts have encountered some difficulty in articulating an appropriate test to determine whether or not reasons are adequate and much must depend upon the circumstances of each case.

9. However, the reasons must be adequate to allow an appellate court to perform its function.  Reasons are inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based or if justice is not seen to have been done.  (See Papps v Police (supra) per Gray J at 218 – 219).

10. Here the Magistrate’s findings of fact went someway to resolving the important factual issues in dispute at the trial.  After noting the improbability that the police officers observed two vehicles within such a confined area travelling at high speed, the Magistrate found beyond reasonable doubt that the vehicle which the police officers followed from Hawker Street was the appellant’s vehicle and that at the material times the appellant was the driver.

11. However, there are only two paragraphs in the judgment where the Magistrate deals with the issue of credit both in relation to the police officers and in relation to the appellant.

12. The Magistrate said at [67]:

    I was unable to detect any reason from the demeanour or manner in which they gave evidence to reject or have concerns about the evidence of any of the witnesses or the defendant.  The police officers were not tested in cross examination and apart from some nervousness the defendant gave clear and untested evidence in cross examination.

13. By the reference to ‘untested evidence’ I understand the Magistrate to mean that he did not consider any of the evidence of either the police officers or the appellant to have been shaken in cross‑examination. 

14. The Magistrate made only one other comment about the appellant’s evidence when he noted in the course of his findings that “the defendant’s version of events has been consistent throughout”.

15. Later in his reasons the Magistrate said at [85]:

    I reject the defendant’s evidence that he was travelling at 40 to 43 km/h at all times and I reject the suggestion that he turned down Green Street.  I find it difficult to believe that he decided to drive further away from his house while his engine warning light was on, if his engine was making rattling noises and blowing smoke.

16. The difficulty with the Magistrate’s reasons is to some extent they are contradictory.  On the one hand the Magistrate has found that the appellant is an apparently credible witness of truth and that his evidence has been consistent throughout, however apart from indicating that he found it difficult to believe the appellant’s explanation for why he drove into West Street, the Magistrate did not at any stage specifically reject the appellant’s evidence as to his movements after parking the vehicle in West Street, Brompton.  Nor did he reject the appellant’s explanation why it was that he was relatively unfamiliar with the area he was driving in, an explanation which if accepted as a reasonable possibility, might have accounted for the route the appellant said he took that night.

17. Counsel for the respondent submitted that in reaching the decision on the facts the Magistrate must have rejected as a reasonable possibility the appellant’s account of his movements that night.  The respondent submitted that it is absolutely clear from the judgment that the learned Magistrate rejected the appellant’s version of events as untruthful. 

18. As I have said this was a matter where the Magistrate was faced with diametrically opposed accounts.  Therefore the resolution of the issue of credit was critical in the fact finding process.  The only apparent assessment of the issue of credit was in the paragraph to which I have already referred.  That paragraph conveys to my mind an acceptance of all of the witnesses as apparently credible witnesses of truth.  In these circumstances although it is obvious that the Magistrate has ultimately rejected the appellant’s evidence, it is not clear why he rejected the appellant’s account of his movements.  Moreover he did not grapple with the conflict between the evidence of the two police officers and the appellant about what happened when the appellant’s car arrived in West Street.  The resolution of that conflict was also one of the critical factual issues for the Magistrate to determine before he could find the appellant guilty of the offence. 

19. These were not complex issues and did not require lengthy reasons.  Indeed a proper focus on the critical issues which arose for determination might have resulted in a much shorter judgment.

20. Counsel for the appellant urged me to act on the basis of the Magistrate’s findings as to credit, quash the conviction and record an acquittal.  Counsel for the respondent on the other hand submitted that irrespective of the adequacy of the Magistrate’s reasons the prosecution case was so strong that the conviction should be affirmed and the appeal dismissed.

21. In my view it is inappropriate to take the course proposed by either counsel because to do so would require this Court to make its own findings as to the credit of each of the witnesses.  Regrettably there will need to be a retrial. 

22. In the light of my conclusion it is not necessary to deal with the appeal against sentence.  I make the following orders:

    1The appeal is allowed.

    2The conviction of the Magistrate is set aside.

    3The matter is remitted to the Magistrates Court for hearing and determination by another magistrate.