FERGUSSON v Police - [2013] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FERGUSSON v POLICE
[2013] SASC 130
Judgment of The Honourable Justice Anderson
12 August 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
Appellant was charged in that he drove a motor vehicle with more than the prescribed concentration of alcohol present in his blood. The magistrate found the appellant guilty.
The issue on appeal is whether the magistrate was correct in finding the prosecution had proved beyond reasonable doubt that it was the appellant who drove the motor vehicle at the time in question. The appellant appeals this decision. He submits the magistrate erred in her assessment of the appellant's and the appellant's partner's evidence. He further submits the magistrate erred in convicting the appellant without directing herself properly in relation to an identification of the appellant.
Held: Appeal dismissed. There is no miscarriage of justice.
Road Traffic Act 1961 (SA) s 47B(1)(a) and s 175(1)(i), referred to.

FERGUSSON v POLICE
[2013] SASC 130
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant in this matter was charged on complaint with four offences. It was alleged that he drove a motor vehicle on 23 July 2011 with more than the prescribed concentration of alcohol present in his blood.
The magistrate found the appellant guilty of only two of the offences charged. The appellant no longer pursues an appeal on one of those convictions. The only relevant conviction in this appeal is the one pursuant to s 47B(1)(a) of the Road Traffic Act 1961 (SA) for exceeding the prescribed concentration of alcohol.
The appellant now relies on the following amended grounds of appeal:
1.The learned trial Magistrate erred in her assessment of the appellant’s evidence by discounting his evidence because he was the defendant in the case.
2.The learned trial Magistrate erred in her assessment of the evidence of the witness Nicola Burke, by unreasonably holding that the following aspects of her evidence did not “ring true” and appeared contrived:
2.1 That Ms Burke took no action when she saw through the front window of her house that the appellant was being spoken to by police.
2.2 That Ms Burke was, over a year later, able to give a detailed description of the events which transpired on the afternoon before the incident and when she and the appellant arrived home later that night.
3.The learned trial Magistrate erred in her assessment of the evidence of the witness Nicola Burke by finding that it was “of note” that the appellant failed to attempt to contact Ms Burke after he was taken into police custody, with the implication being that this lessened the credibility of Ms Burke’s evidence.
4.The learned trial Magistrate erred by convicting the appellant solely on the evidence of Magnus, “… that he observed the defendant get into the vehicle and drive off” (paragraph [85] of her judgment) without directing herself properly in relation to the dangers of the purported identification of the defendant by Magnus.
The central issue before the magistrate and the issue on this appeal is whether the magistrate was correct in finding that the prosecution had proved beyond reasonable doubt that it was the appellant who drove the motor vehicle at the time in question. His defence was that he was not the driver but that it was his partner who drove. He said he was a passenger and his partner confirmed this.
Background
The prosecution case involved three witnesses. The events took place around the Tea Tree Gully hotel where it is alleged the appellant drove his motor vehicle from the hotel car park to his home address whilst he had more than the prescribed concentration of alcohol in his blood.
Mr Magnus was a security officer on duty in the car park of the hotel. He was asking people to move on as the hotel had closed for the evening. It was about 2.00 am. He said he saw two males in the car park and asked them to move on. When they did not move on he asked them again and they were abusive towards him. He said both men were intoxicated and were swaying and slurring their words.
He then gave evidence that one of the males proceeded to get his car keys out of his pocket and started moving towards a vehicle. The security officer told that person that it was not a good idea to drive. That person then threatened the security officer that he would drive over him and his dog. He saw that person get into the driver’s seat of the vehicle and drive off. He said he saw that person in the driver’s seat clearly. He said there were no other occupants in the vehicle.
The security officer radioed other security officers who were in the nearby vicinity. There were also police officers conducting patrols in the vicinity. He said he provided the make, colour and registration number of the vehicle together with his observations of the person’s appearance to the police. In particular he described some distinctive clothing worn by that person being a black fleecy jacket with a bright yellow logo on the arm bearing the number 3. He gave a general description of this person and his jacket to the police.
He checked the hotel’s ID scanner after the person had left in the motor vehicle and found a photograph which he says was a photograph of the person who drove off in the motor vehicle. He said it was the appellant.
Defence counsel put to him that he was mistaken and that it was the male person who got into the passenger seat of the vehicle which was being driven by a female. He denied this.
Police officers Cox and Simms attempted to follow the car driven by the person identified in the car park but were unable to pursue the vehicle because of its high speed. After checking the registration number of the vehicle they went to an address at Fairview Park where they observed a male identified as the appellant walking away from the vehicle which was parked in the driveway of a home which was the address of the owner of the vehicle. It was the home address of the appellant.
There were no lights on inside the house and there were no sounds coming from within the house. There was no other person observed outside the house. The observations made of the person identified as the appellant was that that person was intoxicated, being unsteady on his feet with glazed eyes and with slurred speech. Police officer Cox gave evidence. He heard a ticking noise coming from the engine of the vehicle indicating to him that it had recently been driven. He asked the appellant whether he had been the driver of the vehicle and he was told by the appellant that he was not the driver and that no-one had driven the vehicle. The police officer put it to him that the vehicle had come from the Tea Tree Gully hotel and that he believed that the appellant was the driver. The appellant denied this and repeated that no-one had driven the vehicle.
Police officer Simms also gave evidence. He confirmed the attempts to follow the vehicle after it left the hotel car park. He confirmed their arrival at the address where the vehicle was parked in the driveway and confirmed seeing the male walking away from the vehicle towards the house. He confirmed the clicking sounds made by the engine of the vehicle parked in the driveway when they arrived.
The appellant gave evidence and called evidence from his partner Ms Burke. The appellant gave evidence that he was looking for a telephone whilst at the hotel to ring a taxi to take him home. He later admitted that he lied to police when he was asked who had been driving the vehicle and he told them that no-one had driven the vehicle. This was of course contrary to his evidence that it was Ms Burke who drove the vehicle.
He said that he and his partner had met in the city earlier in the day. She had taken the car to work and he had caught a bus to town. He then caught a bus to the Tea Tree Gully Hotel. He got there about 5.30 pm to 6.00 pm. He drank pints of beer until he left the hotel. He said he was fairly intoxicated. He later agreed he was very drunk.
He recalled the security guard suggesting he take a taxi. He had no money. He said the security guard had a dog. He started to walk from the car park of the hotel and saw his partner who pulled in and he got in the front passenger seat.
When they got home he said they both went inside but he went back out to the car to get a cigarette lighter. The police then arrived. He said he told them no-one had driven the car because his partner had consumed some alcohol. He had dealt with Constable Cox on a previous occasion and did not wish to co-operate with him. He agreed that at the police station he was breathalysed and recorded a reading of 0.164.
Ms Burke gave detailed evidence of how she drove the car to her place of employment on the day in question and then later drove the car home to the appellant’s address. At about 2.00 am she drove to the hotel when the appellant had not arrived home. She said she picked up the appellant there and left the hotel with her driving the vehicle and the appellant sitting in the passenger seat. She said they then drove to his home address.
Her evidence was that when she arrived home she went inside to go to the toilet. She heard some noises outside and saw the appellant talking to some police officers. She told the court that she did not wish to get involved because she had a previous unfortunate dealing with the police. She therefore drank a glass of wine and went to bed.
The findings of the magistrate
The magistrate accepted the evidence of the security officer and found that the appellant was an unimpressive witness. The magistrate said at [67]:
[67]The defendant was not an impressive witness. He said he was “very drunk” and could not recall how many beers he had consumed. He said that when he left the hotel he was “dazzled and confused” about how he would get home. Despite this level of intoxication he claimed to have a recollection of most of his movements during the course of the evening and even attempted to explain how and why it came to be that he had not been scanned by the Hotel’s photo ID scanner during that night.
The magistrate went on to say:
[68]Having had the benefit of observing the defendant give evidence, I have no faith or confidence in the defendant’s reliability or credibility. In my view his evidence was both reconstructed and self serving. I do not believe what he said on the crucial issues of how he left the car park and made his way home to Fairview Park and why he was outside, alone next to the vehicle at his home shortly thereafter.
The magistrate obviously had considerable doubts as to the veracity of both the appellant’s and Ms Burke’s evidence. She said at [70]-[72] in relation to Ms Burke:
[70]The manner in which Ms Burke described the events of the night included her obvious frustration at the defendant, his drinking and the fact that, again, he had stayed at the hotel until closing time. If she was required to work late as she claimed, that explains why she, rather than the defendant, had possession of their only car that night.
[71]However, there were aspects of Ms Burke’s evidence which did not “ring true” and appeared to be contrived to assist her partner. Despite the explanation offered by Ms Burke, I consider it implausible that she took no action at all upon apparently seeing her partner, through the front window, being questioned outside by police. She claimed to have a very detailed recollection of the events that had transpired on the afternoon prior to the incident, and of how it came to be that the defendant was outside next to the vehicle with the home in apparent darkness, despite the incident having occurred over a year prior to her giving her evidence. Those details were only important “after the event” so as to provide an explanation for what the prosecution witnesses claimed to have observed.
[72]Further it is of note that the defendant, when taken into police custody, appeared to make no attempt to contact Ms Burke. On the defendant’s version, he had just been driven home by Ms Burke, who was not present during his discussions with police in the front yard and presumably must have been wondering where he had disappeared to.
The magistrate’s conclusion
The magistrate correctly narrowed the issue down to the question of who was driving the vehicle at the relevant time. She did not rely on the statutory presumption of proof contained in s 175(1)(i) of the Road Traffic Act (1961) (SA).
Finally Her Honour concluded at [84]-[85]:
[84]As outlined earlier, I consider Magnus’s evidence was both credible and reliable. Magnus was absolutely adamant that he saw the defendant get into the driver’s seat of the vehicle and drive off in it with no other occupants in the vehicle. Simply put, having had the benefit of hearing and observing Magnus give evidence, I consider he is telling the truth about what he saw in this respect and as I said before, I do not consider it a reasonable possibility he is mistaken. I reject the evidence of both the defendant and Ms Burke on this issue.
[85]I accept Magnus’s evidence beyond reasonable doubt that he observed the defendant get into the vehicle and then drive off, alone, in the vehicle, towards Haynes Road. As such I find beyond reasonable doubt that the defendant was driving the vehicle at the relevant time.
The arguments on appeal
The appellant contends that Her Honour erred in her assessment of the evidence of the main witness for the prosecution, Mr Magnus. It is also argued that she erred in her assessment of the evidence given by the defendant and his partner. It is argued that in assessing the appellant’s credibility the magistrate wrongly took into account her conclusion that the evidence was self serving. It is suggested this is circular reasoning. It is said to involve an assumption of the appellant’s guilt, therefore attributing a motive to lie and then using that motive to test the veracity of the evidence.
I have already set out paragraph [68] of the magistrate’s reasons. There is some force in the argument put by Mr Henchliffe for the appellant that the inclusion of the words “self serving” might indicate an assumption on the part of the magistrate that the appellant was guilty. Whilst it may be an appropriate observation in a civil case to say that a witness has given self serving evidence, it is not an appropriate observation in a criminal trial where any evidence that the defendant may give must be self serving, in that it is the defendant’s version of what happened. The magistrate, however, was quite entitled to form the view that the evidence of the appellant was a matter of reconstruction and she gives her reasons for so finding. In my view the inclusion of the words “self serving”, whilst not entirely appropriate does not amount to any miscarriage of justice.
The magistrate also made it clear that she had no faith in the appellant’s reliability as a witness from her observations of him when he gave evidence. She was entitled to make that observation.
It is next argued that the magistrate erred by unreasonably and unfairly holding that some aspects of the evidence of Ms Burke did not “ring true” and appeared contrived.
Because this is a re-hearing I have re-read the evidence given by Ms Burke. She certainly gives a very detailed account of events which happened a long time ago. She recounts in fairly intricate detail the whole of the day and evening of the alleged offence.
Mr Henchliffe submits that it should be inferred that the appellant and Ms Burke discussed the events surrounding the offence on the following day and that therefore, although it was a year later when she was asked to recall those events in court, there was an earlier occasion to attempt to piece it all together.
Ms Burke gave evidence that she saw the appellant the next morning when he returned from the police station. Mr Henchliffe submits that it is only natural they would have spoken about what happened and discussed the details of the previous day.
That submission depends on drawing the inference that they did discuss the events in detail the following day. It is a difficult inference to draw in the absence of any direct evidence of any conversation from either the appellant or Ms Burke. It is possible that they talked about the incident generally but it is a different matter to infer that they discussed the events of the day and night in minute details.
In any event I agree with the magistrate that the evidence does not “ring true”. Again whether it is contrived or whether it is reconstruction probably does not matter. In my view it is clearly reconstruction and the magistrate was entitled to place less weight on the evidence even though the magistrate does not say she disbelieves Ms Burke. It is sufficient that she had good reason to doubt the veracity of her account.
The next argument is that the magistrate erred, in relation to the evidence of Ms Burke, by finding that it was “of note” that the appellant failed to contact her after he was taken into police custody. It is suggested that the magistrate wrongly put herself in the position of the appellant to decide what was reasonable and imposed her own views of what she considered could have happened had she been placed in that position.
Mr Henchliffe further argues that there is no evidence either way as to whether there was in fact any contact between the appellant and Ms Burke. Neither the appellant nor Ms Burke was cross-examined on that aspect and neither police officer was asked whether the appellant made any attempt to contact Ms Burke whilst he was with them.
It does seem strange that the appellant would agree to submit to a breath test if his case all along was that he was not the driver of the vehicle. He could easily have said that he was not the driver and that his partner was and therefore he was not submitting to the breath analysis test. However, this might be explained by his drunken state.
The observation by the magistrate that it was “of note” is not based on any evidence. I have reviewed the evidence and can find no basis for such a comment. Nevertheless, it is a comment by the magistrate which in my view carries no significance. The question is whether there has been a miscarriage of justice. Once again this comes back to an overall review of the evidence against the appellant and whether in particular the evidence of Mr Magnus is accepted. When that is done there is an overwhelming circumstantial case against the appellant.
The magistrate was entitled to take the view that she did of the witnesses, having seen and heard those witnesses give evidence. It must be remembered that the appellant’s account of the events should be looked at in the context of the reading of 0.164 grams of alcohol in 210 litres of breath. That is a high reading and both police officers and the security officer gave evidence of their observations of the defendant confirming that he was affected by alcohol. He also agreed that he was very drunk. His account must be regarded as unreliable.
There is no reason to interfere with the learned magistrate’s findings on these aspects.

Finally it is argued that the magistrate failed to direct and warn herself about the dangers of the disputed identification of the defendant. It is said that the magistrate relied solely upon accepting the evidence of the security officer beyond reasonable doubt.
In relation to the argument regarding the necessary warning about the dangers of identification evidence, whilst it would normally be the case that the magistrate direct herself in her reasons, in my view nothing turns on this. This was a circumstantial case as to whether the person identified in the car park got into the driver’s seat and drove the vehicle. Mr Magnus spoke to the appellant, suggesting he take a taxi. The appellant also gave evidence to that effect. Mr Magnus gave evidence that he saw the person he identified enter the motor vehicle as the driver. He also gave a description of the clothes he was wearing which were distinctive. He gave the registration details of the vehicle to the police officers. The police officers followed the vehicle to the address recorded for the owner in the of the Registrar of Motor Vehicles’ records. The appellant was present. He was the registered owner. He told the police a lie about the car not being driven that night. He was wearing the same clothing as described by the security officer. The vehicle had just been driven. In all those circumstances this was a very strong circumstantial case. The aspects of the identification from ID photos held at the hotel or the in-court identification are insignificant. In my view both could be completely disregarded and the circumstantial case nevertheless remains very strong, albeit relying very much on the acceptance of Mr Magnus’ evidence and the rejection of the evidence of both the appellant and Ms Burke.
I have already set out what the magistrate said at [85] regarding accepting Mr Magnus’ evidence beyond reasonable doubt.
Mr Henchliffe submitted that an issue arises about identification because the magistrate accepted Mr Magnus’ evidence that it was in fact the appellant whom he saw get into the vehicle. It is submitted that it therefore becomes an identification case and therefore the magistrate should have directed herself on that topic.
Once the magistrate accepted the evidence of Mr Magnus, having regard to the circumstances of identification there was no need for a warning. I agree with the magistrate’s decision to accept Mr Magnus and reject both the appellant and Ms Burke for the reasons given.
Mr Henchliffe finally submitted that on the first three aspects of the appeal he has identified errors in the way in which the magistrate assessed the credibility of both the appellant and Ms Burke. He submits therefore that without the combined effect of those errors it is not possible to say that Her Honour would have come to the same conclusion. That being the case he argues there is the possibility of a miscarriage of justice and therefore it is suggested that there needs to be a re-trial.
Conclusion
It is my view for the reasons that I have already given that neither individually nor collectively the first three amended grounds of appeal are made out to the extent that it can be said there has been any miscarriage of justice.
Neither the comment about the appellant’s evidence being self serving, nor the comment about the magistrate noting the lack of contact between the appellant and Ms Burke or indeed a combination of the two is sufficient in my view to amount to a miscarriage of justice.
The magistrate has seen and heard the witnesses and acted upon a version of the evidence which was available, that is, the acceptance of the evidence of Mr Magnus. It is not a case of there being no evidence to support the magistrate’s findings. It is a case of the magistrate preferring one version of the evidence over another.
That in turn depended upon the magistrate’s impressions of the witnesses and there is nothing which has been argued to illustrate that the magistrate was not in a position to make those assessments.
In my view once there is an acceptance of Mr Magnus’ evidence as against the evidence given by the appellant and Ms Burke there is a very strong circumstantial case against the appellant. The magistrate was entitled for the reasons I have given to accept the evidence of Mr Magnus.
Having reviewed the evidence it is my view that there is no reasonable possibility that Ms Burke was driving the vehicle when it left the hotel car park.
It is for those reasons that I dismiss the appeal.