Frunks v Police - [2016] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FRUNKS v POLICE
[2016] SASC 120
Judgment of The Honourable Justice Doyle
5 August 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
The appellant was convicted of driving while disqualified and driving with excess alcohol in his blood. The appellant contended that the Magistrate erred in finding beyond reasonable doubt that he was the driver of the vehicle. In particular, he contended that the Magistrate placed insufficient weight on two statements of a witness, Mr Noble, and that the Magistrate placed too much weight on the evidence of the police officers who gave evidence.
Held (per Doyle J), dismissing the appeal:
1. No error has been established in the Magistrate’s approach or findings.
Motor Vehicle Act 1959 (SA) s 91; Road Traffic Act 1961 (SA) s 47B(1)(a), referred to.
Taylor v Hayes (1990) 53 SASR 282; Fox v Percy (2003) 214 CLR 118, considered.

FRUNKS v POLICE
[2016] SASC 120
Magistrates Appeal.
DOYLE J:

Following a trial before a Magistrate, the appellant was convicted of two offences: driving while disqualified from holding or obtaining a driver’s licence contrary to s 91 of the Motor Vehicle Act 1959 (SA) (count 1), and driving whilst there was present in his blood the prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (count 2).
Both offences occurred on the evening of 2 June 2013. The only issue at trial was whether the appellant was the driver of the vehicle at the relevant time. The appellant’s case was that his friend, Paul Noble, was the driver.
In this appeal against conviction, the appellant relies upon two grounds of appeal. The first is that the Magistrate place insufficient weight on the two statements of Mr Noble. The second is that the Magistrate placed too much weight on the evidence of police officers Newman, Brinkley and Ellison, notwithstanding the inconsistencies between them. In essence, the appellant contends that the Magistrate erred in finding beyond reasonable doubt that he was the driver of the vehicle.
The trial
The appellant was unrepresented at trial, as he was during this appeal.
The two charges arose from an occasion when two police officers (Newman and Ellison) in a marked police car followed and then pulled over a Holden Statesman vehicle at about 10.20 pm on 2 June 2013, having kept it under observation as it drove along Penrice Road in Penrice.
There was no dispute at trial that the Statesman was registered to the appellant; that the appellant was disqualified from holding or obtaining a driver’s licence; that both the appellant and Noble were in the Statesman when it pulled over and came to a halt; and that the concentration of alcohol in the appellant’s blood at the relevant time was 0.126 grams of alcohol per 100 mL of blood.
It followed from this that the only issue at trial in respect of both offences was whether the appellant was the driver of the vehicle when it was pulled over.
In support of its case that the appellant was the driver, the prosecution called oral evidence from police officers Karen Newman, Cale Ellison and Kevin Brinkley. The prosecution case was that the appellant was driving, and that after bringing the Statesman to a halt he moved into the front passenger seat. Both Newman and Brinkley claimed to have seen this movement by the appellant.
The appellant gave oral evidence to the effect that it was his friend, Paul Noble, who was driving. He tendered two statements (in the form of statutory declarations) from Noble to like effect. He also called oral evidence from his partner, Vanessa Brewster. The defence case was that Noble was driving and that after being pulled over he climbed through into the rear seat of the car. To the extent the police saw any movement by the appellant, it was him leaning back after reaching over from the front passenger seat to apply the handbrake and turn off the ignition after Noble had failed to do so.
The Magistrate rejected the defence case, including the evidence of the appellant, and held that the prosecution evidence established beyond reasonable doubt that the appellant was driving.
Nature of the appeal
As this is an appeal by way of re-hearing, I am required to undertake an independent review of the evidence and the findings below, and form my own view as to the appropriate outcome. It is not necessarily enough to justify dismissing the appeal that there was evidence which meant it was open to the Magistrate to reach the decision he did. If, despite taking account of the Magistrate’s advantage in seeing and hearing the witnesses, I reach a different view on the evidence I must give effect to that by substituting my view for that reached by the Magistrate, or if it is appropriate by remitting the matter for a re-trial.[1]
[1] Taylor v Hayes (1990) 53 SASR 282.
That said, the appeal is not a hearing de novo and so I should not substitute my own view, or otherwise interfere, unless satisfied that the Magistrate has made an error. Further, in conducting my own review of the evidence and findings below, while not shying away from the task of weighing conflicting evidence and drawing inferences where appropriate, I should nevertheless have regard to the findings of the Magistrate, and any advantage that he may have had in making these findings.[2]
[2] Fox v Percy (2003) 214 CLR 118.
Before setting out the conclusions I have drawn from my review of the evidence and the findings below, it is appropriate that I summarise the evidence and the reasoning of the Magistrate.
Evidence of Officer Newman
Newman’s evidence was that on the night of 2 June 2013 she was on uniformed patrol in a marked police car. Her partner that evening was Ellison.
At about 9.00 pm, as a result of a radio tasking, she and Ellison went to the Brauhaus Hotel in Angaston. She and Ellison spoke with two males near the driveway area of the hotel. One of them identified himself as Toby Frunks (the appellant). Whilst speaking with Frunks she could smell liquor on him, and observed that he had bloodshot eyes but that he was steady on his feet and able to hold a conversation and provide his details. Ellison spoke with the other male, Noble. While Newman did not speak with Noble, she observed that he was unsteady on his feet and using the wall to steady himself. She assessed him as being quite grossly intoxicated. After Newman and Ellison had finished speaking with them, the appellant and Noble walked off from the hotel.
Newman and Ellison went inside the hotel for a short time and when they came outside, Newman noticed a car parked on the street outside the Hotel. It was the Statesman which was later stopped by Ellison and Newman on Penrice Road.
Newman carried out a registration check, which revealed that the Statesman was registered to the appellant. She checked the status of his licence, and this revealed that he was at the time disqualified from holding or obtaining a driver’s licence. Because neither the appellant nor Noble lived in the Barossa Valley, Newman was suspicious that one of them might try and drive the vehicle. A decision was made to intermittently check on the vehicle while they were carrying out other general patrol duties.
About an hour later, Newman and Ellison were in their police car, which was parked about 150 metres from where the Statesman was parked. Newman saw two males approaching from the direction which the appellant and Noble had earlier headed. When she first saw them they were about 10 to 15 metres from the Statesman. When they reached the Statesman, she saw one of them get into the driver’s side of the vehicle and one of them get into the passenger’s side of the vehicle. She was not able to make out which of the males got into which side. Nor was she able to make out whether the person who got into the passenger side of the vehicle had entered the front or back door. The distance was too great, and although there was some lighting in the area, the lighting was not that good. The Statesman soon drove off, and Newman and Ellison decided to follow it. Ellison was driving the police vehicle and Newman was the passenger. After travelling about 200 metres, the Statesman turned right onto Penrice Road.
Newman had earlier been in contact with a fellow police officer, Brinkley, to see if he was in the general area. She had mentioned her suspicions that either Noble or the appellant might attempt to drive the vehicle and that assistance might be required. As they were following the Statesman, she made further contact by radio with Brinkley and asked him to drive towards them on Penrice Road.
After travelling about 200 to 300 metres along Penrice Road, and when their police car was about 15 to 20 metres behind the Statesman, they activated the flashing lights on the top of the police car. The Statesman slowed significantly and moved off to the left side of the road, before travelling for a period of time half on the bitumen and half on the verge. In coming to a stop, the Statesman ran over a couple of white reflector posts. When it stopped, the police car was less than a car length behind the Statesman.
The Statesman remained stationary for a couple of seconds, before then rolling slowly forward another five or so metres and coming to a stop again. As it rolled forward, Ellison moved the police car forward as well and stopped once again behind the Statesman. When the two cars came to a stop on the second occasion, there was about half a car length between the back of the Statesman and the front of the police car.
Ellison had brought the police car to a stop behind the Statesman in a position described as a “safety stop”. This meant that the full face of the front of the police vehicle was not directly behind the rear of the back of the Statesman. Rather, the police vehicle was parked so that the right hand side of the vehicle from about the midline of the cabin of the police vehicle was to the right of the Statesman. This provided a safe corridor for police to approach and stand at the driver’s side door of the Statesman, with the police vehicle providing a measure of protection from traffic approaching from behind the police vehicle.
While the cars were stationary, the headlights of the police car were on and illuminated the rear of the Statesman. Newman got out of the police vehicle. As she did so she became aware of headlights coming from a vehicle which was approaching from around the bend ahead of where they had stopped on Penrice Road. It became apparent in due course that this was Brinkley’s police vehicle.
As she got out of her police vehicle she saw someone in the driver’s seat of the Statesman. She approached the Statesman with her torch shining into the back window of the Statesman and with the focus on the driver’s seat area. When she was at the back right hand corner of the Statesman, she saw a person move from the driver’s seat over into the front passenger seat. She could see the body shift out of the driver’s seat and go left into the passenger seat. She could see this movement by the illumination of the headlights of her police vehicle, her torch and the headlights of the approaching police vehicle, which by that stage had pulled up in front of the Statesman.
Newman went immediately to the driver’s side door and opened it. She shone her torch on the front passenger seat. She saw the appellant seated with his upper body in a position such that his right shoulder was pressed up against the passenger seat, with his left shoulder against the passenger door. He was facing looking towards the driver seat. He was not wearing a seatbelt. She did not make any observations as to the positioning of the lower part of his body. Newman could see another person in the rear seat of the Statesman but did not take too much notice of that person.
She walked around the front of the Statesman, passing between the Statesman and the other police vehicle, before then approaching the front passenger door of the Statesman. The other police car had parked in front of the Statesman (but not in a safety stop position), leaving about half a car length between the two vehicles.
Newman was uncertain about whether she or someone else opened the front passenger door. In any event, she spoke to the appellant through the open front passenger door. She asked the appellant to get out of the car. He replied “what for, I was not driving”. She replied along the lines of “nice try, get out of the car, you’re under arrest for driving while disqualified”. She then took hold of the appellant by the left arm and assisted him out of the Statesman.
Once the appellant was out of the Statesman, Ellison took control of him and placed him face forward against the passenger side of the car. Newman handcuffed him. By this stage, she could see the other person, who was lying in the car on the back seat. He was lying on his stomach, with his head facing the left rear passenger seat.
Newman and Ellison drove the appellant to the Nuriootpa Police Station. The appellant was required to submit to a breath analysis, and was also interviewed. During the course of that interview, the appellant repeatedly and adamantly said that he was not the driver of the Statesman at the relevant time.
In cross-examination Newman denied that the rear window of the Statesman was foggy or frosty as she approached it, or that there was any tinting that impeded her view. Rather, she recalled that it was a clear and fine night, and that she had no trouble seeing movement inside the Statesman.
Newman rejected the suggestion that when speaking with the appellant at the charge counter of the police station, and following the appellant’s statement to the effect that he couldn’t believe that she was going to charge him when she knew he was not the driver, she said something to the effect “there’s a note on the system, you’ve been getting away with too much, so we’re nabbing you for this”. Newman agreed that there was a report on the police system that said something to the effect that police had previously tried to stop a vehicle registered to the appellant but had been unable to do so; that the vehicle was located shortly after stopped on the side of a road; and that the appellant was later located in the general area, but the police were unable to prove he was the driver. Newman acknowledged that she became aware of this report when she checked who the registered owner of the Statesman was, and that this had led her to think that if the appellant was the driver he may not stop for the police. She did recall having some conversation with the appellant about this earlier incident, but denied saying anything to the effect of the words attributed to her by the appellant. She denied that her evidence was the product of her assumption that the appellant would be driving, as opposed to observations she in fact made.
Evidence of Officer Brinkley
Brinkley’s evidence was that on the night of 2 June 2013, he was on highway patrol duties, alone and in a marked police car. He was asked to travel to Penrice Road in case assistance was required.
As he rounded a bend on Penrice Road he saw the other police vehicle’s flashing lights. He then saw the Statesman and that other police vehicle pulling from the roadway onto the dirt verge. He crossed the road and parked with his vehicle facing the front of the Statesman, stopping about one and a half metres from the front of the Statesman. As he did so he activated the flashing lights on his own vehicle, and also put his headlights on high beam to provide greater light by which to observe the two vehicles and any occupants of the Statesman. He said he was able to see the front of the Statesman clearly. While still in the driver’s seat of his police vehicle, he saw the movement of an adult going from the driver’s side of the Statesman to the passenger side. The size of the body caused him to conclude that it was an adult. When he first saw this person’s body, although on the driver’s side of the car, it was not directly behind the steering wheel, but was starting to lean away from the steering wheel to its left and towards the passenger side of the vehicle. He saw the left shoulder moving downward as the body moved to its left.
When he saw this, Brinkley got out of his police vehicle and ran to the front passenger door of the Statesman. As he did so, he did not keep the person whose movements he had seen under continuous observation. When he got to the front passenger door, he opened it and saw a male in the front passenger seat. He identified this person as the appellant. He described the appellant’s head as up against where the passenger door would have been had it not been open and his left shoulder down on the front passenger seat. He noticed that the appellant was not wearing a seatbelt.
When he opened the door of the Statesman, Brinkley saw the appellant’s legs coming over the centre console which divided the front passenger seat and the driver seat, and then he saw his legs going down into the well in front of the passenger seat.
Brinkley heard the appellant say “I wasn’t the driver”. Brinkley said something to the effect that he was not getting away with it this time. He said this because of information he had seen on the police database about the appellant’s possible involvement in a previous incident. He said that the appellant kept saying that he wasn’t the driver.
Brinkley had a vague recollection of another police officer by the driver’s door of the Statesman at the time he got to the front passenger door, but said he was concentrating on the person in the passenger seat and was only vaguely aware of the presence of the other police officer. However, soon after he had spoken to the person in the passenger seat he became aware of another police officer next to him. He stepped away and left the further conduct of the matter to the other officers.
Brinkley added that after a few minutes he became aware of another adult in the back of the Statesman. When he first saw this person he was lying face down and part of his body was lying lengthways across the back seat with his feet down in the footwell behind the driver’s seat. His head was against the back passenger side door. When he first saw him, Brinkley opened the door and saw that he was breathing and heard noises as though he were snoring. The person did not respond in any way to the door being opened. This male slowly got out of the vehicle after about 10 minutes. Brinkley spoke with this male who smelt strongly of liquor, and was swaying as he spoke and had to lean against the car for support. At one stage, the male dropped a cigarette packet and then fell forward while trying to pick it up off the ground. Brinkley described him as grossly affected by liquor. The male kept insisting he was not drunk. He wanted to prove this and so asked Brinkley to administer a screening breath analysis test on a handheld tester. Brinkley did so, and the reading was 0.217 per grams of alcohol per 100 mL of blood.
During cross-examination, Brinkley rejected the suggestion that what he had in fact seen was a person in the passenger seat returning to an upright position after having leant across into the driver’s side area of the vehicle to apply the handbrake. Brinkley said that what he saw was inconsistent with a person performing this action. He said that if a person were leaning across to the driver’s side from the passenger seat, he would expect that person’s body would go from an upright position to the right in a downward position, and then in returning to its position in the passenger seat their body would go from low to high. What he saw was the exact opposite. He saw a person going down into the passenger side with their shoulder. And when he opened the door, the appellant’s shoulder was on the seat and his head against the door and his feet still coming up from the driver’s side. His knees came up to his chest, and then straight down into the footwell.
Evidence of Officer Ellison

Ellison was on general patrol duty in an unmarked police car with Newman on the night of 2 June 2013. His evidence as to general background and surrounding matters was consistent with that of Newman, and so it is unnecessary for me to recite or summarise those aspects of his evidence.
As to his observations of the appellant and Noble in connection with the Statesman, Ellison described what he saw as they approached the Statesman while it was parked outside the hotel. Ellison said that he saw two people approach the Statesman. He had an unobstructed view of the car, but it was dark and the area around the Statesman was poorly lit, so he could not make out the particulars of the two people. He saw them get into the Statesman. He could not see what position the two people got into as they entered the car. He was able to make out that one of them got into the driver’s seat, but on the other side of the car he could not see whether the person got into the front or the back seat. But he did see that somebody entered the car on that side.
After describing the period in which they followed the Statesman, Ellison described the events once they had decided to stop the Statesman in the following terms. He said that when he put the flashing lights on, the Statesman moved over to its left and onto the verge. It slowed and came “to almost a stop”. As he pulled his police car in behind the Statesman, he was watching to make sure it did not drive off. Initially he stopped about three metres behind the Statesman. He said that as Newman started to get out of the front passenger door of their police vehicle, but was still within the police vehicle, the Statesman started to roll forward. It rolled about four to five metres forward, and then the back wheels skidded on the gravel and the Statesman came to a stop. He could not see what had caused the vehicle to roll forward and then skid, but believed an explanation for it could be that someone had taken their foot off the brake while the car was still in drive and the car had been suddenly brought to a halt by the handbrake being applied.
When the Statesman came to a stop, Newman got out of the police car and moved to the driver’s side of the Statesman. Ellison waited in the driver’s position in their police car for a short moment, and then got out of the police car himself.
He saw Newman walk to the driver’s door of the Statesman, having travelled between the front of their police car and the rear of the Statesman, and then along the driver’s side of the Statesman. Ellison said that when he got out of his police vehicle and went to the rear door on the driver’s side of the Statesman, he could see another male lying across the back seat. He could see the appellant was in the front passenger seat. He said that at this point Newman was at the driver’s door and said something to the appellant, but he could not make out what she said. He saw Newman then leave the driver’s door and travel around to the front passenger side door. He followed her to that door, although delayed slightly in doing so to make sure no one tried to leave the Statesman.
When he got to the front passenger side door of the Statesman, he became aware that Brinkley was present (having earlier seen his police vehicle pull up in front of, but facing, the Statesman). He recalled that once the appellant got out of the car, the appellant was told that he was under arrest.
As to the person in the back seat of the Statesman, Ellison recalled his body was on the back seat with his head on the passenger side, and his feet were in the footwell behind the driver’s seat. He did not speak with that person.
Ellison said that when he was in his police car he did not see any movement within the Statesman. He said that because he was seated in the driver’s seat of his vehicle, he was concentrating on any movement of the Statesman after Newman had got out of the car, as he had a suspicion that the car might attempt to drive off.
Ellison said that he was aware that Noble attended the police station later that night. He overheard a conversation between Noble and a police officer at the counter. He heard Noble say on several occasions that he wished to make a statement that he was the driver, but that the officer at the counter said each time words to the effect “we know who the driver is”.
Evidence of the appellant
The appellant’s evidence was that as at 2 June 2013 his friend, Paul Noble, was staying for a couple of days at his house in Modbury Heights. On that day he and Noble went to a pub in Hahndorf. Noble drove them there in the appellant’s Statesman. From the pub, Noble drove them to Angaston. He and Noble were at the Brauhaus Hotel in Angaston when they spoke to police officers Newman and Ellison. After speaking to the police, they left the immediate area of the hotel.
The appellant said that at that stage he knew that Noble should not be driving, and that he also should not be driving. For this reason he telephoned his partner, Vanessa Brewster. The purpose of the call was to ask her if she could travel out from Adelaide to collect them. While speaking to his partner, the appellant and Noble were on their way to a park near the hotel. He wanted to go to this park and organise everything from there.
Brewster was agreeable to coming to pick them up. However, he made no definite arrangement with her at that stage, because while the conversation was ongoing, Noble was in the background and becoming aggressive and carrying on. Noble was saying he wanted to leave and that he was okay to drive. The appellant ended the conversation with Brewster, telling her he would call her back.
Once he was off the telephone, Noble kept saying that he wanted to go home and that he wanted something to eat. The appellant told Noble that it was not a good idea for Noble to drive. He told Noble that he could organise a lift, and that was the best thing to do. Noble said he did not want to wait to be picked up. He wanted to drive home and get a pizza, because he was hungry and tired. Noble continued talking in an aggressive manner, speaking loudly and moving his arms about. He was adamant that he was okay to drive and that he was going to drive. The appellant said that after a time it got to the point that he could not put up with Noble anymore. Noble would not stop carrying on and being aggressive, so he decided to let him drive. They walked to the car. Noble got in the driver’s seat. The appellant got into the passenger seat from the passenger side. Noble started the car and they drove off.
The appellant said that Noble drove normally for a few kilometres before they were pulled over by the police. He said that he was in the passenger seat watching the police car through the passenger side mirror and not particularly concentrating on what Noble was doing. He noticed that Noble slowed the car and then pulled off to the side of the road normally. He said that he continued watching the police car through the passenger side mirror and once the car slowed to a stop, Noble jumped from the driver’s seat to the back seat. The appellant explained:
Because I was facing left, I wasn’t watching what he was doing, I was watching the police in the side mirror. So he’s done this quick jump to the back seat, but it must have been as soon as he had taken - he didn’t put the car into park, he didn’t put the handbrake on, so the car’s rolled forward. I’ve pulled the handbrake up, because it rolled forward enough to roll over a post and if I didn’t pull the handbrake up we were going to roll over this hill and so - yeah it was actually - it could have been quite dangerous, it was. … from the passenger seat, still with my seatbelt on, pulled the handbrake up then I thought I should probably turn the car off … this is alright now … in the moment. I leaned over right across to the key and I turned the car off so that the car wasn’t rolling, it was stationary, the engine wasn’t running. Then after this everything happened real quick.
The appellant said that as he was pulling up the handbrake or turning off the ignition he noticed the other police car coming around the bend towards them. He then saw Newman at the driver’s side door. She opened that door and spoke to him. The first thing she said was “nice try mate”. He replied “what are you talking about”. Newman then ran from the driver’s door around to the passenger door, and tried to pull him out of the car. When Newman opened the door, the appellant still had his seatbelt on. Newman said “you’re under arrest for driving disqualified” and at the same time grabbed his left arm and tried to pull him out of the car. He undid his seatbelt and got out of the car. The appellant then told Newman a number of times that he was not driving, saying things like “I wasn’t driving” and “are you serious”. He was then taken to the Nuriootpa Police Station. He said that throughout his time at the police station he maintained that he was not driving the car. He said that while he was at the police station he heard police radio transmissions saying that Noble had admitted that he was driving.
The appellant said that while at the charge counter of the police station he again said to Newman that he wasn’t driving, that she knew this was the case and asked why he was being charged when she knew he hadn’t been driving. He said that Newman responded to the effect “there is a note on the system saying that you are getting away with too much so you know we are throwing this on you”, or something to that effect.
Statements of Noble
On the application of the appellant, and pursuant to s 34KA of the Evidence Act 1929 (SA), the Magistrate received as evidence of the matters stated therein, two statements not made in oral evidence in those proceedings. The Magistrate ruled that Noble was outside of the State and that it was not reasonably practicable to secure his attendance to give oral evidence, these being the preconditions to the admissibility of these statements under s 34KA.[3]
[3] I note the earlier decision in these proceedings in Police v Frunks [2014] SASC 151, in which Peek J allowed an appeal against conviction in an earlier trial on the ground that the Magistrate in that earlier trial erred in not having proper regard to s 34KA in determining that the statements of Noble were not admissible.
The first was a statutory declaration taken on 5 June 2013. In this statutory declaration, Noble declared:
in relations of Mr Toby Frunks who was taken into custody for the Accusation of drink drivg while disqualified on the 2/6/13 in vichael reg No STA205 I hearby state that I was the acctual driver at the time of the Alleged offence.
[Spelling and grammar per the original]
The second was a statutory declaration declared by Noble on 6 June 2013. In this statutory declaration, he declared:
To whome it may concern, I Paul Noble wish to confess I was the driver that jumped from the drivers seat to the back seat and pretended to be asleep. I understand that Toby Frunks has been accused. I Paul Noble was driving the vehicle STA 805 on 2/6/13 wen pulled over by the police. I hearby state I was the driver Toby was always a passanger.
[Spelling and grammar per the original]
Evidence of Brewster
Brewster said that on 2 June 2013 she received a phone call between about 9.45 pm and 10.00 pm from the appellant. He said she might have to come and pick him and Noble up as they had been drinking. He said he did not want to drive but that Noble was adamant that he wanted to drive and did not want to wait for her to come and pick them up. When the conversation ended Brewster understood that the appellant wanted her to come and pick them up because he did not want to drive, but she did not know where to go and was waiting for another phone call for that detail. During this conversation the appellant had also told her that he was having a dispute with Noble because Noble was wanting to drive and he was adamant that he did not want to wait.
She did later get a phone call from the appellant. It was about half an hour after the first call, and at between about 11.00 and 11.30 pm. The appellant told her she needed to come to the Nuriootpa Police Station as he was being charged with driving, but that he was not driving.
She then drove to the Nuriootpa Police Station. She saw Noble near the front of the police station. While in the public area of the police station, she heard Noble say to a police officer that he wanted to tell the police that he was the one driving. She heard that police officer say that they believed they had the person who was driving. She said Noble told them a couple of times that he was driving, but according to Brewster “they didn’t want a bar of it”. On each occasion Noble said to the police officer that he was driving, the response was to the effect “no, we believe we have the person who was driving in custody”.
The Magistrate’s reasons
After setting out the evidence at length, including a summary of the cross-examination of each of the witnesses, the Magistrate gave himself various standard directions. These included the need to exercise care before making credibility findings, and also the ability to accept or reject part of the evidence of a witness. Significantly, the Magistrate reminded himself that in a case such as the present, where there was a conflict between the evidence of prosecution witnesses and the evidence of a defence witness, even if he preferred the evidence of one or more of the prosecution witnesses, he must not find the defendant guilty unless satisfied beyond reasonable doubt of the truth of the evidence of the prosecution case.
The Magistrate then said the following as to his assessment of the witnesses, and the identity of the driver:
In my opinion each of the 3 police officers Newman, Brinkley and Ellison were patently honest. Each gave evidence in an entirely open and forthright manner. There was nothing in their presentation which suggested that they were telling anything other than the complete truth as they remembered it. There is nothing in what any of them said which is inherently implausible and they said nothing that would suggest that they were falsely engaging in an exercise of self-justification. I also find that each of the 3 police officers was reliable as to the observations he or she made on that night.
I found Mr Frunks to be a very unimpressive witness. I found his evidence on crucial issues lacked credibility. I found his evidence about his experience of Noble “diving” or as he also described it “jumping” from the front driver’s seat to the back of the Statesman lacked any ring of truth and smacked entirely of reconstruction rather than actual experience.
In cross-examination, I found him evasive in many of his answers. I formed the impression that he often used emotional outburst to evade answering questions. For example, when he was giving evidence about whether he phoned his partner back after the first phone conversation with her that night, in my view, he became evasive and used emotional outbursts to try and gain time to assess what answer might best serve his version of events. At one stage, when he was being pressed in cross examination on the topic of whether there was one or two phone conversations with his partner that night before he was arrested, he said “there might’ve been 10 calls. I’m starting to get really irritated” and then shortly thereafter asked for a short break “so that Ms. Gallie could calm down” and he could “take her seriously”.
I turn to the two out of court statements of Paul Noble. Having been admitted, the contents of these statements are evidence of the matters stated therein. When read together they assert that Paul Noble was the driver of the vehicle STA 085 (the Statesman) on the 2 June 2013 when it was pulled over by the police and that he jumped from the driver seat to the back seat and pretended to be asleep and that Toby Frunks was a passenger at all times. Of course, Mr Noble was not available for oral examination nor for cross-examination on this evidence, so the evidence is untested. There is also evidence that on the very night Paul Noble made repeated statements to a police officer that he (Noble) was the driver of the statesman and not Mr Frunks. Of course, this evidence is not the only evidence on the topic of who was the driver of the Statesman at the time it was pulled over by the police.
I assessed Vanessa Brewster as being an honest and reliable witness. Her evidence goes to support the evidence of Mr Frunks that he did ring Ms Brewster to find out whether she was available to come and pick him and Noble up. Of course it cannot determine the crucial question of who was the driver of the Statesman at the relevant time.
That I find Mr Frunks to be a very unimpressive witness, and that his evidence on crucial issues lacked credibility does not lead inexorably to the conclusion that he is guilty of either offence. It is for the prosecution to satisfy me beyond reasonable doubt of his guilt and any disbelief of his evidence cannot be used as a makeweight for the prosecution case.
I am satisfied beyond reasonable doubt that Newman, Brinkley and Ellison have provided a true and accurate account of the observation either he or she made that night.
I reject the evidence contained in the two statements of Paul Noble that he was the driver of the Statesman and that Mr Frunks was a passenger at the relevant time because it conflicts with the only rational inference to be drawn from observations of Newman and Brinkley which I accept as true and accurate beyond reasonable doubt.
Wherever the evidence of Mr. Frunks conflict with the evidence of Newman, Brinkley or Ellison, I am satisfied beyond reasonable doubt that the evidence of Newman, Brinkley or Ellison is the true and accurate account of events.
In particular, I am satisfied beyond reasonable doubt that at no stage did Newman say to Mr Frunks “there’s a note on the system that says you been getting away with too much and we’re throwing this on you” or something to that effect ...
I find beyond reasonable doubt that:
a.   When Newman was at or near the rear of the Statesman as it stood stationary on Penrice Road, she was able to see and did see through the rear window of the Statesman, a body shift out of the driver’s seat and go left into the front passenger seat.
b.   At about the same time as Newman was at or near the rear of the Statesman and made her observations, Brinkley, who was still in the driver’s seat of his police vehicle which faced the front of the Statesman saw an adult person’s body, on the driver’s side of the Statesman but not directly behind the steering wheel, starting to lean away from the steering wheel to its left and towards the passenger side of the car and he saw the left shoulder of that person moving downward as the body moved to its left.
c.   Newman looked in through the open driver’s door and saw Frunks seated in the front passenger seat with his upper body in a position such that his right shoulder was pressed up against the passenger seat and he was facing looking towards the driver seat. He was not wearing a seatbelt.
d.   Brinkley arrived at the front passenger door of the Statesman and opened it and observed Frunks’ head up against where the passenger door would have been had it not been open and his left shoulder down on the front passenger seat. Frunks was not wearing a seatbelt.
e.   Brinkley saw both of Frunk’s legs coming over the centre console which divided the front passenger seat and the driver seat and then he saw his legs going down into the well in front of the passenger seat.
On this basis of these findings, I am satisfied beyond reasonable doubt that Mr Frunks was occupying the driver’s seat of the Statesman as it drove off from Murray Street and onto and along Penrice Road. I am satisfied beyond reasonable doubt that Mr Frunks was occupying the driver’s seat of the Statesman as it pulled off to the left and onto the verge of Penrice Road. I am satisfied beyond reasonable doubt that what Newman and Brinkley saw was Mr Frunks moving from the driver’s seat of the Statesman, which he had occupied from the start of the journey in Murray Street, to the passenger seat and that when Brinkley saw both of Mr. Frunks’ legs coming over the centre console which divided the front passenger seat and the driver seat and then saw his legs going down into the well in front of the passenger seat he was observing the completion of Mr. Frunks moving from the driver’s seat to the passenger seat.
I am satisfied beyond any reasonable doubt that there is no other rational explanation for the observations made consistent with him not being the driver.

The Magistrate explained that in light of this finding beyond reasonable doubt that the appellant was the driver, it followed that the two charges were established. The appellant was accordingly convicted of both charges.
Analysis
As mentioned, the appellant represented himself on appeal. His submissions were very brief and general. Essentially he contended that, for whatever reason, the police had it in for him and had given untruthful evidence in an attempt to frame him. He said that while the police might have seen some general movement in the Statesman when it was pulled over, they could not have seen what they purported to see. He said that to the extent that the Magistrate preferred the police officers as witnesses over him, this was a result of the police officers being confident witnesses whereas he was under a lot of stress and strain in giving his evidence. He suggested that this, together with difficulties in memory, explained the inconsistencies in his evidence which apparently concerned the Magistrate.
While the appellant addressed the matter at this general level, my review of the evidence does suggest some features of the evidence that require consideration.
The first of these is that on the prosecution version of events, it would seem that Noble was in the back seat of the Statesman as it travelled from the Brauhaus hotel to Penrice Road. It might be said that it would be somewhat unusual for a person travelling in a car being driven by his friend to choose to sit in the rear seat rather than the front passenger seat. This observation does not suggest or entail any inconsistency in, or difficulty with, the prosecution evidence, because both Newman and Ellison said that they had not been able to see whether the male who entered the car from the passenger side did so through the front or rear door. The relevance of my observation is merely the existence of a degree of implausibility in the prosecution case.
Counsel for the respondent’s response to this potential implausibility in the prosecution case was that it might be explained by Noble’s intoxication at the time; that this may have contributed to him deciding to sit or lie in the back seat, or indeed have led to him in effect collapsing or passing out in the back seat of the car. Certainly the evidence supported a reasonably high level of intoxication on the part of Noble. This would be consistent with the prosecution evidence that Noble was lying (and perhaps sleeping) on the back seat when the police officers approached the Statesman.
A second feature of the evidence warranting consideration is the evidence to the effect that the Statesman, when pulled over on Penrice Road, and after initially appearing to stop, then rolled forward a short distance before again stopping. It stopped, on the prosecution evidence, with a slight skid, consistent with a handbrake being applied. This evidence fits neatly with the appellant’s version of events, namely that Noble jumped into the back seat upon the Statesman first coming to a halt, but did so without applying the handbrake or turning off the ignition. This resulted in the car rolling forward, and provided the need or occasion for the appellant to lean across from the passenger seat to apply the handbrake and turn off the ignition. On the other hand, on the prosecution case, there is no obvious explanation for the Statesman rolling forward as it did.
But again, the issue is not one of any inconsistency in, or necessary obstacle to, the prosecution evidence or case. On the prosecution case, as the appellant was driving, he must have either failed to apply the handbrake for some reason, or otherwise have allowed the car to roll forward. While this is perfectly possible, this feature of the evidence is more neatly explained by the appellant’s case than the prosecution case.
Thirdly, there is the evidence that the police officers were each aware, at the time they pulled the Statesman over, of information on the police computer system to the effect that there had been a previous incident in which the police had formed the view that the appellant had been driving but had taken steps to avoid being detected or proven as the driver. The evidence revealed that this was a matter operating on the minds of the police involved in the subject conduct. They were alive to a risk of the appellant attempting to drive off or otherwise avoid detection. Indeed, Newman accepted that she made reference to this previous incident in discussions with the appellant back at the police station – albeit stopping short of accepting the words attributed to her by the appellant.
The relevance of this feature of the evidence was the potential for it to have undermined the reliability of the evidence of the police officers. In other words, because they were alive to a risk that the appellant might take steps to avoid being detected as the driver, the police officers might have been prone to misinterpreting the general movement in the vehicle that they saw as the more specific conduct they attributed to the appellant.
Against this, it might equally be argued that knowledge by Newman and Brinkley of the previous incident involving the appellant explains why they were keeping a close eye on the Statesman as they approached it, and hence why they were able to make the quite precise observations they did.
Fourthly, there was the conduct of Noble in so readily and adamantly attempting to identify himself as the driver on the night in question. It is one thing that he subsequently signed two statutory declarations to this effect. It is another thing that even on the night in question he repeatedly attempted to identify himself as the driver.
Fifthly, it might be said that the police officers’ evidence, and in particular the evidence of Brinkley, brought an unrealistic level of precision to their observations. An example might be their evidence to the effect that they saw not just movement which was not only consistent with movement from the driver’s seat to the passenger seat, but also inconsistent with the movement which the appellant said he engaged in (namely, moving back from the driver’s side after having reached across to engage the handbrake and turn off the ignition).
Finally, I mention also the consideration emphasised by the appellant, namely that in assessing the credibility and reliability of the various witnesses, it would have been relevant to take into account the potential impact of both the possibility that the police officers were naturally more confident in the task of giving evidence (perhaps because of their experience in doing so, or simply because it was an aspect of their job), and the possibility that the appellant found the experience of representing himself and giving evidence very stressful, and at times irritating and frustrating. As to the latter, a reading of the transcript makes it plain that the appellant did find it difficult to maintain his composure at various times while giving evidence.
Having identified and considered the above features in the evidence, in the context of my independent assessment of the evidence as a whole, I am not satisfied that they are sufficient for me to conclude that the Magistrate erred. While the Magistrate did not tease out all of the above issues in great detail, there is on the other hand no reason for me to think that they were overlooked. To the contrary, the Magistrate’s reasons demonstrate a detailed and thorough review of the evidence. His Honour mentioned a number of features of the evidence (and the manner in which it was given) that were of significance in his decision making. He referred in particular to some unsatisfactory aspects of the appellant’s evidence, which he considered significant.
As the Magistrate said at the outset of his reasons, this was a case in which much turned on the Magistrate’s assessment of the reliability and credibility of the various witnesses. In this respect, in the circumstances of this case, the Magistrate had a significant advantage over the appeal court. There is nothing in my reading of the Magistrate’s reasons to suggest this advantage was misused or that the decision making process otherwise miscarried. I do not consider, for example, that the features of the evidence identified above either individually or cumulatively establish error on the part of the Magistrate.
The Magistrate was entitled to accept the evidence of Newman and Brinkley as to the observations they made of movement in the Statesman as credible and reliable. Despite the terms of the cross-examination of these witnesses, no evidence was led to suggest that there was any fog or frosting of windows, or any other impediment to their vision. On their evidence, the Statesman was illuminated by the headlights of two police cars and torch light. On the evidence of these police officers, the movement they saw was inconsistent with the defence case. Of particular significance in this respect, was the observation by Brinkley of the appellant moving his legs from the driver’s side to the passenger side of the Statesman.
Further, I accept that the Magistrate was entitled to reject as unreliable or untruthful the statements by Noble to the effect that he was the driver. Just because the statutory declarations were admissible under s 34KA of the Evidence Act, and were evidence of the truth of their contents, does not mean the Magistrate was required to accept them as reliable and credible. The Magistrate was entitled, indeed required, to assess the weight to be afforded to that evidence in the context of the evidence in the case as a whole, including that of the prosecution witnesses. In my view, bearing in mind the advantage the Magistrate had in seeing and hearing the various witnesses, I am not satisfied that he was in error in rejecting the reliability or truthfulness of Noble’s statements that he was the driver.
While the appellant’s notice of appeal asserted inconsistencies in the police officers’ evidence, he did not develop any submission to this effect. My review of the evidence does reveal several discrepancies in their evidence as to the detail, including the precise timing and sequence, of the events surrounding the pulling over of the Statesman and the arrest of the appellant. However, each was as to matters of relatively minor detail. These minor discrepancies were not in my view sufficient to undermine the reliability of their critical observations as to the movement they observed in the Statesman. None were sufficient to establish error on the part of the Magistrate in accepting their evidence on this issue as credible and reliable. In my view, no basis has been demonstrated for interfering with the Magistrate’s findings on this issue, and hence as to the identity of the driver.
In expressing this conclusion, I bear in mind, as the Magistrate did, that in a case such as the present it is not enough that the finder of fact reject the evidence of the defendant. They must also be satisfied beyond reasonable doubt as to the truth and reliability of the prosecution evidence in the case.
For the reasons I have given, neither ground of appeal has been made out. I dismiss the appeal.