G.B. Seears v Constable James Norman - [2013] ACTSC 7

G.B. SEEARS v CONSTABLE JAMES NORMAN
[2013] ACTSC 7 (4 February 2013)

APPEAL – Appeal from Magistrates Court – Appeal against conviction – Driver’s licence disqualification – Whether or not the appellant was the rider of the motorcycle – Error where Magistrate failed to give reasons for conviction – Magistrate did not address material led by appellant nor make any findings on credibility – Appeal Court in an equal position to determine appellant’s guilt – Sufficient doubt as to guilt remains – Appeal upheld

Road Transport (Alcohol and Drugs) Act1977 (ACT), s 19

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 33 of 2011

Judge: Burns J
Supreme Court of the ACT

Date: 4 February 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 33 of 2011
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: G.B. SEEARS
Appellant

AND:CONSTABLE JAMES NORMAN
Respondent

ORDER

Judge:  Burns J
Date:  4 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is allowed. The conviction and penalty imposed by the Magistrate are set aside, and a verdict of not guilty is substituted.

On 5 April 2011, the appellant was convicted after a contested hearing in the Magistrates Court of one offence contrary to s 19 (1) of the Road Transport (Alcohol and Drugs) Act1977 (ACT) alleging that on 14 May 2010 he rode a motor vehicle on a public street with level three alcohol in his blood. Upon conviction he was fined $500 and was disqualified from holding or obtaining a license for a period of three months. The appellant now appeals from his conviction.

The appellant was unrepresented before the Magistrates Court, and remained unrepresented in this court. His Notice of Appeal did not specify any particular grounds, but it is clear from the way in which the case was conducted in the Magistrates Court, and also from the submissions that were made by the appellant in this court, that he claims that he was not the rider of the motor vehicle at the relevant time.

THE PROCEEDINGS IN THE MAGISTRATES COURT

The only witness on behalf of the prosecution in the Magistrates Court was Constable James Norman. At 8:30pm on Friday 14 May 2010, he was conducting a mobile patrol on Oodgeroo Avenue in Franklin in the Australian Capital Territory. At about that time he saw a black Harley Davidson motorcycle, ACT registration 75190, travelling south on Gungahlin Drive in Gungahlin. When Constable Norman first saw the motorcycle he was several hundred metres from it. Oodgeroo Avenue forms a T-intersection with Gungahlin Drive. By the time that he got to the intersection of Oodgeroo Avenue and turned left into Gungahlin Drive he could see the motorcycle approaching the intersection at Well Station Drive. He subsequently followed the motorcycle, and maintained a continuous observation of it as it went down Grimwade Street and turned into the rear of 73 Heffernan Street at Mitchell. Constable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading G.B. Seears v Constable James Norman

Details

AGLC: G.B. Seears v Constable James Norman [2013] ACTSC 7
Case: [2013] ACTSC 7
Decision Date: 4 February 2013

CaseChat Overview and Summary

G.B. Seears appealed against his conviction in the Magistrates Court, contesting the decision that he was the rider of a motorcycle involved in an offence, which led to his driver’s licence being disqualified. The appeal was heard by a higher court which examined the evidence and reasoning provided in the original case.

The legal issues central to this appeal were whether the Magistrate correctly identified the appellant as the rider of the motorcycle and if there were procedural errors that affected the fairness of the conviction. The appeal court also needed to determine if the Magistrate’s failure to give reasons for the conviction, and not addressing material evidence, impacted the outcome of the case.

The appeal court found that the Magistrate did not adequately address the material presented by the appellant nor did they make any findings on the credibility of the evidence. Given this, the appeal court was in an equal position to determine the appellant's guilt. The court found that there was sufficient doubt about the appellant's identity as the rider, and the failure to provide reasons for conviction was a significant procedural error. Consequently, the appeal was upheld, and the conviction and penalty were set aside. A verdict of not guilty was substituted in place of the original conviction.

Orders

Orders of the court

The appeal is allowed. The conviction and penalty imposed by the Magistrate are set aside, and a verdict of not guilty is substituted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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