GEISTER v Police - [2008] SASC 177

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GEISTER v POLICE
[2008] SASC 177
Judgment of The Honourable Justice White
4 July 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - VOIRE DIRE EXAMINATION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Magistrates Appeal - Road Traffic Act 1961 s 47B - conviction for having the prescribed concentration of alcohol in blood - objection to admissibility of breath analyser print-out - allegation that breath analysis operator influenced appellant against obtaining an analysis of a blood sample - unfairness discretion - objection determined as part of substantive trial - whether voir dire should have been conducted - magistrate preferred the evidence of the breath analysis operator - nothing said to dissuade appellant from exercising blood sample rights - whether adequate reasons given as to preference of one witness over another - appeal dismissed.
Road Traffic Act 1961 (SA) s 47A, s 47B, s 47K; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 9, referred to.
Papps v Police (2000) 77 SASR 210; Gikas v Police (1999) LSJS 301, distinguished.
R v Keyte (2000) 78 SASR 68; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Power (2003) 141 A Crim R 203, discussed.
Kohler v Barrett (1991) 56 SASR 523; R v Swaffield (1998) 192 CLR 159; R v Lobban (2000) 77 SASR 24; DPP v Moore (2003) 6 VR 430; Robin v Police (2002) 81 SASR 253; Police v Fountaine (1999) 74 SASR 26; AK v Western Australia (2008) 82 ALJR 534; R v McKenzie [2001] SASC 279; R v C, AP [2006] SASC 334; Allison v Police [2005] SASC 447; R v Barrowman (2007) 96 SASR 294; Tucker v Police (2004) 89 SASR 135; Gannon v Police (2005) 93 SASR 289; Zaronias v Papaiani [2002] NSWCA 207; Phillips v Arnold [2008] TASSC 6; Fox v Percy (2003) 214 CLR 118, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Inadequate reasons", "Unfairness discretion"

GEISTER v POLICE
[2008] SASC 177
Magistrates Appeal

WHITE J : The appellant appeals against his conviction for a contravention of s 47B of the Road Traffic Act 1961 (SA) (RTA). The magistrate was satisfied that the appellant had driven his car on Park Terrace at Bowden on 21 May 2006 while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the RTA.
The appellant was stopped at a random breath test station. A breath analysis revealed that the concentration of alcohol in his blood was 0.182 grams in 100 millilitres of blood. The underlying contention on appeal is that the magistrate erred in admitting into evidence the print-out from the breath analyser relied upon by the prosecution to establish the presence of that concentration of alcohol in the appellant’s blood at the relevant time.
At the trial, the appellant had contended that the magistrate should exclude the print-out from admission into evidence. He alleged that the breath analysis operator (Snr Constable Petts) had, shortly after handing him a blood test kit, suggested that the obtaining of a blood test would be futile. He says that in consequence of that statement he and his wife decided not to obtain a blood test. He submitted that in that circumstance it was unfair for the police to be able to rely upon the print-out in order to prove the charge against him.
The magistrate found that Snr Constable Petts had not made the statement attributed to him. The occasion for an exercise of the discretion accordingly did not arise. The magistrate admitted the print-out into evidence. This led to the conviction of the appellant.
Issue on Appeal
The appellant complains on appeal about the magistrate’s process of reasoning and of the adequacy of his reasons. The appellant submits that the magistrate did not give adequate reasons for the rejection of the evidence of himself and his wife and that he had reasoned “in an impermissibly simplistic manner”.[1]
[1] Cf Kohler v Barrett (1991) 56 SASR 523 at 530.
The Course of Events at the Trial
At the commencement of the trial the appellant’s then counsel told the magistrate, in effect, that the only issue in the trial was whether the appellant had been counselled inappropriately by the breath analysis operator about the exercise of his right to have a blood sample taken. The prosecutor then called the operator, Snr Constable Petts, and Sgt McDonald who had been present at the time of the breath analysis. When the prosecutor sought to tender the breath analysis print-out pertaining to the appellant in the course of the evidence of Snr Constable Petts, objection was taken. The basis for the objection was the appellant’s assertion that Snr Constable Petts had made an inappropriate statement to him about the exercise of his blood sample rights. The magistrate did not resolve the objection at that time but instead marked the print-out for identification. The evidence of Snr Constable Petts then continued. It was put to each of Snr Constable Petts and later to Sgt McDonald that the appellant had asked the former about obtaining a blood sample. It was put that Snr Constable Petts had responded with words to the effect “There’s not really much point as it wouldn’t hold up in court. It would prove the breath test faulty and that just doesn’t happen”. Each of Snr Constable Petts and Sgt McDonald denied that words to that effect had been spoken.
At the completion of the prosecution evidence the appellant gave his evidence and called evidence from his wife in support.
The magistrate gave an ex tempore judgment in which he found that Snr Constable Petts had not spoken the words attributed to him. At the conclusion of that judgment he admitted the print-out which had been marked for identification into evidence; found that the appellant did have a blood alcohol reading of 0.182; and then found the charge proved.
The Complaint About Procedure
On appeal, it was submitted that the procedure adopted at the trial was irregular. As noted, the appellant was seeking to have the print-out excluded from admission into evidence by an exercise of the Court’s discretion. It seems that the appellant was relying upon the unfairness discretion.[2] Usually, a defendant is entitled to know, by the time of the completion of the prosecution case, whether or not disputed evidence has been admitted. The defendant will then know all of the evidence which has been admitted before making decisions about whether to go into evidence, whether or not to make a submission of no case to answer and so on.[3] When a defendant does seek the exclusion of breath analysis evidence in the exercise of the unfairness discretion ordinarily the procedure to be followed is the same as that applied in any other case in which a court is asked to exclude prosecution evidence in the exercise of a discretion. [4] It is often necessary for the court to conduct a voir dire in order to resolve an objection about admissibility. A procedure such as that was not adopted in the present case. Instead the objection to admissibility was determined as part of the substantive trial.
[2] R v Swaffield (1998) 192 CLR 159; R v Lobban [2000] SASC 48; (2000) 77 SASR 24; DPP v Moore [2003] VSCA 90; (2003) 6 VR 430.
[3] Robin v Police [2002] SASC 33 at [60]-[63]; (2002) 81 SASR 253 at 274-5.
[4] Ibid; see also Police v Fountaine [1999] SASC 227 at [74]; (1999) 74 SASR 26 at 44-5.
However, nothing turns on that procedural irregularity (if it be correctly so characterised). Had a voir dire been conducted the same witnesses would have been called to give evidence and it is likely that they would have done so in the same order. As the defendant carried the onus on the issue raised on the objection to the prosecution’s evidence it is possible that he and his wife may have had to give evidence before the prosecution witnesses, but it commonly occurs that the prosecution evidence is heard first. Counsel for the appellant conceded that no detriment had been caused to the appellant in the way in which the trial had in fact been conducted.
The procedure adopted at the trial in the present case had the consent of all involved. It was a practical procedure to adopt. The appellant’s counsel at trial accepted at the outset that there was a single issue to be decided by the magistrate. It was convenient for that single issue to be determined as part of the substantive trial rather than as part of a separate voir dire. The appellant had accepted that he did not wish to call other evidence, or to make further submissions, in the event that the magistrate resolved to admit the print-out into evidence.
The fact that the issue was dealt with as part of the substantive trial seems to have had one favourable consequence for the appellant. Because he was alleging that a circumstance had occurred which meant that the breath analysis print-out should be excluded in an exercise of the discretion, the appellant had the relevant onus.[5] However, the magistrate proceeded on the basis that the onus on the prosecution of proving the charge beyond reasonable doubt required it to negative the unfairness which the appellant alleged. Applying the criminal onus, the magistrate did not accept that there was “a reasonable possibility” that Snr Constable Petts had used the words attributed to him. This means that the magistrate approached the matter in a way which was unduly favourable to the appellant. It seems that he was influenced to do so because the matter was being dealt with as part of the substantive trial.
[5] Police v Fountaine [1999] SASC 227 at [74]; (1999) 74 SASR 26 at 44-5.
The Magistrate’s Reasons
In his ex tempore reasons, the magistrate referred to the evidence of each of the four witnesses. Although it seems that the magistrate accepted the evidence of Sgt McDonald, he thought that his evidence did not assist much in the resolution of the disputed matter. That was because the alleged conversation may have occurred at a time when Sgt McDonald was not present and, further, because the magistrate considered that Sgt McDonald’s evidence resulted more from his knowledge of police procedure and of Snr Constable Petts’ experience rather than from a clear recollection of what was or was not said at the time.
In relation to the appellant’s wife, the magistrate noted two respects in which her evidence was inconsistent with the evidence of the two police officers and of her husband. The magistrate then said that he did not regard the appellant’s wife as a reliable witness.
In relation to Snr Constable Petts, the magistrate referred expressly to certain criticisms of his evidence made by the appellant’s then counsel. Snr Constable Petts had said that he had referred to s 47K of the RTA when giving the appellant the prescribed oral advice,[6] but was forced to acknowledge that he was mistaken in that respect, as s 47K was not then in force.
[6] Road Traffic (Miscellaneous) Regulations 1999, reg 9.
The magistrate concluded his assessment of the evidence of Snr Constable Petts and of the defendant with the following:
I found Petts to be a good witness. I am satisfied he was simply mistaken as to which was the relevant subsection and conceded his error when it was drawn to his attention. I am satisfied he is a very experienced breath analysis operator and I was left with no doubt after hearing his evidence that he did not say the words, or similar, attributed to him by the defendant and his partner as they were leaving the van.
Turning to the defendant’s evidence. While I could not be critical of his demeanour in the witness box and bearing in mind that his evidence was given on oath I find the possibility of Constable Petts using the words attributed to him to be so remote as to not be a reasonable possibility. As I have already said I accept the evidence of Petts and reject the defendant’s evidence in relation to the words he attributed to Petts outside the van.
Consideration
The appellant submitted that the magistrate had not given adequate reasons for his conclusion that his wife was not a reliable witness generally. It was submitted further that the magistrate had not explained how his finding that she was unreliable on two particular issues affected his assessment of her credibility or reliability on the critical question of whether Snr Constable Petts had made the statement attributed to him. It was also submitted that the magistrate had not given adequate reasons for the rejection of the appellant’s own evidence.
The obligation of judicial officers to give adequate reasons for their decisions is well-known.[7] The extent of the reasons required varies according to the circumstances of the individual case and the issue then being decided. The increasing occurrence of criminal trials conducted by a judge sitting without a jury has led to more detailed consideration of the obligation of judicial officers to give reasons. But it has been recognised for some time that when the resolution of an issue in a case depends solely on the judge’s or magistrate’s assessment of the credibility of the respective witnesses, detailed reasons for the preference of one witness over another are not required. In R v Keyte the obligation of a judge sitting without a jury to give reasons for the verdict was considered. Doyle CJ, with whom Wicks J agreed, said that he did not accept that it was necessary for a judge sitting without a jury:
to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.[8]
Earlier, Doyle CJ had agreed with the statement of Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd that the law does not require a trial judge’s “tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.[9]
[7] AK v Western Australia [2008] HCA 8 at [89]; (2008) 82 ALJR 534 at 553-4 per Heydon J.
[8] [2000] SASC 382 at [56]; (2000) 78 SASR 68 at 81.
[9] (1987) 10 NSWLR 247 at 259.
The Full Court in R v Power[10] followed the approach of Doyle CJ in Keyte. Perry J (with whom Williams and Bleby JJ agreed) held that there was no requirement for the trial Judge to give a detailed explanation for the decision to prefer the evidence of one witness against that of another.[11] Later decisions of this Court have taken a similar view. See, for example, R v McKenzie;[12] R v C, AP;[13] Allison v Police;[14] R v Barrowman;[15] Tucker v Police;[16] and Gannon v Police.[17] A similar approach has been adopted in the courts of other States. In Soulemezis McHugh JA said:
Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary “for him to go further and say, for example, that the reason was based on demeanour”.[18]
See also Zaronias v Papaiani[19] and Phillips v Arnold.[20]
[10] [2003] SASC 77; (2003) 141 A Crim R 203.
[11] Ibid at [59], 210-11.
[12] [2001] SASC 279 at [11].
[13] [2006] SASC 334 at [72]-[76].
[14] [2005] SASC 447 at [59].
[15] [2007] SASC 28 at [4]-[7]; (2007) 96 SASR 294 at 296.
[16] [2004] SASC 239 at [54]-[55]; (2004) 89 SASR 135 at 145.
[17] [2005] SASC 502 at [22]-[24]; (2005) 93 SASR 289 at 294-95.
[18] (1987) 10 NSWLR 247 at 280.
[19] [2002] NSWCA 207 at [7].
[20] [2008] TASSC 6 at [16]-[20].
In my opinion, these cases state the principle against which the appellant’s submissions on this appeal are to be considered.
The magistrate’s reasons were admittedly brief. It is plain, however, that the magistrate accepted Snr Constable Petts’ evidence as both credible and reliable. The magistrate gave two reasons for rejecting the evidence of the appellant. The first is that he was convinced about the reliability of Snr Constable Petts’ evidence. The second is that he considered the appellant’s evidence to be inherently unlikely. The magistrate considered that the possibility that Snr Constable Petts, a very experienced breath analysis operator, had departed from usual police practice and procedure and in particular, had contravened a direction that police should refrain from any comment at all about the desirability of a driver obtaining a blood test, was remote. In light of the authorities reviewed above those remarks were adequate.
The appellant submitted that the express statement by the magistrate that he was not critical of the appellant’s demeanour meant that further explanation for the rejection of his evidence was required. I do not accept that submission. The magistrate’s statement indicated that it was not the demeanour of the appellant in the witness box which caused him not to accept his evidence. There are limitations on the usefulness of demeanour as an indicator of reliability.[21] An assessment of a witness’ demeanour, while a relevant matter, is not the pre-eminent consideration in the assessment of a witness’ honesty and reliability. The magistrate’s comment indicates that insofar as his assessment of demeanour was relevant, it did not cause him, by itself, to reject the appellant’s evidence. It did not have the effect of enlarging the reasons required.
[21] Fox v Percy [2003] HCA 22 at [30]-[31]; (2003) 214 CLR 118 at 128-9.
In relation to the appellant’s wife, I do not consider that it was necessary for the magistrate, once having pointed out two areas in which he regarded her evidence as having been unreliable, to then go on to explain why he found her evidence generally to be unreliable, and to explain why he was not prepared to act on her evidence in relation to the disputed conversations. It is implicit in the magistrate’s reasons that he regarded her unreliability on two particular matters as undermining her reliability more generally.
The appellant referred to the judgment of Gray J in Papps v Police.[22] Gray J considered the adequacy of the magistrate’s reasons on an issue to which the defendant’s credit was critical. Gray J concluded that the magistrate had considered and assessed the credit of the prosecution witnesses but had not engaged in any similar assessment at all of the defendant and his witnesses. He found in that respect that the magistrate’s reasons were inadequate. On my understanding, the reasons in Papps v Police do not detract from the principle outlined above. Instead, Papps involved an application of established principle to the particular circumstances of the case. Unlike the circumstances considered in Papps, the magistrate in the present case did refer to, and consider, the evidence of each witness in the trial. He did make an assessment of the reliability of the evidence of each. Unlike the circumstances in Papps, the present magistrate did give reasons for his rejection of the defence case.
[22] [2000] SASC 183; (2000) 77 SASR 210.
The same point can be made with respect to the decision of Lander J in Gikas v Police[23] to which the appellant also referred. In that case, as in Papps, the magistrate had not dealt with the question of the credit of the appellant and his witnesses at all.[24]
[23] [1999] SASC 139; (1999) 202 LSJS 301.
[24] Ibid at 311.

In my opinion, the appellant has not made good his grounds of appeal. The magistrate’s reasons, while admittedly brief, were adequate for the purpose. Accordingly, the appeal should be dismissed.