Gill v Attwell
[2007] WASC 130
•22 MAY 2007
GILL -v- ATTWELL [2007] WASC 130
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 130 | |
| Case No: | SJA:1002/2007 | 22 MAY 2007 | |
| Coram: | McKECHNIE J | 22/05/07 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Re-trial ordered | ||
| B | |||
| PDF Version |
| Parties: | NORMAN JOHN GILL PHILLIP BRYAN ATTWELL |
Catchwords: | Road Traffic Act 1974 (WA) Burden of proof of defence No new principles |
Legislation: | Road Traffic Act 1974 (WA), s 67 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PHILLIP BRYAN ATTWELL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE E A HAMILTON
File No : AL 1599 of 2004
Catchwords:
Road Traffic Act 1974 (WA) - Burden of proof of defence - No new principles
Legislation:
Road Traffic Act 1974 (WA), s 67
(Page 2)
Result:
Appeal allowed
Re-trial ordered
Category: B
Representation:
Counsel:
Appellant : Mr N C Monahan
Respondent : Mr L A Margaretic
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Haynes Robinson
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McKECHNIE J: The respondent was charged with an offence under Road Traffic Act 1974 (WA), s 67 - failing to comply with a requirement to provide a sample of his breath for analysis. He pleaded not guilty to that charge. The matter proceeded on 23 November 2006. The Magistrate reserved her decision and on 15 December 2006 dismissed the charge. By order of Blaxell J on 31 January 2007 leave was granted to the prosecution to appeal on the following grounds:
"The learned Magistrate erred in acquitting the accused of the charge in that she erred in law by incorrectly applying the relevant test under section 67(5) of the Road Traffic Act 1974.
Particulars
1. The learned Magistrate failed to find that the accused had not established that his non-compliance with the request to provide a sample of breath was caused by physical incapacity; and
2. The learned Magistrate failed to correctly apply the onus of proof in relation to the defence afforded by section 67(5) of the Road Traffic Act 1974."
2 The ground must succeed. The Magistrate, with great respect, seems not to have clearly understood or applied the various burdens of proof which arose in this prosecution. I say the various burdens of proof because she was satisfied, it appears (there did not seem to be any real contest), that the respondent was lawfully required by a member of the police force to provide a sample of his breath and that he declined to do so. The Road Traffic Act s 67(5) provides:
"It shall be a defence to a prosecution for an offence against this section if the accused satisfies the court that there was some substantial reason for his failure to comply, other than a desire to avoid providing information that might be used as evidence."
3 That section then alters what I might call the normal rules applicable to criminal trials which are that the onus is on the prosecution to prove its case beyond reasonable doubt and to negative any defence. Under s 67, the defence has a positive onus on the balance of probabilities of satisfying the Court in accordance with the section.
4 The Magistrate commenced her reasons by dealing with the burden of proof in conventional form and then continued:
(Page 4)
- "An accused person bears no burden of proof because there is a presumption of innocence, and allied to that, there is a right to silence. The accused, though, in respect to the charge laid under section 672 [sic] of the Road Traffic Act, does bear an evidentiary burden in respect to his defence, but the standard applicable to that burden is the balance of probabilities. The burden of proof remains that of the prosecution at all times, and having raised evidence to his defence, it is still incumbent upon the prosecution to negative that beyond reasonable doubt."
5 This passage indicates a confusion of the burdens of proof applicable in this trial. Mr Margaretic, who has ably argued the appeal for the respondent today, has pointed to other passages in the Magistrate's reasons, and particularly to the various findings of fact, which he submits show that, despite a certain infelicity of language, the Magistrate nevertheless found positively and affirmatively that there was a substantial reason for non-compliance.
6 The Magistrate (at page 7 and following of her reasons), made certain findings, which I do not need to repeat. They are findings as to the particular circumstances, and particularly the evidence of the respondent and his witnesses - which, in broad terms, were that he had suffered an injury in an accident and was complaining of chest pain - together with the evidence of his medical practitioner of whom he had been a patient for some 20 years. The respondent had difficulty in breathing, had a fractured sternum, it being very painful, and was unable to provide a sample of his breath.
7 The problem in the reasons arises at page 11 of the transcript because the Magistrate then purported to draw inferences or to say that there were various inferences that could be drawn; the first being in favour of the prosecution, and the second being in favour of the accused. She then continued:
"In circumstances where there are two competing inferences open, and they are reasonably open on the evidence and the facts to be drawn from the evidence, I must give the accused the benefit of the inference favourable to himself - that is, that there was a substantial reason for failure to comply - and in those circumstances then that inference must be drawn in his favour and the matter cannot be made out beyond reasonable doubt."
(Page 5)
8 Coupled with the confusion of expression at the commencement of her reasons, it is therefore unclear whether she was affirmatively satisfied as to the defence under s 67(5) or whether there was some evidence that there was a substantial reason, and because there was some evidence that she could not reject, the prosecution had failed to satisfy her beyond reasonable doubt.
9 As I say, it is just unclear what in the end was the position. That being so, I consider she has fallen into error by failing to find clearly and affirmatively that the defence had discharged its burden on the balance of probabilities. It may be that was her conclusion but I can only interpret the words she spoke. They are equally open to the interpretation that the defence merely raised an evidential burden which the prosecution were unable to negative beyond reasonable doubt. If it were the latter that was an error.
10 As I consider she has made an error in the burden and the standard of proof applicable in this case, I would allow the appeal on that ground.
11 The other particular falls away. Whether or not the evidence is capable of satisfying a Magistrate is a matter of fact and a matter of weight to be attributed to the evidence. As the appropriate course in this case will be for a re-trial, it is better that I express no opinion, especially as I have not heard the witnesses. I will leave it for another Magistrate properly applying the burden and standard of proof.
12 I allow the appeal, set aside the judgment of acquittal, and order that the matter be remitted to the Magistrates Court for re-trial before another Magistrate.
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