HARRIS v POLICE No. SCGRG-98-1382 Judgment No. S6975

[1998] SASC 6975

HARRIS v POLICE
[1998] SASC 6975

Magistrates Appeal

1. MILLHOUSE J.       A magistrate at Coober Pedy convicted the appellant of driving without due care and driving with more than .05 percent alcohol in his blood.

2. He was picked up one evening driving and taken back to the police station at Coober Pedy for a breath test.  About half past ten he registered .2 percent.  He was then, according to the police, given his rights: he did not opt to have a blood test.

3. At the hearing of the charges he pleaded not guilty.  Three police officers gave evidence for the prosecution.  The only description of the appellant's condition was given by Constable Graetz:-

   "That his breath had a slight odour of liquor, that his facial colour appeared normal, his clothes were soiled, he was polite, cooperative and quiet, his eyes were slightly bloodshot and his speech appeared normal and he was quiet."

4. Yet in his extempore judgment the learned special magistrate said:-

   "The defendant's evidence was on the whole unconvincing and most obvious was his hesitation and uncertainty before answering many of the questions put to him in cross-examination.  A further matter to be taken into account in terms of his reliability, is that he clearly was observed to be affected by alcohol.  Remarkably he was not questioned by the prosecution upon the subject of alcohol intake."

5. Mr Kevin Borick for the appellant criticised what the Magistrate had said, arguing that, from Constable Graetz' description, one could not say that his client "clearly was observed to be affected by alcohol".  There is some indication that the appellant was affected by alcohol in the phrases "his breath had a slight odour of liquor" and "his eyes were slightly bloodshot".  However, one drink could have tainted his breath and his bloodshot eyes may have been caused by sunburn, hayfever or any number of cause other than alcohol.  It is a big step to find that Constable Graetz' description affects the "reliability of the witness".

6. The main thrust of Mr Borick's argument was that the learned magistrate reversed the onus of proof. 

7. My first reaction was to point out that this was an ex tempore judgment given by a no doubt busy magistrate: one could not expect perfection of expression.  Had it been said in a summing up to a jury it would have been a serious matter but it could be excused in an ex tempore given by an experienced magistrate.  Mr Borick's reply was that the learned magistrate had made this mistake not once but twice.

8. The magistrate made strong findings of fact in favour of the prosecution, preferring the evidence of the three police officers (whom he thought reliable) to that of the appellant (whom he did not think reliable).  Miss Kate Williams for the respondent Police argued that these findings of fact really are impregnable and in doing so quoted from Devries v Australian National Railways Commission (1992-3) 177 CLR 472:-

   "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact.  If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his (or her) advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.

9. Yet Miss Williams' defence missed the thrust of Mr Borick's attack.  Mr Borick did not seek to upset findings of fact.  His argument was that accepting the facts, the learned magistrate had misdirected himself.  He pointed to these passages in the judgment:-

   "For the defendant to be believed in preference to the police, I would have to find that both Tappin and Graetz, had conspired to lie about what happened in the breath analysis room.  It comes down to that, as I say, because I do not believe they could both be mistaken about matters as fundamental as is alleged by the defendant.

   I further would have to accept the defendant's evidence over that of three police officers as to who was present in the typing room immediately after the breath analysis test
   took place.  In relation to the latter the obvious question is why would the police officers lie about something as inconsequential as that.  There is no obvious answer."
   ...

   "I have no reason on the evidence to find that 3 police officers would conspire to lie in relation to what was a very straight-forward matter."

10. Mr Borick referred to several cases, the latest of which is Colin Vaughan Palmer (1997) 96 A Crim R 213. He referred me especially to the judgment of Kirby J (@ 244-249). It is a case in which the appellant argued that he had been improperly cross-examined. He had been asked whether he knew of any motive for a false allegation to be made against him. Mr Borick submitted, correctly, I think, that the principles canvassed in the High Court judgments should be applied equally to the present case. Part of the conclusion of Kirby J (@ 248-249):-

    "     As for the charge to the jury, it is true that it was generally fair, even favourable, to the appellant.  However, by introducing the suggestion of a 'neurosis or whatever' on the part of the complainant - one which had not been proposed by or for the appellant - the judge again drew attention to the issue of motivation.  He might have been understood to mean that, unless the jury were satisfied that the complainant was suffering from a 'neurosis or whatever', no motive had been shown to lie so that the complainant's evidence could be accepted as truthful.  This is precisely the danger of illogical reasoning, destructive of the presumption of innocence, that the law forbids."

1. Of course, the correct test is whether the learned magistrate was satisfied on all the evidence, beyond reasonable doubt, that the charges had been proved, not to rest on whether or not the police had a motive to lie.

2. On reflection I am left with an uneasy feeling about the learned magistrate's charge to himself.  On this occasion, it seems he has had a lapse and may have misdirected himself.  That being so the convictions should not stand.

Since the hearing my brother Olsson has delivered judgment in the matter of Harvey v Police (judgment no.S6958, delivered on 18 November 1998).  The appellant's solicitor has spoken to my Associate asking that as a result of the reasonings in Harvey v Police this appeal be called on for further argument.  That would be quite a waste of time, especially in view of my findings.

1. The appeal is allowed, the appellant's convictions quashed and the matter remitted to the Magistrates Court for hearing afresh by another magistrate.