Harrison v Page
[2014] WASC 81
•24 MARCH 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HARRISON -v- PAGE [2014] WASC 81
CORAM: CHANEY J
HEARD: 28 FEBRUARY 2014
DELIVERED : 24 MARCH 2014
FILE NO/S: SJA 1137 of 2013
BETWEEN: FRANK RICHARD HARRISON
Appellant
AND
ANTHONY JOHN PAGE
Respondent
Catchwords:
Road traffic - Appeal against conviction - Magistrate relying on sound heard on video exhibit - Sound not relied upon by prosecution - No opportunity given to defendant to be heard on source of sound - Denial of procedural fairness
Legislation:
Nil
Result:
Leave to appeal granted
Matter referred back to Magistrates Court for re-hearing by a different Magistrate
Category: B
Representation:
Counsel:
Appellant: In Person
Respondent: Mr J Misso
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Cases referred to in judgment:
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Bleechmore v Keating [2008] WASC 309
Browne v Dunn (1893) 6 R 67
King (1985) 17 A Crim R 184
CHANEY J: On 6 November 2013, the appellant, Mr Harrison, was convicted in the Magistrates Court in Northam of an offence, namely that, being the driver of a motor vehicle registered number IDCD322, that was moving on a road, namely Great Eastern Highway, he failed to wear a seatbelt properly adjusted and securely fastened. Mr Harrison sought leave to appeal against that conviction, and directions were made that the application for leave to appeal was to be heard at the same time as the appeal.
The appeal notice contained grounds of appeal which lacked proper specificity. The grounds simply asserted that the Magistrate made an error of law or fact or both law and fact, acted without or in excess of jurisdiction, and that there was a miscarriage of justice. When the matter came on for hearing, Mr Harrison was able to identify a more precise complaint, namely that the Magistrate had denied him natural justice by reaching his conclusion in reliance on a sound heard by the Magistrate on a video tendered in evidence, without providing Mr Harrison with notice of that reliance or any opportunity to give any evidence or make any submission concerning the sound heard on the video.
Although that precise ground of appeal was only identified by Mr Harrison at the commencement of the hearing of the appeal, the point had been identified by counsel for the respondent in advance of the hearing. As a result, the point was the subject of written submissions filed by him before the hearing of the appeal, and he was in a position to deal with the point at the hearing.
The case against Mr Harrison
Mr Harrison is a truck driver by occupation. On 14 December 2012, he was driving a truck loaded with an overwidth load along Great Eastern Highway near Northam. Mr Harrison was travelling in convoy with another truck and was followed by a pilot vehicle. Mounted on the dashboard of Mr Harrison's truck was a video camera which was operating at the relevant time.
The police were running a vehicle examination operation on Great Eastern Highway in a rest bay adjacent to the highway. Sometime before arriving at the rest bay, there was a conversation between Mr Harrison, and someone whom Mr Harrison took to be, and the Magistrate appeared to accept, was a police officer. The Magistrate found that the police officer requested the trucks to pull in at the rest bay for inspection.
The prosecution case relied upon the evidence of two police officers, Sergeant Page and Senior Constable Carter, who were stationed at the entrance of the rest bay. Both of those officers gave evidence that, as Mr Harrison's truck approached the rest bay, they observed, through either the windscreen or the side window, that Mr Harrison was not wearing a seatbelt. It was that evidence upon which the prosecutor based the case against Mr Harrison.
Mr Harrison's defence
Mr Harrison gave evidence that at all times he was wearing a seatbelt. He produced a number of photographs designed to show the position of the seatbelt when worn by the driver of the truck. The essential nature of that evidence was that, unlike some belts attached to a pillar which extends from above the shoulder of the wearer, the seatbelt in the truck concerned extended from the seatback below the shoulder level and then followed the contour of the shoulder and chest. A deal of evidence (based on photographs) dealt with the colour scheme of the interior of the truck and the colour of the seatbelt, presumably designed to demonstrate that the officers on whose evidence the prosecution relied could easily have been mistaken in thinking that Mr Harrison was not wearing a seatbelt. Other evidence adduced by Mr Harrison endeavoured to establish that, in any event, the officers would not have had a clear view of the interior of the cab of the truck. Mr Harrison also called a third police officer, Constable Allan, who was participating in the vehicle examination. She had been located further into the rest bay and spoke to Mr Harrison when he pulled his vehicle to a stop. Her evidence was that, at that point, Mr Harrison was wearing a seatbelt. That evidence was accepted by the Magistrate who, in his reasons for decision, identified:
the prosecution implication of course being that the accused somewhere between the time that he turned off Great Eastern Highway and turned into the strait, as it were, of the truck bay had re‑engaged his seatbelt.
The Magistrate identified Mr Harrison's defence as being based upon:
(i)his own evidence that he was wearing a seatbelt;
(ii)Constable Allan's evidence that, at least when the vehicle came to a stop, Mr Harrison was wearing a seatbelt;
(iii)given that he knew in advance that he was approaching a police vehicle inspection, he was unlikely to not have his seatbelt fastened;
(iv)that a strap hanging from a pillar adjacent to the driver's seat of the truck might have been mistaken for an unattached seatbeltby the police officers, whereas in fact it was a strap for retaining a curtain.
The Magistrate's decision
At the close of evidence, the Magistrate heard submissions from the prosecutor and defence counsel. The prosecutor urged the Magistrate to accept the evidence of the two police officers who had said that Mr Harrison was not wearing his seatbelt. In relation to the video which had been tendered by Mr Harrison, he asserted that there were three seconds of the video missing, although quite what was made of that point is unclear. He otherwise urged the Magistrate to give little weight to various photographs upon which Mr Harrison had relied.
Counsel for Mr Harrison argued that the two police officers' evidence should not be relied upon for various reasons, and asserted that her client had given clear evidence that he was wearing a seatbelt which was supported by the evidence of Constable Allan to that effect.
At the conclusion of submissions, the learned Magistrate advised the prosecutor and defence counsel that he wanted 'to have another look at the video' and that he was 'going to ask everyone to clear the court because I can't watch it on my machine'. It is apparent that the Magistrate then viewed the video in the absence of the parties. Having adjourned for that purpose, he then returned to deliver his reasons for decision.
The learned Magistrate recounted the evidence in detail. He then turned to the video evidence. He concluded that nothing turned on the allegedly missing three seconds of the video on the basis that the missing seconds appeared to him:
to be at a time when basically everything of relevance has occurred. He has been confronted by Constable‑Sergeant Page about the wearing of the seatbelt, he's denied it. Constable Allan has indicated that he was wearing a seatbelt and basically everything of relevance happens before that three second miss.
His Honour then concluded that he considered the prosecution witnesses to be honest and reliable. He referred to the accused's evidence that he was 'most certainly wearing his seatbelt at the time'. The learned Magistrate continued:
It's very difficult for him to be saying ‑ to be giving any other evidence other than just saying 'I was wearing a seatbelt' and looks at the evidence of Constable Allan as a support for that. In my view, what is conclusive in respect of this matter is not what is seen on the video but what is heard on the video. At 9.21 and some seconds, I didn't record that [sic] seconds, you hear the accused [sic] indicator being engaged, 'click, click, click'. It's a very clear sound.
At 9.22.10, as the vehicle is moving towards the stop point where the officers are and prior to Constable Allan coming into view, you hear what is a very clear double metallic click, which is consistent with someone putting their seatbelt on. At 9.32.55, you hear the accused say words to the effect of 'where do they put this stuff?' and you hear again a very clear single metallic click, consistent with someone taking their seatbelt off.
His Honour then proceeded:
But given, as I said, the prosecution and the police officers' very clear evidence of what their ability to see what [sic], what they saw through the window, what they were able to note through the windows.
And also given what I considered to be very clear evidence in terms of the video as to what I heard on the video and that it is the very clear metallic sound of the double click, consistent with the seatbelt being put on prior to Constable Allan approaching the vehicle and then the single click of the seatbelt being removed, in my view, that's [sic] corroborates the evidence of the two police officers and I am satisfied and satisfied beyond a reasonable doubt that the accused was in fact not wearing his seatbelt at the time ...
Was the accused denied procedural fairness?
In my view, reliance by the Magistrate on the sound which he heard on the video, without giving Mr Harrison the opportunity to give evidence or make submissions as to the inference drawn by the Magistrate as to the source of that sound, was procedurally unfair. The prosecution had placed no reliance on that sound, nor sought to have the Magistrate draw any inference from it. Indeed, the sound was never mentioned by anyone until the Magistrate referred to it in his reasons. At the hearing of the appeal, Mr Harrison suggested an explanation for the sound which is entirely consistent with his innocence. Whilst that explanation was not provided by way evidence, it illustrates the fairly obvious proposition that a defendant in Mr Harrison's position might seek to dissuade the Magistrate from drawing the inference which he did on the basis of hearing the sound on the video.
Counsel for the respondent acknowledged that the introduction by a trial Judge of an alternative basis for the accused's liability at a late stage in a trial, after which the defence has no chance to address it, may constitute a procedural irregularity serious enough to produce a miscarriage of justice.[1] The respondent argues, however, that 'in this case the Magistrate did not introduce "an alternative basis for liability" in reaching his verdict', and that the findings of facts were consistent with the factual scenario advanced by the prosecution. Thus, the respondent submits that 'the Magistrate merely highlighted, and drew an inference from, an aspect of the video which was not mentioned by the prosecution or defence'.[2]
[1] King (1985) 17 A Crim R 184, 187 (Street CJ), 190 (Lee J agreeing); Bleechmore v Keating [2008] WASC 309 [52] (Hasluck J).
[2] Issuing Officer's Outline of Submissions and List of Authorities, filed 26 February 2014 [21].
I accept that the Magistrate did not introduce an alternative basis for liability. That is not, however, the end of the matter. Had the inference to be drawn from the clicking sound formed part of the prosecution case, it would have been incumbent upon the prosecutor to put to Mr Harrison in cross‑examination that the sound heard on the video was the fastening of Mr Harrison's seatbelt, to comply with the rule in Browne v Dunn[3]. The underlying principle to that rule is that it is unfair to a witness to deny him the opportunity to make any explanation open to him if a later invitation to disbelieve or criticise the witness is to be made, and that it is unfair to the party calling the witness if the opportunity for the witness to proffer an available explanation is denied.[4]
[3] Browne v Dunn (1893) 6 R 67, as explained in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 [16] (Hunt J).
[4] See Cross on Evidence (8th Australian ed) [17435].
It was equally unfair for the learned Magistrate to deny Mr Harrison the opportunity to a proffer an explanation for the sound where it had formed no part of either parties' case at any point in the trial and the Magistrate relied upon the sound to reject Mr Harrison's evidence that he was wearing his seatbelt.
The respondent argues that the decision of the Magistrate was essentially based on his acceptance of the evidence of Sergeant Page and Senior Constable Carter, and that he relied on the sounds recorded on the video only so as to corroborate their evidence. It is correct that the Magistrate accepted their evidence. It is quite apparent, however, that the Magistrate was heavily influenced by the inference drawn from the sound on the video. He expressed his view that the sound on the video was 'conclusive in respect of this matter'. It is impossible to say whether, in the absence of that 'corroboration', the Magistrate may have considered there to have been a reasonable doubt as to whether Mr Harrison was wearing his seatbelt at the time. It is not enough that the Magistrate considered the two police officers to be honest witnesses, since honest witnesses can sometimes be mistaken.
In my view, by denying Mr Harrison the opportunity to address the inference to be drawn from the sounds on the video, the Magistrate was in error. The error is such as to render his conclusion as to guilt unsafe. There should be leave to appeal, the appeal should be allowed and the conviction should be set aside.
Counsel for the respondent argued that, were I to reach the conclusion which I have, the appropriate course is that the matter should be referred back to the Magistrates Court for re‑hearing. It is a course which will undoubtedly cause inconvenience and expense to Mr Harrison, which is a matter of some regret. I do not consider, however, that it is open to this Court on appeal to reach a conclusion as to guilt on the basis of the transcript without having the benefit of hearing and seeing the witnesses. It is impossible to say what conclusion the Magistrate may have reached had he drawn no conclusion as to the source of the sound on the video. In those circumstances, I consider that there should be an order that the matter should be referred back to the Magistrates Court for re‑hearing by a different Magistrate.
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