Hassell v Adelaide Magistrates Court - [2008] SASC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HASSELL v ADELAIDE MAGISTRATES COURT
[2008] SASC 132
Judgment of The Honourable Justice Kelly
16 May 2008
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Appeal against conviction and sentence - appellant appeared unrepresented at trial - appellant convicted for driving without a seatbelt properly fastened or adjusted contrary to Rule 264 of the Australian Road Rules - magistrate imposed fine of $180, prosecution costs and victims of crime levy, but waived court fees - whether the witnesses gave false evidence and colluded - whether the magistrate erred in favouring the prosecution - whether a miscarriage of justice occurred by the delay in listing the trial - whether the magistrate disrupted the giving of evidence by the appellant - whether the magistrate's judgment was made against the weight of the evidence.
Held: evidence was sufficient to support a conviction - no substance to the appellant's complaints - magistrate's interventions were made to assist unrepresented litigant - no bias shown to prosecution - adjournments and delay in listing the trial did not cause a miscarriage of justice - appeal dismissed.
Australian Road Rules R 264; Magistrates Court Act s 42, referred to.

HASSELL v ADELAIDE MAGISTRATES COURT
[2008] SASC 132
Kelly J
Introduction

On 19 October 2007 the appellant was convicted of one count of failing to wear a seatbelt properly adjusted and fastened contrary to Rule 264 of the Australian Road Rules. The learned magistrate recorded a conviction and imposed a fine in the sum of $180 plus the Victim of Crime Levy of $70 and prosecution costs in the sum of $200.
The appellant appeals against both the conviction and sentence on a number of grounds. He alleges that the police gave false evidence, that the police colluded in their evidence, that the magistrate either colluded with or agreed with the police in their giving false evidence, that the magistrate disrupted the giving of evidence by the appellant, and showed favouritism towards the police. He also complains that the matter was adjourned for a period of 2 years before the matter was finally listed for trial in October 2007.
Background
The prosecution case against the appellant was, that on 10 August 2005 at about 6.00 pm, police officers on routine uniform mobile patrol observed the appellant driving a motor vehicle on Sturt Road, Sturt. Police observed that the driver was not wearing his seatbelt. The police then activated their lights and siren and indicated that the appellant should pull over, which the appellant promptly did.
The matter was first listed on 22 December 2005 and then set for trial on 28 August 2006. After an application by the prosecution to vacate that trial date the matter was re-listed for trial on 27 November 2006.
On 27 November 2006 no magistrate was available to hear the trial and the matter was re-listed for trial on 8 March 2007. On that date the prosecution sought a further adjournment because a police witness was unable to attend. The matter was then listed for trial on 16 October 2007 and proceeded to trial on that date.
Extension of Time
The appellant’s notice of appeal was filed on 4 February 2008 well out of time. However, the prosecution has not opposed the appellant’s application for an extension of time within which to file the notice of appeal. In the light of that, and also the fact that the appellant has appeared both in the Magistrates Court and on this appeal unrepresented, I consider that an extension of time should be granted.
Analysis
I bear in mind that an appeal under Section 42 of the Magistrates Court Act 1991 is by way of re-hearing. It is the obligation of this court, after reviewing all of the evidence and giving due weight to the advantage that the magistrate had in seeing and hearing the witnesses, to make an independent assessment of that evidence and make up its own mind as to whether the appellant was properly convicted.
I have read the transcript and exhibits tendered at the trial in the Magistrates Court. I have also viewed the material placed before this court without objection by the respondent which includes, nineteen colour photographs (A), handed up by the appellant on the hearing of this appeal and two disks containing numerous photographs labelled (D1 and B). Those disks contain what appear to be numerous photographs of similar make and model vehicles to the appellant’s, taken from various angles and some further photographs of the appellant’s own vehicle taken from various angles. I will refer to these photographs again later.
I bear in mind that on a charge contrary to Rule 64 of the Australian Road Rules, it is necessary for the prosecution to prove beyond reasonable doubt that:
-       the appellant was the driver of a vehicle
-       the vehicle was moving, or stationary, but not parked
-       the vehicle was fitted with a seatbelt in the driver’s position
-       the driver was not wearing a seatbelt properly adjusted and fastened.
The prosecution called Senior Constable Hoar and Senior Constable Collingridge, two of the uniform patrol officers who described to the court their observations of the appellant. Senior Constable Hoar got out of the police vehicle, spoke to the appellant and issued the expiation notice. Collingridge was present, but did not leave the police vehicle at any stage, nor did he speak with the appellant. There was a third police officer present, Senior Constable Wood, however he left South Australia Police Force and was not called to give evidence at the trial.
There was only one issue in dispute at the trial, namely, whether in fact the appellant was wearing a seatbelt at the relevant time, properly adjusted and fastened.
There was no dispute that the appellant was the driver of the vehicle, that the vehicle was moving at the relevant time and that the vehicle was fitted with a seatbelt in the driver’s seating position. In any event, Senior Constable Hoar and Collingridge both gave evidence about those matters.
The witness Hoar, gave evidence to the effect that he observed the appellant in a blue Honda hatchback driving west on Sturt Road, Sturt in front of the police vehicle. The witness said it was part of his normal duties to be monitoring traffic and to be on the lookout for any traffic offences being committed. His attention was drawn to the appellant’s vehicle as the driver was not wearing a seatbelt. Constable Hoar could see clearly that the seatbelt was hanging next to the ‘b-pillar’ in the car and he observed the silver buckle of the seatbelt hanging clearly visible adjacent to the driver’s shoulder. He said the police vehicle was about 10 metres behind the appellant’s vehicle at the time of sighting. After the vehicle came to a stop, Constable Hoar observed the appellant take hold of the seatbelt buckle and pull it across his body.
The witness Collingridge also gave evidence that he noticed the blue Honda hatchback and that the driver was not wearing a seatbelt. Collingridge was the driver of the police vehicle and he said that he had a clear and unobscured view of the driver. From his vantage point he could see the two lashes of the seatbelt hanging vertically down the right hand side as well as the silver buckle of the seatbelt which was seen at approximately shoulder height in relation to the driver. Collingridge also observed the appellant reaching over and pulling the seatbelt across his body as the vehicle was pulled over.
The appellant gave evidence in his defence and tendered a number of photographs contained on the disk to which I have already referred (D1). He also tendered a printout from the Australian Government Bureau of Meteorology relating to the daily weather observations in August 2005.
Curiously, the appellant did not specifically deny that he had been driving without fastening his seatbelt at the relevant time. When questioned directly about that, he stated “That’s what you think”. However, I accept that it is obvious from the evidence as a whole, that the appellant did deny that he had failed to fasten his seatbelt.
At the end of the evidence there was a clear divergence between the evidence given by the appellant and the evidence given by the two police officers, Hoar and Collingridge. There were some inconsistencies between the evidence of the two police officers, for example, Constable Hoar described the weather as overcast, that it had been raining and the ground was wet. However, Collingridge described the weather as fine and dry.
The magistrate dealt with these inconsistencies. He accepted that both Hoar and Collingridge were credible and reliable witnesses, that their evidence was clear and coincided in key respects. He found that Collingridge, who had not been assisted by any notes made at the time, made a genuine error about the weather on that day and found that the inconsistencies did not demonstrate any unreliability or lack of credibility in relation to that witness.
The magistrate placed little weight on the photographs tendered by the appellant, noting that they were all of different vehicles and taken under different conditions and various different angles. Furthermore, none of those photographs had been shown to either of the two witnesses, Hoar or Collingridge.
Upon the hearing of this appeal, the appellant tendered numerous photographs of his own vehicle, in hard copy and on computer disks. The photographs were taken from different angles and different positions, many of which were obviously taken in daylight as there are reflected clouds in the rear and passenger windows in some of the photographs. For these reasons I consider the photographs to be of very little assistance as they do not demonstrate or reproduce the view which the police had from their vehicle or the exact lighting conditions on the night in question. Moreover, both Collingridge and Hoar explained in their evidence exactly what their vantage point was from their respective positions as driver and back seat passenger.
The appellant said that he was prejudiced by not being able to call the third police officer, Wood to give evidence. He also sought discovery of a police log which he said would advance his allegation that Wood had been in collusion with both Hoar and Collingridge in giving false evidence about what happened on the night.
The difficulty with the appellant’s submissions about these topics, is that at no stage before or during the trial, did he request the presence of the police officer Wood or discovery of the police log. It is doubtful even if it had been requested, whether the appellant could have established the relevance of that log. However, it remains a fact that the appellant did not put to either Hoar or Collingridge that they had colluded with Wood. There was simply no evidentiary foundation laid to make that submission. In any event this issue was fully ventilated before the magistrate who rejected the submission.
The complaint by the appellant that the magistrate disrupted the giving of evidence by the appellant is not borne out by an examination of the transcript. A reading of the whole transcript reveals that the magistrate gave sufficient assistance to the appellant as an unrepresented litigant and on a number of occasions attempted to explain the processes and procedures as particular issues arose. The magistrate was right to rule on objections which were properly made by the prosecutor from time to time, in relation to some of the proposed questions by the appellant. It appears that the appellant’s complaint about disruption relates to those occasions.
I have reached the conclusion that the appellant’s complaint about the magistrate’s conduct arises from his own misunderstanding as to the proper role of the magistrate in ensuring a fair trial. Moreover, the suggestion that the magistrate showed favouritism towards the police, is also not borne out by the examination of the transcript.
The appellant complained that the matter was adjourned for a period of 2 years. The delay of 2 years on a minor matter of this nature was somewhat unfortunate, however the appellant has not pointed to any prejudice which has arisen out of that delay, except to argue that the delay was caused because the police had no evidence.
Of course any delay can result in witnesses memories fading with the result that the evidence given about particular events may not be as clear or as accurate as when given closer to the time. Clearly the magistrate considered that the witness Collingridge’s evidence about the weather was an instance of poor memory. Nevertheless, the appellant has not pointed to any particular prejudice occasioned by virtue of the 2 year delay and I do not consider in the circumstances that the delay has caused any miscarriage of justice to occur.
Conclusion
After reviewing the evidence in the light of all of the appellant’s complaints, I can find nothing to cause me to have any misgivings about the conclusion of the magistrate. This was a straightforward matter and the evidence of each police witness was straightforward and clear. The police officers observed a relatively minor breach of the road rules in the course of a routine traffic patrol. None of the appellant’s complaints have been substantiated.
In my view the appeal against conviction should be dismissed.
The magistrate imposed a fine of $180 which is equivalent to the amount of the original expiation fee for the offence.
In these circumstances both the appeal against conviction and the appeal against sentence are dismissed.