Herbert v Department of Police and Public Safety

[2006] TASSC 69

[2006] TASSC 69

CITATION:              Herbert v Department of Police and Public Safety [2006] TASSC 69

PARTIES:  HERBERT, Ricky John
  v
  DEPARTMENT OF POLICE AND PUBLIC SAFETY

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 47/2006
DELIVERED ON:  2 October 2006
DELIVERED AT:  Launceston
HEARING DATE:  6 September 2006
JUDGMENT OF:  Slicer J

CATCHWORDS:

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Sufficiency of evidence – Question for court – Appeal against conviction – Analysis of factual material beyond reasonable doubt.

Richardson v Shipp [1970] Tas SR 105 and Lowe v Suckling 23/1983, followed.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  C G Rainbird
             Respondent:  L A Mason
Solicitors:
             Applicant:  Craig Rainbird
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2006] TASSC 69
Number of paragraphs:  14

Serial No 69/2006
File No LCA 47/2006

RICKY JOHN HERBERT v DEPARTMENT OF POLICE AND PUBLIC SAFETY

REASONS FOR JUDGMENT  SLICER J

2 October 2006

1. The applicant was convicted, following a hearing, of the offence of driving a motor vehicle whilst under the influence of intoxicating liquor, contrary to the Road Safety (Alcohol & Drugs) Act 1970 ("the Act"), s4.  He had previously pleaded guilty to the concurrent charge of driving a motor vehicle with a blood alcohol concentration of .194 grams per 100 millilitres of blood, contrary to the Act, s6(1).  Upon his conviction for the offence under s4, the complaint of the offence contrary to s6(1) was dismissed.

1. The amended grounds of appeal claim error in that:

"ground no 1

The Learned Magistrate earned [sic] in fact and in law in finding that the evidence of Rosemary Holness that the applicant was guilty of driving under the influence of alcohol which was contrary to the evidence and the weight of the evidence

Particulars

His Honours [sic] findings that

1     The applicant stopped his vehicle at Austin's Ferry to retrieve a piece of fabric and pulled out onto the roadway page 75-76.

2     That whilst the applicants [sic] vehicle was travelling north on the Midland Highway north of the township of Baghdad [sic] the applicants [sic] vehicle swerved to the left hand side and almost hit the Armco railing then indicated and swerved into the right hand lane and then back into the left hand lane page 76-77.

3     That the applicant's vehicle whilst driving on the Lake Highway at Melton Mowbray swerved to the middle of the highway and back pages 77-78.

Constituted sufficient evidence to find the charge of driving under the influence of alcohol beyond reasonable doubt.

Despite the Magistrate finding as a fact that when the applicant was located by Police approximately one hour later those Police Officers did not give evidence of observed intoxication pages 78-79.

1AThat the Learned Magistrate erred in fact and in law in that the findings of fact made by the Learned Magistrate were not sufficient to permit him to find the charged proved beyond reasonable doubt.

2that the Learned magistrate erred in fact and/or in law in that he failed to direct himself that the material before him was a circumstantial case and that he should have directed himself to apply the directions appropriate to a circumstantial evidence case.

3that the sentence imposed by the Learned Magistrate was manifestly excessive in all the circumstances."

1. The applicant did not pursue ground 3 and accordingly it is dismissed.

1. There is no merit in ground 2.  This was not a circumstantial case.  There was direct evidence that the applicant was the driver, that he had driven a motor vehicle following the consumption of liquor and that there were observed instances of conduct from which the magistrate drew inferences and conclusions.  The evidence itself was not circumstantial in nature and cases such as Chamberlain v R (No 2) (1984) 153 CLR 521 and Shepherd v R (1990) 170 CLR 573 are not relevant to the determination of this appeal.

1. Ground 1 ought be dismissed.  The ground is governed by the principles stated by the Full Court in Kelly v O'Sullivan (1995) 4 Tas R 446. The decision was not, of itself, one which was unsupported by evidence or so unreasonable as to amount to a miscarriage of justice. On any of the approaches taken by the Full Court in Kelly v O'Sullivan, the conviction was not unsafe or unsatisfactory in the sense stated by Crawford J or that it came within the test of review of a jury verdict.  Here there was evidence that:

(1)The applicant was driving a motor vehicle over an extended period.

(2)Within 1½ hours of his act of driving his blood alcohol concentration was measured at .149 per cent.

(3)There were a number of acts of aberrant driving.

(4)He was aggressive and violent when approached by police to an extent which required handcuffing.

(5)A police officer observed him to be unsteady on his feet, his eyes were bloodshot, and his breath smelt strongly of intoxicating liquor.

It could not be said that the conviction was unsafe or unsatisfactory.

1. The real basis of the appeal concerns the primary findings of the learned magistrate.  In a lengthy ex tempore judgment, he rejected, or did not positively find, facts which were capable of enhancing the prosecution case.  For example, he declined to accept the evidence of one of the police officers except where corroborated by another.  He found that some conduct was equally consistent with sobriety or appropriate driving.  He seems not to have relied upon that evidence as supportive of his decision to convict.  His decision was to find the charge proved beyond reasonable doubt.  Thus, it is said that on the basis of the primary facts which he found, he could not have been satisfied beyond reasonable doubt as to the commission of the offence.  In support of that contention, counsel also relied on a statement made by the learned magistrate that the absence of evidence by the defendant/applicant permitted him to more safely draw inferences adverse to the applicant.  With all due respect to the learned magistrate, his approach in that regard was a cause for confusion.  His Honour referred to a decision of the High Court in Mule v R [2005] HCA 49 to support his reasoning process. The learned magistrate stated in his reasons for decision:

"Now the reason I've referred to Mule is that I think it's authority for the proposition that although, very clearly indeed on the basis of other authorities, no adverse inference is able to be drawn from a defendant's not having given evidence nor called witnesses, but nevertheless it can, if that is the situation in a case, put the defence on a different basis in respect to sworn evidence than the case of a prosecution who have called and led sworn evidence.

Now this particular case that we're involved with here makes that a pertinent point, because a number of things happened, according to the evidence of Mrs Holness, that allow a court, namely me, to draw certain inferences.  Those inferences need not necessarily be drawn, whether or not the defendant had given evidence.  But without the defendant's having given evidence, in my view, those inferences might be more safely drawn.  And a very good example of what I mean by that is the evidence that she gave concerning her first observation of the vehicle and its driver."

1. The difficulty is that the witness had given no evidence on this point adverse to the applicant.  This was not a case where the learned magistrate could more readily draw an inference adverse to the defendant because of absence of contrary material or a different evidentiary basis.  The witness has simply said that she saw a vehicle stationary on the road, that some fabric had blown off the back of the vehicle exposing several loaves of bread and that the driver had got out, put the fabric back on, got in, indicated and immediately pulled out, whereupon the fabric blew off again.  The magistrate then proceeded to consider whether such evidence was or was not consistent with a driver possibly being affected by liquor.  It would have been preferable for the learned magistrate to have made findings of primary facts and then decided what inferences or conclusions could safely be drawn from those facts as found.  Instead he proceeded with an analysis of each area of factual material, decided by inferential reasoning whether or not he accepted it and, if so, whether it supported an overall conclusion.  The result is confusing.  Nevertheless on the basis of the factual material as found by the learned magistrate, I am satisfied that notwithstanding his negative findings, he was entitled to convict the applicant of the offence.

1. In relation to the evidence of the observations by the police officer, the learned magistrate stated:

"The next point requires me to carefully distinguish between and comment upon the evidence of the police. Largely I accept Mr Rainbird's submission about this, and it will be recalled that I made a point earlier in these reasons concerning the fact that the effects of alcohol can diminish as time passes. The evidence of Constable Lang and the evidence of Constable Hyatt are quite different. Constable Lang did not give any evidence concerning observed intoxication, at least not in those terms, and at least not in terms that could not be explained by the after effects of sleep. It is possible for a person who is intoxicated to be disorientated, and indeed, it's commonplace. But it's similarly commonplace for a person who has been sleeping deeply to be disorientated for some time after awakening. It's also possible for a person who has been sleeping deeply and/or intoxicated to behave in the way in which the evidence suggests the defendant behaved. Now that is to say abusively and aggressively. But Constable Lang didn't put it in those terms and it seems to me that all of those symptoms are, including the fact that the defendant had by then effectively, probably in his own mind as well as in the mind of others, just been caught in relation to committing a serious offence under s61 of the Road Safety Alcohol and Drugs Act. Those factors, separately or combined, could well produce the state of mind that would result in behaviour such as that described by Constable Lang.

Constable Hyatt gave evidence of intoxication but I have a slight impression that he was giving it at the tail of his evidence, almost as an afterthought.  He failed to note it in his proof.  He didn't even note it in the way in which he claimed to have noted it and he appeared to me to hesitate a little over the detail when being cross examined about it. 

So my conclusion is that I am not able to give weight to the evidence of intoxication given by Constable Hyatt - I was going to say beyond the evidence of the same given by Constable Lang, but of course she gave none.  So I accept Constable Hyatt's evidence where his evidence is consistent with Constable Lang's about the demeanour and behaviour of the defendant, but not where it conflicts, as indeed it does, in my opinion, with the evidence of Constable Lang in relation to the matter of intoxication."

1. I assume from this that the learned magistrate did not accept that evidence as being capable of supporting a conclusion of intoxication.

1. However, an analysis of the evidence accepted by the learned magistrate shows that he was entitled to be satisfied beyond reasonable doubt that the offence had been committed.

1. The Act, s4, provides:

"A person who drives a vehicle while under the influence [intoxicating liquor] to the extent that he or she is incapable of having proper control of the vehicle is guilty of an offence."

1. The ingredients necessary to establish the offence have been discussed in cases such as Richardson v Shipp [1970] Tas SR 105 and Lowe v Suckling 23/1983 and require no repetition.  The ingredients require proof of the influence of alcohol, proper control and impairment of capacity.  Here those ingredients were established on the evidence.  Evidence relevant to and accepted by the learned magistrate sufficient to warrant conviction included:

(1)There was no issue but that the applicant was the driver of the motor vehicle.  He was observed and identified as being behind the wheel at approximately 9.30am and was found, behind the wheel, asleep by police some 1½ hours later.  The registration number of the vehicle was written down by a witness on the hearing and recounted to the police radio room during the course of the journey of the applicant's motor vehicle.  No issue was raised on the hearing that he was not the driver.  In the BAS informant's questionnaire completed at the time of the breath analysis and signed by the applicant, he admitted being the driver.

(2)The applicant had been the driver of the motor vehicle at approximately 9.30am and a breath test conducted at approximately 11am recorded a blood alcohol concentration of .149 per cent.

(3)The applicant was aggressive when awakened by police and his conduct, at that stage, warranted his being handcuffed.  Although that conduct is capable of being interpreted as a result of confusion, it remained an uncontested primary fact. 

(4)The vehicle was first observed on the Brooker Highway, on the outskirts of Hobart at Austin's Ferry, at approximately 9.30am.  The applicant was seen adjusting his load and upon re-entering his vehicle, immediately pulled out after indicating.  When the covering again blew free, he immediately pulled back to his left hand side.  The evidence was at least consistent with a lack of care for other users of the road in giving them adequate notification of change of movement.

(5)The vehicle was again sighted by the same driver who had earlier seen the stationary vehicle, just north of Bagdad.  She observed the vehicle to have "swerved off to the left hand side onto the gravel verge" almost touching the railing.  The witness observed "… it almost hit the Armco railing.  And then it sort of swerved back into the left hand lane".  At this stage [she] pulled into the right hand lane and overtook the vehicle.  The witness estimated that the applicant's vehicle would have been travelling at approximately 80 kilometres per hour at that time.  After she had overtaken the vehicle she:

"… observed in [her] rear vision mirror that the vehicle indicated to - the right hand indicator came on and it swerved into the right hand overtaking lane, even though there was no other vehicle there … And then swerved back to the left hand lane.  For no apparent reason."

(6)The witness further observed the applicant's vehicle over some three to four kilometres on a stretch of road between Kempton and Melton Mowbray.  The applicant's vehicle caught up with her and "started travelling very closely behind [her]".  She estimated it to have been about three metres.  From her observations it could properly be inferred that the applicant was careless or indifferent to the safety of other users of the road.

(7)The witness was afeared for her safety as a consequence of the manner of driving of the applicant.  The cause of that fear was her opinion of the manner of driving and provided the court with an understanding of her "perception of the event", a matter permitted by the Evidence Act 2001, s78.

(8)The evidence of the blood alcohol concentration was itself direct evidence relevant to the Act, s4.  The applicant did not give evidence on the hearing.  Accordingly there was no evidence of any consumption of alcohol between the acts of driving observed by the witness and the blood alcohol reading.

1. The learned magistrate, on the evidence accepted by him, was entitled to reach the conclusion he did.  No error has been shown.

1. The motion to review is dismissed.