HITTMANN v POLICE No. SCGRG-98-1691 Judgment No. S135

HITTMANN v POLICE
[1999] SASC 135

Magistrates Appeal
Nyland J

The appellant was charged on complaint that on 19 May 1998 at Christies Downs, she drove a vehicle, namely a motor vehicle, on a road, namely Beach Road, in a manner which was dangerous to the public, contrary to s46 of the Road Traffic Act 1961. She was further charged on the same complaint with driving without due care, contrary to s45 of the Act and failing to keep her motor vehicle as near as reasonably practicable to the left boundary of the carriageway, contrary to s54 of the Act.
On 2 December 1998, the appellant appeared before a stipendiary magistrate in the Magistrates Court at Christies Beach and pleaded not guilty of the charge of driving in a dangerous manner, but guilty to the other two charges. Thereafter the trial proceeded with respect to the charge of driving in a manner dangerous. The appellant was not represented by counsel.
The evidence of the prosecution was provided by Constable Lacey and Constable Le Clercq. Lacey testified that he was on patrol with another policeman called McDade on Beach Road, Christies Beach at about 3.20 am on 19 May 1998. He said his attention was drawn to a white Magna which was the car being driven by the appellant. The speed limit in the area was 80 km/h and Lacey said the Magna was travelling at about 70 km/h. Lacey said that he observed the vehicle move very sharply to the left so that its wheels moved on to the dirt verge on the side of the road where it travelled for a short distance before veering back in the other direction, so as to cross the centre line dividing the road. It travelled on the wrong side of the road for about 100 metres.
Lacey said that at that point he observed a vehicle approaching from the other direction which proved to be another police vehicle. According to Lacey, that vehicle slowed down and pulled over to the left so as to avoid a potential collision. The appellant’s car passed the police car still on the wrong side of the road. Lacey then turned and pursued the appellant until she pulled over to the side of the road.
Le Clercq’s evidence was that he was on patrol with Senior Constable Uthenwoldt, but could not remember whether he or Uthenwoldt was the driver at the relevant time. He said he observed the headlights of a vehicle approaching their vehicle. He estimated the vehicle’s speed at about 70 km/h. He said that the police vehicle moved over to the dirt verge of the road so as to avoid a collision with the approaching vehicle. After the appellant’s car had passed them they did a U-turn and followed the other police vehicle which was pursuing the appellant and pulled over behind it.
The appellant, in evidence, told the court that she had been to the Noarlunga Hospital to see a doctor in relation to her right knee which had been injured in a car accident. She was stopped by the police after leaving the hospital. She told the magistrate that she had reached for her Respolin asthmatic spray and as she did that her car “crossed the line on the road for seconds and came back on to the left hand side of the road”. She said the next minute the police cars arrived from nowhere. She refuted the suggestion that she had veered to the right and on to the incorrect side of the road and that her vehicle was completely on the wrong side of the road.
At the conclusion of the evidence, the learned magistrate found the charge proved. He imposed a fine of $300 and disqualified the appellant from holding or obtaining a driver’s licence for a period of 12 months. He dismissed the other two counts as duplicitous.
Before any evidence was called in the trial, the police prosecutor produced a video and invited the court to view it. The transcript records that the video was then shown to the magistrate. It does not appear, however, to have been admitted in evidence, nor was any evidence led as to its origin or the date or circumstances in which it was made. It does, however, appear to have been made while the appellant was in custody at the Christies Beach police station. According to Lacey, he conducted an alcotest of the appellant which had a zero reading. He then asked the appellant to return with the police officers to the Christies Beach police station for a breath analysis. When she asked why, he said “Because we need to put you on a breath analysis machine to see if you are under the influence of alcohol”. The appellant responded that she had not been drinking but she was subsequently taken to Christies Beach where the breath analysis test was conducted. This also had a zero result. According to Lacey the appellant was then arrested for driving under the influence so that the police could obtain a blood sample to see whether she was affected by drugs. As it happened there was some technicality in relation to getting a doctor and the blood sample was not taken.
Lacey went on to give evidence about observations he had made of the appellant while she was in the cells, which included comments to the effect that she seemed confused and agitated and did not seem to understand why she had been arrested. Although the evidence is most unclear, it would seem that the video recording was made of the appellant at about this time and therefore while she was being detained in custody. There is, however, no power for a member of the police force to make a video tape of a person in custody except by consent or pursuant to s81(4)(a) of the Summary Offences Act (1953). There is no suggestion that either of those situations applied in this case, nor for that matter is there any information at all as to the purpose for which the video was recorded or used. If the prosecution proposed to have the video tape admitted into evidence, there was an obligation upon the magistrate to inform the appellant of her right to object to it and consideration should then have been given as to whether that evidence had been lawfully obtained and the consequent possible discretion arising to exclude it. If the video was not proven or admitted into evidence (which seems to be the case), then the learned magistrate should not have viewed or had any regard to it at all.
On p3 of his reasons, however, having found the charge proved, the magistrate said:
“As an addendum to my reasons, and I appreciate it forms no part of the deliberations which I am required to undertake to determine whether or not the charge as laid is proved against the defendant, having observed the video tape of the defendant at the Christies Beach police station during the early hours of the morning on 19 May 98 ... I am in no doubt the defendant had consumed some sort of drug, albeit a legal prescription drug, which did affect her faculties including her ability to drive a motor vehicle.” (emphasis added)
Although he purports not to have had any regard to the tape in reaching his decision in the course of trial, he referred to it on two occasions. At p21, in the course of the appellant’s evidence-in-chief, the magistrate said to her:
“Q..... If you recall the tape that we have watched earlier today you gave an address at Glenelg North.” (emphasis added)
And at p22, following some evidence from the appellant as to her treatment at the police station, the evidence was:
“Q.    You watched the tape.
A.    Well you may not have heard it, but I did on the night.
Q.    He asked you if there were any syringes in your bag.
A.    That’s right.
Q.    He didn’t accuse you of having them.
A..... Well, in my words - in my mind that was an accusation where are the syringes.” (emphasis added)
Essentially the determination of guilt in this case depended upon the resolution of a factual dispute between the evidence of the police officers (one of whom could not remember whether he was the driver of the car) and that of the appellant. Credibility was therefore a significant issue. In his reasons, the magistrate indicated that, having observed the two police officers and the appellant, he had no hesitation in preferring the evidence of the police officers to that of the appellant. Although in making that finding, he purported to exclude the contents of the video (which clearly reflected adversely upon the appellant), it is unlikely that he could have done so, given that he saw it before any evidence was given, referred to it in the course of evidence, and made a finding beyond reasonable doubt at the conclusion of the hearing that the appellant had “consumed some form of drug ... which did affect her faculties”. In my opinion therefore the magistrate’s assessment of the credibility of the appellant was significantly tainted by unrelated and inadmissible evidence.
But that was not the only issue of procedural unfairness. Lacey, in the course of his evidence, sought the permission of the magistrate to refer to his notes. The magistrate suggested that he exhaust his memory as to his observations before he referred to his notes but then said to him (Tr p7):
“Q.    Subsequently you had a conversation with her.
A.    Yes I did.
Q.    Did you record that conversation at all.
A.    Yes I did, I recorded it in my notebook.
Q.    Are you able to remember that conversation.
A.    No.
Q.    Do you seek leave of the court to refer to your notes in relation to it.
A.    Yes I do.”
The learned magistrate then said to the appellant:
“Mrs Hittmann what the constable is saying is he had a conversation with you and that while he was having that conversation he made notes in his notebook about what was said. He cannot now remember the conversation, but what he would like to do is refer to his notes to refresh his memory about what was said. Have you any objection to him referring to his notes for the purpose of refreshing his memory about that conversation.” (emphasis added)
The learned magistrate, in suggesting that the notes were made contemporaneously, misstated the effect of what the witness had said. In addition, he failed to inform the appellant of her right to question the witness on the voir dire nor did he advise her that she was entitled to inspect those notes.
At the conclusion of the case for the prosecution, the magistrate told the appellant that she had “a couple of choices”. He told her about a submission of no case to answer and said that, in the alternative, she could give evidence on oath. When the appellant indicated that she was not going to give evidence the magistrate told her that he considered that the prosecution had proved a case to answer. He suggested therefore that she reconsider her position, following which the appellant elected to give evidence.
The magistrate did not specifically inform the appellant of her right to remain silent, nor did he tell her that if she gave evidence she would be cross-examined. Furthermore, he failed to tell her that she had the right to call witnesses. This was not an insignificant matter because the appellant, in the course of her cross-examination of Lacey, referred to a statement obtained from her doctor, ie, Dr Helen Coombe. The appellant had also indicated a wish to cross-examine Sergeant Ninnis. This occurred at the end of Lacey’s evidence. The prosecutor mentioned that he did not propose to call Constables McDade or Uthenwoldt, but was prepared to make them available to the appellant. The appellant then said “I guess the only person I would like to speak to is Constable Ninnis”. The prosecutor then said that Ninnis “wasn’t a witness in relation to it ... I believe Sergeant Ninnis is the officer in charge of the team but he certainly wasn’t involved in the original observations”. The prosecutor then called Le Clercq, and the topic of Ninnes’ evidence was not further pursued. It may be that Ninnes’ evidence was irrelevant, but in view of the way the matter proceeded, it is not possible to assess that matter. The appellant should at least have been informed that she had the right to call him, or any other witness, and if she had done so, the magistrate would then have been in a position to assess the relevance of that evidence in accordance with usual evidentiary principles.
The appellant, having elected to give evidence, was thereafter subjected to a lengthy, and in my view, oppressive cross-examination, notwithstanding the prosecutor’s intimation at the commencement of the cross-examination that he proposed to “cover the basic elements of Brown v Dunn and leave it at that”. After cross-examining the appellant about her driving on the night in question, he proceeded (at p24) to cross-examine her about any medication she had taken that day. That cross-examination continued through to p27 without interruption by the magistrate. Earlier, however, when the appellant sought to introduce some evidence relating to Dr Coombe in the course of her cross-examination of Lacey, the magistrate informed her that he was not interested in whether or not she was under the influence of drugs because she had not been charged with that offence.
Eventually (at 29), the allegation was put to the appellant that she was addicted to prescription drugs and issues were then raised which included a suggestion that her employment had been terminated through suspicion of drugs being removed. The appellant understandably protested but the cross-examination continued without any intercession by the magistrate, notwithstanding that this whole line of questioning was in clear breach of s18(1) of the Evidence Act 1929. The prosecutor even reached the stage of threatening to subpoena the appellant’s hospital records to show that she was addicted to prescription drugs. Furthermore, Lacey was permitted to express an opinion about the level of the appellant’s intoxication, notwithstanding his lack of qualification (his evidence being that he had only been involved in six reports or questions in relation to driving under the influence), and the earlier intimation from the magistrate that this was an irrelevant issue. Lacey’s description of the appellant’s confusion on the night in question was equally consistent with confusion as to the reason for her arrest, the conditions in which she was detained, and problems of ill-health.
Regrettably, the appellant is only one of the ever increasing list of litigants who is obliged to appear unrepresented before the courts. This places a considerable burden upon a judicial officer to ensure that the proceedings are conducted in a fair and proper manner. As Wells J said in Cooling v Steel (1971) 2 SASR 249 (at 251):
“In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.”
In MacPherson v The Queen (1981) 147 CLR 512, the High Court discussed the duty of a trial judge to give advice to an unrepresented defendant in relation to the admissibility of evidence. Brennan J said (at p547):
“Whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge’s duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case.”
In my opinion, this trial was riddled with issues of procedural unfairness. It cannot be said that the errors in law in this case did not lead to a miscarriage of justice. In the circumstances I consider that the appeal should be allowed and that the matter be remitted back to the Magistrate Court for a re-trial before another magistrate. In view of the order for re-trial it is unnecessary to deal with the appeal against sentence.

[1999] SASC 135

8 April 1999