Holloway v Thurgar
[2016] ACTSC 32
•11 March 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Holloway v Thurgar |
Citation: | [2016] ACTSC 32 |
Hearing Date: | 24 April 2014; 23 May 2014 |
DecisionDate: | 11 March 2016 |
Before: | Penfold J |
Decision: | 1. The appeal against conviction is dismissed. 2. The appeals against sentence are dismissed. 3. The parties will be heard about consequential orders. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Magistrate’s Findings of Fact - Appeal from finding of guilt in Magistrates Court – whether findings of fact not available on the evidence – whether verdict unsafe and unsatisfactory – whether Magistrate applied incorrect standard and burden of proof. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal from sentence imposed in Magistrates Court – guilty plea for drink driving offence – whether sentence manifestly excessive – whether error in Magistrate’s remark that non-conviction order not available – whether another sentence is appropriate. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 17 Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 14(1)(a), 33 Road Transport (Safety and Traffic Management Act) 1999 (ACT), s 8(2) |
Cases Cited: | Bugmy v The Queen (2013) 249 CLR 571 CM v TM & Anor [2011] ACTSC 53 R v Rao [2008] ACTSC 17 |
Parties: | William Holloway (Appellant) Jason Duncan Thurgar (Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Mr D SahuKhan (Respondent) |
| Solicitors Gillespie-Jones & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 102 of 2013 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 7 November 2013 Case Title: Thurgar v Holloway Court File Numbers: CC13/2384; CC13/3254 |
Introduction
William Holloway was convicted and sentenced in the Magistrates Court for an offence of menacing driving and a drink-driving offence involving a Level 3 concentration of alcohol in his system (the PCA offence). Mr Holloway defended the menacing driving charge, but pleaded guilty to the PCA offence. He has appealed against all aspects of the Magistrate’s dealings with the menacing driving offence, and against the recording of a conviction and the sentence imposed for the PCA offence.
The police statement of facts that was before the Magistrate provides a useful summary of the background to the charges, although of course Mr Holloway, in disputing the Magistrate’s findings on the menacing driving charge, disputes some of the contents of that statement of facts.
Police statement of facts
About 5.07pm on Sunday 17 February 2013, police were advised by ACT Operations that a collision had occurred between the female driver of a Silver Honda CRV ... and a male driving a Green coloured Ford Futura [with a specified ACT registration number].
About 5.14pm police attended Isabella Drive, Isabella Plains, near the intersection with Ashley Drive, in the ACT. Whilst at that location police spoke to Ms Kaylee Michelle McDONALD who stated that she was the driver of the Honda CRV, which was parked fifty meters on the Eastbound side of Isabella and Ashley Drive, Isabella Plains. Ms McDONALD told police that about 5.05pm, she had been involved in a collision, during which the car ahead of her had put on the brakes whilst they were in a merge one lane, whilst leaving the roundabout along Isabella Drive, heading East. As a result the vehicle Ms McDONALD was driving collided with the rear of the vehicle in front.
Ms McDONALD stated that the driver of the other vehicle was in ... a dark coloured Ford [with specified ACT registration]. Ms McDONALD stated that the male driver had left the scene prior to police arrival. Ms McDONALD was submitted to a roadside breath test which returned a negative result.
Police spoke with the passenger in Ms McDONALD's vehicle, Ms Bethany LAI, who told police the same version of events.
Police observed minor damage to the Honda CRV's front passenger side bumper and headlights. Ms McDONALD stated that the male driver pulled over and the male became angry and an argument commenced. A statement was taken from Ms McDONALD regarding the incident.
The driver was described by Ms McDONALD as being short and stocky with a Summernat's T-shirt on and short greying hair. Police obtained a number of photographs of Ms McDONALD's vehicle.
About 6pm, police conducted a number of checks and as a result spoke to the driver of the Green Ford Futura, who advised police that he had returned home and was now waiting at Tuggeranong Police Station for police. Upon arrival, police were introduced to Mr William HOLLOWAY ..., hereafter known as the defendant.
Police obtained a number of photographs of a Green Ford Futura [bearing the specified ACT registration number]. Police observed the defendant and recorded that he was wearing a 25th Anniversary Summernats T-Shirt and shorts, which was similar to the description of the driver given by Ms McDONALD. Police spoke to the defendant;
Senior Constable THURGAR said, "Were you the driver of [specified registration number], this [F]ord?"
He said, "Yes".
Senior Constable THURGAR said, "Why didn't you stay there?"
He said, "I showed her my licence and it started to get heated, so I thought I would report it later".
The defendant provided a version of events, in which he stated that whilst travelling along Isabella Drive, through the Ashley Drive roundabout, Ms McDONALD's vehicle drove so close behind him that when he applied his brakes, her vehicle collided with his vehicle. After the incident, he pulled over and attempted to exchange his details with Ms McDONALD. The defendant stated he got into a heated argument and as a result decided to leave the scene in order to report the matter to police. The defendant returned home and consumed between two to three Melbourne Bitter Stubbies before attending Tuggeranong Police Station.
The defendant produced a current ACT Heavy Vehicle (MC class) driver's licence, ..., with an expiry date of 21/09/2017. Police were satisfied the photographic image on the drivers licence matched that of the defendant.
The defendant was advised that he would be required to undergo a screening test with an approved alcohol screening device being a Alcolizer Technology Alcolizer LE. This screening test indicated that the defendant's alcohol concentration was the prescribed concentration.
The defendant was advised that he was currently in police custody and would be required to submit to breath analysis. At 6.21 pm Sunday 17 February 2013, the defendant commenced a period of observation.
The defendant was observed for a period longer than twenty minutes and during that period of observation the defendant did not take any inhalant medication, did not vomit or burp.
At 6.53 pm, the defendant underwent breath analysis at Tuggeranong Police Station on a Drager Alcotest 7110 Breath Analysis Instrument MRAJ-A001. The result as shown and recorded by the Breath Analysing Instrument used in the analysis of a sample of the defendant's breath was 0.111 grams of alcohol per 210 litres of breath.
Leading Senior Constable THURGAR was the operator of the Drager Alcotest 7110 Breath Analysis Instrument MRAJ-A001 and is an authorised breath analysis operator.
The defendant was given a signed written statement in accordance with Section 12(5) of the Road Transport (Alcohol and Drugs) Act 1977, produced by the breath analysing instrument.
The defendant's face was flushed in appearance, his eyes were watery, his speech was fast, he smelt slightly of intoxicating liquor, his ability to understand instructions was good, he was polite and cooperative with police throughout the process. His balance and walk were fair. The Informant formed the opinion that the defendant was moderately under the influence of alcohol. The weather at the time of the offence was dry, and the road was bitumen and traffic was moderate.
About 6.59 pm, the defendant was issued with an Immediate Suspension Notice, number 17022013/3095 and his ACT drivers licence seized. The defendant was advised that his right to drive within the Australian Capital Territory was suspended.
Isabella Drive, Isabella Plains is a road in the ACT as defined by the Road Transport Legislation.
[The original statement was subsequently amended to add the following material]
Ms McDONALD told police that she and her passenger, Ms Bethany LAI were driving West along Isabella Drive approaching the Goldstein Crescent roundabout. Ms McDONALD saw a dark coloured vehicle attempt to overtake them on the left hand side by driving very fast. The driver of the dark coloured vehicle was unable to merge in front of Ms McDONALD's vehicle and was forced to take up a position behind Ms McDONALD's vehicle. Upon leaving the roundabout, the vehicles were traveling along an undivided single lane roadway. The dark coloured vehicle was seen to overtake Ms McDONALD's vehicle and drive alongside her vehicle. At this point, the driver of the dark coloured vehicle was reported as attempting to take photos of Ms McDONALD and was matching her speed.
Ms McDONALD states that she could see oncoming traffic heading towards the dark coloured vehicle. The dark coloured vehicle narrowly avoided colliding head on with approaching traffic by quickly driving in front of Ms McDONALD's vehicle. Ms McDONALD was travelling in the right hand lane South West along Isabella Drive, approaching the Ashley Drive roundabout, and she saw the dark coloured vehicle in the right hand lane.
Whilst in the roundabout, the dark coloured sedan crossed over into the right lane, forcing Ms McDONALD's vehicle onto the roundabout gutter in order to avoid a collision. Upon leaving the roundabout, the dark coloured vehicle slowed down, and Ms McDONALD saw the dark coloured vehicles [sic] brake lights activate, forcing her to conduct an emergency stop, this occurred twice. The driver of the dark coloured sedan again activated his brake lights and Ms McDONALD's vehicle was unable to avoid colliding into the rear of the dark coloured vehicle.
Grounds of appeal
The grounds of appeal are as follows:
Count 1:
1. His Honour erred in making findings of fact not available to be made on the evidence;
2. His Honour erred in law as to the burden and standard of proof;
3. The finding of guilt in respect to all the evidence was unsafe and unsatisfactory.
Count 2:
1. The sentence imposed was, in all the circumstances, manifestly excessive;
2. His Honour erred in law in the sentencing process.
Relevant principles
I adopt the principles for dealing with an appeal from the Magistrates Court set out by Refshauge J in Peverill v Crampton [2010] ACTSC 79 at [24], as follows:
Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
1.The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
2.The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3.The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4.The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5.The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
6.In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
7.The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.
The menacing driving offence
Section 8(2) of the Road Transport (Safety and Traffic Management) Act1999 (ACT) creates the offence of menacing driving, as follows:
A person must not drive a motor vehicle on a road or road related area in a way that menaces someone else if the person ought to have known that the other person might be menaced.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
The prosecution particularised the menacing driving charge as constituted by the following incidents:
(a)The appellant driving from behind the complainants’ car into oncoming traffic alongside the complainants.
(b)The appellant steering towards the complainants’ car as both cars approached the roundabout at the intersection of Ashley Drive and Isabella Drive, causing the complainants’ car to drive over the verge of the roundabout.
(c)The appellant repeatedly applying his brakes, causing the complainants’ car, which was travelling behind him, to collide with his car.
The evidence
Kaylee McDonald
The complainant Kaylee McDonald, the driver of the car said to have been menaced by Mr Holloway’s driving, gave the following evidence:
Okay, you said you were harassed, could you describe that incident?---Yes, so we were driving down Isabella Drive and we got to a form one lane just after a roundabout and basically we had a car in front of us and had pretty much got into the form one lane when another car came up behind us quite aggressively on the left hand side. They basically tried to cut us off but obviously had no room to do so, so he slammed his brakes on and went behind us, then he basically drove quite aggressively into the opposite side of the road where oncoming traffic would be then came up next to us and sort of - to be honest I can't quite remember what his actions at the time in the car were but I do remember looking at him and he then cut us off before oncoming traffic came.
And what happened after that?---Yes, so we kept driving and we got to a roundabout. He went into the left lane. I went into the right lane. Basically, as we went around the roundabout he maliciously started driving his car towards our car so basically I had to swerve off the road completely and go over the roundabout in order to avoid an accident. I could see him through the window of the car and he was laughing the entire time.
And after you said you'd got off the roundabout?---Yes, so we came off the roundabout and we were right behind him and he instantly started slamming his brakes on and off until we'd hit him in the rear end.
I note that in that evidence, and in other evidence discussed later, “roundabout” is apparently used to refer to the circular, slightly raised, area encircled by the traffic lanes.
Ms McDonald expanded on this evidence, including by saying that at the point when Mr Holloway’s car was parallel to hers, on her right, and on the wrong side of the road, she had “flipped him off”, which seems to refer to making an offensive gesture at him (at other points during the hearing there was reference to “flipping him the bird” and “giving him the finger”). In cross-examination she said that after the collision, Mr Holloway had claimed to have a photograph of her making this gesture.
Ms McDonald said that after the collision, when the two cars had stopped on the side of the road, Mr Holloway had told her that he was an “ex-cop”, that she was “fucked” and that she was required by law to give him her insurance details. She had already asked her passenger to call the police, and refused to give any details until police arrived. She said that when she told him that the police were coming, he got into his car and drove away. Ms McDonald also said that at one point Mr Holloway had claimed that he had been avoiding a kangaroo, but that this clearly wasn’t the case.
In cross-examination, Ms McDonald described the point at which she said Mr Holloway’s car had moved towards hers from her left as they were driving through a roundabout, and she had had to steer her car onto the centre of the roundabout to avoid a collision:
Now, at the second roundabout your evidence is that as you go through it, you are on the inside lane?---Yes.
And he is immediately next to you?---Yes.
And as a result, you say, of him veering towards you you have to drive off the road and onto the roundabout entirely?---Yes, so I had to, yes, pretty much drive over the entire roundabout because he drove his car into me.
So your whole car came off?---Well, from my perspective, yes. I think, like from what I felt, I felt like I was super close to that light pole in the middle of the roundabout, yes.
She denied that, as they exited that roundabout, her car was slightly behind Mr Holloway’s car so that she might have been in the “blind spot” from Mr Holloway’s car.
She conceded that she might have been mistaken in what she had said, either to police or in her evidence, about when she first became aware of Mr Holloway’s car, and that there was nothing in her police statement about the rude gesture she had made to Mr Holloway, or about Mr Holloway having claimed to have a photo of her doing so. She conceded that she had not mentioned these details in her 000 call, and nor had she mentioned at that point her claims that Mr Holloway had driven on the wrong side of the road towards oncoming traffic, or that he had said he was an “ex-cop”. She explained that the point of her 000 call was to get the police there, not to make “an entire statement” over the phone. However, she was adamant that when police arrived at the scene of the collision, she had told the informant, Constable Thurgar, about the incident at the first roundabout and the incident on the road between that and the second roundabout. She was also clear that she had not deliberately driven up close to Mr Holloway’s car as they came out of the second roundabout, noting that she had been driving her friend’s mother’s car and the last thing she wanted to do was to have an accident.
In summary, she was not moved from the version of her story that she had given in evidence-in-chief, while conceding that she had not mentioned every aspect of her story on each occasion on which she had provided a version of it.
Bethany Lai
Ms McDonald’s passenger, Bethany Lai, gave evidence in chief essentially consistent with Ms McDonald’s evidence, including referring to Ms McDonald giving Mr Holloway “the finger”.
In cross-examination, she said that when Ms McDonald had to let Mr Holloway’s car back into the single lane heading towards the roundabout, there was no incoming traffic in the lane to their right and that Ms McDonald had let him into her lane so that he could enter the roundabout.
Ms Lai’s evidence differed from Ms McDonald’s in two respects.
First, asked whether the women’s car could have been in Mr Holloway’s blind spot as the two cars entered the roundabout, Ms Lai said “It could have been, but ---“ and was then interrupted. Her answer was not clarified or expanded.
Secondly, Ms Lai’s evidence was different from that given by Ms McDonald as to how far onto the roundabout their car had gone when, they said, Mr Holloway’s car was veering into their lane. Ms McDonald had said, at [11] above, that she had to “pretty much drive over the entire roundabout”, while Ms Lai said that not all four wheels were on the roundabout, one wheel was “skimming the side”, and “it was a lot of the car on the roundabout”.
Constable Thurgar
Constable Thurgar gave evidence that when he had asked Mr Holloway, at the police station, about whether he could explain his blood alcohol level of 0.111, he had said “I had a big night the night before”. Constable Thurgar confirmed this in cross-examination.
William Holloway
Mr Holloway gave evidence denying almost every aspect of the on-road events as described by Ms McDonald and Ms Lai except that there had been a collision between the right rear of his car and the front left of the women’s car as the cars left the roundabout. Mr Holloway said that that was the first point at which he became aware of the women’s car. He agreed that when the two cars had pulled over after the collision and he got out of this car, the interaction between him and Ms McDonald was angry on both sides, but denied that he had claimed to be an “ex-cop”. He explained that he had left the scene of the accident because Ms McDonald was angry and abusive to him and he believed he had 24 hours in which to report the accident. He said he had drunk three or four bottles of Carlton full strength beer after the accident, including taking one “long-neck” with him to the police station when he was driven there by his son. He denied having told a police officer that he had had a drink at work before the accident, denied having had “a big night” the night before the accident, and said that he could not recall having drunk alcohol the night before the accident. He agreed that as a professional driver, his driver licence was his livelihood.
In cross-examination, Mr Holloway denied having had a few drinks the night before the accident, denied that he had ever been a police officer, and said he had no reason to say anything to that effect to Ms McDonald. He agreed he had been angry about the collision and keen to get Ms McDonald’s insurance details because he believed the collision had been her fault. He said that he had left the scene of the accident to go to the police station, but conceded that instead he went home because he had to prepare dinner for people that night, which “takes hours”. After dinner had been prepared, he said, he went to the police station.
Mr Holloway said he could not recall any interaction with Ms McDonald and her car until merging after leaving the second roundabout, although he conceded that it was possible:
(a)that she “gave him the finger” as they drove between the two roundabouts; and
(b)that as he exited the second roundabout, he “was slowing down, braking”, quite possibly two or three times but he didn’t know.
He denied having seen a kangaroo or having claimed to be avoiding a kangaroo, and denied various other aspects of his conversation with Ms McDonald. He denied that after leaving the scene of the collision, he went home because he was scared he would get into trouble, and panicked.
Mason Holloway
Mr Holloway’s son, Mason Holloway, gave evidence that when his father arrived home after the collision he was very shaken up and worried. Mr Holloway had had a few beers before Mason Holloway drove him to the police station.
Submissions at trial
The prosecutor
In submissions before the Magistrate, the prosecutor noted that there was no dispute that Mr Holloway had been driving the car in question and that he was driving it on a road. She then pointed to Ms McDonald’s’s evidence of how she felt at various stages of the incident as evidence that she felt threatened, and submitted that the evidence established that Mr Holloway’s driving had the effect of “menacing” Ms McDonald. She pointed to substantial consistency in the accounts of Ms McDonald and her passenger Ms Lai, both of the driving incident and of events after the collision, especially Mr Holloway’s behaviour while the two cars were stopped on the side of the road. She also noted that in the 000 call made almost immediately after the collision, Ms McDonald said that they had “been harassed by another driver deliberately trying to run [them] off the road”.
The prosecutor also noted the evidence that Mr Holloway had told the women that he was an “ex-cop” and that the police would not turn up, that when told that the police were on their way he quickly left the scene, and that after that, instead of going straight to the police station, he first went home for some time. She submitted that if that evidence were accepted, it could be evidence of Mr Holloway’s attempt to avoid having the police involved in the matter, which in turn could be evidence of Mr Holloway’s recognition that he had done something wrong. This, she submitted, although not directly relevant to any element of the offence, would be relevant to the whether Mr Holloway’s denials were credible.
Defence counsel
Defence counsel submitted that it was surprising that in the 000 call Ms McDonald did not mention the alleged behaviour of Mr Holloway between the two roundabouts, and also did not mention it to Constable Thurgar when he arrived at the scene of the collision.
Counsel also noted several discrepancies in the evidence of Ms McDonald and Ms Lai:
(a)Ms McDonald said that there was oncoming traffic when Mr Holloway was driving on the wrong side of Isabella Drive, while Ms Lai said there was no oncoming traffic .
(b)Both women claimed that Mr Holloway tried to overtake them after the first roundabout, but, counsel said, the Google satellite image showed that after that roundabout, Isabella Drive “is a dual carriageway for some significant period of time after the roundabout and only then merges into a single lane”. Ms McDonald’s evidence about this issue is quoted at [7] above. Counsel’s proposition about the design of the road was not put to the witnesses.
Defence counsel further submitted that his Honour could not reject Mr Holloway’s evidence, noting that he was a professional truck driver, and then relied on Ms Lai’s “concession” about the blind spot (at [17] above) as “[casting] an entirely different context on whether or not [Mr Holloway], as it is alleged, was driving in a manner that was menacing at that time”. He did not, however, expand on that “different context”, except by submitting that because of it, Mr Holloway’s evidence ought to be accepted.
Defence counsel also argued that Mr Holloway’s behaviour at the scene of the collision, and his departure from there while Ms McDonald was making the 000 call, could not be accepted as indicating “to the requisite standard” a consciousness of guilt, because the transcript of the 000 call suggested that Mr Holloway had left because Ms McDonald was refusing to give her contact details (on advice from the 000 operator, but Mr Holloway was not to know that).
Counsel concluded by saying that his Honour could not be satisfied beyond reasonable doubt, on the prosecution case, that the three matters particularised as making up the menacing driving all occurred and, further, that his Honour could not reject the frank and forthright evidence of Mr Holloway, who was a “a driver by trade”. Counsel did not as far as I could see articulate the basis for the claim that being a driver by trade enhanced Mr Holloway’s credibility.
The Magistrate’s decision
The Magistrate directed himself that the offence of menacing driving requires that a person:
(a)drives in a manner which menaces another; and
(b)ought to have known that the other person might be menaced.
His Honour found Mr Holloway guilty of the menacing driving offence, and noted Mr Holloway’s plea of guilty to the PCA offence.
Sentence
The Magistrate then proceeded to sentence Mr Holloway.
His Honour convicted Mr Holloway of the menacing driving charge, fined him, imposed the minimum disqualification period for that offence, being three months (s 63, Road Transport (General) Act 1999 (ACT)), and made a 12-month good behaviour order. His Honour also reduced the fine imposed from $500 to $300, saying that this was because of Mr Holloway’s guilty plea, even though the guilty plea related only to the PCA offence.
For the PCA offence, his Honour rejected defence counsel’s submission that, despite Mr Holloway being a repeat offender in respect of the offence, his Honour should make a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). His Honour proceeded to convict Mr Holloway, to fine him $200 reduced from $300 for his guilty plea, and to impose the minimum licence disqualification in respect of that offence, being six months (s 33, Road Transport (Alcohol and Drugs) Act 1977 (ACT)).
Conviction appeal – consideration
Count 1, ground 1: findings of fact not available on the evidence
Although not all of the challenged findings of fact were specified in counsel’s written submissions, they seem to be the findings about all three incidents particularised in the menacing driving charge.
First, counsel said that his Honour had made a finding of fact about the appellant driving on the wrong side of the road between the two roundabouts (particular (a) of the charge) “that was not available [on] the evidence”. Counsel said that in making this finding his Honour gave no explanation as to why he rejected the appellant’s evidence.
The evidence about whether Mr Holloway’s car had crossed onto the wrong side of the road between the two roundabouts is referred to at [7], [9], [13] and [16] above. Counsel’s submissions about the women’s evidence are summarised at [29] above. In particular, counsel repeated at the appeal the submission that the Google satellite image shows that after the first roundabout, Isabella Drive:
is a dual carriageway for some significant period of time ... and only then merges into a single lane.
The map as I read it shows that two lanes exit the first roundabout at the relevant point, and are separated from the oncoming traffic entering the roundabout at that point. It also shows that at a distance of what appears to be several hundred metres beyond the roundabout, those two lanes come together as a single lane forming part of an undivided carriageway; that is, there are then two lanes all up, which carry traffic travelling in opposite directions, the lanes being separated only by line markings.
However, what seemed to be implicit in counsel’s submission is that for a significant period after the roundabout, each single direction carriageway has two lanes (and therefore that Mr Holloway could have overtaken the women’s car without crossing to the other side of the road).
The map does not in my view establish that at all. It does appear to show that the relevant carriageway narrows over the distance between the exit from the roundabout and the point where the exiting lane joins up with the lane carrying on-coming traffic, but it is impossible to tell from the map where the two lanes that leave the roundabout actually merge into one lane. The map does not in my view cast any particular doubt on the evidence of the two women that at some point after leaving the first roundabout and before reaching the second roundabout, Mr Holloway’s car crossed into the oncoming lane and overtook them.
Secondly, counsel mentioned his Honour’s finding that the women’s car was forced onto the roundabout by Mr Holloway’s car (particular (b) of the charge), pointing to inconsistencies in the relevant evidence of the two complainants. That evidence is referred to at [7], [11] and [19] above. I cannot see any significant inconsistencies between the evidence of the two women. It is unsurprising that, in the circumstances as described, the driver and a passenger might have slightly different perceptions of the exact location of the car during the relevant few seconds.
Finally, as to the claim that Mr Holloway had repeatedly applied his brakes and caused the women’s car to collide with his car (particular (c) of the charge), counsel submitted that his Honour seemed to have considered that Mr Holloway’s failure to explain why he touched his brakes as he exited the second roundabout somehow corroborated the women’s evidence that he had braked repeatedly and for the purpose particularised by the prosecution.
Mr Holloway’s evidence in chief was that he had been merging as he left the roundabout. In cross-examination he agreed that he might have braked two or three times at that point. That is, there was evidence from which his Honour might have inferred that the braking related to the process of merging. His Honour’s comment that Mr Holloway failed to explain the braking was not accurate in relation to the totality of Mr Holloway’s evidence, although it is true that there was no explicit link drawn in his evidence between the braking and the merging. The comment that the absence of an explanation corroborated the claims of the complainants was a curious approach to corroboration and might have been better avoided. However I cannot see that Mr Holloway’s evidence was such as to preclude his Honour accepting the evidence of the two women about what Mr Holloway did and how it affected them.
All the challenged findings were available to his Honour if he accepted the evidence of the two women. The fact that Mr Holloway denied the claims did not of itself require the claims to be rejected. This ground is not made out.
Count 1, ground 2: errors as to burden and standard of proof
In the course of giving his decision, the Magistrate made a number of unfortunate comments, including the following:
What remains relevant for the proving of the offence is whether or not you acted in a way which is menacing on the balance of probative and credible evidence provided by two witnesses who have no reason to create the story ...
It is simply not more likely than not, it just seems to me based on that evidence I am satisfied to the standard I must be satisfied of that you did that as a deliberate act to intimidate them for the driving which had occurred earlier in that sequence.
I am further satisfied that you then slowed down going off the exit and deliberately braked your vehicle to two to three times again to intimidate them and what followed unfortunately was an accident and if, as the prosecution pressed upon me, is that if in fact it wasn’t your vehicle and you were completely innocent why would you leave the scene to go home? Why would not you wait for police which had been called which you were then on the phone to?
Counsel for Mr Holloway submitted that the Magistrate’s comments suggested that his Honour was confused about the standard of proof that he was required to apply. In particular, counsel submitted that his Honour’s questioning of Mr Holloway about why he had left the scene of the collision not only reversed the onus of proof, but ignored the evidence from Mr Holloway that he had left because Ms McDonald had refused to provide the information he had requested, and instead referred to Mr Holloway having left while he was on the phone to police (a claim not made by any of the witnesses).
Counsel for the respondent submitted that his Honour’s directions criticised on appeal had to be read in context, and that since his Honour had earlier in his reasons correctly directed himself as to burden and standard of proof, there was no basis for finding that his Honour had fallen into error.
I accept that his Honour did direct himself properly by drawing at length from the judgment of Gray J in R v Rao [2008] ACTSC 17. Gray J said:
5. ... As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or to show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. Both the onus and the standard of proof lie upon the prosecution and the prosecution must prove each and every element of the offences charged beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.
6. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit the accused in respect of that charge.
The Magistrate directed himself generally in accordance with this material, adapting it among other things so that he was addressing the defendant directly. After words along the lines of the last sentence in [6] from Gray J’s judgment, the Magistrate went on to say:
Of course, as previously mentioned, where I am satisfied beyond a reasonable doubt that the charges have been proved then subject to anything that anyone else might say, it is more likely than not that you will be convicted of that charge.
It is not clear whether, when he referred to the likelihood that the defendant would be convicted, his Honour was referring to the likelihood that he would reach a guilty verdict or was foreshadowing what might happen in any subsequent sentencing hearing. Given the potential for confusion, this was not a helpful comment however it was intended.
While the Magistrate’s directions, in generally reflecting Gray J’s directions, were adequate for the purpose, it is not clear (and especially it may not be clear to an accused person) that a judicial officer who reads out another judicial officer’s directions about burden and standard of proof establishes that the first judicial officer is properly applying the law if he or she then goes on to make comments suggesting that his or her own understanding of the relevant matters may be wrong or inadequate.
In this case, a careful reading of what his Honour said (at [48] above) indicates that the concerning comments amounted to the facts that:
(a)his Honour described a determination of whether the offence was made out as involving “whether or not [Mr Holloway] acted in a way which is menacing on the balance of probative and credible evidence”; and
(b)his Honour later said, apparently in relation to that determination, “It is simply not more likely than not, ...”.
It seems to me that the objectionable aspect of his Honour’s first comment is the use of the phrase “on the balance of”, followed by the phrase “probative and credible evidence”, because it conveys the impression that what was in his Honour’s mind was the expression “balance of probabilities”. However, this is not what his Honour actually said.
The second comment raises a similar issue, the reference to a matter being more likely than not also appearing to allude to a balance of probabilities test. In this case, however, read in context, his Honour appears to be saying that he is not applying a “more likely than not” test, rather, that he is “satisfied to the standard to which [he] must be satisfied of”.
There is no doubt that his Honour’s attempts to expand on the nature of his mental processes were unhelpful. However, I am not convinced that his Honour’s somewhat garbled articulation of his reasoning establishes that he had misdirected himself.
Furthermore, having regard to my conclusions on the “unsafe and unsatisfactory” appeal ground, especially at [66] below, I am satisfied that the conclusion reached by his Honour would have been well available to him on the basis of an absolutely correct application of the applicable burden and standard of proof requirements.
Count 1, ground 3: verdict unsafe and unsatisfactory
In Mapham v Bannerman [2013] ACTSC 157 (Mapham), I considered the availability of “unsafe and unsatisfactory” as a ground of appeal against a Magistrate’s decision, concluding (at [56] to [60]) that such a ground was available. I then noted the description in Massey v The Queen [2001] FCA 1558 at [29] of how the ground was to be assessed, as follows:
This Court, then, must approach the question of whether the verdict was unsafe or unsatisfactory by assessing the whole of the evidence. It must undertake that assessment so that it can determine whether it was open to the trial judge to be satisfied, beyond reasonable doubt, that the appellant was guilty. In undertaking that exercise the appellate court must have full regard to the fact that the judge was able to see and hear the witnesses give their evidence: this the appellate court cannot do.
In Mapham at [62], I noted also Refshauge J’s comments in CM v TM & Anor [2011] ACTSC 53] at [18], as follows:
The approach was restated by Kirby J (with whom Gleeson CJ agreed) in CSR Ltd v Della Maddalena where his Honour said (at 466; [21] to [22]:
[21]Even in the case of expressed credibility findings, the statutory duty to conduct a real ‘rehearing’ remains. It may sometimes justify reversal of a decision by a primary judge who has ‘failed to use or has palpably misused his advantage’ or where ‘incontrovertible facts or uncontested testimony’ demonstrates the findings to be erroneous; or where they are ‘glaringly improbable’ and ‘contrary to compelling inferences’.
[22]However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It ‘will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it’.
(Footnotes omitted).
This appeal ground rests on the basic proposition that his Honour should not have been satisfied beyond reasonable doubt of Mr Holloway’s guilt; that in turn is based on the submissions that:
(a)there were no grounds for rejecting Mr Holloway’s denials of the claims made by Ms McDonald and Ms Lai, especially having regard to several inconsistencies in their evidence; and
(b)his Honour appears to have misdirected himself about the burden and standard of proof (dealt with at [48] to [59] above).
For reasons I have already set out, at [39] to [43] above, I reject the claim that the asserted inconsistencies in the evidence of the two women, and between their evidence and the Google map, undermined the capacity of that evidence to establish the menacing driving as particularised, or had any adverse effect on their credibility more generally. It seems to me that his Honour had good grounds for accepting their evidence and, to that extent, rejecting Mr Holloway’s evidence. Nor can I see anything in the evidence as it is available to me that suggests that his Honour’s conclusions involved a failure to use, or a palpable misuse of, his advantage in seeing and hearing the witnesses; there are no “incontrovertible facts or uncontested testimony” that demonstrate his Honour’s findings to be erroneous, and none of those findings is “glaringly improbable” or “contrary to compelling inferences”.
Although his Honour did not explain, or indeed explicitly make, any credibility findings in relation to the various witnesses, his conclusions were clearly based on a view that the two women were believable and that accordingly, where their testimony differed in important respects from that of Mr Holloway, he was not. Those conclusions, although not made explicit, are implicit not only in his Honour’s ultimate findings but also in comments (set out in full at [48] above) such as:
(a)that the two women “have no reason to create the story” and that their evidence is supported by the almost immediate 000 call; and
(b)that, apart from the possibility that Mr Holloway might have been under the influence of alcohol, it was not clear why, in the circumstances as described by Mr Holloway, he had chosen to leave the scene before police arrived.
Counsel criticised those comments as effectively reversing the onus of proof, as containing an error of fact (in relation to the suggestion that Mr Holloway was on the phone to police), and also as overlooking Mr Holloway’s explanations for leaving the scene; these criticisms are dealt with at [49] to [59] above. However, for present purposes, I note that whatever the significance of those criticisms to how his Honour analysed the content of the witnesses’ evidence and how he applied the burden and standard of proof, his Honour’s comments do indicate that he had considered, and reached conclusions, about the respective credibility of the various witnesses.
I can see no basis in the evidence as such for overturning his Honour’s conclusions despite his advantage of seeing and hearing the witnesses. On the basis of the evidence as it is before me, I would have been satisfied that the elements of the offence charged had been made out beyond reasonable doubt, and the fact that his Honour, having seen and heard the witnesses, as well as having the content of their evidence before him, reached the same conclusions confirms my view that the findings of guilt are not required to be set aside.
The Magistrate’s verdict on the charge of menacing driving was not unsafe or unsatisfactory.
Conclusions
I have concluded that appeal ground 1 (that his Honour made findings of fact that were not available on the evidence) has not been made out, and that the verdict on the charge of menacing driving was not unsafe and unsatisfactory (appeal ground 3).
Furthermore, noting especially principles 3, 4 and 5 quoted at [4] above from Peverill v Crampton, and accepting that the Magistrate’s explanation of his reasoning process was potentially confusing in relation to the relevant burden and standard of proof, I can nevertheless see no basis for finding that his Honour’s conclusion that Mr Holloway was guilty of the menacing driving offence has caused a miscarriage of justice.
The appeal against conviction is accordingly dismissed.
Sentence appeal – consideration
Count 1
Although the appeal in relation to the menacing driving offence was expressed as also an appeal against sentence, no grounds of appeal were identified, and no written or oral submissions were made about the sentence which, in my view, was in fact lenient (and not only because of the curious reduction in the fine that was attributed to Mr Holloway’s non-existent plea of guilty). The appeal against the sentence imposed in respect of the menacing driving offence fails.
Count 2
The two grounds of appeal against the sentence on Count 2, set out at [3] above, are manifest excess and error of law. Although these two grounds are quite distinct (House v The King (1936) 55 CLR 499 at 505; Bugmy v The Queen (2013) 249 CLR 571 at [22]-[24] and [51]-[53]), they were in written submissions not argued separately; counsel’s submission was simply that his Honour erred in failing to take into account “the very unusual circumstances of the consumption of alcohol post-driving”.
The error of law identified in oral submissions was his Honour’s statement that he was “swayed ... by the fact that a section 17 is simply not available in relation to ... the circumstances relating to the PCA charge”.
Section 17 of the Crimes (Sentencing) Act provides that, without convicting an offender of an offence, a court may either dismiss a charge or make a good behaviour order; exercising either of those powers is often referred to in general terms as making a non-conviction order. That section does not contain any explicit restriction on the making of non-conviction orders for particular offences, and nor is such a restriction found in the authorities. To the extent that his Honour appears to have acted on the basis that a non-conviction order was legally unavailable, he has fallen into error.
This re-opens the sentencing discretion, which I must re-exercise if I am also satisfied that another sentence is appropriate (see Keen v Tither [2010] ACTSC 130 at [44] to [45]). The fine and licence disqualification period for the offence were both very low, a fine of only $200 (compared with a maximum fine at the time of $1,100) and disqualification only for the minimum period. It is clear that the only more lenient sentence that could be imposed without amounting to mere “tinkering” would involve the making of a non-conviction order.
However, in the particular circumstances, I cannot see that another, more lenient, sentence is appropriate. My reasons for concluding that no more lenient sentence is appropriate or warranted are several.
First, there is the fact that this PCA offence was not Mr Holloway’s first, and nor was it a low-level offence.
Secondly, the “unusual circumstances of the consumption of alcohol post-driving” do not in my view provide any particular ground for more leniency than was in fact shown.
The fact that the relevant test for alcohol in a driver’s system can be administered up to two hours after an accident (s 14(1)(a) of the Road Transport (Alcohol and Drugs) Act) clearly leaves open the possibility that any alcohol detected when the test is administered may have been consumed after the accident, and in some circumstances the post-accident consumption of alcohol may be found to be a mitigating factor.
Mr Holloway had pleaded guilty to the PCA offence. There is no issue about the burden of proof in relation to whether the offence was committed. However, as I understand R v Olbrich (1999) 199 CLR 270 (at 281; [27]), Mr Holloway was required to establish on the balance of probabilities a matter on which he sought to rely in mitigation of sentence. If his Honour was not satisfied on the balance of probabilities that in this case all the relevant consumption of alcohol happened after the accident, he was not obliged to accept that proposition for sentencing purposes.
The following evidence was before his Honour:
(a)evidence that in the roughly 80 minutes starting at the time of the accident (between when he left the scene and when he presented himself at the police station, and during a period when, on Mr Holloway’s own evidence, he intended to go to the police station to report the accident), Mr Holloway had consumed three or possibly four “long-necks” of full-strength beer;
(b)evidence (including from Mr Holloway) that he consumed this alcohol while engaging in the time-consuming task of preparing dinner, although his son’s evidence did not refer to the preparation of dinner but was only that the drinking had occurred at a point when they were “about to have dinner”;
(c)evidence that at some point Mr Holloway had told Constable Thurgar that he had had “a big night” on the night before the accident (although there was no evidence that this had been contemporaneously recorded anywhere by Constable Thurgar);
(d)evidence from the two women (see especially [10] above) from which it could be inferred that after the collision Mr Holloway wished to avoid any immediate contact with the police.
I note in passing also the evidence of Mr Holloway’s curious decision to continue drinking alcohol even as he was being driven to the police station by his son, although it is hard to know what inference might be drawn from this.
In summary, however, the evidence referred to at [80] above allows the findings that Mr Holloway was keen not to deal with police at the scene of the accident, but that he chose instead to deal with police little more than an hour later. By that time he had, even while preparing dinner, consumed enough alcohol to exclude any inference that his blood alcohol level at the time of the accident must have been over the limit, having regard to the high blood alcohol level recorded at the police station. As already noted, the claim of post-accident consumption of alcohol would not exclude a finding of guilt of the charged PCA offence, but it would give scope for a submission (of the kind in fact made) that a very lenient sentence was justified.
In those circumstances and noting the evidence set out above, his Honour might reasonably have been sceptical about whether all the relevant consumption of alcohol (that is, the consumption necessary to produce the result obtained at the police station) had taken place after the collision. There is no reason to conclude that, for the purposes of sentencing, his Honour should have been persuaded on the balance of probabilities that the PCA offence did not reflect any pre-accident consumption of alcohol but was simply the unfortunate consequence of:
(a)a foolish decision by Mr Holloway to settle himself down after a disturbing experience by consuming a substantial quantity of alcohol in a short time; and
(b)a serious misjudgement of how much alcohol he could safely consume despite his intention to report the accident to police very quickly.
That is, I cannot see that the Magistrate was obliged to treat Mr Holloway’s excessive consumption of alcohol after the accident but before going to the police station as in any way a mitigating factor in his Honour’s sentencing. Nor am I persuaded that it is a basis on which I should conclude (having found error on his Honour’s part) that another more lenient sentence is appropriate.
Although his Honour did err in concluding that a non-conviction order was simply unavailable, I am not persuaded that another sentence is appropriate; it is implicit in that conclusion that I am also not persuaded that the sentence was manifestly excessive. The appeal against the sentence on the PCA offence therefore also fails.
Conclusions
The appeal against sentence is dismissed.
Conclusions
The appeals against conviction on Count 2 and against the sentences on both counts having been dismissed, I shall hear the parties about any necessary consequential orders.
| I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: David Hoitink Date: 11 March 2016 |
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