Huggard v Murray
[2016] ACTSC 246
•26 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Huggard v Murray |
Citation: | [2016] ACTSC 246 |
Hearing Date: | 24 August 2016 |
DecisionDate: | 26 August 2016 |
Before: | Elkaim J |
Decision: |
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Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – Appeal against conviction – s 138 of the Evidence Act 2011 (ACT) – s 23V of the Crimes Act 1914 (Cth) – whether evidence was incorrectly admitted |
Legislation Cited: | Crimes Act1914 (Cth), ss 23V, 24 Criminal Code 2002 (ACT), ss 309, 321 Evidence Act 2011 (ACT), ss 90, 138 Road Transport (Safety & Traffic Management) Act 1999 (ACT), s 7(1) |
Cases Cited: | Connelly v Allan [2011] ACTSC 170 R v FE [2013] NSWSC 1692 Slipper v Turner [2015] ACTSC 27 |
Parties: | Roy Huggard (Appellant) Andrew Murray (Respondent) |
Representation: | Counsel Mr K McDonald (Appellant) Mr M Reardon (Respondent) |
| Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 38 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 29 February 2016 Case Title: Murray v Huggard Court File Number: CC 9557 of 2014 |
ELKAIM J:
This is an appeal from a decision of the Chief Magistrate given on 29 February 2016. By this decision the appellant was convicted of a number of offences arising from a ‘road rage’ incident on 30 July 2014 on the Barton Highway, near Hall.
The appellant was sentenced on 21 April 2016. The offences and respective sentences are as follows:
CC 15/3626 – For the offence of robbery contrary to s 309 of the Criminal Code 2002 (ACT), the appellant was sentenced to 12 months imprisonment fully suspended upon entering into a Good Behaviour Order for a period of 18 months.
CC 14/9557 – For the offence of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT), the appellant was sentenced to 12 months imprisonment fully suspended upon entering into a Good Behaviour Order for a period of 18 months with 200 hours of community service.
CC 14/9558 – For the offence of furious driving contrary to s 7(1) of the Road Transport (Safety & Traffic Management) Act 1999 (ACT), the appellant was sentenced to 4 months fully suspended upon entering into a Good Behaviour Order for a period of 18 months. The appellant’s licence was disqualified for a period of 6 months.
CC 14/9559 – For the offence of minor theft contrary to s 321 of the Criminal Code 2002 (ACT), the appellant was sentenced to a 6 month Good Behaviour Order.
CC 14/9560 – For the offence of failing to give particulars following a crash contrary to r 287(1) of the Australian Road Rules, the appellant was sentenced to a 6 month Good Behaviour Order.
If properly convicted, the appellant does not challenge the sentences imposed.
It is first of all necessary to state my task in hearing this appeal.
12.So far as the appeal against conviction is concerned, it is a rehearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong.
13.This court, as the appellate court, will give proper allowance to the advantage of the Learned Magistrate who has seen and heard the witnesses, so that ordinarily facts found based on the assessment of witnesses will not lightly be overturned. The appellate court is obliged to conduct a real review of the trial and the Learned Magistrate's reasons… (Refshauge J in Connelly v Allan [2011] ACTSC 170)
The respondent’s written submissions correctly summed up the principles derived from Slipper v Turner [2015] ACTSC 27 in this way:
i.While the appellant may challenge the findings made by the learned and Chief Magistrate, it is not a rehearing de novo and error must be demonstrated, taking into account the inevitable advantage held by the magistrate at first instance in seeing the witnesses as they gave their evidence;
ii. The question in considering whether a verdict is unsafe or unsatisfactory is whether it was open for her Honour to conclude that the offences were proved, not whether there was evidence which was capable of costing and doubt if accepted by the tribunal of fact, nor …… that the verdict was infected by error.
The victim of the offences was a Ms Heyroth. The appellant does not challenge what she says happened to her. He does however challenge the finding that he was the perpetrator of the offences.
This is what happened to Ms Heyroth: In the early hours of 30 July 2014 she was travelling towards Canberra on the Barton Highway. She travelled through a town, in New South Wales, called Murrumbateman. While doing so she was tailgated by a Ford Falcon. The driver of the Ford then overtook her and braked heavily so that she had to take evasive action.
After a period in which the vehicles were separated, and after they crossed into the ACT, the driver of the Ford continued his aggressive behaviour leading to a collision between the two vehicles. Ms Heyroth and the other driver pulled over. The other driver opened the door of Ms Heyroth’s vehicle and punched her in the face. He stole her keys from the ignition and drove off.
The prosecution case was that the appellant was the driver of the Ford.
On 17 September 2014, some 6 weeks after the incident, Ms Heyroth attended a police station where she was asked to identify the driver through the use of a ‘photoboard’ parade. In her oral evidence, Ms Heyroth said she had been 80% certain that the photo she identified as being the culprit was correct. The photograph she chose was not a photograph of the appellant.
The evidence of Ms Heyroth that was most relied upon by the Chief Magistrate concerned the vehicles registration number (BU9-3VX), that it was a Ford Falcon, dark blue or grey in colour and there was a passenger who she thought was about 25-30 years old with dark hair. As to the driver, she identified him as being Caucasian, about 170-175cm tall, of medium build with brown hair and aged approximately 50-55 years old.
In addition to the evidence of Ms Heyroth, concerning identification, the informant, Constable Murray, said that Ms Heyroth told him the Ford’s registration number shortly after the incident. His enquiries revealed that the appellant had two vehicles registered in his name. One of them was a blue 2008 Ford Falcon bearing registration number BU9-3VX.
Constable Murray spoke to the appellant who signed a form stating that at about 7:00 AM on 30 July 2014, he had been “the person operating and responsible” for the vehicle, BU9-3VX (Exhibit 9). The admissibility of this exhibit was challenged by the appellant before the magistrate.
The appellant gave evidence. He conceded to owning a blue 2008 Ford Falcon carrying the above registration number. He also admitted that on 30 July 2014 he had been driving this car but only from 6:25 AM to 6:30 AM. He said that he had been driving with his son in the car but had returned home as his wife had had an accident that morning and he wished to be with her during the day.
The appellant said, that having driven home, he changed to his other vehicle to drive to Sydney with his wife and son in the car.
He denied the incident with Ms Heyroth but conceded that he had not made his vehicle available to any other person that morning nor did he have any reason to suspect it had been driven without his knowledge. The appellant tendered into evidence an estimate from a panel beater to confirm that he had been to Sydney that day (Exhibit 11).
The appellant’s son, Jonathan Huggard, also gave oral evidence and confirmed his father’s version of the events of the morning. I note here, that inconsistent with Ms Heyroth’s evidence, Mr Huggard Jnr was 18 years of age at the time of the incident.
The appeal against conviction is that the verdict was unsafe and unsatisfactory. In support of this ground the appellant says that the learned Chief Magistrate erred in that she:
(a)Incorrectly disregarded circumstances that were in evidence;
(b)Incorrectly had regard to circumstances that were not in evidence;
(c)Concluded that there were no explanations consistent with his innocence by rejecting three alternative explanations;
(d)Inappropriately dealt with the appellant’s denials of guilt;
(e)Inappropriately dealt with mobile phone records; and
(f)Admitted and used evidence about an admission which should not have been admitted and should not have been interpreted in the manner that it was.
Did her Honour incorrectly disregard circumstances that were in evidence?
The first point of asserted error arises from the identification of the appellant.
Ms Heyroth was the principal witness on the identification of the driver of the Ford. Her honesty was never in issue but she was challenged on the reliability of her memory.
The appellant’s first complaint seems to be that the magistrate disregarded defects in the prosecution case rather than allowing those defects to influence the reliability of the case against the appellant. Thus, her Honour, in not taking into account Ms Heyroth’s ‘mistakes’ at the photo identification parade and in relation to the appellant’s glasses, fell into error because instead of using these facts as indicators of unreliability, her Honour simply ignored them.
There are two problems with the appellant’s submission. Firstly, it is open to a tribunal of fact to accept part of a witness’s evidence and reject part of it. The fact that a part has been rejected does not necessarily mean that any other part should not be accepted.
Secondly, Ms Heyroth gave very powerful evidence about the registration number of vehicle. She was adamant as to her correctness. Moreover her evidence was corroborated by the vehicle being owned by a person residing at a place consistent with the alleged events.
The fact that the person described by Ms Heyroth could have been a description of a great number of people is beside the point. The important point is that the description is consistent with a description of the appellant.
Did Her Honour incorrectly have regard to circumstances that were not in evidence?
The issue here is that her Honour apparently relied on evidence that had only come before her on a voir dire and was not available to be used outside of that exercise. Her Honour said, at T 9.43 (29 February 2016):
An incident occurred on what is the defendant’s usual route to work at about the usual time he would be in the area.
The appellant submitted that this information was restricted to a voir dire that was being conducted from T 37.14 on 25 February 2016 and continued for some time. It was concluded with a decision the following day, 26 February 2016. The voir dire concerned the prosecution’s attempt to introduce tendency evidence from another person who had experienced a roughly similar incident with a vehicle having the same registration number, but the incident had occurred in September 2013.
Her Honour ultimately rejected the proposed evidence at T 6.29 (26 February 2016).
The prosecutor specifically relied on the evidence about the appellant’s usual times and route to work in his final submissions (T 99.9-25 on 26 February 2016). It was pointed out to her Honour that the evidence about times of travelling to work had been given during the voir dire and not during the substantive matter (T 105.20 on 26 February 2016).
There was no dispute that the evidence given in the voir dire was not taken as evidence in the substantive matter. There was some evidence about times and routes of travel (T 93.39 – 94.3 on 26 February 2016) but this evidence does not justify a conclusion that the appellant travelled to work at a usual time and via a usual route.
At T 9.14 of the judgment on 29 February 2016, her Honour correctly identifies that the case is one based on circumstantial evidence. She then, again correctly, says that:
The court must be satisfied that it can reasonably infer on the facts that the defendant was the driver of the car involved in the incident with Ms Heyroth and is therefore guilty of the charges which are otherwise and challenged to the exclusion of any reasonable conclusion on the facts consistent with innocence.
On the same page, starting at line 40, her Honour then lists the facts she has found and from which she has inferred that the appellant was the driver of the Ford. The facts she lists are these:
(a)A person loosely fitting the description given by Ms Heyroth is the registered owner of a vehicle fitting the description provided by Ms Heyroth.
(b)The registration number provided by Ms Heyroth precisely matches the registration number of the appellant’s vehicle.
(c)“An incident occurred on what is the defendant’s usual route to work at about the usual time he would be in the area.”
(d)The passenger described by Ms Heyroth fits the broad description of the appellant’s son.
(e)The defendant signed the document which is Exhibit 9 and constitutes a significant admission.
After discussing alternative explanations her Honour continued, at T 10.16:
On the facts found, there is no other reasonable conclusion consistent with innocence which can be inferred. I therefore find the offences proved.
The “facts found” are those that I have set out in paragraph 31, above. They include the facts concerning the appellant’s usual time and route of going to work. Her Honour does not say that she has attributed more or less weight to any of the facts that she had found. It can only be inferred that her Honour gave them all some weight.
If any of the facts in the above list should not have been included in the findings, that is indicative of error.
In my view this error is sufficient to allow this court to reach its own conclusion on the balance of the evidence. However because of the conclusion I have reached below about Exhibit 9, I will return to the question of re-assessment below.
Did her Honour conclude that there were no explanations consistent with the appellant’s innocence by rejecting three alternative explanations?
The third complaint made by the appellant is that her Honour concluded, in reaching her finding of guilt, that there were no explanations consistent with the appellant’s innocence. Her Honour dealt with this point at T 10.5 (29 February 2016). In my view the appellant has misconceived her Honour’s approach. She has not, as suggested by the appellant, reached findings of guilt because the alternative explanations were “patently implausible”. She has, rather, specifically reached her conclusion “on the facts found.” Accordingly this submission is rejected.
Did her Honour inappropriately dealt with mobile phone records?
Turning now to the appellant’s mobile phone records (Exhibit 10), the complaint seems to be that her Honour should not have allowed the content of the records to influence the findings of credit of both the appellant and his son. Her Honour found the records were inconsistent with the evidence about the use of the appellant’s phone while they were in a vehicle on the way to Sydney.
On one view, her Honour has reached an incorrect conclusion about the phone calls because the evidence of the appellant’s son (at T 92.4 on 26 February 2016) is consistent with Exhibit 10.
In addition, her Honour’s observations about the absence of text message records may be explained on page 2 of Exhibit 10 where it is stated that the applicable Telstra plan allows for “unlimited standard national text”.
Notwithstanding these possible misinterpretations of the evidence, I do not think that her Honour’s conclusions about the demeanour of the appellant and his son are necessarily incorrect. As I read the reasons, her Honour came to her conclusions about demeanour on a global appreciation of the witnesses and not because of the evidence concerning the Telstra account.
Did her Honour inappropriately deal with the appellant’s denials of guilt?
The next point relates to her Honour’s dealing with the appellant’s denial of his guilt. In my view the complaint is somewhat overstated. Firstly, the denial is not included in one of the findings of fact which led to her Honour’s ultimate decision. Secondly, in relation to credit, as I read her Honour’s comments at T 8.21 on 29 February 2016, she has done no more than observe that the appellant dealt with the allegations in a more ‘casual’ manner than would be expected. Further her Honour’s conclusion about credit at the end of the paragraph is not a product of the above observation but a product of a number of matters that her Honour has detailed in the previous paragraphs.
Did her Honour admit and use evidence about an admission which should not have been admitted and should not have been interpreted in the manner that it was?
The final complaint concerns the admission into evidence of Exhibit 9. This is the document entitled “Nomination of driver of the vehicle”. The appellant says the document, to the extent that it is an admission, should not have been allowed into evidence because to do so was in contravention of s 23V of the Crimes Act1914 (Cth). The section states that an admission is not admissible unless it was tape-recorded. As it was reasonable for it to have been tape-recorded and there were no exceptional circumstances, the form should not have been come into evidence.
Her Honour allowed the document into evidence through s 138 of the Evidence Act 2011 (ACT) on the basis that the desirability of admitting the evidence outweighed the undesirability of admitting it, despite the manner in which it had been obtained.
If the exercise of assessing the document under s 138 was appropriate, then in my view her Honour was correct to reject the appellant’s submissions about the manner in which the document came into being. The probative value of the document is obviously very high. The so-called dispute about the manner in which it was prepared defies logical analysis. To suggest that the appellant did not fully appreciate the contents of the document when he made specific amendments made to it is incapable of acceptance. I also note he had spoken to his lawyer before dealing with the document.
I also have no difficulty agreeing with her Honour that the words “the person operating and responsible” include the driving of the vehicle.
However the observations I have just made are only relevant if admitting Exhibit 9 under s 138 was an avenue open to her Honour. The appellant submitted that it was not open. This is a point that was essentially only developed by the appellant in the course of submissions before me. It was not taken below.
The appellant submitted that because s 23V itself dealt with admissibility it was not open to the court to have recourse to s 138 to overcome the bar that had been placed on admissibility by the former section. This is particularly so because her Honour had made a specific finding that the only gateway provided by s 23V to enable admissibility, namely a finding of special circumstances, was not applicable (T 47.8 on 26 February 2016).
The appellant submitted that s 138 was directed to cases where evidence had been obtained in contravention of a particular law, but that law did not itself comprehensively cover the question of admissibility.
The distinction can be seen by reference to a decision of Adamson J in the Supreme Court of New South Wales in R v FE [2013] NSWSC 1692. In this matter her Honour was concerned with ss 90 and 138 of the Evidence Act 2011 (NSW).
Section 90 says a court “may refuse to admit evidence of an admission….” in certain circumstances. If the court did so then s 138 would still be a means by which the evidence could be admitted. The important distinction between s 90 and s 23V is that the former contains a discretion whereas the latter comprehensively dictates the question of admissibility.
I am of the view that the appellant’s point has merit. Under s 23V, Exhibit 9 was not admissible absent special circumstances. Her Honour specifically found that there were no special circumstances. That should have ended the issue of admissibility of the document. In other words, its admissibility was decided by the application of s 23V and there was no scope for s 138 to override the former section.
The fact that the point was not taken below is not fatal. This is because the issue is a matter of law which should have been applied below and which the learned Chief Magistrate would have been bound to apply had the issue been brought to her attention.
Because the matter only arose in submissions before me, I invited the parties to provide me with any other material, or authorities that they wished to rely upon. The appellant provided me with further submissions together with some authorities. The respondent replied, also citing some cases, but essentially stating that the point did not seem to have been specifically decided.
I think the case most applicable is R v Sarlija(No 1) [2015] ACTSC 290. The Chief Justice, in a pre-trial hearing, dealing with the admissibility of evidence under s 23V, said this:
Non-compliance with s 23V
47.The test under s 23V of theCrimes Actdiffers from that under s 138 of theEvidence Act.
48.Under s 138, improperly obtained evidence must not be admitted unless the desirability of admitting the evidence “outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. Matters that inform that assessment are not limited, although the Court must take into account the eight matters specified in s 138(3).
49.Under s 23V, evidence is inadmissible unless the Court is satisfied that “in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.” It would appear that, unlikea s 138 assessment, a s 23V assessment is to be informed by only one matter, i.e. “the nature of and the reasons for the non-compliance”. Further, before the evidence may be admitted the court must be satisfied that “in the special circumstances of the case” admission of the evidence would not be contrary to the interests of justice. Section 138 contains no “special circumstances” requirement.
50.Section 23V has been considered in several cases. There is passing reference to the provision inNabolev The Queen(2014) 291 FLR 63 at [40] and [50].
51.InR v Jackson[2005] ACTSC 127, the questioning of a suspect was not tape recorded although police had ready access to a portable tape recorder and no reason was advanced for failing to use it. Crispin J excluded the conversation, concluding that there was no evidence of special circumstances from which he could conclude that the admission of the conversation would not be contrary to the interests of justice.
52.Similarly,R v JF[2009] ACTSC 104 was a case in which there had been an inadvertent failure to tape record a conversation. Referring with approval to the decision of Higgins CJ inR v Barklimore(2007) 167 A Crim R 377 at 391–392, at [66] Refshauge J observed that it was not enough under section 23 V(5) for the admission of a confession not to be contrary to the interests of justice; there must be special circumstances making it so. The evidence was excluded. At [71] and [72], his Honour referred to matters including the presence of other police officers, the fact that the confession was supported by forensic evidence, the fact that the breach was inadvertent and not deliberate, the fact that a police officer made a contemporaneous note and the fact that the admission was said to be of “vital importance” to the case. His Honour found that none of those matters amounted to “special circumstances”. I am not convinced that such matters could ever amount to “special circumstances”; it may be that a “special circumstance” must be a matter that relates to “the nature of and the reasons for the non-compliance”. However, that issue does not need to be decided in this case.
53.In this case, the conversation could easily have been recorded. Due to inadvertence, it was not recorded. No “special circumstances” justifying admission were identified. Consequently, s 23V makes the evidence inadmissible.
As I read her Honour’s judgment she is plainly stating that admissibility under s 23V is dictated by this section and cannot be influenced by s 138.
The authorities referred to by the respondent suggest that other judges of this court have taken a different view, conceding however that their remarks were obiter dicta (for example Refshauge J in R v JF [2009] ACTSC 104). This was submitted to also be the case with the above quoted passage from the Chief Justice.
The respondent also submitted that because the Evidence Act2011 (ACT) postdates the commencement of s 23V, that s 138 should prevail to the extent of any inconsistency with the former section. This may be a fair general statement but I do not think it is applicable here. In my view s 23V is not necessarily inconsistent with s 138 in that s 23V applies exclusively to the circumstances which it encompasses, whereas s 138 has a general application in respect of admissibility of evidence created in contravention of a law, but not a law which provides its own rules of admissibility. I think this approach is consistent with that of the Chief Justice in Sarlija.
In my view a finding of inadmissibility of a document under s 23V precludes a separate consideration of admissibility under s 138. Therefore Exhibit 9 should not have been available for consideration by her Honour in coming to a conclusion about the appellant’s guilt.
The respondent urged me, if I reached this conclusion, to nevertheless dismiss the appeal because there was sufficient other evidence available to her Honour to have safely convicted the appellant.
I disagree for two reasons. Although the evidence from Ms Heyroth about the registration number of the vehicle is very compelling, it could not, on its own, safely ground a conviction. Secondly, because of my conclusion about the ‘usual time and route’ evidence, there are now two planks in the Crown case that have been removed.
In my view the only possible conclusion, taking out these two planks, is that the conviction was unsafe and unsatisfactory.
The conviction must therefore be set aside. I have considered whether, because there is a distinct suspicion that the appellant was the driver, the matter should be remitted for retrial. I have decided against this course because even at retrial, Exhibit 9 would not be admissible. In addition it would be inappropriate to order a retrial on the basis of suspicion.
I will therefore set aside the convictions and sentences.
I will hear the parties on costs. However it does seem to me that this is an appropriate case for there to be no order as to costs, at least on the appeal, because the success of the appeal has been derived from a point that was not taken before the Chief Magistrate. I think I can safely say that if the only issue upon which the appellant had succeeded related to the ‘usual time and route’ point then I would have found that despite that error, the convictions could nevertheless stand.
I make the following orders:
(i)The convictions are set aside.
(ii)I order that the respondent pay the appellant’s costs before the Chief Magistrate.
(iii)I reserve the costs of the appeal pending the outcome of the Court of Appeal in Peden v Boxx [No 2].
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: V Wei Date: 26 August 2016 |
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