Inglis v Police - [2010] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
INGLIS v POLICE
[2010] SASC 83
Judgment of The Honourable Justice Gray
9 April 2010
TRAFFIC LAW - REGULATION OF TRAFFIC - GENERALLY
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - GENERALLY
Appeal against conviction for offence of failing to forthwith comply with a direction of a member of the police by failing to stop vehicle when directed, contrary to section 40H(5) of the Road Traffic Act 1961 (SA) - whether inconsistencies in evidence regarding distance for which police vehicle followed defendant's vehicle with dome lights activated, undermined Magistrate's reasoning - whether Magistrate's findings as to statements made by defendant accorded with evidence - consideration of manner of eliciting evidence.
Held: appeal dismissed - regardless of precise distance police followed defendant's vehicle with dome lights activated, there was in the circumstances a clear direction to the defendant to stop his vehicle - although evidence of statements attributed to defendant introduced in inappropriate manner, that evidence was before the Court - that evidence established that the defendant was aware of the direction to stop - Magistrate correct on the evidence to convict the defendant.
Road Traffic Act 1961 (SA) s 40H(5), referred to.
Fox v Percy (2003) 214 CLR 118; Police v Cadd (1997) 69 SASR 150; Police v Eiffe [2007] SASC 178; Tims v Police [2008] SASC 141; Tazroo v Police [2002] SASC 155; Police v A, TG [2006] SASC 299, considered.

INGLIS v POLICE
[2010] SASC 83
Magistrates Appeal
GRAY J:
Introduction

Kenneth Raymond Inglis, the defendant and appellant, was charged with the offence of failing to forthwith comply with a direction of a member of the police force by failing to stop his vehicle when directed, contrary to section 40H(5) of the Road Traffic Act 1961 (SA).[1] The defendant pleaded not guilty to that charge. Following a trial before a Magistrate, the defendant was convicted. This appeal is against that conviction.
[1](1) An authorised officer or police officer may, for the purpose of or in connection with exercising other powers under a road law, direct—
(a)     the driver of a vehicle to stop the vehicle; or
(b)     the driver of a vehicle or any other person not to do one or more of the following:
(i)      move the vehicle;
(ii)     interfere with it or any equipment in or on it;
(iii)    interfere with its load.
(2)A direction to stop a vehicle may require that it be stopped without delay, or that it be stopped at the nearest place for it to be safely stopped as indicated by the officer.
(3)A direction to stop the vehicle, or not to move it, or not to interfere with it or any equipment in or on it or with its load, does not prevent an authorised officer or police officer from giving the driver or another person any later inconsistent directions under a road law or any other law.
(4)A direction ceases to be operative to the extent that an authorised officer or police officer—
(a)     gives the driver or other person a later inconsistent direction; or
(b)     indicates to the driver or other person that the direction is no longer operative.
(5)A person commits an offence if—
(a)     the person is subject to a direction under subsection (1); and
(b)     the person engages in conduct that results in a contravention of the direction.
Maximum penalty: $5 000.
(6)In this section—
stop a vehicle means to stop the vehicle and keep it stationary.
The incident giving rise to the charge occurred at night in Bordertown, South Australia. The defendant was driving west on Crocker Street, and the continuation of that street, Cannawigara Road. At the intersection of Cannawigara Road and Park Terrace, the defendant executed a right-hand turn to travel north on Park Terrace. The defendant travelled through the intersection of Park Terrace and Edward Street and then turned from Park Terrace into a Motel premises situated on the west side of Park Terrace.
While the defendant was travelling west on Crocker Street, a marked police vehicle travelling east on that street passed the defendant’s vehicle. Constables Jaloshin and Larder were in the police vehicle. Constable Jaloshin directed Constable Larder, the driver of the police vehicle, to stop the defendant’s vehicle for the purpose of conducting a breath test and/or a drug screening test. Constable Larder then executed a U-turn and took up a position behind the defendant’s vehicle following at a distance of about 100 metres. The police vehicle followed the defendant’s vehicle on to Park Terrace, and while on Park Terrace, Constable Larder activated the flashing dome lights on the police vehicle. The defendant did not pull his vehicle to the left and stop, although there was ample room and opportunity to do so. Instead, he continued to the Motel premises.
Travelling with the defendant was Bronwyn Rose Kemp, his de facto partner. Ms Kemp was in the front passenger seat. On their arrival at the Motel, Ms Kemp stayed in the vehicle, however, the defendant alighted and went into the Motel. At or about this time, the police vehicle arrived and pulled up next to the defendant’s vehicle with the dome lights still activated.
The defendant was employed at the Motel and asserted that on that evening, he attended at the Motel premises to switch off lights.
Rather than attending to switching off lights at the Motel, the defendant hid from the police. He removed his jacket, containing his wallet and driver’s licence and discarded the jacket under a tank stand. He remained hidden for more than 30 minutes. During this time, and in the presence of a police officer, Ms Kemp telephoned the defendant and asked him where he was. He responded that “they were after” him. Ms Kemp asked him to “just come back”, but the defendant did not return. Eventually, he was located by Constable Jaloshin, who asked him why he had run away. The defendant responded “the sarge is after me, I was scared”. The defendant was then arrested for failure to stop. In that process, Constable Jaloshin took hold of the defendant’s arm. During the course of Constable Jaloshin gave the following evidence about what ensued:
Q.    What did [the defendant] say then.
A.    He then said ‘Why? You can’t touch me, I’m on private property’.
Q     What did you say.
A.I said ‘Is this your property?’ He then said ‘No, but I have an agreement with the owner. I can come onto it any time I like. What did I do?’ I then said ‘You failed to stop’. He said ‘No, George Kaiser and Pickert, they set you up to get me. The sarge is after me and they set me up’. I then said ‘I don’t think so’.
Ms Kemp was called as a witness for the prosecution. In the course of her evidence she said that while travelling on Cannawigara Road, the defendant had said words to her to the following effect: “They have turned around and are following me.” The reference to “they” was to the marked police vehicle that had been travelling on Cannawigara Road. She also gave evidence that while driving along Cannawigara Road and before turning on to Park Terrace, the defendant had said words to the following effect: “Don’t be surprised if they pull me over.”
The dome light on the police vehicle was described in evidence as a “strobe light” that flashed red and blue. The night was described as being dark.
The defendant did not give evidence and called no other evidence. It was the defence case that he stopped at the Motel in the course of his managerial duties to turn off lights. It was his case that the prosecution had not proved beyond reasonable doubt that he was aware of any direction from the police that he stop his vehicle.
The Magistrate in considered reasons concluded that the use of the dome lights in the circumstances conveyed to the defendant the police direction that he stop his vehicle:
So in summary then up to this point I have found proved beyond a reasonable doubt that:
the police in the vehicle activated the dome lights in Park Terrace, they were 100 metres to the rear of the vehicle driven by [the defendant],
that the police followed [the defendant] for a distance of between about 150 to about 200 metres with the dome lights flashing before [the defendant] turned his vehicle into the motel
[the defendant] did look into the rear vision mirrors and could not have failed to see the flashing revolving dome lights.
The Magistrate further concluded that the defendant did not obey that direction:
The next question is whether [the defendant] appreciated that the use of the dome lights in these circumstances was a direction for him to stop his vehicle. There is no dispute on the evidence before me that if [the defendant] had such a wish to do so he could have stopped in Park Terrace.
It has been put to me by the prosecution that any ordinary driver would have understood the activation of dome lights to be a direction to slow down and stop the vehicle. However the test in this case in [sic] not an objective one of what the ordinary driver might understand but what [the defendant] in fact understood it to mean in all the circumstances that were presented to him.
I think it reasonable to observe that in other circumstances a police vehicle that commences to operate revolving dome lights whilst about 100 metres to the rear of a vehicle, that the ordinary driver might not have first been unaware if the direction was directed specifically to him or her. A person might not be sure if the direction was to slow down or to simply move over to allow the police vehicle unrestricted ability to pass. In other circumstances the direction by merely using dome lights might well be ambiguous but the test, as I have said, here is not an objective one.
The question here to be resolved must be considered in the actual circumstances as I found them to be and those that presented to [the defendant]. Those circumstances it seems to me to [sic] would include whether or not other vehicles were driving in close proximity. I have found there were none. I can also take into account [the defendant’s] pre-existing apprehension and beliefs expressed to Ms Kent [sic] about the likelihood he would be pulled over by the police. At the time the police turned the dome lights on, [the defendant] did have an apprehension and an awareness of the likelihood that he would be pulled over by the police. I take this fact into account. Furthermore, at the time the police turned the dome lights on they had been following only [the defendant’s] car over three streets (albeit one of a continuation of another) and continued to follow him when he turned right into a darkened suburban street of Bordertown. The police vehicle had been following [the defendant] for about 2 kilometres [the defendant] was aware of this when the dome lights were turned on. There were no other vehicles on the road when the dome lights were turned on to whom the lights could have, or the direction could have applied. [The defendant’s] pre existing apprehension that the unnamed ‘Sarg’ was in the vehicle behind him and his intent to avoid him also bears upon whether on [sic] not [the defendant] well knew or believed that the operation of the dome lights were a direction to him to pull over and stop in Park Terrace.
The Appeal
An appeal against conviction is in the nature of a rehearing and the appeal court is to review and reach its own conclusion based on the evidence.[2] It is the duty of this Court to make up its own mind, after giving due weight to the Magistrate’s advantage in seeing and hearing the witnesses, and of course after giving weight to any findings on credibility which depend largely or in part on demeanour.[3]
[2] Fox v Percy (2003) 214 CLR 118; Police v Cadd (1997) 69 SASR 150 at 188-189, Police v Eiffe [2007] SASC 178; Tims v Police [2008] SASC 141.
[3] Tazroo v Police [2002] SASC 155 at [17]-[19]; Police v A, TG [2006] SASC 299 at [15].
On appeal it was submitted that the Magistrate made two errors of fact which it was said formed the basis of his critical findings. It was said that when those errors were corrected, the reasoning of the Magistrate was substantially undermined, and that on the hearing of the appeal, it should be concluded that the prosecution had not proved beyond reasonable doubt that the defendant was aware that he was being directed to stop.
The defendant contended that the Magistrate’s finding that the police vehicle had followed the defendant’s vehicle with its dome lights activated for a distance of 150 to 200 metres, could not be sustained. It was argued that the cross-examination of the police officers led to the conclusion that the distance was much less – of the order of 50 metres. A review of the officers’ evidence discloses that although there were at times inconsistencies, ultimately they maintained that the dome lights had been operating for a distance greater than 50 metres.
In my view, it was open on the evidence to make the finding that the dome lights had been activated for a distance substantially greater than 50 metres. Unsurprisingly, the officers’ evidence in respect of the distances was not precise. However, whatever view is taken of the precise distance during which the dome lights were operating, there was in the circumstances a clear direction to the defendant to stop his vehicle.
The defendant further complained that the Magistrate’s findings with respect to the statements said to have been made by the defendant to Ms Kemp, did not fairly accord with the evidence. The specific findings of the Magistrate were as follows:
Ms Kent [sic] gave unchallenged evidence that having passed the police vehicle whilst going in the opposite direction on Crocker Street that [the defendant] said to her or words to the effect;
‘They have turned around and are following me’
Whilst on Cannawigara Road and prior to turning into Park Terrace she recalled [the defendant] also having said to her;
‘Don’t be surprised if they pull me over’
Those facts were not in any dispute and are of some substance in the determination of the facts of this matter.
I formally announce now that I am satisfied beyond any reasonable doubt that these comments or words to that effect were made and said by [the defendant]. I am also satisfied beyond a reasonable doubt that they were a reference to the police vehicle driven by Senior Constable Lauder [sic] that had just passed and that had then completed the U-turn in Crocker Street and was then following.
As this finding formed the crux of the defendant’s argument on appeal, it is appropriate to set out the relevant evidence of Ms Kemp:
Q.Do you recall [the defendant] saying anything to you at that time you turned onto Park Terrace.
A.Not on Park Terrace, no.
Q.When you were going north on Park Terrace.
A.No.
Q.Didn’t say anything to you.
A.No.
Q.Do you recall giving a statement to the police later on that evening.
A.Yes, I do, yes.
Q.Do you recall telling the police that [the defendant], I’ll quote a part of the statement, ‘We were going north on Park Terrace. [The defendant] said “They have turned around and are following me” or similar words to that’. Do you recall that comment.
A.I recall parts of that comment, yes.
Q.Yes.
A.But words to that effect were said on Cannawigara Road, I think it is, before we got to Park Terrace, yes.
Q.Are you saying that those similar words to that were said only on Cannawigara Road, or were they said on Cannawigara Road and on Park Terrace.
A.When we crossed the car, which was on Cannawigara Road, not Park Terrace.
Q.Crossed the car, do you mean the police car.
A.The police car, yes.
Q.Travelling in the opposite direction.
A.Yes, they were coming towards us as we were going out and it was words to the effect of ‘Don’t be surprised if they pull me over’, or words like that.
Q.Then you turned onto Park Terrace.
A.Yes.
In cross-examination the following evidence was given by Ms Kemp:
Q.You were heading along, I think, Cannawigara Road and you passed a police car going in the opposite direction.
A.Yes.
Q.How far was that do you think from the Woolshed Inn.
A.300 – 200 to 300 m. There’s a couple of intersections on from the Woolshed Inn.
Q.At that point, there was a comment made by [the defendant], I think you said something along the lines of ‘Don’t be surprised if they pull me over’ or something like.
A.Something like that, or ‘They’ll probably pick me up’ or – it seemed to be an off the cuff comment and I really paid no attention to it at the time.
Counsel submitted that Ms Kemp did not unequivocally accept that the defendant had said to her “they have turned around and are following me”. On appeal, it was in dispute that the defendant had said words to the effect of “don’t be surprised if they pull me over”.
It is to be observed that the above evidence was introduced by the prosecution in an inappropriate manner. There was no attempt to have Ms Kemp refresh her memory from a contemporaneous document. There was no attempt to specifically address the requirements of sections 28[4] and 29[5] of the Evidence Act 1929 (SA). There was no application for Ms Kemp to be declared a hostile witness. In effect, the prosecutor cross-examined Ms Kemp and elicited evidence of the defendant’s statements. However, no objection was taken by counsel for the defendant. Had objection been taken, the evidence could not have been elicited in this way. During cross-examination by defence counsel, one of the statements attributed to the defendant was confirmed. Ms Kemp did not address the other statement in cross-examination, that is, the statement that the police vehicle had turned around to follow the defendant. On appeal, no explanation was offered for the decision taken by defence counsel not to object to the evidence being elicited in the above manner.
[4] Evidence Act 1929 (SA) section 28:
If any witness, upon cross-examination as to a former statement made by him, relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made the statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement.
[5] Evidence Act 1929 (SA) section 29:
A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without the writing being shown to him; but if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that the judge, at any time during the trial, may require the production of the writing for his inspection; and may thereupon make such use of it, for the purposes of the trial, as he thinks fit.
As earlier observed, it was not in issue on the appeal that the defendant had said, “don’t be surprised if they pull me over”. It may be observed that the police could not have pulled the defendant over unless they had executed a U-turn and had followed the defendant.

In my view, the Magistrate’s findings were open to him. Ms Kemp’s testimony established that both statements were made, and although elicited in evidence-in-chief in an inappropriate way, those statements were and remained evidence before the Court that were not relevantly qualified or retracted in cross-examination.
I consider that the evidence established that the defendant observed the police vehicle travelling in the opposite direction, was aware that it had executed a U-turn and had taken up a position following some distance behind the defendant, that the defendant anticipated that the police might pull him over, that he was aware that the police had activated the dome lights as a direction to him to stop his vehicle, that he thought the police “were after him”, and that when he stopped, he went and hid. It is possible that he thought the police were after him for some undisclosed purpose and it is possible that he thought “sarge” was after him for some reason. It is also possible that he thought that the police were trying to “set him up” for some reason. These possibilities arise from statements made by the defendant, shortly before the time of his arrest. There is no evidence to suggest that in fact “sarge” was after him, or that in fact the police were trying to set him up. The defendant’s state of mind in this respect, if he held that state of mind, would explain why he failed to follow the police direction to stop. These possibilities are no more than speculation as they have no other basis than the earlier referred to statements made by the defendant.
Having regard to the above considerations, I have reached the conclusion that the Magistrate was correct on the evidence to convict the defendant. The prosecution proved beyond reasonable doubt each element of the offence.
Conclusion
The appeal is dismissed.