J v Hamilton
[2007] TASSC 105
•13 December 2007
[2007] TASSC 105
CITATION: J v Hamilton [2007] TASSC 105
PARTIES: J, S A
v
HAMILTON, Sergeant Garry
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 413/2007
DELIVERED ON: 13 December 2007
DELIVERED AT: Hobart
HEARING DATE: 11 December 2007
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Error by magistrate must be established.
Justices Act1959 (Tas), s107(4)(a).
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: K Edwards
Respondent: S J Bender
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 105
Number of paragraphs: 17
Serial No 105/2007
File No 413/2007
SAJ v SERGEANT GARRY HAMILTON
REASONS FOR JUDGMENT EVANS J
13 December 2007
Following a defended hearing, the applicant was convicted by a magistrate on a charge of motor vehicle stealing in breach of the Police Offences Act 1935, s37B(1). The particulars of the charge are that between 3 June 2006 and 4 June 2006 at Devonport in Tasmania, the applicant used a Mazda 323 hatchback motor vehicle registered number BP-1549, the property of Marlene Mary Xuereb without her consent, or the consent of some person in lawful charge of the vehicle and having authority to give that consent.
The applicant has filed a notice to review his conviction. As the notice was argued before me, the applicant contends that the learned magistrate erred:
·by allowing a record of a police interview with a witness, M N, to be admitted into evidence;
·by allowing the prosecutor to cross-examine Ms N in relation to that record of interview;
·by giving too much weight to Ms N's evidence; and
·by refusing to direct himself in relation to Ms N's evidence in accordance with a co-accused's direction.
At the outset of the hearing before the learned magistrate, the following evidence was admitted with the consent of the applicant's counsel:
·Four photographs of the stolen vehicle and its contents that were taken where the vehicle was located outside 60 Thomas Street, East Devonport. They included a photograph of a pair of scissors on the driver's seat in the vehicle.
·A statutory declaration made by Constable Fiona Smith as to the above photographs and as to taking possession of the pair of scissors.
·A DNA profile report from Paul Holloway, a forensic scientist, to the effect that: a DNA profile was obtained from a swab taken from the scissors found in the front seat of the motor vehicle; the profile was a mixture from at least two people; the major DNA profile matched the DNA profile of the applicant; and the chance of a second person unrelated to the applicant having the same DNA profile was less than 1 in 100 million.
·A video record of a police interview with the applicant conducted at midday on 4 June 2006.
During the course of the hearing, counsel informed the learned magistrate that it was an agreed fact that at the time of the theft, the vehicle was the property of Ms Xuereb.
The prosecution case was that the stolen vehicle was located by police in the early hours of the morning of 4 June 2006 outside 60 Thomas Street, East Devonport and when located, M N, a girl aged 13, was asleep in the passenger seat of the vehicle. Ms N was interviewed by police later that morning and said that she and the applicant (then aged 16) had stolen the vehicle the previous night.
The first witness to be called by the prosecution was Constable Matthew Knight, the police officer who had interviewed Ms N. Before calling the constable, the prosecutor told the learned magistrate that he was being called to produce the record of his interview with Ms N as he, the prosecutor, had spoken to Ms N and anticipated that she would not be a co-operative witness. The prosecutor explained that the record of interview was to be produced in order to pre-empt the need to prove that Ms N was an unfavourable witness who had made a prior inconsistent statement. Neither the learned magistrate nor trial counsel for the applicant queried the course that was proposed, and Constable Knight was duly called. He identified a DVD of his interview with Ms N, and the prosecutor asked that it be marked for identification. After the learned magistrate had queried whether there was any objection to the admission of the DVD, it was admitted by consent and marked as an exhibit instead of being marked for identification.
The first ground of review advanced on behalf of the applicant is that the learned magistrate erred in admitting the DVD recording of the police interview with Ms N into evidence. This is a curious ground. The evidence was admitted with the consent of trial counsel for the applicant. In the course of the submissions of counsel for the applicant on this review, it emerged that the challenge made to the admission of this evidence is not based on any error on the part of the magistrate, but is put on the basis that trial counsel made a mistake when she consented to its admission. There are several problems with this ground. Firstly, there is no evidence before me that trial counsel's consent was a mistake. Secondly, accepting that such a mistake was made by trial counsel, nothing was said in the course of the hearing before the learned magistrate to indicate to him that a mistake had been made. Accordingly, even if evidence was put before me to establish that trial counsel had made a mistake, it would not assist the applicant. The gravamen for a ground of review is "error or mistake on the part of the [magistrate] on a matter or question of fact alone, or of law alone or of both fact and law", Justices Act 1959, s107(4)(a). The applicant cannot advance his review by relying on a mistake by his counsel of which the learned magistrate was not aware, save possibly where a ground of review alleges the incompetence of trial counsel. See, for example, R v Birks (1990) 19 NSWLR 677 at 685 – 686. No such ground has been advanced in this case.
The second ground of review is a contention that the learned magistrate erred in allowing the prosecutor to cross-examine Ms N in relation to her interview with the police. As anticipated by the prosecutor, Ms N was not a co-operative witness. She initially said she had no recall of the night in question besides being found by police asleep in the stolen vehicle outside 60 Thomas Street. She said she recalled being interviewed by the police in relation to that night, but said she knew nothing about the theft of the vehicle. She said she could not really remember what had occurred because she had had a fair bit to drink before she went out that night. She said she knew the applicant, but did not know whether she was with him that night. When the possibility of being cross-examined about her police interview was raised, she resiled from these assertions as to her lack of recall and on several occasions insisted that she knew exactly what she did that night, but stated that she did not want to answer any more questions. The prosecutor applied to have Ms N declared an unfavourable witness pursuant to the Evidence Act 2001, s38(1), which provides as follows:
"38 (1) A party who called a witness, with the leave of the court, may question the witness as though the party were cross-examining the witness about –
(a) evidence given by the witness that is unfavourable to the party; or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c) whether the witness has, at any time, made a prior inconsistent statement."
Whilst the unfavourable witness application proceeded in a somewhat disjointed manner, the outcome was that the learned magistrate expressed satisfaction that Ms N was an unfavourable witness and gave the prosecutor leave to cross-examine her in relation to her police interview. The video of that interview had been played. In the course of the interview, Ms N said that during the previous night she and the applicant had stolen the vehicle that was the subject of the charge. She said she thought the applicant had gained entry to the vehicle by using a pair of scissors he had obtained from under a green power box at the old Coles car park where they had previously been hidden by him. She said that, with the applicant driving, she and he had travelled around Devonport and East Devonport in the stolen vehicle until they stopped outside 60 Thomas Street, and that thereafter they had been unable to restart the vehicle. She said that she and the applicant had slept in the vehicle, but that when she awoke, the applicant had gone. She said that she had been woken by police. When cross-examined by the prosecutor, Ms N agreed that what she had told the police in the interview was correct. The prosecutor asked that the record of interview be put into evidence as it had been adopted by Ms N. The learned magistrate agreed that she had adopted the interview and pointed out that it was already in evidence by consent.
Counsel for the applicant contends that the learned magistrate erred in granting leave to the prosecutor to cross-examine Ms N, as the learned magistrate did not consider whether it would be unfair to the applicant to grant leave. Counsel relies on the Evidence Act, s192(2)(b), which provides that without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account "the extent which to do so would be unfair to a party". Although the learned magistrate did not expressly advert to s192 or unfairness to the applicant in the course of the exchanges that concluded with the prosecutor being granted leave to cross-examine Ms N, I am not satisfied that the learned magistrate failed to consider the question of fairness to the applicant. It is almost inevitable that he would have paid regard to this consideration. As the record of Ms N's police interview was already in evidence by consent, fairness really required that she be asked whether what she said in the interview was true. In the circumstances of this case and bearing in mind the limited extent of the cross-examination that was pursued, that is, asking Ms N whether what she said in the record of interview was true, no reasons needed to be given by the learned magistrate for granting the leave sought. Whilst I accept that in some situations it may be inferred from a failure to refer to a particular mandatory requirement, that it was not adverted to (see for example R v Le [2002] NSWCCA 186 at par47) this is not such a case. Even if I was persuaded that the learned magistrate had not considered a relevant requirement before allowing the prosecutor leave to cross-examine, I am of the view that this ground would fail as the learned magistrate could not reasonably have refused to grant the prosecutor's application if all relevant requirements had been taken into account; Stanoevski v R (2001) 202 CLR 115 at par56.
When cross-examined by trial counsel for the applicant, Ms N said: that she did not recall the events of the night "all that much"; that alcohol probably affected her memory of what happened that night; but, she "wasn't all that drunk". She reiterated that she had been with the applicant that night and said that she had not been against stealing the vehicle. She did not respond directly to a question to the effect that what she had told the police about the applicant being with her when the vehicle was stolen was made up and when pressed to respond to the suggestion that it was not correct that the applicant was with her that night, said "I don't know".
As already mentioned, the evidence included a record of a police interview with the applicant which took place at about midday on 4 June 2006. In the course of the interview, the applicant said that over the night of 3 – 4 June 2006, he had been cruising around Devonport. He acknowledged that this was in contravention of a bail condition that required that between 9pm and 6am he be at 176 William Street, Devonport. He declined to say what he had been doing and who he had been with in the course of the night. He denied stealing the vehicle.
The applicant did not give or adduce evidence.
The fourth ground of review is that the learned magistrate erred in refusing to direct himself in relation to Ms N's evidence in accordance with the co-accused's direction. In the course of her closing submissions, trial counsel for the applicant put to the learned magistrate that Ms N was essentially a co-accused of the applicant and an accomplice, and submitted that the learned magistrate should treat Ms N's evidence cautiously as it may be self-serving. In response, the learned magistrate observed (as was the evidence) that the court had already dealt with Ms N for her role in what had occurred, and he commented that in these circumstances, Ms N had no reason to be concerned about the consequences for her of the evidence she gave to the court. This was a legitimate observation and comment, and I am not satisfied that it, or anything said by the learned magistrate when he gave his reasons for decision, shows that he failed to pay due regard to the obvious fact that Ms N was, on her evidence, an accomplice of the applicant.
In the course of announcing his reasons for convicting the applicant, the learned magistrate said that the evidence implicating the applicant was twofold. He then accurately summarised the DNA evidence that implicated the applicant and the evidence of Ms N. As to the DNA evidence, the learned magistrate said that as the scissors were moveable objects, their presence in the vehicle did not necessarily prove beyond reasonable doubt that the applicant had been in the vehicle. As to Ms N, the learned magistrate said that: "her evidence in the witness box today was not very good to put it mildly"; she had been an unco-operative witness; and it had been difficult for the applicant's trial counsel to cross-examine Ms N. The learned magistrate noted that the applicant had denied his guilt when interviewed by police. The learned magistrate explained that the combination of the DNA evidence and Ms N's evidence, satisfied him that the charge had been proven beyond reasonable doubt. He said that when Ms N was being interviewed by police, she "answered the questions reasonably well and gave the evidence without any semblance or appearance of trying to embellish it or being evasive or lying". He said that in the witness box she was very unimpressive, but that he was satisfied that what she said in the police interview was true.
The third ground of review is that the learned magistrate gave too much weight to Ms N's evidence. I am not persuaded as to this. Notwithstanding that she had been an unco-operative witness there was good reason for accepting the truth of what she said to the police. Her statement that the applicant had been present in the vehicle and had used the scissors that were found in the vehicle, was supported by the subsequent discovery that the major DNA profile on the scissors matched that of the applicant. On the basis of this evidence, the learned magistrate was entitled to be satisfied beyond reasonable doubt of the applicant's guilt.
The appeal is dismissed.