Lane v Brearley
[2015] TASSC 59
•11 December 2015
[2015] TASSC 59
COURT: SUPREME COURT OF TASMANIA
CITATION: Lane v Brearley [2015] TASSC 59
PARTIES: LANE, Richard (Sergeant)
v
BREARLEY, Luke Steven
FILE NO: 957/2014
DELIVERED ON: 11 December 2015
DELIVERED AT: Hobart
HEARING DATE: 13 May 2015
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to Review – Other matters – Test to be applied when reviewing a decision of a magistrate.
Caccavo v Collins [2014] TASFC 7, followed.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: S Nicholson
Respondent: S Chopping
Solicitors:
Applicant: Acting Director of Public Prosecutions
Respondent: Steven Chopping
Judgment Number: [2015] TASSC 59
Number of paragraphs: 16
Serial No 59/2015
File No 957/2014
SERGEANT RICHARD LANE v LUKE STEVEN BREARLEY
REASONS FOR JUDGMENT TENNENT J
11 December 2015
On complaint number 1601/14, the respondent was charged with a number of offences. These were:
· Drive a motor vehicle while exceeding the prescribed alcohol limit contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s 6(1).
· Person mentioned in s 6(3) contrary to the Act, s 6(2).
· Driver involved in crash and failing to stop contrary to the Traffic Act 1925, s 33(2).
· False report to police contrary to the Police Offences Act 1935, s 44A(1).
· Fail to have proper control of vehicle contrary to the Road Rules 2009, r 297(1).
· Making a false statutory declaration and false statements contrary to the Criminal Code, s 113(1)(a).
The respondent pleaded not guilty, and the matters went to hearing before a magistrate. All charges depended upon a finding that the respondent was the driver of his vehicle at the relevant time. The learned magistrate found the respondent not guilty of all charges. On 12 November 2014, the applicant filed a notice to review that decision. The grounds of review were as follows:
"1The learned magistrate erred in fact and/or law in finding the respondent not guilty of the offences where on no reasonable view of the evidence could he have failed to be satisfied beyond reasonable doubt of the guilt of the respondent;
2The learned magistrate erred in fact and/or law in finding that the respondent had not driven at the time of the offences when no reasonable view of the evidence supported such a finding."
Background
At the hearing before the learned magistrate, there was no dispute that, as at 19 January 2014, the respondent was the registered owner of a red Holden Commodore utility bearing registered number B76XL, and that he was the holder of a provisional driver licence. There was also no dispute that:
· At around 11.30am on 19 January, that utility was being driven along Church Street, Bellerive.
· It crashed into a parked car in that street.
· Both the utility and the car it crashed into were damaged.
· The driver of the red utility did not stop. The vehicle was driven off with its damaged front bumper dragging along the ground.
· It was seen to be driven around the area in that state.
· At one point, it was seen to stop and the driver got out. He removed the damaged bumper and put it in the back of the utility.
· The damaged red utility was later found parked near an address at 4 Facy Street, Bellerive, where the respondent had attended a party the night before and where he had stayed the night.
· The respondent was spoken to by police in the street near the damaged utility.
· The utility was inspected. It was unlocked. Found in the centre console were a can of raspberry UDL, a mobile phone and a quantity of cash, described as being in the hundreds of dollars. Contents of the can had been splashed around the console area. The driver's seat was damp and sandy, and neither the locks nor the ignition of the utility appeared to be damaged.
· The respondent was breathalysed shortly after and returned a positive reading
· The respondent denied he had been driving the car when it hit the parked vehicle in Church Street, and said the car must have been stolen.
The evidence before the learned magistrate consisted of a number of statutory declarations and oral evidence from a number of witnesses who included the respondent. The nature of the grounds of review would usually necessitate canvassing in these reasons the evidence of all the witnesses. However, the reasons of the magistrate were detailed and contained an extensive summary of the evidence before him. It was not contended by counsel for the applicant that the magistrate's summary was inaccurate. The contentions of the applicant are directed to the conclusions or inferences drawn from that evidence. For that reason, I will set out in full the reasons of the magistrate and further deal with the nature of the grounds of review and the powers of this Court on review.
Reasons for decision of the magistrate
The reasons for decision were as follows:
"The defendant is charged on complaint number 1601 2014 of the following charges: driving a motor vehicle on the 19th of January this year on Church Street at Bellerive whilst exceeding the prescribed alcohol limit, namely a reading of .0168. Secondly, drink driving as a provisional licence holder, thirdly being the driver of a motor vehicle involved in a crash and failing to stop; (4) making a false report to police; (5), failing to have proper control of a motor vehicle and (6) making a false statutory declaration and a false – statements.
Each of the six charges are more particularised in the complaint. The defendant pleaded not guilty to all charges. All offences are alleged to have occurred on the same date and at about the same time and place. There are some agreed facts as follows: that Constable Walsh did not see a tattoo on the right lower arm of the defendant in Facy Street on the 19th of January but he did see it later at the Bellerive police station whilst completing the police fact form.
Sergeant Devine did not see the tattoo, Constable Stanley is on paternity leave and is uncontactable for the purpose of the hearing. Witnesses Tisdale and Richards were seated on a bench at the corner of Derwent and Queen Streets and both of them could not recall a tattoo on the driver's arm. The defendant elected to give evidence and also to adduce evidence. The defendant denied driving the motor vehicle.
The defendant disputes little of the prosecution evidence and findings can be made in accordance with the following points except where might otherwise be noted. I found no issues in the way any of the prosecution witnesses gave their evidence. The substance of the prosecution evidence in a summary format is that the defendant's red Holden utility was observed by a witness to be involved in a collision at the roundabout on Church Street.
Witness Lang, he was at the crash site, and – I'm not sure whether it was a male or a female. Anyway, witness Lang was at the crash site and saw two males in the utility. Described the driver as being taller than the passenger and the driver wearing a cap. Described the passenger as being young and shorter in stature. Another witness at the scene – witness Bowes, at the crash site described the male driver as wearing a white cap.
From all of the evidence it is clear that following the crash which occurred at about 11.30 am, the following sequence of events occurred. The defendant's utility continued on without stopping and drove to the carpark at Howrah Beach, a distance of approximately two blocks or thereabouts. Next, witness Tisdale was seated near the carpark at Howrah Beach, saw the defendant's damaged utility enter the carpark and the driver of the utility get out describing the driver as follows: the driver had short brown hair and a red top and black undies; got out and put the bumper bar into the rear of the utility; the passenger got out and went to another motor vehicle.
Tisdale could not describe the passenger and he also gave evidence that he did not think there was a second red utility in the carpark. Witness Richards was with Mr Tisdale and she described the driver of the defendant's utility as having short brown hair, black tight shorts or underwear almost like footy shorts, not basic underwear and wearing a red singlet but not a T-shirt and that person was of medium build.
The passenger was slightly taller than the driver and of course I note here that this is quite different to the evidence of witness Lang although witness Lang saw the driver and the passenger seated in the red utility not standing. Witness Richards went on to say that the passenger had tight black jeans and was carrying a beach ball; he was a male with short brown hair. She observed the passenger get into a second red utility and it followed the damaged utility out of the carpark.
Other than height, this witness gave no evidence of – or height and medium stature, gave no other evidence of features of either males. The defendant's utility left the carpark within a very short space of time of entering the carpark. It was followed out of the carpark by the second red utility. About five minutes after the crash it again drove past the roundabout at Church Street and kept going into Facy Street not far away.
The defendant's utility was parked in Facy Street facing away from Howrah Beach. Opposite was parked a second red utility according to witness Bowes who had witnessed the crash and followed the route of the defendant's utility from crash site to the beach and back again and into Facy Street where he saw both red utilities stationary opposite each other and a group of males inspecting what I find to be is the defendant's damaged utility.
Constable Walsh was the first police officer to be called to Facy Street. He had heard a radio description of the driver of the red utility involved in the crash and the description was that the driver was wearing a red top. He arrived within five minutes of getting a call to attend Facy Street. He saw the second red utility parked opposite the defendant's utility but he was not told until later about the relevance of the second red utility and did not investigate it at the time or at all.
He observed cash and a mobile telephone and a can of UDL raspberry in the centre console of the defendant's utility. Constable Walsh saw the damaged utility of the defendant. He saw a group of four males inspecting it. He spoke to the defendant who identified himself as the owner. He – Constable Walsh said the defendant was wearing, to quote him, 'A red T-shirt,' and a black underpants-style shorts, clearly damp and dry on parts.
The lower band of the T-shirt was wet in part. The defendant had a red stain consistent with red cordial on his upper lip; his shorts were covered in sand. Constable Walsh saw no cap. Constable Walsh observed the driver's seat of the defendant's motor vehicle was damp and sandy and that the defendant's clothes appeared damp and sandy. Constable Walsh conceded the seat dampness and sandiness was consistent with having been sat on by a damp and sandy clothing.
Witness Tisdale spoke with police and they placed him into a police vehicle to see if he could see and identify the utility or the two occupants. The police vehicle drove along South Street and it crossed the intersection of Facy Street, witness Tisdale and/or Constable Stanley, I think, saw the red utility in Facy Street. The police vehicle stopped and then entered Facy Street and drove past the defendant's utility at a faster than walking speed.
A group of about four males were observed by Tisdale near the red utility which Tisdale says was parked on the wrong side of the road on the right but facing towards the beach. I note here that this recall about this must be in error because all other witnesses including defence have it on the right-hand side but facing away from the beach. He went on to say that away from the group of males was a person talking to a police officer and Tisdale identified this person as the driver he had seen exit and get back into the red utility at the beach carpark some five to 10 minutes earlier.
He described the group of males as being dressed casually, everyday clothes, short and T-shirts and, 'I can recall any colours.' He identified the driver as the same person because of, to quote him, 'Because of the similar clothing; same bottoms as earlier.' In cross-examination it was put to him that he merely identified the clothing and he responded to that by saying, 'No, the person was a similar build and features.' But he gave no evidence-in-chief and was not cross-examined about what the similar build and features might have been.
In cross-examination he also stated that the top being worn by the person he identified as the driver, to quote him, 'Was different to what I remember.' But he did not say what the difference was. The only inference I can draw from this is that it was not red as he had previously seen, and this is quite inconsistent with the evidence of Constable Walsh. Finally in cross-examination Tisdale said, to quote him, 'The black undies were the same and the person had the same build. It was the same person.' But I again pause to note that at no stage did he give any evidence of noticing anything about the build of the driver back at the carpark.
Constable Stanley was tasked to attend the crash site and was approached by witness Tisdale who said he had seen the driver wearing a red T-shirt and black underpants. Constable Stanley put Tisdale into his police vehicle and they drive along South Street and he, Constable Stanley, saw a person with a red T-shirt and black underpants in Facy Street. Tisdale said, 'It looks like him,' and so Stanley drove the police vehicle down Facy Street past a group of males and Stanley saw a male, according to Constable Stanley, in a red T-short and black underpants – I beg your pardon.
Stanley saw a male in a red T-shirt and black underpants at the front of the crashed utility and Tisdale said, 'Yep, that is definitely him.' Stanley approached the defendant and observed his underwear was wet and covered with sand similar to the seat of the utility. He denied, that is, this person denied that he was the driver of the motor vehicle. Stanley observed the second red utility opposite. He had been told about it by other witnesses.
He went on to say that the person's underwear was wet and sandy all the way around, 'I think he was wearing a black cap but I can't be 100 per cent sure.' Sergeant Devine then arrived in Facy Street and he saw a red station wagon but I don't – he was just clearly mistaken about that and I don't draw any particularly adverse inferences because it was extremely clear from everybody's evidence it was a utility.
He went on to say that he saw the defendant wearing a red T-shirt and black boxer shorts, 'Which matched the description of what I had heard, namely a red top and tight black shorts.' He went on to say that his shorts were wet as well as parts of his T-shirt and with grains of sand. He said his car had been stolen and that he had no knowledge of it. When waiting for the vehicle to be towed away a neighbour approached Sergeant Devine and gave him a key to the red utility and this key had been found on the neighbour's letterbox.
The group of males were all the same age said Sergeant Devine, and they were all wearing shorts and T-shirts. It is to be noted that witness Richards says that the passenger was wearing black jeans. Tisdale says that the person – he identified as the driver was wearing a different top, but I can only infer that it was different to the red one that he had seen earlier. Sergeant Devine did not observe any second red utility but was told it had left, when and by whom is unknown and is somewhat strange is my comment.
Sergeant Devine said that he did not see any cap. In cross-examination he said the defendant's wet clothing was around the front and he could not see how it could transfer to the seat of the car but that's to be compared to Constable Stanley's evidence who said that the person – the driver's shorts were wet all the way around. The essence of the defence case is the prosecution was unable to prove to the requisite degree that the defendant can be lawfully identified as the driver of the motor vehicle at any relevant time.
He does not dispute the breath analysis procedure or the reading obtained. It is the defendant's evidence that he was awakened by the noise of his motor vehicle outside the premises where he was staying in Facy Street and he went out to investigate and found his damaged vehicle in a slightly different place to where he had left it the previous night and to him it had obviously just been driven because it was making strange noises like a kettle boiling and there was steam coming out of it.
He said there was no sign of any person who may have driven the motor vehicle. He said that as he was inspecting his motor vehicle at about that same time police officers arrive and arrested him as being the driver. So it is that the evidence as to the proper and reasonable identification of the defendant is the primary issue in this case. The prosecution case relies predominantly upon the evidence of witnesses unknown to the defendant identifying him over a short space of time.
The defendant has consistently denied he was the driver of the motor vehicle and he made no admissions consistent with guilt. In any event, the defendant's case is that the prosecution case does not rule out a reasonable hypothesis that an unidentified guest at the party in Facy Street that he had attended the night before and the early morning before obtained his car keys while he slept, drove his motor vehicle without his permission, crashed it and returned it to the approximate place from where it was stolen leaving undisturbed the cash and mobile telephone and decamping quickly leaving the key to the motor vehicle on a fence next door or in a mailbox – the fence next door.
It is not for the defendant to prove his innocence but of course for the prosecution to establish his guilt beyond a reasonable doubt and rule out any hypothesis reasonably consistent with innocence. If the elements of each of the offences are established beyond a reasonable doubt then I must find the defendant guilty and the onus of course is upon prosecution to prove that guilt beyond reasonable doubt.
If the prosecution evidence lacks credibility as to central features or it discloses discrepancies or is unreliable or displays inadequacies or otherwise lacks probative force which gives rise to any suspicion of a possibility an innocent person might be convicted then the Court must experience a reasonable doubt and the defendant must be given that benefit and acquitted. A finding of guilt in those circumstances would be unsafe or unsatisfactory. Cases involving the dispute identification of a person require special attention especially when the first sight of the alleged defendant is at the time of the alleged crime over a short space of time and in less than clear circumstances. Further, there are inherent risks of error associated with suggestibility commonly called the displacement effect.
This is not a case of witnesses saying they recognise the defendant which would be significantly more reliable than them attempting to identify him as a stranger to them. Caution must be directed towards the possibility that a mistaken witness can be a convincing an honest one especially where the opportunity for observation is limited. Mistakes in recognition of even close friends or relatives are sometimes made. The often quoted sentence, 'How often have we heard from a convinced person, "I could have sworn it was you"'?
Accordingly, I'm required to warn myself that there is a special need for caution before accepting identification evidence both generally and in the circumstances of this case. The questions to be considered, at least in a general sense, are as follows. What are the weaknesses in the identification evidence? Is the prosecution evidence honest? If so could the witnesses be mistaken, and often familiarity is a factor in creating the probability an identification is correct.
What special reasons does the witness have for identifying the defendant? How long has the witness known the defendant if at all? In what circumstances? How often has that person seen the defendant? When? How recently? The length of time to observe, and the relevant occasion, the distance over which the identification is made, the clarity of observation, were there any distractions during observation, and were there any obscuring or impeding factors? They're the main factors that must exercise a Court's mind in considering identification evidence.
A careful but not necessarily exhaustive examination must be made of the prosecution evidence to test its reliability when it comes to whether the defendant can be identified as the driver. There are a number of conflicts and significant differences in the prosecution evidence which may be relevant as follows. About the cap: witness Bowes identified a male driver wearing a white cap; witness Lang said, 'A cap'; Constable Stanley thought the defendant was wearing a black cap when he spoke with him but he could not be a hundred per cent sure.
There was no other evidence of any person wearing a cap or cap being observed in any place at any relevant time. Witnesses Tisdale and Richards identified the driver as having short brown hair and they gave no evidence of the driver wearing a cap. In those circumstances an inference can then be drawn that the driver was not wearing a cap at all when they observed him. There was differing evidence in relation to the upper garment the driver was wearing. Witness Richards says the driver was wearing a red singlet, Tisdale described it as a red top, and told police that because that's the description radio dispatch services gave to Constable Walsh.
Sergeant Devine saw the defendant in a red T-shirt, he said, to quote him, 'Which matched the description given by radio dispatch services,' namely a red top and tight black shorts. It is not disputed that when first spoken to by police the defendant was wearing an upper garment coloured red. The most telling but confusing evidence about all of this is that witness Tisdale gave evidence that when he did the drive-by the person he identified as the driver because he was of similar build but of course I repeat that he gave no evidence of what that build or stature might have been, and he also gave evidence that he identified this person because of the features and the same dark underwear. He didn't say anything about a red top, just underwear.
He then went on to say, 'The top was different to what I remember.' Again, it must be noted that he did not say what the difference was. The only acceptable inference to be drawn from this is that the person he saw and identified was no longer in a red top or certainly not the same red top as previously observed. Tisdale was the only real eye witness to the drive in – who was then later available to identify the defendant, clearly did so because of dark underwear and the same build and features but gave no evidence of the features or the build nor of the red upper garment.
There was no evidence of any other person wearing any red upper garment or that there was any random loose red upper garment anywhere witnessed by anybody. The prosecution case is that even with a different top on – but I note here not according to the three police officers all say it was a red top consistent with the identification information they had been given, but even with a different top on Tisdale was able to identify the defendant. However, his evidence is that he had never seen this person before when he saw him in the carpark.
He was some 20 metres away and had only seconds to make observations. His evidence of the features of stature et cetera was negligible if any and open to doubt. Maybe he saw black shorts and/or a red top and came to a mistaken conclusion when he saw the defendant in Facy Street. He must have been mistaken about what the driver was wearing at the time he saw the driver in Facy Street. I must have a doubt arising about that particular factor.
Witness Lang saw the driver and the passenger presumably seated at the crash site but was able to say the passenger was shorter in stature. Witness Richards described the passenger as being taller than the driver and wearing black jeans and a T-shirt and carrying a beach ball. Tisdale did not describe any of this or even that the passenger got into a second red utility. None of the group of males in Facy Street when police arrive or a group said to have been playing with a beach ball on the beach prior to the crash is so described, that is, black jeans, and so on, and there's no evidence of a beach ball being otherwise present at any relevant time.
Tisdale was adamant that the defendant's utility was facing the wrong way in Facy Street; he was clearly in error about this. Nobody else saw it facing the wrong way. Those and others saw the second red utility in the street but Sergeant Devine did not. Remarkably it was parked opposite the defendant's vehicle according to two or three witnesses but it played no part in the investigation of the crash or the driving before the arrest of the defendant. Police officers were aware a second utility might have been involved but it mysteriously disappeared with no acknowledgment of when, how or why and by whom it was driven.
I now move on to the black shorts or the underpants or other descriptions that's been given. Witness Tisdale described the driver of the red utility as wearing black underpants at the carpark and in Facy Street. Witness Richards said that the person was wearing black tight shorts or underwear almost like footy shorts not basic underwear. Constable Walsh described the defendant as wearing black underpants style shorts. In cross-examination he said it was tight underwear, short and tight.
Constable Stanley said black underpants in cross-examination. He said short-legged underpants, not baggy. Sergeant Devine said black boxer shorts. Basically the same description given by the witnesses, but the inconsistencies left with me a doubt as to whether all the witnesses were describing the same thing. There was no consistent stand-out clear feature to link the same shorts to the defendant as opposed to a number of others in the community and what I infer was a hot day near a public beach.
I turn now to the beach ball. Witness Kent saw a group of four males on the beach at the end of Facy Street with a beach ball and they appeared to be wet. This observation was – well, it was at some stage a short time later witness Kent came upon the crash scene at the roundabout. But witness Kent gave no better description of the group of four males – apart from Richards saying that she observed the passenger get out of the defendant's utility at the carpark with a beach ball, there was no other evidence of a beach ball being present at any relevant place or time.
It is the prosecution's case that Kent's evidence is a significant link in the chain of circumstantial evidence in that there was a group of four males, they were drinking alcohol, they were playing in sand dunes and they were wet, and consistent then with having wet, sandy shorts and wet, sandy seats in the defendant's vehicle a short time later, and there was a beach ball in the defendant's vehicle at the carpark after the crash when the ute was in the carpark.
In the absence of any rational hypothesis consistent with innocence it may seem – be seen as a link in that chain. Why I have some doubt about that link is whether accepting the defendant was one of that group, whether he had time to leave that group, leave the beach, get into his motor vehicle, drive to the crash site and then to the beach in the same time that Mr Kent had to walk from that spot to the crash site, a relatively short distance away. Unfortunately because by that stage, by the time he got to the crash site, the crash had already happened.
Unfortunately I did not have that evidence from Mr Kent; only his statutory declaration was put into evidence. There's no acceptable evidence linking the defendant to the group of males on the beach, in my view, and Mr Kent's evidence is unable to satisfy me that he observed this group of males before the crash occurred. He is unable to say – to link in time this group of males to the crash.
I move now to the wet, sandy shorts and the wet, sandy seat. It is conceivable that is explained by the defendant swimming at 1 am and that there was transference when he got into the vehicle to play music after that swim or possibly when he got into the vehicle later in the morning to pop the bonnet after it had been returned in a damaged condition although this latter event would not seem realistic, that his shorts would stay so wet for so long, but I am unable to make any particular finding about that in the absence of appropriate evidence.
I turn now to the tattoo. Whatever the defendant was wearing on this particular day at any particular time it is clearly shorts or no sleeved (sic) the defendant has a large and visible whole lower limb tattoo from at least elbow to wrist around the entirety of that lower limb. When shown to me in the witness box it was attractive, not necessarily in an aesthetic sense, but in the sense that my eyes were drawn to it.
No witnesses were able to say that they saw this obvious feature on the defendant on that day. In this case similarities, in my view, have led to mistakes being made as I've outlined above. Maybe the witnesses were confused in recounting what had been relayed to them by others. There are similarities in the red upper garment and the lower black lower garment but nothing really to stand the defendant out from many others that could be inferred to be in that vicinity on that day.
While the prosecution evidence may well have been honest, in my view, the above inconsistencies and discrepancies are sufficient to warn myself against accepting that evidence as clearly identifying the defendant as the driver of his vehicle. There was opportunity for somebody else, possibly somebody at the party who knew the defendant was in the habit of leaving his keys on the table at the back of the house in Facy Street, knowing the defendant had had a lot to drink and may not possibly notice the missing motor vehicle and the opportunity to take the key, use his motor vehicle, crash it, return it and decamp quickly leaving the key on the neighbour's fence.
There was evidence from the defendant's witnesses that the people at the party were friends and is it too far a bow to draw with the opportunity to take the defendant's vehicle for a drive, the driver having crashed it, returned it with significant remorse, doing so quickly to avoid detection by both defendant and police with no intention of taking his cash or telephone.
It is an hypothesis consistent with innocence if not ruled out by prosecution evidence. Defendant's witness Grant creates a doubt that anybody left the house and came back and fabricated again going outside to discover the damaged motor vehicle,. The defendant's evidence is consistent with the motor vehicle being returned in a noisy condition – which woke the defendant who then woke his friend Lehman and they went outside to find the motor vehicle in a different place to where he had left it the night before and with Mr Grant coming out moments later.
As I've said, the defendant does not have to prove anything however he elected to give and adduce evidence and so I turn to his evidence and there are inconsistencies littered throughout his – the defence evidence as well. For example, the time he got to the party. He says about 11.30. In the BAS questionnaire he said he had his first drink at 10 pm and I infer that that was at the party.
In his statutory declaration he said that he had his first drink – no, he arrived at around 10 pm. Grant and Lehman both say that Brearley was at the party before Lehman got there. Lehman says he has no idea when he got - meaning Lehman, got to the party. His response was it was Friday night or early afternoon. Grant says that he has a clear memory of Brearley getting there at 7 pm.
In the absence of evidence to the contrary and also considering there was little relevance in the point, I find the defendant attended the party somewhere between 7 pm and 10 pm. Nothing turns on it other than credibility and this matter standing alone does not lead me to reject the defendant's evidence out of hand. I move on. The defendant says that Cassie and Lisa went for a swim somewhere around about 1 o'clock in the morning with a group of males,
Mr Grant and Mr Lehman said emphatically that there were no girls present and it was a boy's night only although when pressed they each conceded that – or I think Mr Grant conceded that Lisa may have been there and Mr Lehman conceded that Cassie might have been there at some stage. Lehman and Mr Brearley say they left the party and went out to the utility for around 15 minutes.
Grant says they definitely did not leave the party. I note that clearly a lot of alcohol was consumed at this party on this night and could Mr Grant be so positive about a particular 15 minutes? Clearly he had no knowledge of them going to the utility for 15 minutes but that is not to say that he could have been mistaken. Grant and Lehman and Brearley say that all at the party are close friends and know each other but Mr Brearley says that four people he could not recall went to the beach.
It's possible he cannot now recall the names of the persons who went to the beach. Next morning he and Lehman went out to the car and then he said, 'Two others came out but I don't know who they were.' It seems clear from the other evidence that I've heard from Mr Grant and Mr Lehman that Mr Grant was one of these other two persons and maybe the other person was Mr Williams. It's clear that they were both known to Mr Brearley.
Again, it's possible that Mr Brearley cannot now recall because of the stress and the amount of alcohol he consumed, that is, cannot recall who they were. There was his evidence that he was clearly stressed and he had a blood alcohol reading of .169. Mr Brearley conceded that he did not say in his statutory declaration that Mr Lehman was with him when he went outside, however again I draw no particular adverse inference about that. He didn't say that he was alone or that Lehman was not with him.
He conceded that in his statutory declaration he said, 'I was woken by my mates who were already up,' and it was likely to be true if he put it in his statutory declaration,' but he says that he cannot now recall who those persons were but his evidence now is that the noise of the engine woke him and he woke Mr Lehman. So there's a clear differentiation in discrepancy in that part of his evidence.
In his statutory declaration he says that he was awoken by his mates and went outside to have a smoke and noticed his damaged car. Of course this is quite inconsistent with his other evidence. He says that he woke Lehman because he was frightened to go outside and see what was going on. Lehman did not corroborate this. The prosecution submits that Mr Brearley's evidence should be ignored because in his statutory declaration he said that he waited for three to five minutes for police to arrive and that he had a smoke, yet in his evidence in Court he said that he borrowed a telephone and called his father.
Again, that is not necessarily inconsistent, in my view, I infer it is possible to smoke and talk on a telephone at the same time and of course he did not say that he did not do those things. He also said that he had about two hundred and fifty dollars in cash in the console but there was clear evidence that it was in fact four hundred and thirty five dollars but in my view nothing turns on that inconsistency.
There was nothing in his statutory declaration about him running outside with Mr Lehman, hearing noises from the engine and – I've clearly made an error in my wording there; I'll leave that. Mr Lehman's evidence – it was submitted that Mr Lehman's evidence should be rejected because of his unclear memory. Poor memory of Mr Lehman it surely was on a lot of aspects and not entirely confidence building but I'm not prepared to reject his evidence out of hand.
His demeanour was one of being candid as best he could and he conceded his limitations and did not try to add to or gild any evidence by way of conjecture or padding out on my assessment. In my view, the defendant and Grant also gave their evidence in an acceptable fashion. So it is there are inconsistencies in the defendant's evidence which affect the credit of the defendant and his witnesses to some degree but only in the context of the defendant raising a hypothesis consistent with innocence which has to be ruled out by prosecution.
Prosecution still have to leap the large hurdle as to whether it has proved all of the elements of each charge, especially the main - relevant across all charges: can it be established beyond reasonable doubt that the defendant was the driver of the utility at any relevant time? There are so many inconsistencies and discrepancies in the prosecution evidence as to how the defendant can be properly identified as the driver for me to hold a reasonable doubt that he was the driver at any relevant time and accordingly I do not find any of the charges on the complaint proved and I dismiss the complaint."
There is no suggestion on this review that the magistrate did not direct himself appropriately in relation to issues of identification and the circumstantial nature of this case.
Powers of Court on review
In Caccavo v Collins [2014] TASFC 7, Pearce J said at [8] about a review of a magistrate's decision:
"8 Both grounds raised questions of fact. In determining the motion to review, Tennent J applied the test established by a long line of settled authority; that is, whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he did: see for example Wood v Smith (1991) 14 MVR 279; Phillips v Arnold (2009) 19 Tas R 21 at [46]; Nilsson v McDonald (2009) 19 Tas R 173. In Kent v Gunns Ltd (2009) 18 Tas R 454, Porter J expressed the function of a judge in determining a review of a decision of a magistrate of this kind in the following terms:
'The grounds of the motion relate to questions of fact. As such, the decision is to be treated in the same way as an appeal from the verdict of a jury. This is not an appeal by way of rehearing and it is not for this Court to weigh the evidence and reach its own conclusions; Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117, Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 at [7], Phillips v Arnold [2008] TASSC 6 at [13], Murray v Maingay [2008] TASSC 18 at [13]. On this motion I am concerned with the question of whether the magistrate's decision was reasonably open on the evidence; that is, whether on the evidence the only conclusion reasonably open, judged by the criminal standard of proof, was that the respondent was in breach of the Act as alleged. To use the words of Green CJ in Leonard v Newell [1983] TASRp 11; [1983] Tas R 78 at 81, I should "allow the motion only if I am satisfied that on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent".'"
That is the approach I have taken to this review.
Discussion
Counsel for the applicant accepted that this was a circumstantial case. He contended that the circumstances were such that guilt ought to have been the only inference reasonably open on the facts of the case as found by the magistrate: Chamberlin v The Queen (No 2) (1984) 153 CLR 521, per Gibbs CJ and Mason J at 535. He also contended there was no reasonable hypothesis consistent with innocence reasonably open on the evidence, and then submitted:
- there was reasonably consistent identification of the respondent as the driver of his utility; and
- that the hypothesis considered by the magistrate was not reasonable, nor realistically open on the evidence. For an hypothesis to be consistent with innocence to be reasonable, it must possess some degree of acceptability or credibility, and cannot be mere conjecture: see Barca v The Queen (1975) 133 CLR 82, per Gibbs, Stephen and Mason JJ at 104 citing with approval Peacock v The King (1911) 13 CLR 661.
What their Honours actually said in Barca at 104 was the following:
"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, at p 634 . To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, at p 252 ; see also Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584, at pp 605-606 . However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.' (Peacock v The King (1911) 13 CLR, at p 661 ). These principles are well settled in Australia."
The submission by counsel for the applicant referred to an hypothesis consistent with innocence as needing to possess "some degree of acceptability or credibility", words not used in Barca.
What counsel for the applicant contended was that the magistrate had accepted as an hypothesis consistent with innocence that possibly somebody from the party took the keys to the respondents vehicle, drove it away and crashed it, and then returned it to more or less the same position from which it was stolen. Counsel for the applicant submitted this hypothesis was not reasonable or realistically open on the evidence. In his written submissions, counsel for the applicant identified a number of inconsistencies in the evidence of witnesses, particularly in the defence evidence. He submitted that these undermined the defence evidence, making this possible hypothesis not one reasonably open on the evidence.
There can be no doubt that there were inconsistencies in the evidence of the prosecution witnesses and as between defence witnesses. I accept that different people viewing the evidence with those inconsistencies may have come to a different conclusion than that reached by the magistrate. However, that is not the test to be applied to a consideration of this review. The magistrate had the benefit of seeing the witnesses and the opportunity to observe them as they gave their evidence. He recognised the inconsistencies within the evidence of witnesses, and, in my view, gave them detailed consideration. He recognised, for example, that the respondent had a distinctive tattoo that none of the witnesses who gave identification evidence gave evidence about. He also recognised the inconsistencies between what the respondent said in his statutory declaration and what he told the court. He noted an explanation as to why those differences might have occurred which was consistent with the evidence. I do not pause to detail every single piece of evidence to which his Honour referred and the inconsistencies that he noted. The fact that there were many, and that they were not confined to the defence case, clearly gave his Honour pause as to what he accepted and what he did not.
The magistrate, to convict the respondent of any or all charges, had to be satisfied beyond reasonable doubt that the respondent was the driver of his vehicle at the time it hit the parked car in Church Street. Absent that level of satisfaction as to that fact, the magistrate was obliged to find the respondent not guilty of all charges. To find the respondent not guilty, the magistrate was not required to find as a positive fact that the respondent was not the driver, only that he, the magistrate, was not satisfied beyond reasonable doubt that the respondent was that driver.
The magistrate in his decision clearly recognised that. His ultimate finding as it appears at 227 of the transcript of proceedings was in the following terms:
"Prosecution still have to leap the large hurdle as to whether it has proved all of the elements of each charge, especially the main - relevant across all charges: can it be established beyond reasonable doubt that the defendant was the driver of the utility at any relevant time? There are so many inconsistencies and discrepancies in the prosecution evidence as to how the defendant can be properly identified as the driver for me to hold a reasonable doubt that he was the driver at any relevant time … ."
At no stage did his Honour find, in terms of ground 2 of the notice to review, "that the respondent had not driven at the time of the offence". He simply recognised that the prosecution had not established beyond reasonable doubt that he had.
To succeed on this review, the applicant must demonstrate error, in particular that on the evidence as it was presented to the magistrate, the decision of the magistrate was not reasonably open. With respect, having regard to the evidence in this matter and the many discrepancies identified within it, I am not satisfied that the applicant has demonstrated that on no reasonable view of the evidence could the magistrate have failed to be satisfied as to guilt. The review must, in my mind, fail and it is dismissed.
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