LEE-WRIGHT v Police - [2010] SASC 353

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEE-WRIGHT v POLICE
[2010] SASC 353
Judgment of The Honourable Justice Vanstone
24 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW
EVIDENCE - ADMISSIBILITY AND RELEVANCY - FACTS SHOWING STATE OF MIND
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - MOTOR VEHICLES
Appellant convicted of creating risk of harm following trial in Magistrates Court - question of identity of driver of vehicle - whether interview admissible - question of accused's state of mind - whether expert evidence required on question of dangerous driving.
Held: appeal allowed - part of interview should have been excluded - conviction quashed - matter remitted to Magistrates Court for rehearing.
Criminal Law Consolidation Act 1935 s 29(3), referred to.

LEE-WRIGHT v POLICE
[2010] SASC 353
Magistrates Appeal
VANSTONE J:
Introduction

The appellant was tried before a magistrate and convicted for one count of creating risk of harm. The charge was based on the manner in which the appellant was alleged to have driven his motor vehicle on a stretch of the Port Wakefield Road at Lower Light, when a number of young persons were said to have gathered to perform various manoeuvres in their vehicles, referred to in evidence as “hoon driving”. The evidence presented to the magistrate included numerous photographs of a vehicle said to be driven by the appellant, as well as eye-witness accounts of the event.
Issues in the trial included the admissibility of a videotaped interview with the appellant, whether the prosecution had proved that the appellant was the driver of that car and, even if he were, whether his manner of driving created a risk of harm to others to which he was, at least, recklessly indifferent. These issues are also the focus of the argument on the appeal.
Background
In essence the prosecution case was as follows. On the evening of Saturday 27 June 2009, a “car cruise” took place. A car cruise was said to be an organised gathering of people who drive their cars to a sequence of locations, usually throughout the course of a night. This one was said to be a gathering of the “All Car Club”. They gathered initially at Marion Shopping Centre. About 100 vehicles were involved.
The group drove to Semaphore before heading to the Firle Shopping Centre. At each location cars took part in various manoeuvres. Eventually, at around 2.00 am, the group arrived at Port Wakefield Road, Lower Light. The vehicles parked on the lawn verge adjacent to the highway.
One or two at a time, the vehicles took turns performing sustained “burnouts” and “circle work”. The vehicles about to perform would leave their position and drive along the roadway toward the spectators where they would “perform”. In doing so the whole carriageway would be used. Each “routine” would take two to three minutes. The term “burnout” was poorly defined but, as I follow it, it involves braking to keep a vehicle stationary whilst causing its powered wheels to spin, thus producing smoke from the tyres of the drive wheels. There was no definition of “circle work” at the trial but I take it to involve rotating the rear of the car around its front; that is to say, the front of the vehicle forms the locus of the circle. At times oil was poured on to the tyres of the drive wheels of the vehicle to lessen friction.
The vehicles engaged in these activities on the carriageway of Port Wakefield Road itself, with observers standing close by. The activities continued for an hour. Large amounts of smoke were generated and remained in the air. During that hour other unrelated road users would approach along the highway. They would enter the clouds of smoke. Those vehicles included semi-trailers. The witnesses only noticed those vehicles as their headlights emerged from the smoke. One of the witnesses described the close proximity of the cars to the assembled spectators. On occasions, spectators had to jump clear of cars engaged in the manoeuvres. At 3:00 am all the vehicles abruptly left the area. The road surface was then seen to be covered in tyre marks.
The prosecution alleged that the appellant was one of those involved in the burnouts and circle work that night.
At the trial in the Magistrates Court, three witnesses gave evidence, namely Ms Kyriacou, a newspaper journalist, Mr Coker, a newspaper photographer, and the investigating officer, Detective Brevet Sergeant Richmond. The two civilian witnesses followed and observed the group as part of a special investigation by the Sunday Mail into “hoon driving”. Both gave evidence about their observations of the night in general. Mr Coker took approximately one thousand photographs of the events, a number of which were tendered. His sophisticated camera was capable of taking approximately ten photographs a second and was fitted with a long-range lens. Police later requested, and were provided with, these photographs. Many of them depicted a white VN Commodore said to be the appellant’s vehicle. Some of the photographs reveal two people in the vehicle. In some photographs facial features are discernible.
On the morning of 22 July 2009, police arrested the appellant at his home. A white VN Commodore was located and seized there. The appellant was taken to the Elizabeth police station and formally interviewed. The arrest was recorded on a hand-held video camera. According to Detective Richmond’s evidence, that tape has been lost.
Early in the interview, the tape of which was tendered at the trial, the following exchange occurred:
QI mentioned when I arrested you that there were some questions that you would be required to answer by law, okay. I have a photograph of your car at Lower Light, at that time, there is the photograph there, that’s your car. I now require you by law to tell me who the drivers of the vehicle were at that time.
ACars, how can you say that is my car?
QThat vehicle has been identified, that is one photograph of it, there are, we have a video of it, and where we can clearly see that that is your car, with the sticker on the back window and the spoiler and stuff like that … We know that you had the registration plates taped up … It was your vehicle, who was driving at the time?
AAre you sure that was my car?
QSure that’s your car.
AWell I’d be driving it.
Later in the interview, the investigating officer said to the appellant: “Well I have no further questions I want to ask you. Is there anything else you want to say?” There followed a six page conversation.
The arguments on appeal
It is convenient to set out in abbreviated form the grounds of appeal as they now appear, having been subject to various amendments.
1.     The learned Magistrate erred in finding the appellant guilty.
Particulars
There was no evidence capable of proving beyond reasonable doubt that the appellant was the driver of the subject motor vehicle.
1A.The learned special Magistrate erred in admitting into evidence the interview between the Appellant and the witness Richmond.
1B.In the alternate, the learned Magistrate erred in admitting into evidence such portions of the interview as were not required by law to be answered by the Appellant.
2.The learned Magistrate erred in receiving into evidence material which was irrelevant and/or more prejudicial than probative.
Particulars
(a)     Evidence from Ms Kyriacou and Mr Coker of prior incidents of aberrant driving by a car club unrelated to the accused;
(b)     Evidence from Ms Kyriacou as per her investigation into “hoon driving” and;
(c)     Evidence from Ms Kyriacou as to “illegal activity at almost every stop we went to” prior to the relevant events at Port Wakefield Road.
3.The learned Magistrate erred in finding “the Defendant must have known that what he was doing was likely to cause harm to another”.
4.The learned Magistrate erred in finding that the Appellant was “recklessly indifferent as to whether the harm in question was caused”.
5.The finding of guilt could not be sustained in the absence of expert evidence as to vehicle behaviour in circumstances of a controlled wheel spin.
I propose to deal with the grounds in this order.
Proof that the appellant was the driver
The evidence tending to prove that the appellant was the driver of the Commodore depicted in the photographs came only from Detective Richmond. His evidence was to the effect that he was given copies of the photographs of the vehicle taken by Mr Coker and that, despite the fact that the registration number of the vehicle in the photographs was obscured by tape, he was able to identify the vehicle as a white Holden Commodore, registration number VEB-885, belonging to and later seen by him to be driven by the appellant. His further evidence was that there were certain distinctive features of the appellant’s Holden – including a spoiler kit, skirting kit, rear window sticker and distinctive mag wheels – which enabled him to conclude that the vehicle of the appellant was the vehicle seen in the photographs. In addition, the prosecution relied on what could be termed “qualified admissions” in his interview with Detective Richmond.
In my view Detective Richmond’s evidence that the vehicle depicted in the photographs was the vehicle owned by the appellant was relevant and admissible. Unlike the court, Detective Richmond had opportunity to observe the appellant’s vehicle at a time close to the charged occasion and to examine its particular features. If accepted, his evidence proved the involvement of the appellant’s vehicle in the alleged offending. There was no challenge to that evidence at trial. The further question is whether it was proved that the appellant was driving the vehicle at the time when the alleged offence occurred. If the admission which I have set out – to the effect that if his car was involved then he was driving it – was properly admitted, then that was sufficient proof of the identity of the driver. To that could be added the similarity between the appearance of the driver in the photographs and the appellant.
Admissibility of the interview
Mr Boucaut SC, who appeared in this Court for the appellant, mounted a substantial argument to the effect that the interview should have been excluded as being involuntary, or in the exercise of the magistrate’s discretion. He pointed out that although Detective Richmond claimed to have given the appellant “his rights” during their initial conversation at the premises at which he was arrested, the officer was unable to relate the terms in which that was done. Certainly the officer agreed that he had told the appellant that he would be required to answer some questions. Mr Boucaut argued that there was no adequate distinction made in the interview between those questions which the appellant was required to answer and those which he was not. Mr Boucaut submitted that, once questions going to the identity of the driver had been asked and answered, the appellant should have been cautioned again. Further, Mr Boucaut pointed to certain questions which contained assertions of fact which were not true and other questions in which matters of fact were assumed, even though the appellant had not admitted to those matters.
It can be seen from the excerpt of the interview which I have reproduced that the officer made it clear that the appellant was required to tell him who was the driver of his vehicle at the relevant time. The use of the words “require you by law” made it plain that this was one of the questions which it had been foreshadowed would have to be answered. The suggested failure to adequately discriminate between questions that had to be answered and those to which a caution would apply cannot affect the admissibility of questions which the appellant had to answer.
There is room for argument as to whether the questions and answers which succeeded the ones I have set out were directed to the same topic, that is, the identity of the driver, being in the nature of elaborations on that question, or whether they went beyond it. In any event, the appellant went on to acknowledge that the driver shown in the photographs looked like himself and, eventually, that it “must be” him. At that point the questioner asked this question:
What happened that night, tell me what did you do?
The argument is that at this time the appellant should have been reminded of the caution.
I consider that there is some force in that suggestion, although I should not be understood as saying that it would always be necessary. The circumstances of this matter are unusual. As mentioned, there is no evidence of what was said earlier on the question of the obligation to answer certain questions. Then, most unusually, no caution was given at the outset of the interview. Further, there is no clear delineation in terms of topic between the subject matter of the questions requiring answers and the questions which followed. Because the officer had foreshadowed in the interview that “some questions” would require answers by law, but had not apprised the appellant of what questions they would be, the appellant was not in a position to determine for himself which questions he was not required to answer. Therefore, I agree with Mr Boucaut that, in the way the course of events unfolded, there was a need for the officer to alert the appellant at the point at which he embarked on questions which did not have to be answered.
As mentioned, there were other troubling aspects of the interview. For example, as set out above, the officer presented to the appellant, as a fact, that the vehicle shown in the photographs was the appellant’s. While I consider it would have been permissible to present to the appellant the officer’s opinion that it was his vehicle, or to tell him that police had information from another witness to that effect (if that was the case) he should not have foreclosed that issue. Having said that, the appellant appears not to have been convinced of that fact and effectively asserted that, if it were his car, then he would have been driving it. The qualified nature of that admission effectively neutralises the inappropriate way in which those questions were approached.
Elsewhere in the interview the officer asserted, repeatedly, that the police had video of the appellant’s vehicle at the scene. That was not true. Police were in possession of footage of the scene generally, but not of the appellant’s vehicle. The officer also put to the appellant that when one or more of the photographs was digitally enhanced he could “pretty much guarantee” that it would show the appellant’s head. I do not think that was appropriate. If there were to be digital enhancement then it should either have been done by then, or the result of it left to speak for itself. In fact no such material was presented to the magistrate. Elsewhere in the interview the officer demonstrated what my reading of the interview suggests was a high-handed and intimidatory attitude. He argued with the appellant about the dangerousness of the activities which had occurred. He told him at one point “this is getting into some really serious shit”. Later on he advised the appellant that he had no further questions and, appropriately, asked him if he wished to say anything else. But at that point the interview degenerated into a debate about where the officer’s information had come from, from where photographs had been taken on the night (when again false information was given) and a general conversation about the conduct and the evidence available to the police. Much of this material is, in my view, of doubtful admissibility.
Police have a responsibility when they interview a suspect in relation to a serious offence, such as this, to act appropriately. They must not misrepresent material in their possession. They should not attempt to intimidate the suspect. They should not talk over the suspect, nor deny him an opportunity to answer. They should clearly indicate when an interview commences and when it stops. They should take care to frame their questions in such a way that it is clear that they are questions, as opposed to statements of fact, and they must not misrepresent the evidence available to them, nor anything else relevant to the investigation.
In my view, that part of the interview extending beyond the answer “Well, I’d be driving it”, which I set out earlier, should have been excluded by the magistrate either as being involuntary, or on the basis that it would be unfair to use it against the appellant.
Other material which it is said should have been excluded
Earlier I set out the terms of ground 2 of the appeal. It refers to evidence of the two civilian witnesses, describing events which were not directly linked to the appellant. No particular argument was addressed to me in support of this ground of appeal. It is unnecessary to examine the ground in detail, as a perusal of the transcript of Ms Kyriacou’s evidence shows that there was no objection taken by counsel then appearing for the appellant in respect of the questions which elicited this material.
I do not consider that it would be helpful to make any generalisation about whether or not questions designed to elicit general evidence about the events of this night would be objectionable. Plainly, the particular driving the subject of the charge occurred in circumstances where, if the appellant were the driver of the car shown in the photographs, then he would have been aware of the events leading up to that driving. It cannot be said that aspects of those events would not be relevant to the charge. Furthermore, to the extent that driving at the earlier meeting points was described as being dangerous or illegal, that would not be prejudicial to the appellant in the absence of a link to him. As I say, I think it is difficult to generalise about such questions. Each one needs to be evaluated on its merits where objection is taken.
The magistrate’s findings as to the appellant’s state of mind
I propose to deal with grounds 3 and 4 in combination. Each of them deals with proof of the element concerned with the state of mind of the driver. The prosecution is required to prove that the defendant knew that his act or omission was likely to cause harm to another and intended to cause such harm, or was recklessly indifferent as to whether such harm was caused.
The magistrate approached this question in two ways. First he found that, having established what the manner of driving was, the appellant “must have known that what he was doing was likely to cause harm to another”. He made particular reference to the series of photographs which, although not video footage, appeared to be taken in rapid succession and to demonstrate the movements of the Commodore.
In my view, this finding was well open to the magistrate. The danger involved in undertaking the manoeuvres described in the evidence on a public highway with pedestrians and other vehicles nearly would be readily apparent. It is a short step from that to a finding that the appellant must have been, at least, recklessly indifferent as to whether such harm was caused.
I might say that in support of these grounds Mr Boucaut suggested that it was not open to the magistrate to take into account possible harm to other road users because of the way in which the particulars of the offence were framed. Included in the particulars was this clause:
… did an act namely driving a motor vehicle in a dangerous manner in close proximity to pedestrians knowing that the act was likely to cause harm to another …
Mr Boucaut suggested that the insertion of the reference to the proximity to pedestrians limited the class of persons whom the prosecution could claim were endangered by the conduct. I do not agree with that argument. The reference to the close proximity to pedestrians does as much to locate the place where the dangerous driving occurred as anything else. I consider it was proper for the magistrate to take into account the potential danger to other road users.
Lack of expert evidence

Mr Boucaut suggested that whether or not the manner of driving of the appellant’s vehicle was dangerous could not be determined in the absence of expert evidence as to the mechanics of causing a vehicle to behave in this way and a quantification of the potential for mishap or loss of control. The same argument was put to the magistrate by counsel then appearing.
Like the magistrate, I do not consider that the argument is well made. Where a vehicle is handled in such a way that two of its wheels are spinning at a high rate during which time the vehicle is stationary, the potential for loss of control, or unexpected movement of it, is clear. That was reinforced by evidence of Ms Kyriacou that during the period at Lower Light, spectators on occasion had to jump out of the way of one or more of the vehicles. In addition, there was plainly danger to oncoming traffic, particularly where the high volume of smoke generated by the manoeuvres tended to impede visibility.
Conclusion
I have found that the magistrate should have excluded most of the interview with the appellant. That impugned part includes passages in which the appellant seemed to acknowledge that his vehicle was involved in the incident. The identification of the vehicle was a critical question at trial. As I have said, I consider that there was admissible evidence before the magistrate which would have justified such a finding. However, I cannot be sure that it was only upon admissible material that the magistrate relied.
Accordingly, I consider that the conviction should be quashed and the matter remitted to the Magistrates Court for a re-trial.
The orders I make are:
1. appeal allowed;
2. the conviction is quashed;
3.the matter is remitted to the Magistrates Court for rehearing in accordance with these reasons.