Martyn v Chambers

[1987] TASSC 114

Serial No B44/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Martyn v Chambers [1987] TASSC 114; B44/1987

PARTIES:  MARTYN
  v
  CHAMBERS

FILE NO/S:  LCA 10/1987
DELIVERED ON:  28 October 1987
JUDGMENT OF:  Nettlefold J

Judgment Number:  B44/1987
Number of paragraphs:  7

Serial No B44/1987
List "B"
File No LCA 10/1987

MARTYN v CHAMBERS

REASONS FOR JUDGMENT  NETTLEFOLD J

28 October 1987

1. Appeal from the conviction recorded on 27 January last on each of two charges contained in Complaint No 15456/86. The charges were as follows:–

"Charge: Driving while exceeding the prescribed alcohol limit.

Breach of: Section 6(1) of the Road Safety (Alcohol and Drugs) Act, 1970.

Particulars: You are charged with driving a motor vehicle on the 27th September, 1986, on Tranmere Road, a public street at Howrah in Tasmania, whilst alcohol was present in your blood in a concentration greater than the prescribed concentration of 0.05 of a gram of alcohol in 100 millilitres of blood, namely 0.14 grams of alcohol in 100 millilitres of blood.

AND FURTHER: 2. –

CHARGE: Assaulting Police.

BREACH OF: Section 34B(1)(a)(i) Police Offences Act, 1935.

PARTICULARS: You are charged with on the 27th September, 1986 at Howrah in Tasmania, Assaulting Donald Frederick VARLEY, a Police Officer in the execution of his duty, by punching on the head and body."

1. The essence of the reasoning of the learned magistrate was as follows:–

(1)The differences between the witnesses in respect of the assault charge cannot be explained on the basis of mistake. "It seems to be a very black and white situation, either one side is lying or the other is lying."

(2)He found it "impossible to accept that Constable Varley should for no reason whatsoever assault the defendant. The defendant was unable to give me any reason why this should be so."

(3)The alleged assault is "the key to the situation". The account of the assault given by the police witnesses was a probable account and that given by the defence witnesses an improbable account.

(4)He could not accept the defendant or Miss Wolfe as a witness of the truth in relation to the assault charge. The accounts given by Constable Varley and Policewoman Jarvis seemed obviously much more credible.

(5)The prosecution case on the assault was corroborated by the limited apology tendered to Constable Varley by the defendant.

(6)Having formed so unfavourable a view of the defendant and Miss Wolfe in the course of hearing the assault charge, he would not accept their evidence to the effect that the defendant consumed liquor after the accident and before the breathalyser analysis of the defendant's sample of breath. The defendant's sister, Miss Angela Martyn corroborated the defendant and Miss Wolfe on the point that the defendant did consume liquor at that stage. But he rejected her evidence also. He said "I think the claim that he made that he drank whisky after the accident is a false one, tailor made in order to avoid the consequences of his driving behaviour and driving affected by liquor as he was".

(7)The defendant was certainly of no less than average intelligence. He would be well aware of the importance of claiming that he consumed a substantial quantity of liquor after the accident. But he did not make that claim either to Constable Varley or to Constable Hoggett, the breathalyser operators. That important claim was made for the first time in court.

1. The essence of the case therefore is that the learned magistrate accepted the evidence of Constable Varley, Policewoman Jarvis and Constable Hoggett and rejected the evidence of the defendant, Miss Wolfe and Miss Martyn. The learned magistrate had the advantage of seeing and hearing those witnesses give their evidence and this court is not in a position to disagree with that assessment of the evidence on the basis of a mere reading of the transcript.

1. The relevant principle is not in doubt and is set out in the following passage from Richardson v Shipp [1970] Tas SR 105 at pp 117–118, per Burbury CJ:

"This is not an appeal by way of rehearing and it is not for this court to weigh the evidence and reach its own conclusion. The court is only concerned with the question of law whether there was evidence before the learned stipendiary magistrate upon which he was entitled to hold that the offence was not proved. The appeal is essentially an appeal against a finding of fact. The decision of a court of petty sessions upon questions of fact is to be treated upon a motion to review in the same way as an appeal from the verdict of a jury. In Taylor v Armour & Co Pty Ltd [1962] VR 346, at p351, in the joint judgment of the Full Court, the Court said:

'We have come to the conclusion that we should adopt the view that the Supreme Court on an appeal from petty sessions by way of order to review should, with regard to any question of fact, act according to long–established practice, and treat the matter in the same way as an appeal from the verdict of a jury. This was the view clearly stated by Hood J, in Aldom v Dunn [1917] VLR 70, 23 ALR 3, and by Herring CJ, in Young v Paddle Bros Pty Ltd [1956] VLR 38, [1956] ALR 301. It is a very long established practice, and appears to have been adopted by the Full Court in the early days of the colony, by analogy to the practice followed in England, under earlier procedures whereby decisions of magistrates were called in question – see R v Reason (1795) 6 TR 375; R v Smith (1800) 8 TR 588, at p590; and see in Victoria R v Mollison; Ex parte Crichton (1876) 2 VLR (L) 144; R v Grover; Ex parte Parsons (1881) 7 VLR (L) 334; Quick and Berriman, The Victorian Magistrate (1924), at p473, and Paul on Justices (1936), at p479. The rule which prevails with respect to appeals from the county court, or from a single judge of the Supreme Court to the Full Court, or from this Court to the High Court, and which is stated in Dearman v Dearman (1908) 7 CLR 549, therefore does not apply. Accordingly, it is not for this Court to make up its own mind upon the evidence, though giving weight if necessary to the fact that the tribunal below has seen the witnesses. This Court has merely to see whether there was evidence upon which the magistrate might, as a reasonable man, come to the conclusion to which he did come'."

1. It is clear that the learned magistrate had evidence upon which he might, as a reasonable man, come to the conclusion to which he did come on both charges. On the breathalyser charge the statutory presumption operated unless displaced by a positive acceptance of the evidence that whisky was consumed by the defendant after the accident. The learned magistrate could, as a reasonable man, in the circumstances which he outlined, decline to hold that the statutory presumption had been displaced. In other words, as a reasonable man, he could stop short of positively accepting the evidence of the three witnesses.

1. The notice of appeal and the argument on the appeal do not disclose any ground for setting aside the convictions which are based on adequate material.

1. The appeal is dismissed.