Matich v Egan
[2002] WASCA 109
•3 MAY 2002
MATICH -v- EGAN [2002] WASCA 109
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 109 | |
| THE FULL COURT (WA) | |||
| Case No: | SJA:1235/2000 | 4 APRIL 2002 | |
| Coram: | ANDERSON J STEYTLER J McKECHNIE J | 3/05/02 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed | ||
| A | |||
| PDF Version |
| Parties: | BRETT ROBERT MATICH DAVID BENEDICT AIDAN EGAN |
Catchwords: | Road traffic Reasonable belief that a person was the driver of a motor vehicle Two people Whether reasonable belief that one or other was the driver sufficient |
Legislation: | Justices Act 1902 (WA), s 199(1)(b) Road Traffic Act 1974 (WA), s 66, s 67A(1), s 67(2) |
Case References: | George v Rockett (1990) 170 CLR 104 Cotton v Ramm (1976) 16 SASR 107 Devries v Australian National Railways Commission (1993) 177 CLR 472 Ellis v Warren (1983) 1 MVR 177 Hembury v Chief of the General Staff (1998) 193 CLR 641 Hoobin v Samuels (1971) 2 SASR 238 Hurst v Ninyett (1992) 16 MVR 397 Matich v Egan [2000] WASCA 368 Rolfe v Bennett (1988) 6 MVR 481 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MATICH -v- EGAN [2002] WASCA 109 CORAM : ANDERSON J
- STEYTLER J
McKECHNIE J
- Appellant
AND
DAVID BENEDICT AIDAN EGAN
Respondent
Catchwords:
Road traffic - Reasonable belief that a person was the driver of a motor vehicle - Two people - Whether reasonable belief that one or other was the driver sufficient
Legislation:
Justices Act 1902 (WA), s 199(1)(b)
Road Traffic Act 1974 (WA), s 66, s 67A(1), s 67(2)
Result:
Appeal allowed
(Page 2)
Conviction quashed
Category: A
Representation:
Counsel:
Appellant : Mr S A Shirrefs
Respondent : Mr G T W Tannin & Mr C S Bydder
Solicitors:
Appellant : Beau Hanbury
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
George v Rockett (1990) 170 CLR 104
Case(s) also cited:
Cotton v Ramm (1976) 16 SASR 107
Devries v Australian National Railways Commission (1993) 177 CLR 472
Ellis v Warren (1983) 1 MVR 177
Hembury v Chief of the General Staff (1998) 193 CLR 641
Hoobin v Samuels (1971) 2 SASR 238
Hurst v Ninyett (1992) 16 MVR 397
Matich v Egan [2000] WASCA 368
Rolfe v Bennett (1988) 6 MVR 481
(Page 3)
1 ANDERSON J: This is an appeal from a decision of Scott J dismissing the applicant's appeal against his convictions in the Court of Petty Sessions at Joondalup of two "breath test" charges under the Road Traffic Act1974. The complaints were laid by the respondent, a police officer, and were that:
"2924 of 1999:
On the 28th day of February 1999 at Duncraig [the applicant] failed to comply with the requirements of a member of the Police Force, made pursuant to Section 66 of the Road Traffic Act, namely, to provide a sample of [his] breath for a preliminary test [contrary to] Section 67A(1) of the Road Traffic Act.
2925 of 1999:
On the 28th day of February 1999 at Duncraig [the applicant] failed to comply with the requirements of a member of the Western Australia Police Force made pursuant to the provisions of Section 66 of the Road Traffic Act to provide a sample of [his] breath for analysis [contrary to] Section 67(2) of the Road Traffic Act."
2 The prosecution case was follows. In the early hours of Sunday, 28 March 1999, Sergeant Lee, Senior Constable Mason and Constable Turpin, all attached to the breath analysis section of the Police Service, were operating a mobile breath testing station (a booze bus, in popular parlance) on Hepburn Avenue, west of the Mitchell Freeway in Duncraig. Hepburn Avenue runs east-west and the Freeway runs north-south. Sergeant Lee was directing westbound traffic on Hepburn Avenue into the random breath test line when he noticed an approaching vehicle pull off the road, stop about 200 metres east of his position and turn off its lights. He saw "somebody moving from the vehicle" and gave instructions to Senior Constable Mason and Constable Turpin, in response to which Constable Turpin went to the vehicle on foot and Senior Constable Mason followed in a police patrol car. The vehicle in question was found to be locked and empty. About 50 metres further to the east, Constable Turpin saw two people walking away in an easterly direction. He went after them. Senior Constable Mason, in the patrol car, joined Constable Turpin. The relevant evidence of Constable Turpin as to what transpired is as follows:
(Page 4)
- "Could you tell us what occurred relating to this matter in court?---(Passage omitted) … About 50 metres to the east of the vehicle, I observed two people walking in an easterly direction and approach that location where Senior Constable Mason also attended. I spoke to a male person there who I know to be Brett Robert Matich, the defendant present in court. I asked him if he had been the driver of the vehicle and he denied any knowledge of the vehicle. I asked him - - and denied driving the vehicle. There was a female with him at the time who I spoke to, who I now know as Ms Jeavons, and I asked her if she was the driver of the vehicle and she also denied being the driver of the vehicle and refused to answer any questions.
(Passage omitted)
Can you recall what you said?---Not the exact words. I asked him if he was the driver of the vehicle. He said he wasn't, and I asked him if he - - if he knew who was. He - - and he - he refused to answer, because he said, 'I'm not going to answer any questions', or words to that effect, and I then asked Ms Jeavons who was with him the same - - similar questions and she, at his prompting, also refused to answer any questions.
When you say 'at his prompting' - -?---He was saying to her not to answer any questions. 'You don't have to say anything. You don't have to tell him anything', that type, of thing.
Okay. What happened then?---I then told the defendant that I reasonably believed him to be the driver of the vehicle and I required him to undergo a preliminary breath test at that location. He refused to comply with that direction. I offered the preliminary breath test machine to him and he refused to comply with that direction …
(Passage omitted)
Okay. All right. What happened then?---I then advised him that we required him to undergo a breath test at the mobile breath testing station. Senior Constable Mason and myself then conveyed him to the - - to the breath testing mobile breath testing station down at Hepburn Ave. On arrival at the breath testing station, I conducted further inquiries and ascertained that the vehicle - - the white Mazda, 1 AFM 228, was actually indeed registered to the defendant. He still denied any
(Page 5)
- knowledge about the vehicle when I put it to him. I then introduced him to the breath operator, Senior Constable Hill. (Passage omitted) … At the end of the test, Senior Constable Hill advised me that the defendant had refused to comply with his requirement to blow into the machine. I then advised the defendant that he was under arrest for refusing to comply with the preliminary breath test and for a breath - - refused to comply with the breath test and - - and then, we took him to another portion of the bus to process him. When he was being processed, he was searched as a matter of course and located on his person were a set of car keys. When I asked the defendant whether these car keys would fit the white Mazda down the read, he agreed that they would."
3 The prosecution case was that, in failing to provide a sample of his breath for a preliminary test, and in later failing to provide a sample of his breath for analysis, he contravened s 67A(1) and s 67(2) of the Road Traffic Act1974. Those sections provide:
67A. Failure to comply with other requirements made by a member of Police Force
(1) Subject to subsection (2), a person who fails to comply with any requirement of a member of the Police Force made pursuant to section 66 … commits an offence."
"67. Failure to comply with requirement as to provision of breath, blood or urine sample for analysis
(2) A person who fails to comply with a requirement —
(a) to provide a sample of his breath for analysis;
…
commits an offence."
66. Requirement to submit sample of breath or blood for analysis
(1) A member of the Police Force may require the driver or person in charge of a motor vehicle, or any person he has reasonable grounds to believe was the driver or
(Page 6)
- person in charge of a motor vehicle, to provide a sample of his breath for a preliminary test …
- (2) Where —
(a) a person having provided a sample of his breath for a preliminary test —
…
or
(b) a person having been so required, refuses or fails to provide … a sample of his breath for a preliminary test …
…
- a member of the Police Force may require that person to provide a sample of his breath for analysis …
5 It is not in dispute that, if Constable Turpin had no authority to require the applicant to provide a sample of his breath for a preliminary test, the applicant was not guilty of either of the offences charged against him and his convictions must be set aside.
6 At the time the applicant was first spoken to by Constable Turpin, he was neither the driver nor a person in charge of the motor vehicle within the meaning of s 66(1). He was on foot, some 50 metres east of the vehicle. The prosecution therefore had to prove that Constable Turpin had "reasonable grounds to believe [that the applicant] was the driver or person in charge" of the motor vehicle.
7 On the hearing of the complaints, the applicant, Ms Jeavons and a third person gave evidence on behalf of the applicant, whose case was that the third person had been driving the vehicle, the vehicle had broken down, or run out of fuel and the third person had walked towards the Mitchell Freeway to get help and that the applicant and Ms Jeavons were
(Page 7)
- in the process of following him to the Freeway with a view to catching a taxi when they were confronted by the two police officers. This evidence was disbelieved and there is now no challenge to the finding at first instance that the applicant and Ms Jeavons were the only two persons in the vehicle when it stopped in Hepburn Avenue and were the two persons seen by Constable Turpin to alight from the vehicle and walk away from it immediately after it stopped and that one or other of the applicant or Ms Jeavons was the driver of the vehicle and in charge of it immediately before it came to a stop.
8 It is now accepted by the respondent that the conviction of the applicant in the Court of Petty Sessions was based on an error by the Magistrate in that he applied the wrong test. Instead of addressing the question whether Constable Turpin had reasonable grounds to believe that the applicant was the driver, he wrongly held that it was sufficient that Constable Turpin and Senior Constable Mason suspected that one or other of the applicant or Ms Jeavons was the driver of the vehicle.
9 In the appeal from that decision to this Court, Scott J recognised the error in that approach, but upheld the conviction under s 199(1)(b) of the Justices Act 1902 which provides:
"Upon the hearing of an appeal, the court may do one or more of the following -
…
(b) dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, f it considers that no substantial miscarriage of justice has occurred;
… "
10 Scott J concluded that no substantial miscarriage of justice had occurred because Constable Turpin, whom the Magistrate found to be a credible witness, gave evidence that he did reasonably believe that the applicant was the driver. In fact, Constable Turpin's evidence-in-chief went no further than to say that, prior to requesting the applicant to provide a sample for a preliminary test, he told the applicant that he "reasonably believed him to be the driver of the vehicle". This is not direct evidence that Constable Turpin truly held that belief. In cross-examination, his evidence was somewhat different. He said in answer to a question about his belief (at AB 38) "we reasonably believed
(Page 8)
- that they [my emphasis] were the drivers of the vehicle at the time". The evidence as a whole strongly suggests that the police officers did not have any belief as to which of the two had been driving. Constable Turpin questioned them both as to whether they were the driver and both were requested to provide a preliminary breath test and, when they refused, both were requested to provide a breath test for analysis. This is explicable only on the basis that the police officers did not know (had no belief) as to which of them was the driver. If it was Constable Turpin's belief that the applicant was the driver, he had no right to, and would not have sought to, breath test Ms Jeavons. (I observed in passing that Ms Jeavons did submit to a breath test at the mobile testing unit and passed it.)
11 Even if it is possible to find satisfactory evidence that one or other of these two police officers subjectively believed that the applicant was the driver, there is insufficient evidence that either officer had reasonable grounds for that belief. There is no evidence that either of them saw which of the applicant or Ms Jeavons alighted from the driver's side of the vehicle. With one qualification, no admissions were made by either of them and no other relevant fact came to light until after the applicant had refused the second breath test. The vehicle was later found to be registered in the name of a company the address of which was his address and later still he was found to be in possession of the keys. Those facts, if known by Constable Turpin at the time when he required the applicant to take the preliminary test, may have provided him with reasonable grounds to believe that it was the applicant rather than Ms Jeavons who was the driver, but they were not known by Constable Turpin or by Senior Constable Mason at the critical time.
12 The qualification to the proposition that there was nothing to ground a reasonable belief against the applicant is that Constable Turpin gave evidence that, when first questioned, the applicant "denied any knowledge of the vehicle" (see above). It would have been apparent to Constable Turpin, if he had thought about it, that because the applicant had just got out of one side or other of the vehicle, this denial was a false denial, capable of being construed as an admission. However, it is not apparent from Constable Turpin's evidence that this is how the applicant's false denial affected his mind and it was not the prosecution case that the false denial was a relevant fact grounding Constable Turpin's belief.
13 I think the appeal must be disposed of on this basis: (a) the Magistrate erred in the test which he applied in determining whether the requirements of s 66(1) had been met so as to furnish Constable Turpin
(Page 9)
- with the authority to require the applicant to submit to a preliminary breath test; (b) the applicant's conviction on both charges must be set aside unless the proviso in s 199(1)(b) of the Justices Act can be applied, that is, unless this Court can conclude that no substantial miscarriage of justice has occurred; (c) that will only be so if the evidence was such that, had he applied the correct test, the Magistrate must have concluded that Constable Turpin both believed and had reasonable grounds for believing that the applicant was the driver at the time he required the applicant to submit to a preliminary breath test; (d) the evidence was not of that standard.
14 This appeal must be allowed and the convictions quashed.
15 STEYTLER J: I have had the opportunity of reading the reasons for decision of Anderson J. I am in agreement with those reasons and have nothing further to add.
McKECHNIE J:
Introduction
16 This is an appeal from a decision of Scott J dismissing an appeal against convictions for failing to provide a sample of breath for a preliminary test and, subsequently, failing to supply a sample of breath for analysis.
The events leading to the charges
17 On 28 February 1999 police officers were operating a mobile breath testing station on Hepburn Avenue, Duncraig. At around about 12.30 am, Sergeant Lee noticed a vehicle pull to the left of the roadway, stop and turn off its lights. As a result, he directed Constables Mason and Turpin to go to the vehicle.
18 Constable Turpin walked approximately 200 metres to the vehicle which was a white Mazda, registration number 1AFK228. The vehicle was locked and no-one was in it. Senior Constable Mason drove a patrol vehicle to the Mazda. About 50 metres to the east of the Mazda, Constable Turpin saw two people walking east. He and Constable Mason went to them. They were the appellant and Ms Jeavons. Constable Turpin spoke to the appellant:
(Page 10)
- "I asked him if he had been the driver of the vehicle and he denied any knowledge of the vehicle. I asked him - - and denied driving the vehicle. There was a female with him at the time who I spoke to, who I now know as Ms Jeavons, and I asked her if she was the driver of the vehicle and she also denied being the driver of the vehicle and refused to answer any questions."
19 It had taken Constable Turpin more than 30 or 40 seconds to get to the car and he saw no other people in the vicinity and no houses. Constable Turpin then said:
"I then told the defendant that I reasonably believed him to be the driver of the vehicle and I required him to undergo a preliminary breath test at that location. He refused to comply with that direction. I offered the preliminary breath test machine to him and he refused to comply with that direction …"
20 It was common ground that the appellant refused to comply with the request for a preliminary test. Constable Turpin then advised the appellant that he was required to undergo a breath test at the mobile breath testing station. The four persons went back to the breath testing station. Constable Turpin ascertained that the Mazda, registration number 1AFK228, was registered to the appellant. It appears that the vehicle was in fact registered in the name of a company, Evette Pty Ltd. The appellant was required to submit a sample of his breath for analysis. Upon his refusal to do so, he was arrested. While being processed, the appellant was searched and located on his person were a set of car keys. Constable Turpin asked whether the car keys would fit the white Mazda and the appellant agreed that they would.
21 At the time the appellant was asked to undergo a preliminary breath test, Ms Jeavons was also asked to undergo a preliminary breath test and she refused to comply. When required to undergo a breath test later, she complied.
22 In cross-examination Constable Turpin was asked:
"Right. So, your assumption when you saw these people was they were the drivers of the vehicle?---We reasonably believed that they were the drivers of the vehicle at the time."
(Page 11)
23 Constable Mason gave evidence similar to that of Constable Turpin. He said that Constable Turpin said to the appellant:
"I have a reasonable belief that you may have been the driver of that vehicle. I require you to submit to me a sample of your breath for a preliminary test."
The trial in the Court of Petty Sessions
24 Constables Mason and Turpin gave evidence at trial as already summarised. Other police officers also gave evidence. The appellant gave evidence that the car was driven by Mr Channassian. At Hepburn Avenue the car stopped at the lights as it was stuttering. Mr Channassian said that there was something wrong with the car, so he just pulled over. Mr Channassian said he was going to get some help and walked away towards the Mitchell Freeway. When the police officers arrived the appellant told them this but was disbelieved.
25 Ms Jeavons and Mr Channassian gave similar evidence to that of the appellant supporting his version of events.
26 The prosecution summarised its case before the Magistrate in part:
"… the logistical (sic) basis of this charge is that the constable laying the complaint had a reasonable belief that either one or the other was driving the vehicle, and they - - obviously, they don't know whether it was Mr Matich driving or Ms Jeavons, and that's why the law is set up as it is."
27 At trial the Magistrate was satisfied beyond reasonable doubt as to the police account of the material events. He rejected the evidence of the witnesses for the defence. As to the test, the Magistrate said (AB 129):
"In relation to the preliminary test evidence, it seems to me not unreasonable for the police to require the defendant and Ms Jeavons to provide a sample of their breath for analysis - - for a preliminary test. It's the normal thing that's done. They've identified two people that were near the vehicle that they suspect one or the other must have been driving. Both denied being - - driving, and I would have thought, it's not consistent with normal practice to put them through a preliminary test without - - they line them up at the booze bus without determining whether or not there's a likelihood of one or the either (sic) is going to be over the limit."
(Page 12)
The appeal to a single Judge
28 On appeal, the Judge held that this passage of the reasons disclosed error because the police officers were required to have a reasonable belief, not suspicion, that the appellant was the driver of the vehicle. However, because there was clear evidence that the police officers had a belief, not suspicion, and that their evidence was accepted, Scott J dismissed the appeal on the basis that no substantial miscarriage of justice had occurred.
The appeal to this Court
29 The appellant appeals to the Full Court pursuant to leave granted by Justice Scott on 19 February 2001 on the following grounds:
"The learned Judge erred in;
1. Holding and finding that the reasonableness of the belief mandated by section 66(1) of the Road Traffic Act 1974 could be established as a matter of subjective belief
2. Holding and finding that the requirements of section 66(1) of the Road Traffic Act 1974 were satisfied by the evidence of Police Officer Turpin that he reasonably believed the applicant to be the driver of the vehicle
3. Failing to hold and find that the reasonableness of the belief mandated by section 66(1) of the Road Traffic Act 1974 was required to be established on objective grounds
4. Failing to hold and find that the belief of Police Officer Turpin that the Applicant was the driver of the vehicle was not reasonably held
5. Failing to find that there was no evidence which could permit a reasonable belief that the applicant was the driver of the vehicle for the purpose of section 66(1) of the Road Traffic Act 1974."
- The issue articulated in the grounds of appeal was not raised before the Magistrate at trial. It was a ground of appeal before the single Judge.
The relevant provision of the Road Traffic Act 1974
30 The Road Traffic Act 1974, s 66(1) states:
(Page 13)
- "(1) A member of the Police Force may require the driver or person in charge of a motor vehicle, or any person he has reasonable grounds to believe was the driver or person in charge of a motor vehicle, to provide a sample of his breath for a preliminary test in accordance with the directions of the member of the Police Force, and for the purpose of this subsection may require that person to wait at the place at which the first-mentioned requirement was made."
31 In George v Rockett (1990) 170 CLR 104, the High Court said at 115:
"Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942, at p 948, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove."' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown ...
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture."
32 In the present case Scott J noted there was clear evidence that the police officers had a belief that the appellant was the driver of the vehicle.
33 Scott J did not expressly consider whether such a belief was a reasonable belief. It is necessary to examine the reasonableness of the belief held by the police officers that the appellant was the driver in the circumstances of the case.
34 The provisions of s 66(1) may be contrasted with the provisions of s 66(1a) although this latter section has no application in this case. That section provides:
"(1a) Where a member of the Police Force –
(Page 14)
- (a) has reasonable grounds to believe that the presence of a motor vehicle has occasioned, or its use has been an immediate or proximate cause of, personal injury or damage to property; and
(b) does not know, or has doubt as to, who was the driver or person in charge of the motor vehicle at the time of that presence or use …"
35 The point of distinction is a belief under s 66(1) is a belief that the person was the driver or person in charge of a motor vehicle, where under s 66(1a) the belief is that the person may have been the driver or person in charge of the motor vehicle at the time.
36 In the present case, Constable Turpin, who was on duty at a mobile breath testing station, was directed to a car a little distance away. He went straight to the vehicle and found two persons nearby. It was late at night and dark. Both of the persons nearby, the appellant and Ms Jeavons, denied being the driver. At that point Constable Turpin would have had reasonable grounds to believe that one or other of them may have been the driver. However, there was nothing to distinguish between the appellant or Ms Jeavons as to the driving of the vehicle. Either of them might have been driving the vehicle. If the test was whether the appellant may have been the driver, there were reasonable grounds for that belief, even though Ms Jeavons may also have been the driver.
37 However, on the objective facts there is no basis to support the view that there were reasonable grounds to believe that the appellant was the driver. It was equally open to conclude that Ms Jeavons was the driver.
38 It is clear from evidence of both Constables Turpin and Mason, and the way in which the prosecution was presented, that the case was at all times predicated on the belief that one or other of the two persons may have been the driver but which was unknown. The basis of the Magistrate's decision was that Constable Turpin suspected that one or other must have been driving.
39 Counsel for the respondent conceded it was necessary for the prosecution to establish that Constable Turpin held a belief, based on reasonable grounds, that the appellant was the driver. A belief that the appellant may have been the driver was insufficient. This concession, though contrary to the prosecution case at trial, is correct and appropriate.
(Page 15)
40 Counsel then argued that the evidence did in fact support the existence of that belief because the appellant had initially told a lie, namely he denied all knowledge of the vehicle.
41 While this is an intriguing submission it must be rejected. Constable Turpin never advanced this explanation as to the basis of his belief. His evidence in cross-examination as previously set out is a belief that either the appellant or Ms Jeavons was the driver but he knew not which. This is confirmed by his actions in requiring each to undergo a breath test. It is also confirmed by Constable Mason. Furthermore, the evidence of the denial of knowledge is weak. Constable Turpin had no notes and was relying on his recollection. Constable Mason did not give evidence of it.
42 A common element of each charge against the appellant is a failure to comply with the requirements of a member of the police force made pursuant to the Road Traffic Act 1974.
43 Because the prosecution could not establish that Constable Turpin had reasonable grounds to believe that the appellant was the driver or person in charge of the motor vehicle there can be no failure by the appellant to comply with the requirements of a police officer made pursuant to the Road Traffic Act 1974.
44 The appeal must be allowed and each conviction quashed.
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