Matich v Egan

[2000] WASCA 368

MATICH -v- EGAN [2000] WASCA 368

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 368
Case No:	SJA:1103/2000	Heard:	24 OCTOBER 2000
Coram:	SCOTT J	Delivered:	28/11/00
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	BRETT ROBERT MATICH DAVID BENEDICT AIDEN EGAN
Catchwords:	Criminal law and procedure Driving offences Refusing a preliminary test A breath analysis test Road Traffic Act Issue as to identity of driver Grounds of appeal established No miscarriage of justice
Legislation:	Road Traffic Act, s 66, s 67(2) and s 67A(1)
Case References:	Ellis v Warren (1983) 1 MVR 177 Hurst v Ninyett (1992) 16 MVR 397 Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 House v R (1936) 55 CLR 499 R v Tait (1979) 46 FLR 386 Rolfe v Bennett (1988) 6 MVR 481

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MATICH -v- EGAN [2000] WASCA 368 CORAM : SCOTT J HEARD : 24 OCTOBER 2000 DELIVERED : 28 NOVEMBER 2000 FILE NO/S : SJA 1103 of 2000 BETWEEN : BRETT ROBERT MATICH

Appellant

AND

DAVID BENEDICT AIDEN EGAN
Respondent

Catchwords:

Criminal law and procedure - Driving offences - Refusing a preliminary test - A breath analysis test - Road Traffic Act - Issue as to identity of driver - Grounds of appeal established - No miscarriage of justice

Legislation:

Road Traffic Act, s 66, s 67(2) and s 67A(1)

Result:

Appeal dismissed

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Representation:

Counsel:

Appellant : Mr B S Hanbury
Respondent : Mr M A G Jenkin

Solicitors:

Appellant : Beau Hanbury
Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Ellis v Warren (1983) 1 MVR 177
Hurst v Ninyett (1992) 16 MVR 397

Case(s) also cited:

Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
House v R (1936) 55 CLR 499
R v Tait (1979) 46 FLR 386
Rolfe v Bennett (1988) 6 MVR 481

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1 SCOTT J: The appellant was charged on complaint with two offences, namely:

1 That on 28 February 1999 at Duncraig, he failed to comply with the requirements of a member of the Police Force, made pursuant to s 66 of the Road Traffic Act 1974, ("the Road Traffic Act") namely, to provide a sample of his breath for a preliminary test contrary to s 67A(1) of the Road Traffic Act.

2 That on the same day and at the same place, the appellant failed to comply with the requirements of a member of the Western Australian Police Force made pursuant to the provisions of s 66 of the Road Traffic Act to provide a sample of his breath for analysis contrary to s 67(2) of the Road Traffic Act.

2 The facts of the matter were that on the date in question police were operating random breath testing facilities from what is commonly called a "Booze Bus" in Duncraig. A police officer, Sergeant Lee, noticed a vehicle pull to the left of the roadway, stop and turn off its lights. The vehicle, a white Mazda, stopped about 200 metres from him. As a result he sent two other constables to the vehicle. The two officers who went to the vehicle (Wayne Frank Turpin ("Turpin") and Peter James Mason ("Mason")) testified that it took them about 30 to 40 seconds to arrive at the vehicle and when they did so, they located two people about 50 metres to the east of the vehicle walking away from it. One of those two people was the present appellant and the other, Simone Rachelle Jeavons ("Jeavons").

3 Turpin went up to the appellant and Jeavons, spoke with the appellant and asked him if he had been the driver of the vehicle. Turpin's evidence was that the appellant denied any knowledge of the vehicle. Turpin said that the appellant denied driving the vehicle and that Jeavons also denied being the driver. Both the appellant and Jeavons refused to answer any further questions.

4 Turpin's evidence was that he then said to the appellant that he reasonably believed him to be the driver of the vehicle and he required him to undergo a preliminary breath test. His evidence was that the appellant refused to comply with that requirement. Turpin said that he offered a preliminary breath test machine to the appellant, who refused to comply with his direction. He said that he offered the appellant the machine on several more occasions, and asked him to blow into the machine. The appellant simply refused.

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5 Following that refusal, Turpin told the appellant that he required him to undergo a breath test at the mobile breath testing station and the appellant was conveyed to the "Booze Bus" for that purpose. On arrival Turpin made some inquiries concerning the vehicle and in his evidence-in-chief said that the vehicle was registered to the appellant. He said that the appellant still denied any knowledge of the vehicle.

6 Turpin then required the appellant to submit a sample of his breath for analysis but the appellant refused to comply.

7 Following that refusal, the appellant was processed and searched and in the course of the search a set of car keys was located. Turpin's evidence was that he asked the appellant whether those keys would fit the white Mazda which was stopped and locked down the road near where the appellant was first located. That the appellant said that the keys would fit that vehicle.

8 Turpin's evidence was supported by Mason, who went with Turpin to the vehicle concerned and who confirmed Mason's evidence about what happened at the vehicle.

9 In cross-examination, Mason confirmed that neither the appellant nor Jeavons offered any explanation as to who was the driver of the vehicle, apart from the denial that they had driven it.

10 To complete the narrative, the evidence indicates that whilst the appellant refused to take the breathalyser test at the Booze Bus, Jeavons agreed to do so and it is conceded that the test conducted upon her proved negative.

11 The appellant gave evidence at trial and testified that he was not the driver of the vehicle on the night in question. He said that the vehicle was being driven by a Michael Channassian ("Channassian"). He said that the vehicle had stopped because the car was stuttering and that it stopped in a position where the Booze Bus was not in sight. He said that Channassian had indicated that the vehicle was out of fuel and had walked off towards the Mitchell Freeway to get help. He said that he and Jeavons were going to get a taxi home and they walked towards the Freeway for that purpose when the police came up and accused him of being the driver of the white Mazda. The appellant testified that Jeavons indicated to police that the driver was "up the road" but said that the police did not appear to be interested. The appellant also testified that he told the officers that the vehicle was a company car.

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12 The appellant testified that he was not asked to take a preliminary test at the side of the road and when asked to take a breathalyser test at the Booze Bus he said that he replied that he wanted to take a blood test and that he wanted a lawyer.

13 The appellant also testified that he had some keys on him but they were not the keys to the Mazda. The Mazda keys, he said, had been taken by Channassian.

14 Both Jeavons and Channassian gave evidence which supported the appellant's evidence.

15 In his reasons his Worship said of the police evidence:

"… it's their evidence that they had a suspicion that one or other of the occupants of the vehicle, or who they assumed to be occupants of the vehicle and who, as the evidence unfolded, had proved to be occupants of the vehicle - - it was their suspicion that one or other was the driver of the vehicle".

16 His Worship also said:

"The police officers, on their evidence were not persuaded that one or other weren't (sic) the driver and pursued the matter as I suppose they were expected to do."

17 His Worship indicated that on questions of credibility he rejected the appellant's evidence and that of the witnesses who were called on behalf of the appellant, and preferred the evidence of the police officers. His Worship went on to say of the police evidence:

"They've identified two people that were near the vehicle that they suspected 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 other ) is going to be over the limit."

18 His Worship commented on the fact that the appellant and Jeavons had not mentioned on the night that someone else had been driving the vehicle or his identity, nor did either of them mention that they had run out of fuel. In addition, his Worship referred to the fact that keys were

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found upon the appellant and that the appellant admitted to the police that the keys belonged to the Mazda.

19 In his conclusions, his Worship said that there was credible evidence that the officers asked the appellant to undertake the preliminary test and that he refused and it is clearly implicit in his Worship's reasons that the police had a proper reason for doing so. His Worship said that the appellant was "suspected of being the driver of the motor vehicle and there was an obligation under the Road Traffic Act for him to provide that sample of his breath for a preliminary test".

20 His Worship also concluded that the appellant refused to provide a sample of his breath for a breath analysis test and he rejected the appellant's evidence that the appellant asked for a blood test. The appellant was convicted of both charges.

21 The grounds of appeal are:

"(1) The learned Stipendiary Magistrate erred in law in convicting the applicant of the charges having regard to the following:

(i) In his determination that it was enough that the Police 'suspected' the Applicant, having regard to the fact that the Act states that there must be reasonable grounds to believe,

(ii) In his determination that it was enough that the Police suspected the Applicant 'may have been' the driver having regard to the fact that the Act states that the belief is that the person was inter alia the driver,

(iii) In his determination that, 'If the police aren't sure who was the driver, they can require anyone who is suspected of being the driver or was around at the time and could have been the driver, to provide a sample of their breath …' having regard to the terms of the Act, and

(iv) In failing to find that the officer who requested the breath sample had no reasonable grounds to believe that the applicant was the driver or person in control of the vehicle at the relevant time and it

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is his belief that is the relevant belief and not some other persons."

22 The relevant provisions of the Road Traffic Act are contained in s 66, s 67(2) and s 67A(1) :

"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 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.

67(2) A person who fails to comply with a requirement -


(a) to provide a sample of his breath for analysis;

(b) to allow a medical practitioner to take a sample of his blood for analysis; or

(c) to provide a medical practitioner with a sample of his urine for analysis.

commits an offence


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, other than a requirement mentioned in section 66(1aa) or 67(2), commits an offence."

23 The appellant's complaint in relation to the learned Magistrate's findings concerning this charge are that he made no finding of fact that the police officers involved in the inquiry had, in terms of the section "reasonable grounds to believe [that he] was the driver or person in charge of a motor vehicle". I have already referred to the evidence of police who

(Page 8)

testified that they did form a reasonable belief that the appellant was the driver and in particular the evidence of Turpin, who expressly 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."

24 His Worship's finding of fact was that Turpin and Mason "had a suspicion that one or other of the occupants of the vehicle or who they assumed to be occupants of the vehicle, and, who as the evidence unfolded, had proved to be occupants of the vehicle - - it was their suspicion that one or other was the driver of the vehicle".

25 It is common ground that there was no express finding that the police officers concerned had "reasonable grounds to believe" that the appellant was the driver.

26 In Hurst v Ninyett (1992) 16 MVR 397, Wallwork J said at 400:

"In this case the appellant says that there is a distinction between suspicion and belief and the facts which confound the former may be insufficient to ground the latter. The authority for that proposition is George v Rockett (1971) 70 CLR 104 at 115.

In that decision, in a joint judgment of the seven Judges of the High Court it is said at CLR 115 that:


'In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s 679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind … and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other. The justices must be satisfied that there are reasonable grounds for suspecting that "there is in any house, vessel, vehicle, aircraft, or place - anything" and that there are reasonable grounds for believing that the thing "will … afford evidence as to the commission of any offence".'"

27 Wallwork J clearly accepted that "reasonable grounds for suspicion" was something less than, and different from, "reasonable grounds for belief". In respect of the latter term, Wallwork J said at 401:

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"It was said by the appellant that the police officer who 'has reasonable grounds to believe' must have a subjective personal belief. The authority for that proposition is Woolworths Ltd v Luff(1988) 88 MLR 224 at 229-231".

28 In my view his Worship was in error in referring to the police officers having a reasonable suspicion that the appellant was the driver and using that finding of fact as sufficient to base a conviction under s 66(1). It was not sufficient for the officer concerned to have a suspicion. The section required the officer to have "reasonable grounds to believe" that the appellant was the driver before he could require the appellant to provide a sample of his breath for preliminary test.

29 It is however, to be noted, that there was clear evidence to which I have referred that the police officers in this case had such a belief. Turpin expressly said so. His Worship's findings of fact indicate that he accepted the evidence of the police witnesses and as a consequence he accepted evidence that they had such a belief. The error, if there be one, appears to have arisen from the fact that in applying the test, his Worship has applied the wrong test and referred to "suspicion" rather than "belief".

30 In Ellis v Warren (1983) 1 MVR 177, Kennedy J said at 181 in relation to s 66(1) of the Road Traffic Act:

"Unlike the Tasmanian legislation considered in McQuilkin v Barnard [1979] Tas R 63, which makes it a prerequisite that the person should, in fact, be driving a motor vehicle, under s 66(1) it is sufficient if the officer has a reasonable belief that the person concerned was driving a vehicle. That being so, on the face of it, it might well not be thought ever to be a substantial reason for failing to comply with the requirement if, although the police officer was reasonably of the belief that the person was driving the car, he was not in reality doing so; but, in any event, that, as I have already indicated, is not the present case."

31 In this case, significantly also, it is to be noted that compliance with the preliminary test carries with it no consequences, apart from the fact that if the test proves positive, the police officer may require the person to provide a sample of his breath for analysis under the provisions of s 66(2) of the Road Traffic Act. In that sense the test is exculpatory. It is, of course, also an offence to refuse to provide a sample of breath for analysis and the appellant was convicted of that offence in this case. The

(Page 10)

requirement in that respect is contained in s 66(2)(b) of the Road Traffic Act which provides:

"[Where] a person having been so required, refuses or fails to provide, or appears to a member of the Police Force to be incapable of providing a sample of his breath for a preliminary test or refuses or fails to provide, or appears to a member of the Police Force to be incapable of providing, a sample of his breath in sufficient quantity to enable a preliminary test to be carried out; …

a member of the Police Force may require that person to provide a sample of his breath for analysis …".

32 It is common ground that the appellant refused to provide a sample of his breath for analysis in this case.

33 Section 199(1)(b) of the Justices Act 1902 provides:

"99 Powers of the Court

(1) 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, if it considers that no substantial miscarriage of justice has occurred."

34 In this case, in my view, although the appellant has established ground 1(i) and 1(ii) of the grounds of appeal no substantial miscarriage of justice has occurred because the Magistrate, having accepted the evidence of the prosecution witnesses would have come to the same conclusion had the correct test been applied. I have reached that conclusion, because in this case there is clear evidence from Turpin, to which I have already referred and which was accepted by the Magistrate, that Turpin had formed the necessary belief under s 66(1) of the Road Traffic Act so as to justify the requirement for the taking of the preliminary test. Once the preliminary test was refused, the requirement to undertake the breathalyser test followed.

35 In my opinion, therefore, the appeals against these convictions must be dismissed.