McDonald v Carew
[1999] TASSC 144
•20 December 1999
[1999] TASSC 144
CITATION: McDonald v Carew [1999] TASSC 144
PARTIES: McDONALD, Scott Raymond
v
CAREW, Paul Connell John
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 27/1999
DELIVERED ON: 20 December 1999
DELIVERED AT: Hobart
HEARING DATES: 25 November 1999
JUDGMENT OF: Underwood J
CATCHWORDS:
Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Evidence and course of trial - Voir dire examination - When necessary to hold voir dire.
Smithers v Andrews, ex parte Andrews [1978] Qd R 64; Egan v Bott [1985] VR 787; Grbic v Pitkethly (1992) 65 A Crim R 12, followed.
Bunning v Cross (1978) 141 CLR 54, referred to.
Aust Dig Magistrates [96]
REPRESENTATION:
Counsel:
Applicant: K Brown
Respondent: C J Gunson
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Abetz Curtis & Worlsey
Judgment Number: [1999] TASSC 144
Number of Paragraphs: 30
Serial No 144/1999
File No LCA 27/1999
SCOTT RAYMOND McDONALD v PAUL CONNELL JOHN CAREW
REASONS FOR JUDGMENT UNDERWOOD J
20 December 1999
This notice of motion seeks a review of orders of dismissal of complaints that the respondent refused to submit to breath analysis and hindered his conveyance contrary to the provisions of the Road Safety (Alcohol & Drugs) Act 1970 ("the Act"), ss14(2) and 14(1C) respectively.
The facts
At about 8pm on 3 May 1998, a Mr Calvert-Smith was driving along the Tasman Highway towards Hobart. Just outside Sorell, he came up behind a Toyota Hilux utility which was travelling in the same direction. There was only the driver in the utility. It was being driven very erratically, swerving all over the road. On at least two occasions, the utility forced oncoming vehicles to pull off the bitumen. Mr Calvert-Smith's passenger wrote down the registration number of the utility.
In Sorell, the utility pulled over and Mr Calvert-Smith passed it. Mr Calvert-Smith stopped at the Sorell Police Station in order to report the driving to a police officer. No one was at the police station. Mr Calvert-Smith drove on. It appears that while he was at the police station, the Toyota utility went past Mr Calvert-Smith's parked vehicle. Near the Tasmania Golf Club and just before the airport, Mr Calvert-Smith caught up with the utility. He slowed and approached it with care. As he did so, the utility's reversing lights came on. It reversed towards Mr Calvert-Smith's approaching vehicle, turned left and went over an embankment. It hit a post or pole. Mr Calvert-Smith drove on and into the airport. There, he telephoned the police.
At about 8.27pm, the police radio room requested Constables Bell and Young to attend a single vehicle accident on the Tasman Highway near the Tasmania Golf Club. They arrived at about 8.45pm and found the utility over the embankment. The driver was nowhere to be seen. The interior of the utility smelled strongly of intoxicating liquor and one of the seat covers was wet. The police found a recent electricity account in the utility with the respondent's name and address on it. The police immediately went to the respondent's address at Lewisham. They arrived shortly after 9pm. The respondent came out to greet the police officers. He appeared to be very drunk. The respondent admitted to the police that he was the driver of the utility when it accidentally went over an embankment. He said that he was turning around to go back and get a telephone number that he had forgotten to bring with him. The police officers required the respondent to go with them for the purpose of submitting to breath analysis. The respondent refused and became very abusive. He told the police that the accident happened at 4pm that day and that he had only been drinking at home after the accident. The respondent was forcibly taken into custody. He resisted the officers by struggling against them and by being abusive. He was driven to the Bellerive Police Station and introduced to a breath analysis officer. There he was directed to submit a sample of his breath for analysis, but refused to do so.
The statute
The offence of refusing to submit to breath analysis is created by the Act, s14(2) which provides:
"(2) Any person who, having been directed under section 10(4) to submit to a breath analysis, fails or refuses, without reasonable excuse, to submit to a breath analysis in accordance with the directions of an approved operator is guilty of an offence."
In order to find the respondent guilty, it was necessary to establish beyond reasonable doubt that he:
(1)had been directed pursuant to s10(4) to submit to breath analysis; and
(2)had failed or refused to do so without reasonable excuse.
Section 10(4) provides:
"(4) Where a person who is liable to submit to a breath analysis or a medical examination is at a place where, or in a vehicle in which, that analysis or medical examination can forthwith be carried out a police officer may direct him there to submit to the analysis or examination."
In order to bring the respondent within the provisions of s10(4), it was necessary to establish beyond reasonable doubt that he:
(1)was liable to submit to breath analysis; and
(2)was at a place where that analysis could forthwith be carried out.
Section 10(7) governs the operation of s10(4) by providing that no direction shall be given (inter alia) under s10(4) to submit to breath analysis "after the expiration of three hours after the relevant time".
For the purposes of these proceedings, the relevant time, defined by the Act, s2(3A), was the time of the accident. Having regard to the evidence of Mr Calvert-Smith, which the learned magistrate accepted in its entirety, the direction was given before the expiration of three hours after the relevant time. Clearly, the respondent was at a place where the analysis could forthwith be carried out and, accordingly, there remained only the question of whether or not the respondent was a person who was liable to submit to breath analysis.
In this respect, the prosecution relied upon the provisions of the Act, s8(3) which provides:
"(3) Where a police officer reasonably believes that, while a motor vehicle was in motion, the vehicle became involved in an accident, the person (if any) who was driving the vehicle at the time of the accident becomes liable to submit to a breath analysis."
It will be noted that there is no temporal limit on the provisions of s8(3) and, accordingly, the respondent was a person liable to submit to breath analysis if it was established beyond reasonable doubt that:
(1)one or both of the police officers reasonably believed that while the respondent's motor vehicle was in motion, it became involved in an accident; and
(2)the respondent was driving it at that time.
The evidence clearly established that both officers believed, in part from what they had observed at the scene of the accident and, in part from what the respondent told them, that his vehicle had been involved in an accident whilst it was in motion and that he was driving it at the time of the accident.
Thus, there was ample evidence of the respondent's breach of the Act, s14(2). However, a complication arose.
Proceedings in the court below
The hearing commenced on 10 February 1999 in the Court of Petty Sessions, Hobart. Evidence for the prosecution was given by the two patrolling police officers, Mr Calvert-Smith and the breath analysis operator. The respondent gave evidence for the defence. In substance, the respondent maintained the account that he gave to the police officers when they went to his house on the night of the accident. The learned magistrate did not accept the account given by the respondent. At the conclusion of all of the evidence, the learned magistrate heard submissions from the prosecutor and counsel for the respondent. It is apparent from the transcript that it was close to 6pm by the time the proceedings concluded. The learned magistrate reserved her decision until the following Friday week, 19 February. During the hearing no relevant objection was taken to the admission of relevant material into evidence.
Instead of giving her decision upon the resumption of the proceedings, the learned magistrate raised with counsel for the respondent and the prosecutor, a question which she had been considering during the adjournment. In order to understand this question, it is necessary to set out another provision of the Act, namely, s10(2):
"(2) If a person fails or refuses to comply with a requirement made under subsection (1), or is in such a condition or behaves in such a manner as to give reasonable grounds for believing that he will not comply with the requirement, a police officer may take him into custody and convey him or cause him to be conveyed to some appropriate place, and there detain him or cause him to be detained, for so long as is necessary to enable a direction to be given to him under subsection (4)."
The prosecution relied upon the provisions of this subsection to justify the police officers forcibly taking the respondent into custody at his home at Lewisham and conveying him to the Bellerive Police Station, in order to submit to breath analysis. However, s10(2) is qualified by the provisions of s10(3) which provide:
"(3) A police officer shall not exercise his powers under subsection (2) in respect of any person unless that officer has reasonable cause to believe that the breath analysis or medical examination can be carried out, within 3 hours after the relevant time, at or near the place to which that person is to be, is being, or has been conveyed in the exercise of those powers."
The factual matter that was exercising the learned magistrate's mind was whether the police officers who took the respondent into custody, purportedly pursuant to s10(2), had reasonable cause to believe that the breath analysis could be carried out within three hours of the accident. The problem was that they were not privy to any of the knowledge that Mr Calvert-Smith gave to the police when he telephoned from the airport. The only information the arresting officers had was that there had been a single vehicle accident. As they admitted in cross-examination, they had no direct or indirect knowledge of when the accident occurred, other than, of course, the account given by the respondent that it occurred at 4pm.
The question that the learned magistrate raised with the prosecutor and counsel on 19 February 1999 was whether or not she should exclude the evidence of what occurred at the Bellerive Police Station as it was tainted with illegality. She said:
"Now, an argument may arise as to the exercise of my discretion to exclude evidence obtained by illegal means ¾ the Bunning v Cross discretion, and it would be useful to hear submission about the exercise of that discretion in the context of this Act and the scheme of the Act and the provisions in question. Now, it might well be argued that the conveyance is critical in this case because it puts the defendant at a place which enables the direction to be made under s10(4)."
It was agreed that the prosecutor and counsel for the respondent would make written submissions with respect to this matter. Such written submissions were duly made. On behalf of the respondent, they included (inter alia) a submission that "all evidence obtained after such conveyance would be illegally obtained evidence and may be the Court ought exercise its discretion to exclude such evidence" [emphasis added]. In his written submission, the prosecutor submitted that the custody was lawful, but added the rider that should the court be of the view that the charges should be dismissed, application was made to re-open the prosecution case to enable the arresting officers to give evidence as to their belief concerning the accident.
The learned magistrate dismissed the two matters of complaint on 5 March 1999. She did so with reasons that were carefully constructed and obviously, carefully considered. She dealt with a number of matters which are not in issue on the motion to review, eg, whether simply reversing over an embankment, an accident within the meaning of the Act, s8(3), and made appropriate findings of fact. The learned magistrate found, in effect, that the respondent was a person liable to submit to breath analysis and, as I have said, there was no dispute that he was directed to submit to breath analysis at a place where such analysis could be carried out forthwith. Her Worship also found that the analysis could have been undertaken within three hours of the accident. She found as a fact that the police officers did not have reasonable cause to believe that the breath analysis could be carried out within three hours after they took the respondent into custody and held, therefore, that the custody was unlawful. With respect to the evidence of the applicant's conduct after he was taken into custody, including the direction to submit to breath analysis and the respondent's refusal, the learned magistrate exercised her discretion in accordance with the principles expressed in Bunning v Cross (1978) 141 CLR 54 at 72 and excluded that evidence. After excluding the evidence of the respondent's conduct, the direction and refusal, the learned magistrate heard submissions with respect to the prosecution's application to re-open the case, and refused it. Consequently the two matters of complaint were dismissed.
Grounds 2 and 4 of the motion to review
Grounds 2 and 4 of the motion to review provide:
"2 The learned magistrate erred in fact and/or in law in exercising her discretion to exclude the evidence of a breath analysis carried out with respect to the respondent, on the basis that he had been unlawfully taken into custody by the said police officer(s).
4 The learned magistrate erred in fact and/or in law in purporting to exercise a discretion to exclude the evidence of a refusal by the respondent to submit to a breath analyses [sic] at a time when such evidence had already been admitted without objection by the defendant."
In Bunning v Cross (supra) at 78 - 80, Stephen and Aiken JJ listed some of the matters that are relevant to the issue of whether the discretion should be exercised to exclude evidence tainted with illegality. Those matters include:
· did those who acted in breach of the law do so under a mistaken belief?
· was the unlawful act a deliberate flouting of the law?
· did the illegality affect the cogency of the evidence?
· could compliance with the law have been achieved easily?
· what is the nature of the offence?
· is there an intention upon the part of the legislature to restrict the power of the police?
To the above list, could be added:
· the availability of other evidence of guilt, see R v Edelsten (1990) 21 NSWLR 542.
The learned magistrate concluded that in all the circumstances she should exclude the evidence of the events after the respondent was taken into custody by the police officers, but did so without holding a voir dire to determine the admissibility of that evidence. This evidence had been admitted at the hearing without objection. There the matter rested until the learned magistrate raised the issue some days later. In the course of giving her reasons for excluding the evidence, the learned magistrate said:
"Further, the conduct reveals a lack of conscientious regard to the statutory grounds for the exercise of police powers, which the legislation intended to be confined within careful limits."
By not conducting a voir dire before determining to reject the evidence, the learned magistrate deprived the prosecution of the opportunity of adducing material relevant to the exercise of the discretion. Ground 5 of the motion to review contends that the finding that there was a lack of conscientious regard to the statutory grounds for the exercise of police powers, was not open on the evidence. There is substance in that contention, but for present purposes, it is sufficient to note that the finding was made without the holding of a voir dire. Had such a hearing been conducted, the issue of whether there had been a lack of such conscientious regard would have been fully explored along with the other matters of fact relevant to the exercise of the discretion to exclude evidence tainted with illegality. This very point was made by the closing written submission lodged on behalf of the prosecutor, viz:
"Finally, I wish to note that should the Court be of the view that upon the present state of the evidence, the charges under the Road Safety (A & D) Act 1970 should be dismissed, the Prosecution would make application to reopen its case to enable Constables Bell and Young to give evidence as to their belief concerning the 'accident'. The Prosecution would submit that the failure of the Defence to raise the issues during the cross examination of the officers should activate a favourable exercise of the Courts discretion."
The application to re-open the case by, in effect, conducting a voir dire as to the admissibility of the evidence of events after the respondent was taken into the custody, was refused. In my view, such refusal and the consequent exclusion of the evidence of events after the respondent was taken into custody without the holding of a voir dire constituted an error of law. In Smithers v Andrews, ex parte Andrews [1978] Qd R 64, the Full Court of the Supreme Court of Queensland held that there was an obligation on a magistrate to conduct a voir dire where it is necessary to do so in order to determine whether evidence should be excluded in the exercise of the discretion. The Court said at 66:
"There is no reason in principle why voir dire proceedings should be restricted to trials before a judge and jury and the considerations to which we have referred make it desirable that where in a trial held before a magistrate it becomes necessary to determine whether an alleged confession should be admitted as evidence on the trial a voir dire should be held and a ruling then given."
That decision was approved by the Supreme Court of Victoria in Egan v Bott [1985] VR 787. The same view was taken by the Full Court of the Federal Court of Australia in Grbic v Pitkethly (1992) 65 A Crim R 12. In South Australia, Wells J held in Furnell v Betts (1979) 20 SASR 300 that in appropriate cases it is necessary for a magistrate to conduct a voir dire hearing to determine the admissibility of evidence. In Tasmania, Neasey J observed in Sage v Lowe [1976] Tas SR 103 at 109 that:
"In modern practice the appellation 'voire dire' seems to be applied to any proceeding whether civil or criminal in which the court needs to take evidence upon any issue which is preliminary to or collateral with resolution of the questions principally in issue between the contending parties."
His Honour went on to hold that:
"… in most cases where a question of admissibility of evidence arises during the prosecution case in a trial before a magistrate sitting alone there is good reason for holding a voire dire and for ruling upon that question before or at the close of the prosecution case."
This approach was endorsed by Cox J (as he then was) in Greaves v Aikman (1994) 4 Tas R 196.
The exercise of the discretion to exclude the evidence of events after the respondent was taken into custody, without conducting a voir dire, constituted an error of law that vitiated the decision.
It is unnecessary to consider the other grounds of the motion as grounds 1 and 5 challenge the making of certain findings of fact, and ground 3 simply asserts, in general terms, that error occurred in failing to find the complaints proved.
The orders of dismissal are quashed and in lieu thereof it is ordered that the matters of complaint be retried by another magistrate in accordance with law.
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