McDonald v Carew - [1999] TASSC 144

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McDonald v Carew

Details

AGLC: McDonald v Carew [1999] TASSC 144
Case: [1999] TASSC 144
Decision Date: 20 December 1999

CaseChat Overview and Summary

In this case, Scott Raymond McDonald, the applicant, seeks a review of the orders of dismissal of complaints against Paul Connell John Carew, the respondent, who refused to submit to breath analysis and hindered his conveyance, contrary to the provisions of the Road Safety (Alcohol & Drugs) Act 1970. The Supreme Court of Tasmania heard this appeal, with Underwood J delivering the judgment.

The legal issues in this case involved the admissibility of evidence obtained after the unlawful detention of the respondent and the appropriate exercise of the discretion to exclude evidence tainted with illegality. The court had to determine whether the learned magistrate erred in exercising her discretion to exclude evidence of a breath analysis and a refusal to submit to a breath analysis without conducting a voir dire.

Underwood J held that the learned magistrate's decision to exclude evidence without conducting a voir dire constituted an error of law. The court referred to several precedents, including Smithers v Andrews, ex parte Andrews [1978] Qd R 64; Egan v Bott [1985] VR 787; and Grbic v Pitkethly (1992) 65 A Crim R 12, which held that there is an obligation on a magistrate to conduct a voir dire where it is necessary to determine whether evidence should be excluded in the exercise of the discretion.

Consequently, the orders of dismissal are quashed, and the matters of complaint are ordered to be retried by another magistrate in accordance with law.

Orders