McLean v Wilkie
[2022] TASSC 13
•24 February 2022
[2022] TASSC 13
COURT: SUPREME COURT OF TASMANIA
CITATION: McLean v Wilkie [2022] TASSC 13
PARTIES: McLEAN, Ryan Robert
v
WILKIE, Scott
FILE NO: LCA 2616/2021
DELIVERED ON: 24 February 2022
DELIVERED AT: Hobart
HEARING DATE: 18 February 2022
JUDGMENT OF: Estcourt J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Procedure and evidence – Where breath analysis evidence was obtained improperly or in contravention of an Australian law – Breath analysis result of .212 – Police officer's conduct was careless and not reckless – Open to the learned magistrate to find that the desirability of admitting the illegally obtained evidence outweighed the undesirability of admitting that evidence – Motion to review refused.
Road Safety (Alcohol & Drugs) Act 1970, s 6(1).
Evidence Act 2001, s 138.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: F Cangelosi
Respondent: V Dawkins
Solicitors:
Applicant: Leonard Fernandez Barristers and Solicitors
Respondent: Director of Public Prosecutions
Judgment Number: [2022] TASSC 13
Number of paragraphs: 26
Serial No 13/2022
File No LCA 2616/2021
RYAN ROBERT McLEAN v SENIOR CONSTABLE SCOTT WILKIE
REASONS FOR JUDGMENT ESTCOURT J
24 February 2022
The applicant, Ryan Robert McLean, was charged on complaint number 10440/19 with exceeding 0.05 grams of alcohol per 210 litres of breath, contrary to the Road Safety (Alcohol & Drugs) Act 1970, s 6(1) (the RSA), and failing to stop at the scene of a crash contrary to the Traffic Act 1925, s 33(2).
The applicant pleaded not guilty to the complaint and was tried before Deputy Chief Magistrate Daly on 31 August 2021. At the trial evidence was to be led that the applicant had a breath concentration of .212 grams of alcohol per 210 litres of breath, a reading that had been obtained following a procedure that commenced with Constable Pretyman bringing the applicant into a breath testing station.
The admissibility of the evidence of breath analysis was challenged under s 138 of the Evidence Act 2001 (the Act), on the basis of illegality or impropriety on the part of Constable Pretyman.
Section 138(1) relevantly provides that evidence that was obtained improperly or in contravention of an Australian law, or in consequence of such an impropriety, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which it was obtained. Section 138(3) sets out eight factors which the court must take into account in evaluating those competing considerations.
The terms of s 138 are:
"138 Discretion to exclude evidence improperly or illegally obtained
(1) Evidence that was obtained –
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law –
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1) , evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning –
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1) , it is to take into account –
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law."
The learned magistrate found that Constable Pretyman was required under the RSA to tell the applicant that he was required to submit to breath analysis and that as she did not do so, she was not exercising, and did not have, powers under the RSA. His Honour held that therefore, whilst the applicant did have a liability to submit to breath analysis, no requirement had been made to enforce his liability. His Honour held that the applicant had discharged the onus on him to engage s 138 of the Act.
No complaint is made as to that determination. The motion to review is based on the assertion that the learned magistrate, having reached that initial correct determination pursuant to s 138(1), then misapplied s 138(3) in finding that the desirability of admitting the impugned evidence outweighed the undesirability of the admitting the evidence. The ground asserts "[t]hat the learned magistrate erred in law in admitting evidence he had determined to be illegally, or improperly obtained, contrary to s 138 of the Evidence Act 2000."
Thus the review in this case involves the question of whether it was open to the learned magistrate, acting reasonably, to reach the view that he did. As Wood J said in Wilkie v Barnaba [2021] TASSC 21 at [37]:
"37 While the section is often described as involving a discretion to exclude evidence, this is not strictly speaking correct. The section involves an evaluative exercise and a determination of whether the desirability outweighs the undesirability: Tasmania v Salter [2007] TASSC 33 at [15]; Sims v Thomas [2007] TASSC 106, 17 Tas R 114. The evidence is to be admitted or excluded by an application of factors that need to be balanced and weighed, calling for judicial judgment."
In Gedeon v The Queen [2013] NSWCCA 257, 280 FLR 275, Bathurst CJ with whom Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreed, said at [178]:
"During the course of the hearing there was some discussion surrounding the question of whether the exercise of the discretion to admit or reject evidence under s 138 is only reviewable if errors in the sense referred to in House v The King (1936) 55 CLR 499 are demonstrated. The question cannot be said to be finally settled: Fleming v The Queen at [22]; Marijancevic at [13]; Director of Public Prosecutions v MD (2010) 29 VR 434 at [27]; Em v The Queen (2007) 232 CLR 67 at [55]; Norbis v Norbis (1986) 161 CLR 513 at 518-519; contra Riley v The Queen [2011] NSWCCA 238 at [161], albeit relating to s 137 of the Act; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 at [39], [41]-[43]. However, as I have concluded that the trial judge did fall into error in her consideration of s 138 it is unnecessary to pursue this matter further." (Emphasis added.)
I find myself in the same position. For the reasons that follow I find that the learned magistrate did not fall into error in his consideration of s 138. It was, on any test, open to his Honour, acting reasonably, to reach the judgment he did, and it cannot be said that his decision was so manifestly wrong that it could only be the result of some undefinable error in the exercise of his "judicial judgment".
The magistrate's reasoning
In his ultimate written reasons for decision in this matter the learned magistrate explained the objection and his oral ruling for admitting the impugned evidence as follows:
"The defendant objected to the admissibility of the result of the breath analysis on the basis that Constable Prettyman (sic), had unlawfully arrested him and failed to communicate to the defendant that he was required '…to proceed to such place or into such vehicle… as the officer may indicate and there submit himself … to that analysis…' as contemplated by the Road Safety Alcohol and Drugs) Act 1970, s 10(1) (the Act). The officer was also obliged to communicate the reason for the obligation. I adopted the reasoning of Wood J in Arnesto v Hickman[1] as to the meaning of the word 'require' in the Police Offences Act 1935, s55A as logically applicable to the same expression in the Act, s 10(1). The evidence was highly probative and central to the police case[2]. There is a significant public interest in the protection of the public "against the risks inherent in the driving of vehicles after consumption of intoxicating liquor".[3] I accepted that Constable Prettyman's impropriety was an inadvertent omission by an officer dealing with an intoxicated male, working alone, with no available backup.[4] However, the effective communication of the requirement is a precondition to the exercise of police power to enforce the obligation on the defendant to submit to breath analysis.[5] Had the requirement been given and the defendant failed or refused to comply with it, Constable Prettyman had the power to take him into custody and detain him so that a direction be given to him to submit to the analysis.[6] Failure or refusal to comply with directions given under s 10 are punishable as offences under s 14.[7] The body-worn camera recorded the entire transaction. The defendant had been unlawfully arrested and taken to the Sorell police station where he was directed to submit to breath analysis and he complied with that requirement. After conducting the evaluative exercise required by the Evidence Act 2001, s 138 in an oral ruling during the course of the hearing I determined that the desirability of admitting the evidence of the breath analysis outweighed the undesirability of admitting it."
[1] Arnesto v Hickman [2016] TASSC 26.
[2] Evidence Act 2001, s138(3)(a), (b) (c).
[3] Evidence Act 2001, s138(3)(c) and see the long title of the Road Safety (Alcohol and Drugs) Act 1970.
[4] Evidence Act 2001, s138(3)(d) and (e).
[5] Road Safety (Alcohol and Drugs) Act 1970, s10(1).
[6] Road Safety (Alcohol and Drugs) Act 1970, s10(2) and (4).
[7] Road Safety (Alcohol and Drugs) Act 1970, s14(1A) and s 14(2).
His Honour, having ruled in his oral ruling that the applicant had been arrested and taken to the testing facility in consequence of an impropriety or a breach of an Australian law, continued, saying:
"Therefore we are now in the territory where that evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting it and those factors then in s 138(3) are engaged. I'll just bring up the provisions. Just taking into account each of the matters, the probative value of the evidence, that is the evidence of the breath analysis is very high. It has enormous probative value in light of the offence charged and its importance in the proceeding is very significant. The nature of the relevant offence here, driving at point 212 in the context where the driver is in excess of four times the permitted degree of intoxication who has actually come to grief on a wet road, or a wet day at least, and hit a power pole, is a very serious driving charge.
The legislative view is significant because of the present terms of possibility. Of course the degree of intoxication while on the road is another matter which makes it a very serious offence. Turning to the gravity of the impropriety or contravention, there are really two issues.
One is that the requirement was not administered being the process by which the obligation to provide the analysis was to be enforced but the defendant relies on the impropriety in putting Mr McLean in what he called the cage, the divisional van, being a locked space in a police van.
In this context it seems to me that if the requirement had been administered then the means by which the obligation could be enforced probably included placing someone in Mr McLean's position in the back of the divisional van. The act gives the police power to proceed - or to require the defendant to proceed to such place or into such a vehicle - it was a vehicle. The fact that it was part of a vehicle, it was lockable and more like a cage than the cabin a vehicle, I can't see that, in this case on these facts, that arises as a circumstance to, for instance, allow me to conclude that it wasn't a vehicle. To my mind it was a part of a vehicle. The fact it was lockable and a cage, if it was one, accepting for a moment that it was, then I am of the view that the s 10(1) probably captures that within the expression, such vehicle.
Now, the - so the fact that it is in a cage I don't think increases the gravity of the impropriety in not administering the requirement as ought to have been administered. I agree with Mr Kovacic that this sort of interaction, even with very drunk people who may well have even been a handful, especially in light of the fact that officers have got body-worn cameras, this sort of requirement should be on the tip of every officers' tongue and able to be administered without any difficulty whatsoever.
This is the daily work of police officers and there's nothing unusual, to my mind, about it. It's certainly daily work at the courts so it should be daily work for police and there's no explanation really that I have heard which would, in the context, explain why Constable Pretyman didn't do it given how much other interaction she had with, I point to that silly argument at the end before he gets in the van, because the toing and froing between them was - there was a fair bit of it and there was nothing on the facts that I could discern which could explain or justify why Constable Pretyman couldn't have said, 'Look, Ryan, you are required to come with me and if you don't the law says that you can be arrested and I can make you come.' No magic words are required other than that clear expectation that the requirement would be administered as the act contemplates.
It was a moderately significant impropriety but turning to whether it was deliberate or reckless; it wasn't deliberate. In my view it's not - it was negligent or careless. The law is, I think, that that expression should not be equated with negligent. If it was deliberate or reckless that swings the balance in favour of exclusion. This is not a deliberate - I mean reckless in the sense that this was reckless disregard of the individual's civil rights.
This is not one where she has turned the body worn camera off. It's to one where the officer has heavied or over-borne the defendant by her position or by anything that she's done. She's cajoled, sought to convince or persuade him to take a breath test. She hasn't used strong or threatening language. She hasn't been, in my view, overly authoritarian with the way she's dealt with the situation. It's not a case where you could characterise it as deliberate, non-compliance with the particular procedure. It's inexplicable really given everything else that's said but the conclusion that is just so compelling is that it was careless and so that, to my mind, is a matter which the defendant cannot use to favour exclusion.
The next matter to be taken into account is whether that was contrary to it or inconsistent with (indistinct word) person recognised by the IC CPR? It probably was. I don't know whether this was an arbitrary arrest, it was an arrest under the - or taken into custody under the Road Safety Act or the Guns Act where the requirement wasn't administered. I don't think that provision really, and the analysis around it, adds much more to what has been said. He has a right to his liberty; I completely accept that. Correct procedure hasn't been applied here; I agree with that.
S138(3)(g) doesn't seem to be particularly - was mutual here in my view. Now, (h), it was not difficult to obtain this evidence without impropriety. In fact it was really much easier to do it the right way because everyone would have been very, very clear as to what's happening. This was not a case where unless there was an impropriety the evidence couldn't have been obtained. This is the opposite. This is evidence was obtained anyway. There would be no difference in the outcome had the requirement been administered lawfully and had he refused all along the way to comply with the requirement and then to submit to analysis, we might be dealing with something different but that's not really the key consideration here
This was a situation where if the evidence wouldn't have been hard to get had the requirement been issued properly so in my view all of those matters favour the inclusion of the evidence and the admissibility of it. Mr McLean still has rights if he has been unlawfully detained, imprisoned, or whatever it might be - it has not been characterised by the submissions before me but the officer - her conduct can be the conduct of some other proceeding where - or process whereby the significance of her failure to comply with s 10, the administering of the requirement, can be dealt with. I think that's something that's relevant here.
In terms of any other relevant considerations I note, as Mr Tye submitted - sorry, it's probably common ground, he never - the defendant never refused to go. He, at all times, appeared to be cooperative with the direction to go. What he didn't want to do was the breath test but he was always going with the officer. The omission was to say, 'You are required to submit,' as Mr Kovacic said, 'And you must come with me.' Words to that effect perhaps. Mr McLean was never unhappy to go with the officer. He said some other things about what's happening and didn't want to submit to that test but that's different.
The situation here is that I take into account that he was always willing to go and I am not told that he was anything other than cooperative at all times as is evident from the way that he went into the back of the van so my view, for those reasons, the evidence must be admitted." (Emphasis added.)
Discussion
The applicant's counsel, Mr Cangelosi, submits that the learned magistrate's decision miscarried because "excessive weight was given to the seriousness of exceed 0.05 where the reading alleged was .212". He argues that whilst "such a reading might be a serious example of that offence, and whilst that offence might be a relatively serious, summary traffic offence, it was still only a summary traffic offence, albeit one with a significantly aggravating factor". And he submits that his Honour also did not weigh the seriousness of the illegality with the seriousness of the offence with which the applicant was charged.
I do not accept those contentions.
A fair reading of the oral ruling set out above makes it clear that the learned Deputy Chief Magistrate was doing exactly what was required of him in conducting the relevant part of the evaluative exercise required by s 138 of the Act. He was clearly weighing by comparative descriptions, the seriousness of the illegality and the seriousness of the offence with which the applicant was charged.
Moreover, it was clearly open to his Honour to characterise the offending as he did. Of course he was dealing with summary offences – he is a magistrate sitting in the Magistrates Court. But I can see no error in his analysis as follows:
"Just taking into account each of the matters, the probative value of the evidence, that is the evidence of the breath analysis is very high. It has enormous probative value in light of the offence charged and its importance in the proceeding is very significant. The nature of the relevant offence here, driving at point 212 in the context where the driver is in excess of four times the permitted degree of intoxication who has actually come to grief on a wet road, or a wet day at least, and hit a power pole, is a very serious driving charge." (My emphasis.)
Counsel for the applicant next submits that the learned magistrate also erred in finding that Constable Pretyman's impropriety was "moderately significant". The applicant contends that it was "an illegality with a direct, causal connection with the impugned evidence, and involved the direct contravention of a fundamental civil liberty". Counsel submits that whilst it was not as serious as a deliberately committed illegality, it was still a serious example of unlawful conduct.
Counsel submits that the learned magistrate "appeared to characterise [Constable] Pretyman's conduct as 'careless'", but did not specifically identify whether or not he considered that that careless disregard amounted to recklessness. The applicant contends that Constable Pretyman's conduct, properly described, was reckless within the meaning of s 138(3)(e) and that the learned magistrate correctly identified that such a characterisation would weigh in favour of exclusion.
I reject those submissions. As can be seen above, what the learned magistrate said, relevantly, was:
"It was a moderately significant impropriety but turning to whether it was deliberate or reckless; it wasn't deliberate. In my view it's not - it was negligent or careless. The law is, I think, that that expression should not be equated with negligent. If it was deliberate or reckless that swings the balance in favour of exclusion. This is not a deliberate - I mean reckless in the sense that this was reckless disregard of the individual's civil rights.
This is not one where she has turned the body worn camera off. It's to one where the officer has heavied or over-borne the defendant by her position or by anything that she's done. She's cajoled, sought to convince or persuade him to take a breath test. She hasn't used strong or threatening language. She hasn't been, in my view, overly authoritarian with the way she's dealt with the situation. It's not a case where you could characterise it as deliberate, non-compliance with the particular procedure. It's inexplicable really given everything else that's said but the conclusion that is just so compelling is that it was careless and so that, to my mind, is a matter which the defendant cannot use to favour exclusion…
He has a right to his liberty; I completely accept that. Correct procedure hasn't been applied here; I agree with that." (Emphasis added.)
The learned magistrate clearly did, quite specifically, identify whether or not he considered that that careless disregard amounted to recklessness. When his Honour said "[i]f it was deliberate or reckless that swings the balance in favour of exclusion. This is not a deliberate - I mean reckless in the sense that this was reckless disregard of the individual's civil rights", that is quite plainly what he was doing. Any doubt about that is dispelled by his subsequent words "… but the conclusion that is just so compelling is that it was careless". (My emphasis.)
That characterisation of Constable Pretyman's conduct was in my view, entirely apposite. As counsel for the respondent, Ms Dawkins, observes in her written contentions:
"The evidence was that at various times, Constable Pretyman stated 'Come back with me for a second I'll give you a quick test', 'the vehicle's been involved in a crash, okay. I believe you're the driver'. 'Well come with me' 'you have to come back with me.' 'You've got to come back with me and do a breath test'.
His Honour notes at AB108 13 'The impropriety, if you like, is just not complaint (sic) with the strict words of the statute. She is not accused of being somehow, you know, generally improper. The point is she's not complied with the express requirements of the Act.'" (My emphasis.)
I note that the respondent does not seek to agitate whether his Honour erred in his finding that the applicant was taken in to custody and taken to the testing facility in consequence of an impropriety or of a contravention of an Australian law on the basis that Constable Pretyman's words amounted to a legal requirement for the applicant to comply with her requests to accompany her, see Arnesto v Hickman [2016] TASSC 26 at [31]-[32].
I accept counsel for the respondent's submission that recklessness and carelessness are distinct concepts, and that the impugned conduct was not reckless. As counsel observed, in R v Petit [2015] TASSC 14, Tennant J at [60] said:
"The concept of recklessness involves some advertence to the issue and a decision to proceed regardless, or, as Hulme J said in Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257 at [33], 'or alternatively a "don't care" attitude generally'".
There is no suggestion that such was the case with Constable Pretyman and his Honour did not err in finding her conduct was careless and not reckless.
Disposition
It was clearly open to the learned magistrate in the exercise of his evaluative judgment to conclude that the desirability of admitting the illegally obtained evidence outweighed the undesirability of admitting that evidence. I detect no error in his approach, in his characterisation of Constable Pretyman's conduct, in his characterisation of the seriousness of the applicant's offending, in his consideration of the importance of the evidence of the breathalyser reading, or in the reasoning underlying his evaluative "judicial judgment".
The motion to review is refused.
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