Page v Jensen
[2004] TASSC 38
•5 May 2004
[2004] TASSC 38
CITATION: Page v Jensen [2004] TASSC 38
PARTIES: PAGE, David Easterbrook
v
JENSEN, Kim
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 45/2003
DELIVERED ON: 5 May 2004
DELIVERED AT: Hobart
HEARING DATE: 29 April 2004
JUDGMENT OF: Blow J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: L A Fox
Respondent: S J Bender
Solicitors:
Applicant: Wallace Wilkinson & Webster
Respondent: Director of Public Prosecutions
Judgment Number: [2004] TASSC 38
Number of paragraphs: 22
Serial No 38/2004
File No LCA 45/2003
DAVID EASTERBROOK PAGE v KIM JENSEN
REASONS FOR JUDGMENT BLOW J
5 May 2004
This is a motion for the review of a decision of a magistrate to convict the applicant on a charge of driving with alcohol in his body contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(2). The applicant was originally charged with three offences, but the learned magistrate dismissed one charge ¾a charge of driving under the influence of intoxicating liquor ¾ on the basis that the applicant had no case to answer. The applicant had a provisional licence. The learned magistrate found proven both the s6(2) charge and a charge of driving with a blood alcohol concentration exceeding .05, namely .102, contrary to s6(1). After convicting the applicant and imposing penalties on the s6(2) charge, he dismissed the s6(1) charge, which related to the same act of driving.
The only prosecution witness to give evidence of seeing the applicant driving was a Mr Thompson ¾a security officer who was working at the St Ives Hotel in Battery Point on the night in question. That hotel is on the corner of Sandy Bay Road and St Georges Terrace. Mr Thompson gave evidence of seeing the relevant vehicle in motion on three occasions. On the first occasion, he said he saw it go through a red light, turning from Sandy Bay Road into St Georges Terrace, narrowly missing some pedestrians who were crossing the road. However there was no admissible evidence as to who was driving on that occasion. On the second occasion, the witness said he saw the applicant get into the vehicle and drive it along St Georges Terrace, away from Sandy Bay Road and the hotel. On the third occasion, he said he saw the vehicle return to the area of the hotel, but there was no evidence as to who was driving on that occasion. There was evidence that police officers came to the hotel soon after the return of the vehicle, that one of them directed the applicant to submit to a breath test, that it was positive, and that he was then taken to a breathalyser operator who conducted a breath analysis and obtained a reading of .102. The applicant gave evidence that he was not driving. His counsel called a witness named Churchill who gave evidence that he had been the driver and the applicant a passenger.
After the close of the prosecution case, the learned magistrate pointed out to the prosecutor that there was evidence of three different acts of driving, and asked him to make an election as to which he relied on. The prosecutor elected to rely on the second act of driving, presumably because he had led eye-witness evidence that the applicant had been driving on that occasion. After the conclusion of the defence case, the learned magistrate pointed out that the second act of driving occurred only on St Georges Terrace, but that the charges alleged driving only on Sandy Bay Road. The prosecutor applied to amend the complaint by changing "Sandy Bay Road" to "St Georges Terrace" in the two surviving counts. That application was granted.
The notice to review contains the following grounds of appeal:
"1The Learned Magistrate erred in law and/ or in fact in that his verdict was unsafe and unsatisfactory in all the circumstances.
2The Learned Magistrate erred in law and/ or in fact in allowing the amendment of the complaint following the completion of the hearing of the complaint.
3The Learned Magistrate erred in law and/ or in fact in concluding that the Applicant was a person in the circumstances liable to submit to a breath test or a breath analysis."
Ground 1 – Unsafe and unsatisfactory verdict
Counsel for the applicant submitted that the identification evidence given by Mr Thompson, the security officer, was unreliable to such a degree that the convictions should be quashed. The critical identification evidence was Mr Thompson's evidence that the person he saw getting into the car before the second piece of driving was the applicant.
Upon a motion to review, the decision of a magistrate on questions of fact should be treated in the same way as an appeal from the verdict of a jury: Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Richardson v Shipp [1970] Tas R 105 at 117; Kelly v O'Sullivan (1995) 4 Tas R 446. The basis upon which an appellate court will set aside a jury's verdict as unsafe and unsatisfactory was explained by Mason CJ, Deane, Dawson and Toohey JJ in M v R (1994) 181 CLR 487 at 493 – 494 as follows:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (See Whitehorn v The Queen (1983), 152 CLR, at p 686; Chamberlain v The Queen [No 2] (1984), 153 CLR, at p 532; Knight v The Queen (1992), 175 CLR 495, at pp 504-505, 511). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (Chamberlain v The Queen [No 2] (1984), 153 CLR, at p 621) .
…In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen [No 2] (1984), 153 CLR, at pp 618-619; Chidiac v The Queen (1991), 171 CLR, 432 at pp 443-444)."
It was not suggested that Mr Thompson was dishonest in identifying the applicant as the driver on the second occasion, but only that he might have been mistaken. It is well recognised that honest witnesses make mistakes in identifying witnesses who were unknown to them before the commission of crimes or offences. See, for example, Kelleher v R (1974) 131 CLR 534; Alexander v R (1981) 145 CLR 395. The applicant was not known to Mr Thompson. A number of other pieces of evidence tended to suggest that his identification evidence should be approached with caution. Mr Thompson made his observations at about 1am. He was on duty as a security or crowd control officer, and was therefore likely to have had more to think about than the activities of the applicant. When the applicant approached the vehicle, Mr Thompson followed him in the dark, and at a distance of about 10 to 15 metres. He said he could not recall other people walking down St Georges Terrace at that stage, but conceded that there could have been some. He said he could not recall anyone else going to the car with the applicant, but conceded that that could have been possible. He said he watched the vehicle leave, and observed who was driving it at that stage, but there is no realistic possibility that he could have confirmed the identification of the driver from behind, in the dark, as the vehicle drew away from him. He conceded that the vehicle probably had tinted windows. There were some minor inconsistencies between other aspects of his evidence and statements made by him before the hearing. His evidence that the applicant was driving was contradicted by both the applicant and Mr Churchill.
The learned magistrate had the advantage of observing the witnesses. He rejected the evidence of the applicant and Mr Churchill as to who was driving on the basis that it lacked credibility, and was bordering on absurdity. Plainly, he accepted the identification evidence of Mr Thompson.
There are a number of reported cases in which the inherent unreliability of the evidence of critical Crown witnesses has led to guilty verdicts being set aside as unsafe and unsatisfactory. In Morris v R (1987) 163 CLR 454, for example, the prosecution case depended substantially upon a confession by a chronic alcoholic with brain damage. The confession could well have been the product of confabulation. In Carr v R (1988) 165 CLR 314 the Crown case depended largely on an unsigned record of interview. In Ralph and George (1988) 37 A Crim R 202, the critical evidence was the uncorroborated evidence of an accomplice who was a convicted criminal, an admitted liar and perjurer, and one capable of clever deception. In M v R (supra), the uncorroborated evidence of the complainant was inconsistent with medical evidence, there was a lengthy delay in the making of the complaint, and there were a number of inconsistencies between the complainant's evidence and circumstances clearly established by other evidence. However, in my view, the factors tending to suggest that Mr Thompson's identification evidence lacked reliability were not so extreme that it can be properly concluded that the learned magistrate ought to have entertained a reasonable doubt. This case is simply not in the same class as the ones I have just referred to. I am not persuaded that the verdicts were unsafe and unsatisfactory. Ground 1 must fail.
Ground 2 – Amendment of the complaint
The amendment of the complaint was made pursuant to the Justices Act 1959, s31(3). Section 31 begins with the following subsections:
"31 ¾ (1) An objection shall not be taken or allowed to a complaint in respect of ¾
(a)an alleged defect therein, in substance or in form; or
(b)a variance between it and the evidence in support thereof.
(2) Notwithstanding the provisions of subsection (1), where –
(a)a complaint fails to disclose an offence or matter of complaint; or
(b)the defendant appears to have been prejudiced by any defect or variance referred to in that subsection ¾
the justices shall, unless the complaint is amended as provided in subsection (3), dismiss the complaint.
(3) If it appears to the justices that the complaint ¾
(a)fails to disclose an offence or matter of complaint, or is otherwise defective; and
(b)ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect ¾
the justices may amend the complaint upon such terms as may be just."
The prosecutor elected at the close of the prosecution case to rely upon the evidence as to the second piece of driving. There was no evidence that that driving took place anywhere but St Georges Terrace, whereas each count of the complaint alleged driving only in Sandy Bay Road. There was thus a variance between the complaint and the evidence in support thereof within the meaning of s31(1)(a). There was no suggestion that the variance between the complaint and the evidence had in any way caused prejudice to the applicant in the sense of making the proceedings against him unfair. There was therefore no reasonable basis for the learned magistrate to refuse to make the amendment to the complaint, once it was sought, after the close of the defence case.
The decision to amend the complaint was a discretionary one. There is no suggestion that the learned magistrate, in exercising that discretion, acted upon a wrong principle, took into account irrelevant matters, made a mistake as to the facts, failed to take into account some material consideration, or made a decision that was unreasonable or plainly unjust. There is therefore no basis for the exercise of his discretion to be interfered with upon a motion to review. See House v R (1935) 55 CLR 499 at 504 – 505. Ground 2 must also fail.
Ground 3 – Liability to submit to breath test and breath analysis
The Act contains a number of provisions whereby police officers may require individuals, in particular circumstances, to submit to breath tests or breath analyses. It is common ground that s7A, which provides for random breath tests, does not apply in this case. It is also obvious that s8(3), which relates to vehicles involved in accidents, is inapplicable. The respondent relied on s8(1) and (2). The relevant provisions in s8 read as follows:
"8 ¾ (1) Where at any time a police officer finds a person in circumstances which give him cause to suspect that alcohol may be present in that person's blood and the police officer reasonably believes that, immediately preceding that time, that person drove a motor vehicle on a public street while that alcohol was so present, that person becomes liable to submit to a breath analysis.
(2) Where a police officer reasonably believes that, while a motor vehicle was in motion, an offence under section 167A of the Criminal Code, or an offence under the Traffic Act 1925 or the Vehicle and Traffic Act 1999, was committed, the person (if any) who was driving the vehicle when it was in motion becomes liable to submit to a breath analysis.
(3) …
(4) Without affecting the generality of subsection (1), a police officer may, for the purpose of forming the suspicion referred to in that subsection, deduce from the manner in which the person concerned was behaving at the time when the police officer found him that that person may have had alcohol in his body at that time.
(5) …
(6) Where a person has become liable to undergo a breath analysis by virtue of subsection (1), (2), or (3), a police officer may first require that person to undergo a breath test at or near the place where the requirement was made.
(7) Where under subsection (6) a police officer requires a person to undergo a breath test, that person shall comply with that requirement in the presence of that officer or another police officer and in accordance with such directions as may be given by that officer or that other officer.
(8) Where a person who has become liable under this section to submit to a breath analysis undergoes a breath test in accordance with the directions of a police officer, that person ceases to be so liable, unless the result of the breath test indicates that alcohol may be present in that person's blood."
The learned magistrate took the view that the applicant had not become liable to submit to a breath analysis pursuant to s8(1), but that he had become liable to submit to one pursuant to s8(2) because of beliefs formed by the attending police officers concerning the first piece of driving, when Mr Thompson observed the vehicle go through a red light and nearly hit some pedestrians. This was an unusual result, since there was no evidence before the learned magistrate that the applicant had been driving on that first occasion. The learned magistrate said the following as to the applicant's liability to submit to a breath analysis:
"I think he was liable because of the application of the factors in section 8(2) when applied to the alleged first act of driving. The liability arose because the conclusion is inescapable that both police officers who attended reasonably believed that the defendant had been the driver when an offence was committed.
Andrew Thompson had told them both that the defendant had been the driver the first and second times, and that the first time involved circumstances clearly showing that an offence, or offences, had been committed. They were also informed that he had just driven; ie, at the time of the third act. There was no information that anyone else had driven the car. That is to say, no information given to them to that effect.
A Mr Jacobson, also a security officer, told both of them, apparently in the presence of the defendant, that the defendant was the driver at the time of the first act of driving."
The second sentence in the passage I have just quoted reveals an error on the part of the learned magistrate concerning the effect of s8(2). That subsection applies when a police officer reasonably believes that an offence has been committed. However, a police officer's reasonable belief as to the identity of the driver is irrelevant. If a police officer reasonably believes that an offence has been committed under any of the relevant pieces of legislation, then the liability to submit to a breath analysis falls only upon "the person (if any) who was driving the vehicle when it was in motion" ¾ not upon a person whom a police officer reasonably believes to have been driving the vehicle. Here, there was no evidence that the applicant had been driving the vehicle on the first occasion. A reasonable belief by a police officer that he had been was insufficient to warrant a finding that the applicant was liable to submit to a breath analysis.
However the applicant's conviction on the charge under s6(1) of driving with alcohol in his body was not dependent upon the result of the breath analysis. In his evidence, the applicant said that he did not drive the car at all that night because he had been drinking. Under cross-examination, when asked what route Mr Churchill had taken after the vehicle left the area of the hotel, he said he was unable to remember. When asked whether alcohol had affected his memory, he said he was drunk. When stating his reasons for finding the s6(2) and s6(1) charges proven, the learned magistrate said the following:
"In this case, the defendant gave evidence that he was drunk at the time of the alleged second act of driving, in explanation for his poor memory. If true, this must mean that he had alcohol in his body at that time. And indeed, in my view, if it came down to that, that would be sufficient in order to prove the defendant's guilt under section 6(2) of an act of driving at the time of the second act."
Because of those findings, the challenge to the conviction must fail.
The question whether the applicant had been liable to submit to a breath analysis was relevant not only to the question of his guilt, but also in relation to the question of penalty. Evidence of his blood alcohol concentration at the time of the second piece of driving was relevant, but his blood alcohol concentration was measured some time later. If he had been liable to submit to a breath analysis, his blood alcohol concentration, as determined later, would have been deemed to have been his blood alcohol concentration at the time of the driving as a result of the Act, s23(4), which reads as follows:
"23(4) Where in any proceedings for an offence under section 6(1) it is shown that the concentration of alcohol in the blood of a person who became liable to submit to a breath analysis was, at any time within 4 hours after the relevant time, equal to or not less than a particular concentration (being a concentration not less than the prescribed concentration), that particular concentration shall be deemed to have been the concentration of alcohol in his blood at the time of the relevant act of driving unless it is shown that the concentration of alcohol in his blood at the time of that act of driving was not greater than the prescribed concentration."
The Act, s2(3A) contains the following provisions:
"(3A) For the purposes of this Act, a reference to a relevant time is a reference to ¾
(c)in relation to a person who becomes liable to submit to a breath analysis under section 8(2) – the time at which the act constituting the offence occurred;
…".
There was evidence that the applicant's blood alcohol concentration was determined to be 0.102 grams of alcohol in 100 millilitres of blood by the breath analysis, to which he submitted at 1.56am. By virtue of s23(2), that was deemed to be his blood alcohol concentration at that time. The police officers received the call to go to the hotel at about 1.15am. There was evidence that the defendant had consumed a can of Jack Daniels between the second and third pieces of driving, but the learned magistrate rejected Mr Churchill's evidence totally, and said he thought it was unlikely that the applicant drank Jack Daniels at that stage. However, on my reading of the learned magistrate's reasons, he stopped short of making a finding that the applicant had not consumed Jack Daniels at that stage.
The learned magistrate considered the effect of s23, but did so upon the false premise that the applicant had been liable to submit to a breath analysis pursuant to s8(2). However he went on to say the following in relation to s23:
"Quite apart from the application of that section, it is an inference I draw, beyond reasonable doubt, that because he had a blood alcohol concentration of 0.102 at 1.56am, he had a blood alcohol concentration of about 0.102 at the time of the second act of driving, because he had not consumed either any or much alcohol since before the first act of driving, and because of the time lapse between the second and third acts of driving. This would prove his guilt of the charge under section 6(2), and prove the approximate reading for penalty purposes. He would be proved to be guilty anyway, because of his confession in the witness box. But finding him guilty by that route does not establish the blood alcohol concentration for penalty purposes."
This leads me to the conclusion that the learned magistrate's error as to s8(2) has not been shown to have made any significant difference to the penalties he would otherwise have imposed. I therefore consider that no substantial miscarriage of justice has occurred as a result of the learned magistrate's error as to the liability of the applicant to submit to a breath analysis, and that this motion should be dismissed pursuant to the Justices Act, s110(2)(ab).
The motion to review is dismissed.
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