Police v Majchrak No. Scciv-03-1237

POLICE v MAJCHRAK
[2004] SASC 34
Magistrate’s Appeal
GRAY J

This is a Crown appeal against the dismissal of a complaint.
Introduction
Andrew Lester Jozef Majchrak was charged with driving at a speed and in a manner dangerous to the public contrary to section 46 of the Road Traffic Act 1961 (SA). Mr Majchrak pleaded not guilty. The trial proceeded before a magistrate.
It was the Crown case that on Wednesday 10 April 2002 a vehicle driven by Mr Majchrak was stationary in a line of traffic facing a red light at the intersection of Grand Junction and Hampstead Roads Clearview. When the lights turned green he moved to his left to overtake and then back across the line of traffic. In undertaking this manoeuvre he accelerated rapidly and cut across the path of other vehicles forcing them to brake. Mr Majchrak proceeded to accelerate to travel at a speed of 116 kilometres per hour in a 70 kilometre per hour zone. He was then “pulled over” by Senior Constable Sharn Anthony O’Shea (S/C O’Shea) who had been following in an unmarked police vehicle.
The Crown called S/C O’Shea who had observed the defendant’s manner of driving, evidence of a short interview and tendered a certificate as to the accuracy of the speedometer of the police vehicle.
At the outset of the trial counsel for Mr Majchrak foreshadowed an application to exclude S/C O’Shea’s testimony. The basis of the application was that S/C O’Shea had engaged in illegal conduct in obtaining evidence of Mr Majchrak’s driving. It was said that the evidence should be excluded as a matter of discretion in the public interest. The magistrate received the evidence de bene esse. Counsel limited cross-examination to matters relevant to the exercise of the discretion.
The Evidence
S/C O’Shea was travelling in an unmarked police motor vehicle at about 1.10 pm on Wednesday 10 April 2002 at Clearview. At the time he was undertaking “plain clothed” duties with the Holden Hill Intelligence Section.
S/C O’Shea gave evidence that he stopped his vehicle on Grand Junction Road in a line of traffic facing a red light at the intersection of Grand Junction Road and Hampstead Road. Grand Junction Road at this point had two lanes for west bound traffic. He was in the right-hand of two lanes, that is the lane nearest to the centre of the road. There were two vehicles in front of him and four vehicles in the lane to his left. He recognised a dark green metallic Toyota Soarer as a vehicle owned and often driven by Mr Majchrak. S/C O’Shea then recognised Mr Majchrak as the driver. There were three vehicles ahead of Mr Majchrak in the left lane. As Grand Junction road continues through the intersection there was a third lane further to the left for a short distance. Once through the intersection Grand Junction Road reverted to a two-lane carriageway for west bound traffic. When the lights turned green Mr Majchrak accelerated harshly through the intersection and swerved into the left lane. He overtook the line of vehicles that had been in front of him in the left lane. He then proceeded to swerve to his right cutting across the two lanes of west bound traffic to travel in the lane nearest the centre of the road. Vehicles had to brake suddenly to let Mr Majchrak through.
S/C O’Shea observed these manoeuvres and formed the opinion that Mr Majchrak was driving in a manner and at a speed that was dangerous to other road users. S/C O’Shea decided that he would attempt to stop Mr Majchrak. For this purpose he followed the vehicle which was by this time travelling at high speed.
It was S/C O’Shea’s evidence that he did not intend to try to stop Mr Majchrak whilst the vehicle was speeding. Had the vehicle continued at a high speed S/C O’Shea would have radioed for help. However, after a short interval Mr Majchrak moved to the left lane and reduced speed. This allowed S/C O’Shea to indicate to Mr Majchrak that he should “pull over” and stop. Mr Majchrak did so. Whilst S/C O’Shea followed a constant distance separated the two vehicles. He was able to time the speed of Mr Majchrak’s vehicle at 116 kilometres per hour for a period of about 10 to 15 seconds.
Counsel for Mr Majchrak did not challenge the accuracy of S/C O’Shea’s evidence. However it was submitted that S/C O’Shea had engaged in illegal conduct to obtain evidence of Mr Majchrak’s manner and speed of driving. It was said that S/C O’Shea had been driving at a speed that was dangerous to the public. Counsel contended that as S/C O’Shea was driving an unmarked police car he had no immunity from the provisions of the Road Traffic Act. He was subject to the ordinary road rules. S/C O’Shea accepted that this was so. Counsel submitted that in these circumstances the public interest required the exclusion of S/C O’Shea’s evidence in the exercise of the magistrate’s discretion.
The Magistrate’s Findings
The magistrate concluded that the two vehicles travelling in the same lane 40 metres apart and at about 116 kilometres per hour on Grand Junction Road were travelling at a “speed dangerous”. He reached this conclusion notwithstanding S/C O’Shea’s special skills as a driver. The magistrate further found:
…that this is not an isolated or accidental non-compliance as Senior Constable O’Shea made the decision to undertake this dangerous pursuit to obtain additional evidence of the defendant’s speed on portion of Grand Junction Road.
The magistrate then reasoned:
In this regard I am also reminded that the provision of Rule 305 of the Australian Road Rules is not replicated in the Road Traffic Act 1961 and I find that I must be mindful of the significance of the decision by Parliament to repeal s 40, and not replace it with another provision such as Rule 305.
In this regard I remind myself of the remarks by Aickin and Steven JJ in Bunning v Cross and I quote:-
‘To treat cogency of evidence as a factor favouring admission where the illegality in obtaining it has been either deliberate or reckless may serve to foster the quite erroneous view that such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should generally be allowed to play no part in the exercise of the discretion where the illegality involved in procuring it is intentional or reckless.’
After carefully reviewing all the evidence and carefully weighing the important public policy issues of detecting breaches of the Road Traffic Act, I find that it is not in the public interest for the court to give curial approval to condoning the high speed follow and time conducted by Senior Constable O’Shea when he knew the defendant and had observed his earlier behaviour and formed an opinion about that driving. O’Shea could I find have radioed for help and/or found the defendant’s address and followed up with a home visit and interview of the defendant. That latter procedure is regularly followed where a high speed is detected by radar and photographic evidence is taken of the registration plate of the alleged offending motor vehicle.
For these reasons I have therefore ruled the evidence of Senior Constable O’Shea about the speed of the defendant’s motor vehicle as inadmissible.
Issues On Appeal
Competence of the Appeal
On the hearing of the appeal counsel for Mr Majchrak submitted that as the Crown had made a decision to call no further evidence, the magistrate was correct to dismiss the charges. Counsel argued that although the decision of the magistrate was final, the appeal was in substance a challenge to an evidentiary ruling. It was said that the appeal was incompetent.
Section 42 of the Magistrates Courts Act provides:
(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a) An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.
…
Section 3(1) provides:
In this Act, unless the contrary intention appears – ‘judgment’ means a judgment, order or decision and includes an interlocutory judgement or order.
Attention was drawn to the decision in Police v Dorizzi [1] where Duggan J observed:
Section 42(1a) specifically excludes appeals from interlocutory judgments given in summary proceedings. Presumably, the policy behind the restricted right of appeal is to prevent summary proceedings from being fragmented. Furthermore, it is relevant to bear in mind that a ruling on the admissibility of evidence is not a judgment in any event. In Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 King CJ considered the nature of the right to appeal provided for in s 50 of the Supreme Court Act 1935 which applies, inter alia, to ‘every judgment . . . order, or direction of a judge’. King CJ said (127):
‘A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.’
[1] (2002) 84 SASR 416 at 419
It was argued that, as in Dorizzi, this appeal was no more than a “thinly veiled” attempt to impermissibly seek to review an evidentiary ruling. It was claimed that the appeal was not authorised by section 42 of the Magistrates Courts Act 1991 (SA).
In Dorizzi the magistrate conducted a voir dire hearing. He decided to exclude video evidence as a matter of discretion. The prosecutor was then faced with a dilemma of proceeding with the trial for several months in circumstances where it was considered that without the video evidence being admitted the complaints would fail. The prosecutor made a deliberate and considered decision not to lead other evidence and invited the magistrate to dismiss the complaint indicating that an appeal would be lodged to test the voir dire ruling. No further evidence was sought to be led on appeal. It was in this circumstance that the Full Court later ruled that the appeal was no more than a “thinly veiled” attack on an evidentiary ruling. Duggan J observed[2]:
The appeal from the magistrate to the single judge did not purport to be other than an appeal against a final judgment, namely, the dismissal of the information. However, when the veil is lifted to reveal the true nature of the appeal, it is clear that its purpose was to test the magistrate’s ruling on admissibility. It was always the intention of the prosecution to seek a favourable decision on this issue on appeal and an order that there be a retrial on the charges. The prosecution was motivated by what appeared to be practical reasons for this approach. It was considered inappropriate to call a large number of witnesses after the magistrate’s ruling when there was a clear possibility, or even likelihood, that, at least in the case of some of the appellants, there would not have been sufficient evidence for a case to answer without the evidence which had been excluded. Nevertheless, for the reasons which follow, it is my view that an appeal on this basis is contrary to the intent and purpose of the appeal provisions in the Act.
[2] (2002) 84 SASR 416 at 420-424
In the present case if the evidence of S/C O’Shea was admitted the Crown had made out a case to answer. This circumstance distinguishes this case from Dorizzi. A similar approach was taken by the court in Holder v Lewis[3]. Doyle CJ, with whom Prior and Perry J agreed, observed:
The Magistrate’s decision to exclude the evidence was not “an interlocutory judgment”. It was not a judgment at all. It was simply a ruling made in the course of the trial: see Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Dorizzi at [19]. The appeal to the Supreme Court was an appeal against the Magistrate’s order dismissing the complaint. That order is a judgment given in the action. The appeal was competent.
…
The present case is quite different. As I have pointed out, if the excluded evidence was admitted, Mr Holder had a case to answer. The complaint against him should not have been dismissed. The further evidence, coupled with the excluded evidence, established that Mrs Holder and the company had a case to answer. Accordingly, the decision to dismiss the charges against them was shown to be wrong.
There is no substance to the challenge to the competence of the appeal.
Exercise of Discretion
[3] [2003] SASC 397 at [20] and [27]
The issue before the magistrate was whether the observations of S/C O’Shea made at a time when he was driving in a dangerous manner should be excluded from the trial notwithstanding the probative value of the evidence and its capacity to contribute to a just result.
Counsel for the Crown accepted that the magistrate had a discretion to exclude S/C O’Shea’s evidence. It was acknowledged that there was evidence before the magistrate on which a conclusion could be reached that he had driven at a speed that was dangerous to the public. However, it was said that in the particular circumstances his conduct was neither dangerous nor unreasonable. He was an experienced police officer with specialist driver training. He was faced with a situation that he believed created a danger to the public and he took action to attempt to prevent that dangerous situation from continuing.
The magistrate was correct to consider the exercise of his discretion to exclude the evidence or part of the evidence. It was open to the magistrate to conclude that he had driven at an excessive speed or in a manner or speed dangerous to the public. It is implicit in the magistrate’s reasons that he considered that S/C O’Shea had driven in a manner or at a speed that was dangerous to the public. Accordingly his discretion was enlivened.
The magistrate exercised his discretion whilst under misapprehensions of fact. The finding that S/C O’Shea’s “non-compliance” was “not an isolated non-compliance” cannot be sustained. There was no evidence before the court that this was other than an isolated incident. The suggestion was not put to S/C O’Shea.
Further, the magistrate’s conclusion that S/C O’Shea made the decision to undertake a dangerous pursuit to obtain additional evidence of the defendant’s speed was contrary to the evidence. S/C O’Shea gave the following unchallenged evidence:
QI have covered most of the evidence that has occurred that day. I will just take you back to when you first left the traffic lights of Hampstead Road. You said that the accused accelerated harshly. What was your intention when that occurred.
A     I intended to try and stop him.
Q     Why was that.
ABecause his manner of driving – you could see from the outset that he was putting other road users at risk.
Q     Your intention was to what.
A     To stop him from driving in that manner.
S/C O’Shea was attempting to stop Mr Majchrak from driving. If successful this would remove the risk to other road users. In the event the risk was removed. In the process of that pursuit the opportunity arose for S/C O’Shea to observe Mr Majchrak’s speed and manner of driving.
The magistrate’s misapprehensions coloured his view and allowed the incorrect conclusion that S/C O’Shea was acting in deliberate disregard of the law. The magistrate proceeded to exercise his discretion having regard to inappropriate and irrelevant material. For this reason the exercise of the discretion must be revisited[4].
[4] House v R (1936) 55 CLR 499
The Nature of the Discretion
The magistrate excluded the evidence of S/C O’Shea as he considered that it was not in the public interest for the court to give curial approval or condone breaches of the Road Traffic Act. It is to be observed in this case that no question of unfairness to Mr Majchrak arose. Counsel sought the exclusion of the evidence for reasons purely of public policy.
The High Court has recognised that a court has discretion to exclude evidence on the basis of “high public policy” although such evidence passes every other test. The court has identified this discretion as being distinct from considerations of fairness to an accused, although it is conceded that there is some overlap. Fairness will always be a consideration.
The exercise of the discretion involves the weighing of competing public interests[5]: the desirable effect of gaining a conviction against an offender and the undesirable effect of encouraging or approving unlawful conduct in those whose task it is to enforce the law.
[5] R v Swaffield (1998) 192 CLR 159 at 211-212 per Kirby J
In R v Ireland[6] Barwick CJ observed:
Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion; or the statute may on its proper construction itself impliedly forbid the use of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[6] (1971-1972) 126 CLR 321 at 334.
The discretion was the subject of further analysis in Bunning v Cross[7] where Stephen and Aickin JJ commented:
[7] (1978) 141 CLR 54 at 74-75
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of crucial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration... It is not fair play that is called into question in such cases, but rather societies right to insist that those who enforce the law themselves respect it…
Ultimately the exercise of the discretion in a given case will turn on particular facts and circumstances. In the present case the following considerations may be identified as relevant matters to the exercise of the discretion to allow or exclude evidence:
–      S/C O’Shea considered that his long experience as a police officer and special training with motor vehicle driving well equipped him to handle the situation. He did not consider that he was driving at a speed or in a manner that was dangerous to the public. Given S/C O’Shea’s state of mind, it can be concluded that he did not deliberately set out to breach the law and he was not recklessly indifferent about his manner of driving.
-       When the S/C pursued Mr Majchrak, he did so with a view to stopping the vehicle. His intention was to eliminate a source of danger to the public.
-       There was no suggestion that the S/C’s conduct in any way led to, or contributed to Mr Majchrak’s manner of driving.
-       The S/C’s conduct did not involve any unfairness to Mr Majchrak.
-       The evidence was cogent and probative.
-       Speeding offences and injuries associated with speed are significant social concerns.
In this case these factors weigh heavily in favour of the admission of the evidence.

The remarks of Prior J in Papps v Police [1999] SASC 545 at [29] are apposite:
…it was a technical or trivial breach by an officer conscientiously seeking to enforce the law, not a breach by an officer seeking to entrap a person. This is not a case where the conduct of the police officers involved was an element of the offences with which the appellant was charged. Nor is it a case where any unlawful or improper conduct by the police “led to” the unlawful conduct the subject of the charges. The suspected speeding of the respondent led to the conduct of the police officer which is said to give rise to the consideration of the discretion to exclude relevant and admissible evidence. I cannot identify the view the magistrate took of Thomson’s response to the situation created by the respondent as “a deliberate or reckless disregard of the law” as much as it was an attempt to enforce compliance with it. Whilst “the public need to bring to conviction those who commit offences” could be acknowledged in this case, “the public interest in the protection of the individual from unlawful and unfair treatment” is not so readily or easily invoked. It is not a case of a deliberate and serious impropriety causing unfairness to the appellant. There was no unfairness to the respondent in the manner in which the evidence came into existence. Fairness called for the admission of the evidence, not its rejection.
The proper exercise of the discretion leads to the overwhelming conclusion that the evidence should be admitted. The magistrate was wrong to exclude the evidence of S/C O’Shea. In any event the magistrate was wrong to exclude all evidence of speeding. The evidence of Mr Majchrak’s rapid acceleration and early manoeuvres were admissible and were sufficient to make out a case to answer of driving at a speed or in a manner dangerous to the public.
For these reasons this appeal should be allowed. The matter should be remitted for trial. The evidence of S/C O’Shea should be admitted on the retrial.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 (2002) 84 SASR 416 at 419
2 (2002) 84 SASR 416 at 420-424
3 [2003] SASC 397 at [20] and [27]
4 House v R (1936) 55 CLR 499
5 R v Swaffield (1998) 192 CLR 159 at 211-212 per Kirby J
6 (1971-1972) 126 CLR 321 at 334
7 (1978) 141 CLR 54 at 74-75

[2004] SASC 34

9 February 2004