Reynolds v Wood
[1991] TASSC 123
•15 March 1991
Serial No B9/1991
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Reynolds v Wood [1991] TASSC 123; B9/1991
PARTIES: REYNOLDS, Neil Anthony
v
WOOD, Alan Martin
FILE NO/S: LCA 12/1990
DELIVERED ON: 15 March 1991
JUDGMENT OF: Underwood J
Judgment Number: B9/1991
Number of paragraphs: 14
Serial No B9/1991
List "B"
File No LCA 12/1990
NEIL ANTHONY REYNOLDS v ALAN MARTIN WOOD
REASONS FOR JUDGMENT UNDERWOOD J
15 March 1991
The applicant was convicted by a magistrate of driving a motor cycle on the Murchison Highway on 16 December 1990:
(1)which was unregistered,
(2)which was uninsured and,
(3)whilst he was disqualified from holding or obtaining a driver's licence.
The motion seeks a review of those convictions on the grounds that:
1The learned magistrate erred in fact in finding that the applicant was the rider of the motor cycle on 16 December 1989.
2The learned magistrate erred in fact in finding that the evidence of the defence witnesses placed the applicant in close proximity to his motor cycle at the relevant time; and
3The said convictions are against the weight of the evidence.
The only oral evidence for the prosecution was given by Constable Minehan. He said that "about 10.00am on Saturday the 16th of December 1989" he was conducting radar speed patrols on the Murchison Highway. He said that whilst he was "busy with another person" he saw a Honda VF 750 motor cycle go past. He noted the registration number. He believed, from the general build of the rider, that the cycle was being driven by the applicant. On 25 December 1990 Constable Minehan spoke to the applicant about an unrelated matter. At that time Constable Minehan said that the following conversation occurred between him and the applicant. He said that he made notes of the conversation in the presence of the applicant. The notes were put in evidence pursuant to the Evidence Act, s.81B:
"Is that Honda VF 750 yours?
Yep.
Were you riding it on Saturday 16th at about 10.00am?
Yep, geez you scared me, I took it home and hid it for a couple of days after that.
CAUTIONED
Do you have an explanation for riding whilst disqualified?
Like I said I've got to get around.
You'll receive a summons for that.
You can't do that, I reckon I'll get a lawyer and plead not guilty to that. Besides you don't know the registration number, and I think it's expired.
Well do you have an explanation for riding an unregistered motor cycle?
That's fucking life hey.
Who did you buy the bike from?
No answer.
How long have you owned it?
No answer."
The applicant denied that this conversation took place and that any notes were made in his presence.
It was not disputed that the applicant was the owner of an unregistered and uninsured Honda VF 750 motor cycle. The issue was whether the defendant was riding it at "about 10" on 16 December 1990. The applicant, his father and two other witnesses gave evidence. It appeared that 16 December 1990 was a day of some importance in Rosebery. It was the Rosebery Sports Day. The applicant's father was taking part in a rock drilling competition. The applicant and his father said that the applicant was awoken by his father about 10.30am that day. The applicant said that a friend, Darren Hays, called at his house and took him in Mr Hays' car to Bernard Sheals' house where the motor cycle had been kept for about a week or a week and a half, so that Mr Sheals could do some mechanical work on it. Mr Hays confirmed the applicant's evidence and said that he called for him about 11.00am. The applicant, Mr Hays and Mr Sheals all gave evidence that, as Mr Sheals was not ready to go to the sports carnival when the other two arrived at his house, the latter went in Mr Hays' car to a hotel to get some beer. On their return to Mr Sheals' house with the beer all three went to the sports carnival where they remained for the rest of the day. All three witnesses said that the motor cycle was at Mr Sheals' house and that none of them moved it that day. Although the motor cycle was in need of mechanical attention the learned magistrate found that it was capable of being driven and no issue is taken with that finding.
It is clear from the foregoing of the summary of the facts that there was a sharp conflict between the prosecution evidence and the police evidence. Learned counsel for the applicant, Mr Richardson, accepted that, on a motion to review a finding of fact made by a magistrate, the question is "whether there was evidence before the learned stipendiary magistrate upon which he was entitled to hold that the offence was proved" per Burbury CJ in Richardson v Shipp [1970] Tas SR 105 at p117. See also Hrycyszyn v Groves & Anor, Everett J 27/1982; Taylor v Armour & Co Pty Ltd [1962] VR 346 at p351; Bedelph v Weedon [1963] Tas SR 69 at p81. To those authorities, can be added the following passage from Lawson v Lee (1978) 19 SASR 442 at p.446:
"If the magistrate gives reasons which are internally so inconsistent as to leave the Court of Appeal in a state of doubt, or if the reasons given are inconsistent with the ultimate finding, then the appeal will be allowed and often there will be a new trial."
On behalf of the applicant it was conceded that the learned magistrate was entitled to accept the evidence of Constable Minehan and reject the evidence of the applicant and his witnesses and, had he done no more than that, the motion could not succeed. However, it was submitted that the learned magistrate reached his decision by erroneous reasoning which vitiated the result.
The learned magistrate's reasons, given ex tempore commenced with the proposition, "it is basically a question of whether or not I can be satisfied beyond reasonable doubt of the primary facts as given by the police officer and I am. I accept his evidence, I accept his evidence of the conversation, I don't accept the evidence of the defendant ...". The submission was that the learned magistrate failed to assess all of the evidence before reaching that stated conclusion; that he accepted the police witnesses and proceeded as a consequence of that acceptance to reject the evidence of the applicant and his witnesses. There is no substance in this submission. A reading of all the reasons given makes it quite clear that the learned magistrate considered all of the evidence. He said that the words attributed to the applicant by Constable Minehan had "a ring of truth" about them.
The learned magistrate said that the applicant's father may have been confused about the time he woke the applicant or whether "it was precisely 10 o'clock when the police officer saw [the applicant]". He was quite entitled to place no reliance on the evidence of the applicant's father for those reasons.
Mr Richardson also submitted that the learned magistrate's reasons disclose an error of fact and that this error led to a disclosed fallacy in the reasoning process which vitiates the conclusion reached. The fact referred to as an error is better described as a statement of the evidence given. The learned magistrate said:
"Now whether or not [the motor cycle] had been left at Mr Sheals' property or not I do not believe is significant in deciding whether or not he actually rode it that day because the defendant upon his own admission and the comments and the statement of Mr Hays and Mr Sheals puts the defendant in the vicinity of the motor cycle at about the time the police officer saw it ...".
On the face of it, this appears to be an erroneous description of the evidence of the applicant and Messrs Hays and Sheals for their evidence was that they did not get to Mr Sheals' house where the motor cycle was kept until about an hour after the sighting alleged by Constable Minehan. However, the learned magistrate followed the passage I have just set out with his finding that the cycle was capable of being driven that day. In Hrycyszyn v Groves & Anor (supra) Everett J said at p6:
"It is not a proper legal approach, when seeking to vitiate an order of conviction by a magistrate by attacking his express reasons, to dissect the expression of those reasons extremely minutely and ignore their overall effect."
A reading of all the reasons expressed makes it clear that in the passage just set out the learned magistrate was stating that his view of the evidence of the applicant and his witnesses was to the effect that, about the relevant time, the motor cycle was accessible to the applicant in the sense that it was not then in some remote location or locked in a shed to which the applicant had no access. Such a view is consistent with the evidence given.
Later, referring to the admission attributed to the applicant by Constable Minehan, the learned magistrate said:
"I accept those conversations, they are clearly admissions, I accept them as admissions I do not accept the defendant's denial and it follows therefore that so far as it is needed I do not accept the evidence of the two witnesses Mr Hays and Mr Sheals."
It was submitted that this passage demonstrated a fallacious process of reasoning viz. it does not follow from a rejection of the applicant's denial of any admission that he was the rider, that the evidence of the defendant's witnesses "so far as is needed" cannot be accepted. It is true that the second proposition does not follow from the first but again, it is clear from the overall effect of the learned magistrate's reasons that the police officer's evidence so impressed him, taking it into account with the other evidence, he could not accept evidence which tended to contradict the truth of the applicant's admission. Once the learned magistrate rejected the evidence of the applicant and placed no reliance on the evidence given by the applicant's father concerning the time he woke his son, the evidence that the applicant rode the cycle about an hour before he was picked up by Mr Hays is not necessarily inconsistent with Mr Hays' evidence. Further, the learned magistrate made it clear that insofar as Mr Hays' evidence may have been inconsistent with the truth of the admission which he accepted, he rejected that evidence. This reasoning and this view of the facts was properly open to the learned magistrate. There was in law sufficient evidence for him to reach the conclusion he did; no error in his reasoning process has been demonstrated and accordingly the motion will be dismissed.
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