Richard Heyward v Leigh Bishop
[2013] ACTSC 202
•3 October 2013
RICHARD HEYWARD v LEIGH BISHOP
[2013] ACTSC 202 (3 October 2013)
APPEAL AND NEW TRIAL – EVIDENCE – appeal from Magistrates Court – whether error in failing to provide any or sufficient reasons for determination s 138 Evidence Act 2011 (ACT) discretion did not arise – discretion in s 138 does not arise until Court satisfied evidence obtained improperly or in contravention of Australian law – Magistrate entitled to prefer evidence of police to evidence of appellant – whether error in failing to consider inconsistency of police witness testimony – Magistrate entitled to view alleged inconsistencies as not significant – essential consistency – appeal dismissed
Evidence Act2011 (ACT), s 138
Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19(1)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 51 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 3 October 2013
IN THE SUPREME COURT OF THE )
) No. SCA 51 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: RICHARD HEYWARD
Plaintiff
AND: LEIGH BISHOP
Defendant
ORDER
Judge: Burns J
Date: 3 October 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
On 24 November 2011, police observed the appellant to be the driver of a motor vehicle on a public street in Dickson in the Australian Capital Territory. Police signalled for the vehicle to stop, which it did, and police proceeded to speak to the male driver of the vehicle, the appellant. The appellant identified himself and underwent a roadside screening test, which returned a positive result. The appellant was informed that as a result of the test he would be placed in custody for the purpose of undergoing a breath analysis. What took place immediately thereafter was a matter of dispute. The appellant claimed that he was assaulted by police before being placed in a police vehicle and transported to the City Police Station for the breath analysis. Those police officers who were involved in taking the appellant into custody alleged that he became belligerent, aggressive and uncooperative after being taken into custody, requiring them to use force to place him in a police vehicle to convey him to the City Police Station. They denied that they had used unnecessary or unreasonable force on the appellant.
It was not disputed that the appellant was conveyed to the City Police Station in police custody for the purpose of the breath analysis. It is also not disputed that the breath analysis returned a reading of 0.102 grams of alcohol per 210 litres of breath.
After undergoing the breath analysis the appellant was apparently released by police from the City Police Station. A summons was subsequently issued requiring the appellant to appear in the Magistrates Court to answer a charge under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) alleging that he, as a repeat offender, on 24 November 2011, having been the driver of a motor vehicle on a road, did have, within the relevant period, the prescribed concentration alcohol in his breath, being level 3. To that charge the appellant entered a plea of not guilty. The hearing of the charge commenced before a Magistrate on 30 May 2012, before concluding on 19 June 2012.
In the course of the hearing before the Magistrate, the appellant objected to the admission into evidence of the result of the breath analysis on the grounds that it had been unlawfully obtained. The appellant relied upon the provisions of s 138 of the Evidence Act2011 (ACT):
SECT 138
Exclusion of improperly or illegally obtained evidence
(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;
must not 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 the person 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 the person 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 must 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 appellant submitted that the police officers who took him into custody for the purpose of undergoing a breath analysis assaulted him, with a consequence that he was not in lawful custody when he was required to undergo the breath analysis. Thus, the appellant argued, the evidence of the breath analysis was not to be admitted unless the desirability of admitting evidence outweighed the undesirability of admitting evidence that had been obtained in the way in which it was obtained.
The Magistrate heard evidence from the appellant and from the two police officers who took the appellant into custody at Dickson for the purpose of undergoing a breath analysis. After hearing submissions from those representing the respondent and the appellant, the Magistrate said:
I know that we do not have a great deal of time and I would otherwise refer in detail to some of the evidence, however, it seems to me, considering all the evidence, that the account of the occurrence and the deterioration of the defendant’s behaviour is more consistent with what one might expect to have occurred in the real world, rather than the description of the defendant of quite gratuitive violence on the part of the police officers. I can well understand the defendant’s concern, particularly for his son, and that concern may have been heightened by the effect of the alcohol he had been consuming. He was eventually placed in a caged vehicle and taken to the police station where he was submitted to a breath analysis which was positive.
My finding of the circumstances at Dickson do not require me to form any view about the more discretionary aspects of section 138, however, it may be apparent to counsel that I have some misgivings about the proposition that the discretion should be exercised in the defendant’s favour. That said, I find that the certificate of breath analysis is admissible, having rejected the submissions of the defendant in relation to its admissibility.
On 5 July 2012 the Magistrate convicted the appellant, fined him $750 and disqualified him from holding a drivers licence for a period of nine months. The appellant has appealed from the conviction imposed by the Magistrate. The grounds of appeal are:
(1) His Honour erred in failing to provide any, or any sufficient reasons, for determining the factual basis upon which he ruled that the question of the exercise of the 138 discretion did not arise; and
(2) His Honour erred in failing to consider the inconsistency in the evidence of the police witnesses in determining the factual basis upon which he ruled that the 138 discretion did not arise.
In my opinion, this appeal must be dismissed. The Magistrate was confronted with two very different versions of the events which occurred immediately after the appellant was taken into custody for the purposes of undergoing a breath analysis. In order to enliven the provisions of s 138 of the Evidence Act the appellant held the onus of establishing, on the balance of probabilities, that the impugned evidence was obtained either improperly or in contravention of an Australian law, or in consequence of such impropriety or contravention. Where a party to proceedings satisfies that onus, the Court then has an obligation to reject the evidence unless satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it. However, the question of “desirability versus undesirability” does not arise unless the objecting party satisfies the Court, on the balance of probabilities, that the evidence was obtained improperly or in contravention of an Australian law, or in consequence of such impropriety or contravention.
It is, I think, clear from the passage from the Magistrates decision quoted above that his Honour gave brief, but adequate, reasons for his decision, being his opinion that the version of events given by the appellant of gratuitous violence directed to him by the two police officers was improbable, or at least less probable than the version given by the police officers.
It is true that his Honour did not directly address what the appellant says were inconsistencies between the evidence given by the two police officers. The Magistrate was entitled to take the view, as I do, that these alleged inconsistencies were not significant. There was an essential consistency between the two police officers on the significant issues concerning the reasons for the use of force after taking the appellant into custody.
The Magistrate was entitled to find, as he did, that the essential events occurred in the way described by the police. The Magistrate gave brief, but adequate, reasons for his decision. No error has been demonstrated on the part of the Magistrate. The appeal must be dismissed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 3 October 2013
Counsel for the Appellant: Mr S Gill
Solicitor for the Appellant: Tim Sharman Solicitor
Counsel for the Respondent: Mr A Williamson
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 26 July 2013
Date of Judgment: 3 October 2013
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