Richard Heyward v Leigh Bishop - [2013] ACTSC 202

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] ACTSC 202
Decision Date: 3 October 2013

CaseChat Overview and Summary

The appeal in Richard Heyward v Leigh Bishop was heard in the ACT Supreme Court. The appellant, Richard Heyward, sought to appeal a decision from the Magistrates Court, where he was found guilty of various drug-related offences. The primary issues in this case were whether the magistrate erred in failing to provide sufficient reasons for their determination under section 138 of the Evidence Act 2011 (ACT) and whether the magistrate erred in failing to consider inconsistencies in the police witness testimony. The court was required to determine if the magistrate had the discretion to not provide reasons under section 138, and if the inconsistencies in the police testimony were significant enough to warrant a new trial.

The court found that the discretion under section 138 of the Evidence Act does not arise until the court is satisfied that the evidence was obtained improperly or in contravention of Australian law. The court held that the magistrate was entitled to prefer the evidence of the police officers over that of the appellant, given that the police testimony was unchallenged. The court also noted that the magistrate was entitled to view the alleged inconsistencies in the police testimony as not significant, as they did not undermine the essential consistency of the evidence. The magistrate’s assessment of the credibility of the witnesses and the weight of the evidence was considered appropriate.

The appeal was ultimately dismissed by the court. The court found no errors in the magistrate's handling of the evidence or in their assessment of the credibility of the witnesses. The decision of the Magistrates Court was upheld, and the appellant's conviction remained in place. The court found no grounds for a new trial based on the alleged inconsistencies in the police testimony. The appeal was dismissed, and no further orders were made.

Orders

Orders of the court

1. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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