Roberts v Police No. Scciv-03-1390

ROBERTS v POLICE
[2004] SASC 82
Magistrates Appeal

GRAY J This is an appeal against conviction.[1]
[1] An appeal against sentence was abandoned
On 9 September 2003 a magistrate found Paul John Roberts guilty of the offences of speeding, driving under the influence, driving an unregistered vehicle and contravening the condition of his drivers licence that he must drive with a 0.00g/100ml concentration of alcohol in his blood.
The magistrate imposed one penalty for all of the offending. He disqualified Mr Roberts from holding or obtaining a licence for three years commencing on 23 September 2003 and imposed a fine of $2,150. For a further offence of driving an uninsured vehicle he imposed a penalty of seven days licence disqualification to run concurrently with the three year disqualification.
The Trial
The Crown Case
The Crown case relied on the evidence of three police witnesses, Constables Anthony Potter and Darren Lambert, who apprehended and arrested Mr Roberts immediately after the offending and Sergeant Rodney Parsons, who conducted a blood alcohol test.
In the early hours of 1 March 2002, Constables Potter and Lambert observed a Ford escort panel van driving in an aberrant manner. The police followed in an unmarked police vehicle as the van drove from Marion Shopping Centre towards the city. On the police case there was only one person in the vehicle.
After observing the van travel at excessive speed, the officers activated the warning devices on their vehicle. The van turned from Marion Road into Sixth Avenue but did not stop. The van continued to travel on Sixth Avenue then turned left into the car park of a church hall. The police vehicle was approximately ten metres behind the van at this time with its lights on high beam. The police officers observed one person leave the vehicle from the driver’s side door and run towards the rear of the church building. The police officers gave chase. They followed the person to the back of the church. One officer went each side of the external buildings. They lost sight of the person for only one or two seconds. The person was then apprehended while attempting to climb the back fence. A scuffle ensued and the person was handcuffed and arrested. This person was then identified as Mr Roberts.
When questioned by the arresting police officers Mr Roberts denied driving the vehicle that evening. Mr Roberts said that he travelled by taxi to Shenanigans earlier that evening. He offered to provide the telephone number of the taxi service he had used. He volunteered that he had consumed Jack Daniels whisky and some forty beers during the course of the evening.
When subsequently questioned by Sergeant Parsons, Mr Roberts maintained that he was not the driver. He asserted that he had sold the van a short time earlier. He said that he had left the vehicle, ran to the back of the church hall and attempted to climb the back fence before he was apprehended by the police.
Mr Roberts had a blood alcohol reading of 0.126ml/100g of blood. The vehicle was unregistered and uninsured. On the Crown case, each element of the offences had been proved beyond reasonable doubt.
The Defence Case
It was the defence case that Mr Roberts was not the driver of the vehicle. Mr Roberts claimed that he had advertised his vehicle for sale in the trading post on 14 February 2003. On 1 March 2003 a man called Lazaros telephoned Mr Roberts and expressed interest in purchasing the vehicle. Arrangements were made for Lazaros to inspect the van. On the evening of 1 March 2003 Lazaros and Mr Roberts met at Mr Roberts’ Seacombe residence. Mr Roberts sold Lazaros the van for $300. Mr Roberts claimed that Lazaros agreed to drive him to Shenanigans Irish Pub at Marion. Later in the evening Lazaros returned in the van to Shenanigans and agreed to drive Mr Roberts to Heaven nightclub in the city. As they made their way into the city a vehicle began to follow them. Lazaros pulled into a church hall car park on Sixth Avenue, stopped the van and exited through the driver’s side door. Lazaros ran to the back of the church hall and jumped the fence. Mr Roberts claimed that after a few moments he left the vehicle through the front passenger door. He stood by the door as the police vehicle came to a stop. He then walked casually to the side of the church hall building. At this point he was apprehended, assaulted and arrested.
Mr Roberts claimed that he had been assaulted by the arresting officers and had sustained injuries to his ribs. However these allegations were not pursued on appeal. It was also claimed that Lazaros had died before trial.
The Magistrate’s Findings of Fact
The magistrate accepted the evidence of the police officers. He rejected the evidence of Mr Roberts where it differed from that of the police officers. He made the following specific findings:
-    On 1 March 2002 at approximately 3.30am police observed an escort panel van turning left from Finnis Street into Marion Road and then travel north along Marian road.
-    Police, in an unmarked car, took up a position behind the van and measured the speed of the van as 80km/h. The acceptable speed was 60km/h.
-    Police activated their warning devices. The van then turned off Marion Road into Sixth Avenue and finally into the car park of a church hall. The police vehicle was approximately 10 metres behind the van at this time with its lights on full beam.
-    Police observed the driver of the van jump out of the driver’s side of the car and run around the corner of the church hall. This person was later identified as Mr Roberts.
-    Constable Potter followed Mr Roberts, lost sight of him for a very short time and then observed him climbing a fence. Constable Potter grabbed Mr Roberts. Constable Lambert arrived shortly and the two officers escorted Mr Roberts back to the police vehicle.
-    Mr Roberts was strongly affected by alcohol.
-    On arriving at the police vehicle Mr Roberts attempted to run away. He was stopped.
-    At all times Mr Roberts denied driving the vehicle.
-    The police did not see anyone else in the car or get out of it.
-    Mr Roberts was arrested and submitted to a breath analysis test producing a reading of 0.126 grams per 100 millilitres of blood.
-    The van Mr Roberts was driving was unregistered and uninsured. Mr Roberts had a probationary drivers licence.
Issues on Appeal
Review of the Evidence
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq)[2] Kirby J made the following observations regarding the role of appellate courts in evaluating issues of credibility:
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge.
…
This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellate court cannot, in presently available records, recapture all of the information properly used to assist the trial judge's decision, the old strictures about that judge's advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court's rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it.
[2] (1999) 73 ALJR 306 at [90–92]
A review of the evidence disclosed that Constables Lambert and Potter gave a clear, coherent account of their observations. When they stopped at the church hall they saw one person leave the car. That person left by the driver’s door. They gave chase immediately. Constable Potter directly followed the person; Constable Lambert went around the other side of the building. Constable Potter had the person in view for all but a few seconds. He apprehended Mr Roberts attempting to jump the back fence. Constable Lambert came around the other side of the hall, saw no other person and then assisted in apprehending Mr Roberts. At no time did the police officers see a second person in the vicinity. The magistrate was entitled to accept and act on this evidence.
A review of Mr Roberts evidence, the failure of Mr Robert’s account to be put to the police officers at trial and the material inconsistencies in his accounts provide ample reason for a court to have rejected his evidence on the critical issue as to whether Mr Roberts was driving the vehicle.
Mr Robert’s account of the driver leaving the van and jumping the fence as he got out the passenger side of the vehicle, stood for some moments and then walked casually around the side of the church hall was not put to either police officer in cross examination.
Mr Robert’s account of being driven to Shenanigans and then back to the city by Lazaros was not given to the police at the time of Mr Roberts arrest or at any subsequent interview. As earlier observed, the police officers were told of the sale of the vehicle but that was all. The details of the suggested sale and Lazaros’ activities as driver were first mentioned in the defendant’s evidence at trial.
Mr Roberts’ claim that he had consumed a considerable quantity of alcohol and that he suffered from short term memory loss due a head injury suggests that he was not likely to be a reliable historian of the events of the night.
The Magistrate was entitled to reject Mr Robert’s evidence. His differing accounts directly eroded his credibility. The failure to put his account to the arresting police officers is also telling. It suggests a changing account as the case developed. No explanation was offered about the suggestion of the use of a taxi. The analysis of these matters fully supports the rejection of Mr Roberts account.
The Magistrate’s Reasons
It was submitted by counsel for Mr Roberts that the magistrate erred in failing to provide adequate reasons for his findings. As observed by the court in Papps v Police there is an obligation on magistrates to give reasons for their decisions:[3]
[3] (2000) 77 SASR 210 at 218
… [T]he failure of a magistrate to give adequate reasons is an error of law. In so far as Lawson v Lee expresses a contrary view, in my opinion it does not represent the current law.
The courts have encountered difficulty in articulating a test to determine whether or not reasons are adequate. Much must depend upon the circumstances of each case. As was said in Lawson v Lee, the reasons must be "coherent, intelligible and comprehensive." But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance Ltd v Massoud -
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:-
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
In my view, the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed.
The magistrate recognised that the principal issue was the identity of the driver of the van. He indicated a clear acceptance of the police evidence and a rejection of Mr Robert’s account. He made explicit findings of fact beyond reasonable doubt. He identified, although in brief terms, his reasons for his views on credibility. Although closer reasoning may have been desirable, it does not follow that the reasons are inadequate. This court has been able to exercise its appellate jurisdiction without difficulty. This would suggest that the reasons are adequate. A review of the evidence confirms that the magistrate’s findings were fully supported by the evidence.
The Onus of Proof
Counsel for the appellant submitted that the magistrate applied an incorrect onus of proof. It was argued that merely preferring the credibility of the police witnesses to that of Mr Roberts did not constitute a finding that the Crown had discharged its onus to prove the charges beyond reasonable doubt. In The Queen v Calides[4] Von Doussa J made the following observation:
It seems to me that where a case has so shaped itself that the outcome is likely to depend upon the view taken by a jury of two opposing bodies of evidence, it is a very natural and easy thing for a jury, indeed for anyone, including a judge, to begin by saying to themselves or himself: “Here are two opposing bodies of evidence; they can’t both be true. I suppose we have to decide who’s telling the truth.” That, I repeat, is a perfectly natural and almost inevitable approach to begin with, at least for the man in the street. That may be a perfectly practical start, but, unfortunately, in my opinion, it suffers badly from a lack of proper guidance from the principles relating to onus and standard of proof.
In Harris v Mill[5] Von Doussa J further discussed the issue:
In a sense the key issue in many trial is credibility, but to pose the question as ‘who to believe’ is apt to be misleading and to cause a tribunal in a criminal trial to fall into the error of the kind exposed in R v Calides (1993) 34 SASR 355. There is a very risk that the inquiry will become: ‘Which of the parties giving the competing stories is to be preferred.’ The preference of the victim’s evidence to that of the defendant, even where the defendant’s evidence is in consequence rejected, leaves unanswered the essential question whether the tribunal is satisfied that every element of the charge is proved beyond reasonable doubt. Generally speaking, the rejection of the defendant’s evidence does not provide positive proof of guilt. The preference of the victim’s evidence does not inevitably lead to a conclusion that his or her should be accepted as proof beyond reasonable doubt. Even a finding that the victim was a truthful witness does not mean that the victim’s evidence is necessarily reliable. The victim might be patently honest yet mistaken, or through faulty memory unreliable in respects which leave open a reasonable doubt about the defendant’s guilt.
[4] (1983) 34 SASR 355 at 358
[5] (unreported, Supreme Court, SA, von Doussa J, 7 April 1988)
It is clear that in the present case the magistrate addressed the correct onus of proof. In accepting the police witnesses’ evidence the magistrate clearly rejected the account of events given by Mr Roberts. The magistrate found the charges proved to the requisite standard of proof.
Conclusion
No error has been demonstrated. The findings and conclusions of the magistrate were amply supported by the evidence. His discretionary findings were appropriate. The evidence was overwhelming. This appeal is dismissed.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 An appeal against sentence was abandoned
2 (1999) 73 ALJR 306 at [90–92]
3 (2000) 77 SASR 210 at 218
4 (1983) 34 SASR 355 at 358
5 (unreported, Supreme Court, SA, von Doussa J, 7 April 1988)

[2004] SASC 82

26 March 2004