Roberts v Stevens
[2005] QDC 457
•8 December 2005
DISTRICT COURT OF QUEENSLAND
CITATION: | Roberts - v – Stevens [2005] QDC 457 |
PARTIES: | ROBERTS, Eugene Lloyd Appellant Against STEVENS, Susan Respondent |
FILE NO: | 390/05 |
PROCEEDINGS: | Appeal from Magistrates Court. |
DELIVERED ON: | 8 December 2005 |
DELIVERED AT: | Townsville |
HEARING DATE: | 1 December 2005 |
JUDGE: | C.F Wall Q.C |
ORDERS: | Appeal allowed with costs. Conviction and sentence set aside. Matter remitted to the Townsville Magistrates Court for re-hearing before a different Magistrate. |
CATCHWORDS: | APPEAL – EVIDENCE – drink driving - no evidence of drinking before accident - claim by the def that alcohol consumed after driving - effect on breath analysis certificate - no evidence from def - improper use made by magistrate of def’s silence Cases referred to: |
| COUNSEL: | Mr D. Honchin for the Appellant |
SOLICITORS: | Stevenson & McNamara for the Appellant |
HIS HONOUR: This is an appeal against the decision of the Magistrates Court at Townsville on the 5th of September 2005 to convict the appellant of driving a motor vehicle whilst under the influence of liquor.
Early on the morning of the 23rd of January 2005 a vehicle driven by the appellant collided with another vehicle at an intersection in Townsville. The collision was observed by two bystanders. Police arrived about 30 minutes later and a breath test provided by the appellant produced a positive reading. A later breath test at the police station produced a reading of 0.181 per cent and a Breath Analysis Certificate (BAC) to that effect was issued. Normally this would be sufficient to convict the appellant (see Bartlett v. Harrison (1995) Qd.R. 325, for example). But here the appellant claimed to the investigating police officer, the respondent, that after the collision and before being breath tested he had consumed two cans of rum and Coke.
Drinking after driving and before a breath test can affect the evidentiary force of a Breath Analysis Certificate (see Davies v. Dorfler, ex parte Davies (1988) 2 Qd.R. 490 and
R v. Durrant (1969) 3 All ER 1357.
This appeal involves the genuineness of the appellant's claim that he consumed alcohol after driving and before testing and the Magistrate's treatment of that claim.
In relation to such claims Lord Parker CJ said in R v. Durrant at page 1359:
"It has been pressed on this court that of course the result of this case may be that defendants in other cases will be tempted to raise a defence on these lines. That is a danger which cannot possibly be averted, but no doubt justices or juries at quarter sessions will in those circumstances look with very great care at the evidence produced, and will in many cases be able to say that really this defence has been fabricated. It is, of course, something which the prosecution do not have to negative at the outset; it is one of those cases where the defence must raise the point, but at the end of the day it will be for the prosecution to show that the story could not be true."
At the scene the respondent observed indicia suggesting the appellant had consumed alcohol, but that did not explain when he had done so.
Before the Magistrate the prosecution conceded there was no evidence of the consumption of alcohol by the appellant before the accident, but asked the Court to reject the appellant's claim that he had done so after the accident and before testing, relying upon evidence given by one of the witnesses, Cassie Payne, and the respondent. The Magistrate acceded to this request, finding as follows:
"I am prepared to accept and find that on the evidence any window of opportunity for the defendant to have consumed any liquor, let alone two cans of alcohol as he has claimed, was in fact miniscule. Based on the account by Payne it would of course have been rather an extraordinary act in the circumstances. But in any event, the absence of some direct testimony by the defendant or some other case material I reject the claims that he has at least made to the arresting officer. I reject his claims out of hand.
I accept a relatively thorough search by the investigating officer Stevens failed to locate any empty cans either in the car or in the vehicle, or perhaps even knowing that the glove box was not searched I tend to find that as a result of that search that tends to support her contention that there was simply none around...
Essentially I suppose even though I have made findings in relation to rejecting the - and of course it is not direct evidence of the defendant, he has not given evidence before the Court, it is simply claims that he has made to the police. But clearly Courts are not bound to accept evidence which can be said to be untrue or false, or which is inherently improbable or incredible that no reasonable man would accept it as true even if such evidence is uncontradicted. And the authority for that is Hardy v. Gillette, 1976, VLR, at page 392. And of course it has long been accepted that a Court is not bound to accept evidence even if uncontradicted which is in fact inherently improbable or unreasonable."
This conclusion by the Magistrate is challenged on the basis that he has, in addition to the evidence he referred to, relied upon the failure of the appellant to give evidence as a reason for rejecting his claim made to the respondent at the scene.
In Azzopardi v. the Queen (2001) 75 ALJR 931 at 941, paragraph [51], Gaudron, Gummow, Kirby and Hayne JJ said:
"It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt."
See also paragraph [67]:
Likewise, the appellant's failure to give evidence cannot be used, in a case such as the present, as strengthening the prosecution case or as supplying additional proof against him.
See also Petty v. the Queen (1991) 173 C.L.R. 95 at 106-107.
Judging from the language used by the Magistrate he would appear to have used the appellant's silence in Court at least as "a make-weight in assessing whether the prosecution had proved it case beyond reasonable doubt" and in this respect he has fallen into error. Mr Morton for the respondent correctly conceded that the apparent reliance by the Magistrate on the appellant not giving evidence "could be a mistake". In my view it is. For this reason the charge will have to be reheard, because there is evidence which is capable of supporting the prosecution case.
For the reasons I have given I am unable to accept the other argument of the appellant, that the BAC cannot have any evidentiary effect where there is no evidence of drinking before driving and there is evidence of the consumption of alcohol after driving and before breath testing.
The appellant asks for costs in the Magistrates Court but I think the fairer order to make is that that application abide the result of the re-trial. If the appellant is then successful he can renew his application before the Magistrate. The appellant is, of course, entitled to his costs of the appeal.
I allow the appeal and set aside the conviction and sentence of the appellant. I remit the charge to the Magistrates Court at Townsville for re-hearing before a different Magistrate. I order that the respondent pay the appellant's costs of and incidental to the appeal, fixed at $2,100.
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