Robertson v Reardon
[2025] TASSC 21
•11 April 2025
[2025] TASSC 21
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Robertson v Reardon [2025] TASSC 21 |
| PARTIES: | ROBERTSON, Shaun Anthony |
| v | |
| REARDON, Sergeant Robert | |
| FILE NO: | 2424/2023 |
| DELIVERED ON: | 11 April 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 4 April 2025 |
| JUDGMENT OF: | Estcourt J |
| CATCHWORDS: |
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Application for hearing de novo – Failure by prosecutor to call witnesses and tender body worn camera footage – Footage and evidence of the witnesses was necessary to unfold the narrative and give a full account of events – In the circumstances the interests of justice required that the complaint against the applicant be heard de novo – Application granted.
Aust Dig Magistrates [1349]
Legislation:
Justices Act 1959 (Tas)
Road Safety (Alcohol and Drugs Act) 1970 (Tas)
Police Powers (Vehicle Interception) Act 2000 (Tas)
Evidence Act 2001 (Tas)
Cases:
Bedelph v Weedon [1963] Tas SR 69
Benson v Rogers [1966] Tas SR 97
Coombe v Bessell (1994) 4 Tas R 149
Coppleman v Godfrey [2014] TASSC 60
Munday v Cole [1979] Tas R 311 (NC 14)
Nguyen v The Queen [2020] HCA 23
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21
Richardson v Shipp [1970] Tas SR 105
Taylor v Armour & Co Pty Ltd [1962] VR 346
Webster v White (No 2) [1991] TASSC 80
Wood v Smith [1991] TASSC 12
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
REPRESENTATION:
Counsel:
Appellant: N Edmondson Respondent: A Godleman
Solicitors:
Appellant: Annalisa Doedens Legal Respondent: Office of Director of Public Prosecutions
| Judgment Number: | [2025] TASSC 21 |
| Number of paragraphs: | 23 |
Serial No 21/2025 File No 2424/2023
SHAUN ANTHONY ROBERTSON v SERGEANT ROBERT REARDON
| REASONS FOR JUDGMENT | ESTCOURT J 11 April 2025 |
| The application |
1 Pursuant to s 107 of the Justices Act 1959, the applicant sought a review of the findings of guilt made by Magistrate McKee, on 23 August 2023, whereby his Honour found proved charges 1 and 2 on complaint number 8216/2020 charging, respectively, the offence of driving whilst exceeding the prescribed alcohol limit in breach of s 6(1) of the Road Safety (Alcohol and Drugs Act) 1970 and the offence of evading police (aggravated circumstances) in breach of s 11A(2A) of the Police Powers (Vehicle Interception) Act 2000.
2 A motion to review is not of the nature of an appeal by way of rehearing. On a review of the conclusion of a magistrate based on the evidence, the question is whether the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Applicants in most cases, will find it difficult to satisfy this test, and courts will rarely overturn such decisions. In Phillips v Arnold
[2009] TASSC 43, 19 Tas R 21 Crawford CJ said at [46]-[47].
"46 Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117. 47 In most cases an applicant for an evidence based review will find it a difficult test to satisfy. At the end of my judgment in Wood v Smith unreported 37/1991 ([1991] TASSC 12) I commented that 'when a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it'. That comment was based on experience and reflection but, of course, was not a statement of principle."
3 In the present case the notice to review asserts not only that the findings of guilt are unreasonable and cannot be supported having regard to the evidence, because on the whole of the evidence, it was not open to the learned magistrate to be satisfied beyond reasonable doubt that the applicant was the driver of the motor vehicle but also that his Honour made specific errors with regard to the evidence called on the hearing of the complaint. They are:
•
That the learned magistrate erred in law and in fact in rejecting that the applicant's evidence of alibi raised a reasonable doubt, entitling him to an acquittal.
•
That the learned magistrate erred in law where the prosecutor failed to call a material eyewitness, the learned magistrate failed to direct himself that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether his Honour may properly reach conclusions about issues of fact but whether, in the circumstances, he should entertain a reasonable doubt about the accused.
2 No 21/2025
• That the learned magistrate erred in law by not requiring the prosecutor to play the entirety of Exhibit P5 where the prosecutor had an obligation to present all of the evidence. • That the learned Magistrate erred in law by admitting evidence pursuant to s 191 of the Evidence Act 2001 Exhibits P3 and P4, where the submissions by the applicant could not have satisfied his Honour that the tendering of those exhibits was agreed. 4 The applicant has also filed an application pursuant to s 111(1) of the Justices Act seeking an order for a hearing de novo.
5 The jurisdiction conferred by s 111 is discretionary. An order may not be made unless the court is satisfied that having regard to all of the circumstances, the interests of justice require that the complaint be heard de novo (Webster v White (No 2) Serial Number A64/1991).
6 The provisions of s 111 make it clear that any applicant does not have a prima facie entitlement to a hearing de novo. The section does not confer an entitlement to a second chance on the facts. In order to obtain an order under s 111(1) an applicant is required to affirmatively persuade the court that having regard to all the circumstances the interests of justice require that the complaint be heard de novo, or that the conditions referred to in s 111(5)(a), (b) or (c) have been satisfied (Green CJ in Munday v Cole [1979] Tas R 311 (NC 14) and Coombe v Bessell (1994) 4 Tas R 149 at 151 and Coppleman v Godfrey [2014] TASSC 60).
7 A valid notice to review is a prerequisite to the exercise of jurisdiction under s 111 but it is not a prerequisite for validity that any ground be made out. It is however, a prerequisite for validity that the notice to review set forth as a ground, is an allegation of the type referred to in s 107(4): (Webster v White (No 2) (above).
8 The applicant does not wish to pursue the notice to review but it has been filed and does allege grounds of the type referred to in s 107. The prerequisites to the exercise of my discretion have therefore been satisfied.
The applicant's contentions
9 The applicant contends that the interests of justice require the complaint to be heard afresh because the prosecutor failed to call witnesses who could have been expected to give evidence relevant to the hearing namely, Stacey Louise Hinds, Constable Richardson and Constable Schenirer; and failed to tender body worn camera (BWC) footage captured by Constable Richardson and Constable Schenirer which contained relevant admissible evidence on the hearing. The applicant submits that the prosecutor, in fact, failed to disclose that BWC footage to the applicant or the applicant's counsel.
10 In his written submissions, counsel for the applicant, Mr Edmondson summarised the relevant
background as follows:
"6
There were two pieces of BWC footage tendered on the hearing. BWC footage is the BWC footage of Constable Brown and Detective Acting Sergeant Edwards taken prior to and during the Applicants arrest in relation to those offences. In that BWC footage, the Applicant first denies being the driver of the motor vehicle relevant to the commission of the offences.
7
In his evidence in chief, the Applicant maintained his denial that he had been the driver of the relevant motor vehicle, he gave evidence that:
a On 22 July 2020, he was at his Father's house; b He approximated that he arrived there at lunchtime; 3 No 21/2025
c He was there with his Father, a few friends and his partner, Stacey
Louise Hinds;d He stayed at his Fathers until about 11:30pm; e He did not leave his Fathers address by vehicle; f That at the time of the interception by police he was at his Fathers
residence;g That he and his Ms Hinds left his Fathers address and were heading
towards Granton on foot; andh That he had not driven the vehicle at any time that evening. 8 On 14 March 2025, the Applicant filed a USB with exhibits P5 & P7 as well as the BWC footage recorded by Constable Richardson and Constable P Schenirer which were not tendered on the hearing but were taken at the scene where the Applicant was arrested at on or around the same time as exhibits P5 & P7.
9 The BWC footage taken by Constable Richardson and Constable Schenirer was relevant admissible evidence. It also revealed two police witnesses who were not called to give evidence as well as a civilian witness, Stacey Louise Hinds, who was not called to give evidence. Each of these witnesses offered evidence that went to:
a The identification of the Applicant as the driver of the motor vehicle;
and/orb The Applicants location prior to his arrest by police. 10 The failure to call the witnesses and tender the BWC footage has resulted in an unfairness to the Applicant which can only be cured by the complaint being reheard de novo." (Footnotes omitted)
11 Counsel for the applicant submits that when viewed alongside the BWC footage tendered on the hearing and the evidence given by the applicant before the learned magistrate, I should conclude that the evidence available from Constable Richardson, Constable Schenirer and Ms Hinds was very important to the defence case. Specifically, counsel submits that the BWC footage reveals Ms Hinds giving evidence in relation to:
• The applicant and Ms Hinds being together at the applicant's father's address. • The applicant walking (that is to say, not driving). • The applicant's car having been at his father's residence. 12 Counsel submits that it is also apparent from the BWC footage taken by Constable Richardson that she interpreted what Ms Hinds had said to police as confirmation that the applicant had driven the motor vehicle concerned. Constable Richardson's conversation with another police officer about what she interpreted Ms Hinds to have said, seems to be the basis (or at least part of the basis) that police formed the view that the applicant was the driver of the motor vehicle. Counsel submits that as the applicant disputes that Ms Hinds said to police that the applicant was driving the motor vehicle, he ought to have been able to cross-examine Constable Richardson as to which part of Ms Hinds' statement she took as confirmation he was driving, and he should also have been able to cross-examine Ms Hinds herself.
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13 Counsel submits that in failing to call Constable Richardson, the applicant was denied an opportunity to cross-examine her on how she formed the view that the applicant was driving and that what was said by Ms Hinds "was a contemporaneous statement from someone who could have been expected to have knowledge of the applicant's movements across the period relevant to the complaint". That is to say, that her disclosures to police about having been at the applicant's father's address was consistent with what the applicant told police by way of alibi.
The respondent's submissions
14 The respondent accepts that the BWC footage of Constable Richardson and Constable Schnierer contained comments made by Ms Hinds that were relevant or potentially relevant to facts in issue in the proceedings. Specifically, Ms Hinds suggested that the applicant had left his father's address at least 30 minutes prior (as at 11:53pm) and she considered him "long gone". Arguably, she also agreed with the proposition that the applicant left the address in his vehicle. Ms Hinds also said that the applicant arrived again on foot, coming "out of the bushes".
15 The respondent submits that electronic records recording police disclosure reveal that the BWC footage relevant to this application was disclosed to the applicant's then legal practitioner via email on 30 June 2021. However, disclosure material was subsequently provided directly to the applicant via email on 16 March 2022 and the BWC footage does not appear to have been provided at the same time, (consistent with the applicant's affidavit).
16 The thrust of the respondent's submissions is that, in any event, the BWC footage simply did not support the applicant's case, such that failure to play it could not result in a miscarriage of justice. The respondent submits that, properly analysed, the footage therefore appears to "extend the period within which the applicant could have returned to the relevant location to approximately 19 minutes, in circumstances where the learned Magistrate accepted that 11 minutes was sufficient time".
Discussion and Disposition
17 I have viewed the BWC footage and in my view the applicant's submissions should be
accepted.
18 I am not concerned here (and indeed there is no express suggestion of it raised on behalf of the applicant),with the question of whether the prosecutor's failure to disclose the footage or to call the witnesses was a breach of prosecutorial duty of the type discussed in Nguyen v The Queen [2020] HCA 23; 269 CLR 299 at [45] namely:
"A prosecutor acting in accordance with the responsibilities of their office is not to be expected to be detached or disinterested in the trial process. A prosecutor is to be expected to act to high professional standards and therefore to be concerned about the presentation of evidence to the jury. It is to be expected that some forensic decisions may need to be made. It is not to be expected that they will be tactical decisions which advance the Crown case and disadvantage the accused. In Ziems, Fullagar J observed that in that case the object of not calling a vital witness could only have been to deny the other party the ability to cross-examine him. Whilst the creation of a tactical advantage might be permissible in civil cases, in criminal cases it may not accord with traditional notions of a prosecutor's function, his Honour said. In Whitehorn, Deane J said that the observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations." (Footnotes omitted.)
19 Nonetheless it remains the case as was noted by the High Court in that case at [36] that:
"In Ziems v The Prothonotary of the Supreme Court of New South Wales, Fullagar J observed the rule in criminal cases to be that 'the prosecution is bound to call all the
5 No 21/2025
material witnesses before the Court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury'. This statement was quoted with approval by the Court in Richardson, where, as noted above, it was said that it was the responsibility of the prosecution to present the case for the Crown 'conformably with the dictates of fairness to the accused'. In Whitehorn Dawson J said that '[a]ll available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based'". (Footnotes admitted and emphasis added.)
20 In my view the BWC footage and the evidence of Ms Hinds and Constables Richardson and Schenirer was necessary to unfold the narrative and give a complete account of the events giving rise to the applicant being arrested and charged. I have read the written reasons for decision of the learned magistrate and I note that he did not accept the evidence of the applicant, however the question here is not whether his Honour's conclusion, based on the evidence, was one that he as a reasonable person, might have come to. The issue here is whether, having regard to all the circumstances, the interests of justice require that the complaint be heard de novo.
21 The case of Coppleman v Godfrey [2014] TASSC 60 was not dissimilar in some respects to the present, although it concerned a failure by the applicant's counsel to call a witness as a result of incompetence. In my view, the words of Wood J at [69] are apposite to the present case. Her Honour said:
"The potential alibi evidence falls into a different category. There is the prospect that, if accepted, and if regarded as accounting for the applicant's whereabouts and providing an alibi covering the relevant period when the applicant was said to have been at the complainant's house, it would lead to an acquittal. The impact of this evidence would, of course, turn on the court's assessment of it and considerations such as the detail of the witness' evidence regarding his observations and the credibility and reliability of the witness. All of these matters are best considered in the context of the hearing of the complaint, rather than in these proceedings."
22 There is force in the respondent's argument that, in the end result, the evidence of Ms Hinds and the BWC footage may be of no use to the applicant but it is not for me to, in effect, try the case on the documents I have in order to determine that. As I have said, the evidence was necessary, in my view, to unfold the narrative and give a complete account of the events upon which the prosecution was based. I cannot predict what answers counsel on a hearing de novo might elicit in cross- examination of the witness not called. That I can speculate along the lines submitted by counsel for the respondent is not enough. Those witnesses should have been called, in my view, in order for the applicant to have had a full and fair hearing.
23 I conclude that having regard to all the circumstances, the interests of justice require that the complaint against the applicant should be heard de novo. Accordingly, I make the following orders: that the orders of conviction and sentence made against the applicant on charges 1 and 2 in complaint 8216/2020 be quashed, and that those charges on that complaint be reheard de novo by another magistrate on a date to be fixed.
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