Smith v Spencer
[1989] TASSC 109
•31 August 1989
Serial No. B31/1989
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Smith v Spencer [1989] TASSC 109; B31/1989
PARTIES: SMITH
v
SPENCER
FILE NO: LCA 7/1989
DELIVERED ON: 31 August 1989
JUDGMENT OF: Crawford J
Judgment Number: B31/1989
Number of paragraphs: 30
Serial No B31/1989
File No LCA 7/1989
SMITH v SPENCER
REASONS FOR JUDGMENT CRAWFORD J
31 August 1989
By a motion to review the applicant seeks to set aside convictions imposed by a magistrate for two offences. The grounds of the motion are:
1The said magistrate erred in fact in finding the charges proved beyond reasonable doubt; and
2The convictions were against the evidence and against the weight of the evidence.
In such circumstances the question for me is whether upon the evidence the magistrate might, as a reasonable man, have come to the conclusion to which he did come. Taylor v Armour & Co Pty Ltd [1962] VR 346 at p351; Bedelph v Weedon [1963] Tas SR 69 at p81; Benson v Rogers [1966] Tas SR 97 at p99; Richardson v Shipp [1970] Tas SR 105 at p117; Hrycyszyn v Groves unreported serial No 27/1982 at pp7–9.
The first count in the complaint charged the applicant with a breach of s24(1)(d) of the Fisheries Act 1959 which provides:
"24—(1) No person shall—
…
(d) assault ... an officer or other person in the execution of the powers or authorities conferred on him by the Act."
Originally the count specifically charged that the applicant "did unlawfully assault an officer who was acting in the execution of the powers or authorities conferred on him by the provisions of the Fisheries Act 1959, in that " he "drove his vehicle straight towards the officer at speed and continued on past the officer who was forced to step back in order to avoid being hit". However at the outset of the hearing, counsel for the respondent obtained an order that the count be amended so that it charged that the assault alleged was "by attempting to apply such force to the person of Brian Andrew Vanderfeen" (the officer). This amendment was significant. If it had not been made it would have been open to the learned magistrate to convict the applicant upon the basis that he either attempted to apply force or that he threatened by any gesture to apply such force to the person of the officer. The amendment substantially restricted the nature of the charge.
In Wood v Beach unreported 39/1985 Green CJ said, on the hearing of a motion to review a magistrate's dismissal of a charge of assaulting a police officer in the execution of his duty, contrary to s34B(1)(a)(i) of the Police Offences Act 1935, that the magistrate had held that the definition of assault in s182 of the Criminal Code was applicable, that both counsel accepted that and he held that it was correct. He referred to s36 of the ActsInterpretation Act 1932 and thought that it was applicable, although he did not find it necessary to reach a final conclusion. Both counsel before me agreed that the Code's definition of "assault" does apply in this case and I so hold.
Section 182(1) of the Code provides as follows:
"182–(1) An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening by any gesture to apply such force to the person of another if the person making the attempt or threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose . . .".
That counsel for the respondent intended to restrict the nature of the charge to one of attempting to apply force to the person of Mr Vanderfeen is clear from two comments made by him to the learned magistrate. One such comment was made at the time of the application to amend, when he said that "there are various ways in which to commit an assault, and this case is on the basis of attempting to apply force". The other comment was made by him when addressing the learned magistrate on the hearing of a submission, by the applicant's counsel, that there was no case to answer. The respondent's counsel said that "the assault under s182 of the Criminal Code talked about attempting or threatening and it's not put on the basis of a threat but attempting by any gesture to apply such force and the gesture here is the driving of the vehicle forward towards the officer". I am not sure whether the use of the word "gesture" in s182 is intended to relate to the "attempting" as well as the "threatening", but that is not of any importance in this case.
Because the count specifically charged the applicant with attempting to apply force to the person of Mr Vanderfeen, it was necessary for the prosecution to establish beyond reasonable doubt that the applicant, when he drove his car towards the officer, was trying to hit the officer with the car. His state of mind had to be established.
The evidence tendered by the prosecution was that of Mr Vanderfeen. It was to the following effect. He was an Inland Fisheries officer stationed at Latrobe and was on duty in a Commission vehicle. He was wearing a Commission uniform. He drove along a road heading from Latrobe to Devonport at Bells Parade, about twenty to thirty metres from the bank of the Mersey River. He saw the applicant's car parked on the left side of the road facing Latrobe. In other words the car was parked on the wrong side of the road, for the direction in which it was facing. Mr Vanderfeen said that as he approached he saw the applicant walk up the bank and get into the car. Mr Vanderfeen parked the Commission vehicle, which was marked as such, immediately in front of the applicant's car, facing it a distance of about two metres away, thereby effectively preventing it from making a forward movement. Mr Vanderfeen got out and walked towards the applicant's car intending "to interview him and to check out his vehicle. He had come up the bank of the river from an area where white bait and poaching of whitebait had been carried on the last day or two". He added that he wanted "to search his vehicle to see what he may have in the vehicle". As he approached on foot the applicant reversed his car a distance of about twenty feet, watching Mr Vanderfeen for part of the way. The latter said that he called out to stop and that he wanted to search the car. He endeavoured to indicate with his arm that he wanted the applicant to stop and pull over.
According to Mr Vanderfeen the applicant stopped the car and then caused it to move forward. "The vehicle was revved up to about 25 kilometres and came down towards me and it appeared not to be going to stop at all. When it got to the situation your Worship where I thought I had better step out of the way in case I was hit with the vehicle, I made that movement, back movement, and the vehicle was driven off down towards Latrobe increasing speed as it went." In cross–examination he was asked whether he "stepped back out of the road in order to let him get through". His answer was:
"I had to, I would have been run over, I thought at the time."
There was no evidence that the applicant was interviewed or spoken to.
The evidence of the applicant was that he recognised Mr Vanderfeen as a Fisheries officer, but he maintained that he was simply driving away because he had to go to work and that when he drove past the Commission's vehicle Mr Vanderfeen had the driver's door open about eighteen inches and had one leg on the road. The applicant said he waved to Mr Vanderfeen as he drove past.
There was no direct evidence of the applicant's intention. That he attempted to apply force to Mr Vanderfeen could only be found from the evidence that he drove towards Mr Vanderfeen who stepped back "because I thought I had better step out of the way in case I was hit", and because "I had to, I would has e been run over, I thought at the time". This evidence consisted largely of what Mr Vanderfeen thought at the time. There was no evidence to indicate what part of the front of the car was heading for him nor how close it was to him when he stepped back. On the evidence it is possible that the applicant could have manoeuvred the car so as to avoid a collision even if Mr Vanderfeen had stood his ground. There was sufficient evidence upon which the learned magistrate could have been satisfied beyond reasonable doubt that the applicant committed an assault by threatening to apply force to Mr Vanderfeen but, as I have pointed out, that was not the basis of the charge. There was insufficient evidence upon which the magistrate could reasonably have found that the applicant attempted to apply force to Mr Vanderfeen. To make such a finding it would have been necessary for the magistrate to be satisfied beyond reasonable doubt that it was the applicant's intention to achieve such a purpose and the evidence fell far short of establishing that.
At the conclusion of the case the learned magistrate found that "the defendant chose to drive directly at him while he was standing on the carriage way with the result that he had to step back or be run over". The evidence was sufficient to satisfy the magistrate that Mr Vanderfeen stepped back because he thought that he would be run over, but insufficient to establish that if he had not stepped back he would in fact have been run over. A comment made by the learned magistrate in the course of sentencing the applicant suggests that the conviction was not based on an attempt to apply force but on a threat to do so. The comment was:
"I take a rather serious view of your behaviour in this instance. From what I hear it would have only needed a slip or a mis–step on the part of Mr Vanderfeen and you could have done some serious injury to him, even run him down and killed him I suppose. I don't know that you were contemplating doing that sort of damage to him, I get the strong impression that you decided that you'd scare him out of the way. But he might have stood his ground …".
In these circumstances I am of opinion that the learned magistrate was in error and that the conviction for assault must be set aside.
The second count in the complaint alleged a breach of s24(1)(b) of the Fisheries Act 1959 which provides:
"24—(1) No person shall—
…
(b) refuse to allow to be made a search which is authorised under this Act."
Section 55(c) provides:
"55 An officer, for the purpose of searching for fish of a less size than may be lawfully taken, or for fish taken contrary to the provisions of this Act, may—
…
(c) stop and search a vehicle . . .".
The second count was in the following terms:
"2 That at the time and in the area as aforesaid did unlawfully refuse to allow to be made a search authorised by the said Act particularly Section 55(c), in that when approached by the aforesaid Inspector Brian Andrew Vanderfeen who was dressed in Commission uniform and had parked a vehicle clearly marked with logos of the Commission directly in front of and blocking the path of a stationary motor vehicle carrying the registration symbols BI 8443, Marcus Lee Smith, having walked from the weir, got into the blocked vehicle, started it and reversed despite being told by the approaching inspector 'I want to see you, stay where you are', and then drove directly toward and then past the said Inspector who had been pointing towards the road–side for him to pull in, CONTRARY to Section 24(b) of the Fisheries Act 1959."
The evidence of Mr Vanderfeen concerning what he told the applicant was not what was set out in the count. Reference to that evidence will be made in due course. No point was made concerning the variance before the learned magistrate or before me and it may therefore be ignored.
For the learned magistrate to be satisfied of the guilt of the applicant it was necessary for the prosecution to establish:
1That Mr Vanderfeen was an "officer".
2That Mr Vanderfeen intended to search the applicant's vehicle for fish of a less size than might be lawfull taken or for fish taken contrary to the provisions of the Act.
3That the applicant did something which constituted a refusal to allow a search of his vehicle.
I am satisfied that there was sufficient evidence upon which the learned magistrate could be satisfied beyond reasonable doubt that Mr Vanderfeen was an "officer". Section 3(1) provides the meaning of the word as "an officer appointed under the Part in or in relation to which the term is used or authorised to exercise the functions of an officer so appointed".
The relevant parts of s35 provide:
"35—(2) Subject to and in accordance with the Tasmanian State Service Act 1984 persons may be appointed or employed for the purposes of this Part.
(2A) The Chairman of the Commission may—
(a) appoint employees employed pursuant to subsection (2) to be officers for the purposes of this Part."
There was not much evidence on the point. The transcript of what occurred before the learned magistrate contains the following passage:
"Q You are an Inland Fisheries Officer stationed at
A At Latrobe."
The combination of the question and answer was sufficient to establish that Mr Vanderfeen was agreeing that he was an "Inland Fisheries Officer". He said that he was on duty, driving the Commission's vehicle (it may be implied from this that he was referring to a vehicle belonging to the Inland Fisheries Commission). He said that the vehicle was marked with Inland Fisheries' stickers on both doors. He was dressed in his blue shirt and Commission uniform which were his working clothes and he had identifications or logos on his shoulders at the time.
The evidence of Mr Vanderfeen to the effect that he was an Inland Fisheries Officer was not subjected to cross–examination. This is an appropriate case for the application of the maxim omnia praesumuntur rite esse acta. (As to this see Cross on Evidence, Third Australian Edition, at p28). It was not necessary for Mr Vanderfeen to produce evidence of his actual appointment under s35(2) and (2A).
The evidence established that Mr Vanderfeen believed that there had been poaching of whitebait, that is unlawful taking of whitebait, from the nearby river over the previous day or two and that he wished to search the applicant's car. He did not expressly state his reason for wanting to search the car, but it was open to the magistrate to be satisfied beyond reasonable doubt that his purpose was to search for whitebait taken contrary to the Act. In this connection reg15(3) of the Inland Fisheries Regulations 1973 makes it an offence for a person to take whitebait by any means at any time, unless he is the holder of a permit issued by the Commission.
The evidence of Mr Vanderfeen was that as he walked towards the applicant's car it was reversed away from him. He said:
"I walked up the road and called out to stop and I wanted to search the vehicle and more or less indicated with my arm to stop there and pull over".
On the evidence the applicant's car could not have been more than twenty feet away when Mr Vanderfeen called out and it was reasonably open to the learned magistrate to find that the desire of Mr Vanderfeen to search the vehicle was communicated to the applicant, who intentionally ignored Mr Vanderfeen and the request that he stop, and instead drove forward and away from the scene.
Evidence was called for the defence from four witnesses, being the applicant and his three companions. Generally speaking it was to the effect that when the applicant drove past the Commission's vehicle, Mr Vanderfeen had the driver's door open by about eighteen inches and had one leg out of the vehicle on the road.
The learned magistrate found the case against the applicant proved. He said that "Mr Vanderfeen gave his evidence in a quite straightforward fashion. He didn't appear to me to be a vindictive man. He simply and plainly told me of events". He also found that the defence witnesses had concocted their evidence, and he referred to two pieces of evidence which he said "scuttled" the applicant, One witness, Jamie Smith, had claimed to have seen the events while walking up a track from the river bank. The learned magistrate disbelieved Mr Smith's claim to have seen that Mr Vanderfeen had his foot out of the Commission's vehicle, This disbelief was obviously based on a finding that Mr Vanderfeen would have been alighting from the vehicle on the side furthest from Mr Smith. The learned magistrate also disbelieved the witness Jason Rouse, who gave evidence that he saw the events, but he put the applicant's car as being parked on the opposite side of the road to that clearly established by other evidence.
The conclusion which must be reached from all the evidence is that either Mr Vanderfeen was untruthful or the applicant and his witnesses were untruthful, The learned magistrate accepted Mr Vanderfeen as a truthful witness. He plainly disbelieved the applicant and his witnesses, particularly because he found that he could not believe two of them. It was open to the learned magistrate to so decide. I cannot say that it was unreasonable of him to be satisfied of the guilt of the accused beyond reasonable doubt or that there was insufficient evidence upon which he could reasonably come to such a conclusion.
The applicant's counsel submitted that two of the defence witnesses were hardly cross–examined at all. One was Jamie Smith, who the learned magistrate positively disbelieved, and the other was Paul Smith. Reliance was sought by counsel on the rule in Browne v Dunn (1894) 6 R 67. However that rule is not applicable to the circumstances of this case. The full nature of the prosecution case and the facts asserted by it had been disclosed by the time the defence witnesses were called. In any event there is no requirement that a court must accept evidence if it is not subjected to cross–examination, particularly so if the evidence is contradicted by other evidence. Bulstrode v Trimble [1970] VR 840 at p849; Leydon v Tomlinson (1979) 22 SASR 302 at p306. Failure to cross–examine a witness may make it easier for a court to accept his evidence, but there is certainly no hard and fast rule that it must be accepted if not subjected to cross–examination.
The conclusion I have reached is that on the second count there was evidence upon which the magistrate was entitled, as a reasonable man, to find the applicant guilty.
The motion is therefore partly successful. The conviction on the first count will be set aside.
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