Stirling v Police No. Scgrg-98-1502 Judgment No. S435

STIRLING v POLICE
[1999] SASC 435

Full Court: Duggan, Debelle and Bleby JJ

DUGGAN J. The appellant was convicted in the Clare Magistrates Court of driving a vehicle while there was present in his blood the prescribed concentration of alcohol, driving whilst disqualified from holding a driver’s licence, driving without due care and driving with inadequate lights. It was alleged by the prosecution that the offences arose out of the one incident which occurred on 5 September 1997.
The prosecution called two police officers who were patrolling in a police vehicle in the town of Blyth on the evening of 5 September. They gave evidence that at about 11.35 pm they saw a car travelling towards them along one of the streets in the town. The vehicle then veered sharply to the right onto the wrong side of the road. The lights of the vehicle went off, the vehicle returned to the correct side of the road and it was brought to a halt outside the Blyth Hotel.
One of the officers, Constable Berry, said the vehicle was 90 to 130 metres away from the police vehicle when he first observed it. He said the police vehicle was approximately 20 metres from the other vehicle while it was being parked. The other police officer, Constable Hutchings, said the police vehicle was about 25 metres away from the other vehicle as it was parked.
According to the evidence of the police officers the appellant got out of the vehicle after it was parked. The vehicle was a red Sigma. They said that the appellant denied he was driving the vehicle and said that he did not have a licence. He was later required to submit to a breath analysis and the reading recorded was 0.169 grams in 100 millilitres of blood.
The appellant gave evidence at the hearing before the learned magistrate who summarised that evidence in the following passage in his reasons for judgment:
“In his answer to those four charges the defendant denied that he had driven the Sigma sedan on Guilford Street on the occasion in question. He did admit that he was disqualified from holding or obtaining a licence at that time. According to his version of events the Sigma sedan had been angle-parked on the northerly side of Guilford Street outside the Blyth Hotel since about 7.00 pm on that night. He said that Richard Agnew, his girlfriend’s brother, had driven him to the hotel in that vehicle at about that time. After a few drinks, Agnew had left to walk home. The defendant stayed at the hotel until it closed. He said that when he eventually departed he walked over to the Sigma to retrieve a bottle of Cougar whisky which had been left there, and to look for a cigarette lighter. He explained that, although he did not have a key to the vehicle, he was able to gain access through the driver’s door which was unlocked. He also explained that, as the interior light in the vehicle did not work, he had trouble finding the cigarette lighter in the dark. In an effort to illuminate the interior of the vehicle he turned on the headlights hoping that they would reflect off the wall of the hotel. Having found the lighter he turned off the headlights and got out of the vehicle. He was about to walk home when members of a police patrol arrived on the scene and accused him of having driven the vehicle.”
Mr Agnew also gave evidence. He said that his sister and the appellant were living together in a de facto relationship at the time of the hearing. He said that he could remember an evening in September 1997 when he drove the appellant to the hotel. He drove a red Sigma owned by the appellant’s sister. He said they went to the hotel to buy a bottle of whisky. According to his evidence they both went inside the hotel and began drinking. After a time he walked home, leaving the car parked outside the hotel. He put the keys in his pocket. He was there when the appellant arrived home. On the following day he went down to the hotel and picked up the car. He said there was only one set of car keys.
It was put to the police officers that they were mistaken when they said that the vehicle from which they saw the appellant alight was the same vehicle which they had seen being driven along the street. They denied that this was so and the learned magistrate accepted their evidence and rejected that of the appellant. All other elements of the offences were found proved beyond reasonable doubt and the appellant was convicted. He was sentenced to imprisonment for one month for the offence of driving under disqualification. The sentence was not suspended. In relation to the remaining three offences a global penalty in the form of a fine of $1300 was imposed. The appellant was disqualified from holding or obtaining a driver’s licence for a period of three years. An appeal against conviction and sentence to a single judge of this Court was dismissed.
The appellant appealed to this Court against conviction and sentence. The main complaint made by the appellant is that the learned magistrate adopted an incorrect approach in considering whether the prosecution had proved beyond reasonable doubt that the appellant was driving a vehicle at the relevant time. In particular, it was argued that the learned magistrate failed to take into account the evidence of the witness Agnew when assessing the accuracy of the evidence given by the police witnesses. It was said that the magistrate reached a final view on the crucial issue as to whether the vehicle being driven along the street was the same vehicle as that from which the appellant subsequently emerged without considering Agnew’s evidence which, on the appellant’s case, was completely at odds with the police evidence.
The learned magistrate approached the task of considering the evidence with considerable care and he gave comprehensive reasons for his decision. At an early stage in his reasons he referred to the fact that both the appellant and Mr Angew gave evidence. After identifying a number of matters which were not in dispute, he turned to the contentious issues of fact. He then found against the appellant on various factual issues surrounding the incident such as the content of the conversation which took place between the appellant and the police. His Honour then turned to the identification of the vehicle being driven along the street. After reviewing the conflicting versions given by the police officers and the appellant the learned magistrate concluded:
“In my assessment, the evidence of the police officers was reliable beyond reasonable doubt to the exclusion of the defendant’s evidence, which I reject. I am satisfied beyond reasonable doubt, and I find, that the vehicle which the police officers observed travelling in an easterly direction along Guilford Street and entering the Harley Street intersection, and the Sigma from which they saw the defendant subsequently emerge outside the Blyth Hotel, were one and the same vehicle.”
Regrettably this assessment was made and a final conclusion on the issue reached without regard to Agnew’s evidence. Agnew’s evidence had the potential to undermine the police case. There was no suggestion that the police officers had deliberately fabricated their evidence, but the accuracy of their observations was essential to the prosecution case. It was necessary, therefore, to assess the reliability and accuracy of Agnew’s evidence and consider its effect, if any, on the cogency of the police evidence. The police evidence could also be taken into account in determining the reliability of Agnew’s evidence. However I think that these assessments of credibility had to be undertaken before reaching a final conclusion on the identification of the vehicle. Instead the identification issue appears to have been considered without taking into account Agnew’s evidence and the conclusion thus reached was then used to undermine the credibility of Agnew’s evidence. At a later stage in his reasons his Honour referred to the fact that Agnew’s evidence supported the version of events given by the appellant but said:
“My finding that someone drove the Sigma along Guilford Street also has implications for the credibility of the defendant and Richard Agnew and for the reliability of their evidence. The fact that someone else drove the Sigma in Agnew’s absence must mean, either that Agnew did not have the ignition key, or that there was more than one ignition key in existence, or that the vehicle was capable of being started and operated without a key. The point is that, whether or not Agnew did have a key, the Sigma was able to be driven.
As a result of my assessment my confidence in the credibility of the defendant and of Richard Agnew, and in the reliability of their evidence, was so seriously undermined that I reject their evidence.”
In many cases it would be unwise to draw any inference from the fact that the reasons for judgment dealt with issues in a particular sequence. Often assessments of witnesses referred to in the reasons would have been reached at the time of the actual hearing. As the learned judge appealed from pointed out, the reasons of the magistrate formed one composite process of reasoning. However in the present case, it does appear that a final conclusion on a core issue in the case was made without regard to important evidence on that issue which emanated from the defence case.
For these reasons I would allow the appeal, set aside the convictions and sentence and order a retrial before another magistrate.
DEBELLE J. I agree with the substance of the reasons of Duggan J. I agree with the orders he proposes.
BLEBY J. I agree with the orders proposed by Duggan J and with his reasons for doing so.

[1999] SASC 435

12 November 1999