Toner v Beecroft
[2018] VSC 229
•20 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00240
| NICK TONER | Plaintiff |
| v | |
| BRADLEY BEECROFT | First Defendant |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 April 2018 |
DATE OF JUDGMENT: | 20 April 2018 |
DATE OF WRITTEN REASONS: | 10 May 2018 |
CASE MAY BE CITED AS: | Toner v Beecroft & Ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 229 |
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JUDICIAL REVIEW – Conviction by County Court for road safety offence on appeal from the Magistrates’ Court – Whether open to the judge to convict in the absence of evidence from the informant – Whether judge’s reasons adequate – Held: no error shown – Proceeding dismissed – Road Safety Act 1986 (Vic) ss 49 (1)(e), 55(2), 49(1)(a) and (b)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | Mr M Phillips | Solicitor for Public Prosecutions |
| For the Second Defendant | No appearance |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Facts...................................................................................................................................................... 1
Appeal in the County Court............................................................................................................. 2
The charge...................................................................................................................................... 2
The evidence and submissions.................................................................................................... 3
Judicial review.................................................................................................................................... 7
Grounds in this case and plaintiff’s submissions..................................................................... 9
Defendant’s submissions........................................................................................................... 11
Discussion......................................................................................................................................... 12
Matters raised by Mr Toner....................................................................................................... 12
Absence of the informant........................................................................................................... 13
Adequacy of reasons................................................................................................................... 16
Conclusion and orders.................................................................................................................... 19
HER HONOUR:
Introduction
The plaintiff Mr Toner seeks judicial review of the determination by his Honour Judge Murphy of the County Court of the plaintiff’s de novo appeal from a road safety conviction. I heard the review at trial on 20 April 2018, on referral from his Honour Justice Ginnane. I gave brief oral reasons on that day for dismissing the proceeding. These written reasons elaborate on those oral reasons.
Facts
On 28 July 2016 the first defendant, Senior Constable Bradley Beecroft, and Leading Senior Constable Brendan Achammer, both of Myrtleford Police, were directed to locate the plaintiff following a telephone call by his mother to Myrtleford Police expressing concern that he had been drinking and had driven away from her farm property when she asked him to turn down the music he was playing. Constables Beecroft and Achammer found him near his parked car, which had the keys in the ignition, on a road at the rear of his mother’s property. He was listening to music. Constable Beecroft required him to accompany the two officers to Myrtleford Police Station for a breath test. The plaintiff refused. Constable Beecroft subsequently filed and served a charge on summons against the plaintiff for refusing the demand pursuant to s 49(1)(e) of the Road Safety Act 1986 (Vic) (the Act).
The plaintiff was convicted of the charge at Myrtleford Magistrates’ Court on 19 May 2017. His licence was cancelled and he was disqualified from driving for four years from that date and fined $750. The plaintiff filed a conviction and sentence appeal which was heard by Judge Murphy of the County Court on 13 November 2017. The charge was heard afresh on appeal. The appeal was unsuccessful. His Honour convicted the plaintiff, and imposed the same sentence as had been imposed at the Magistrates’ Court.
Appeal in the County Court
The charge
The charge was failure to comply with s 49(1)(e) of the Act. That paragraph provides:
49 Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
(e)refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A);
Section 49(1)(e) in turn relies on refusal to comply with a requirement under various sub-sections of s 55. The sub-section here relied upon was s 55(2) which provides as follows:
55 Breath analysis
(2)A police officer may require any person whom that police officer reasonably believes to have offended against section 49(1)(a), (b) or (bc) to furnish a sample of breath for analysis by a breath analysing instrument (instead of undergoing a preliminary breath test in accordance with section 53) and for that purpose may further require the person to accompany a police officer to a place or vehicle where the sample of breath is to be furnished and to remain there until the person has furnished the sample of breath and any further sample required to be furnished under subsection (2A) and been given the certificate referred to in subsection (4) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
Example
A person may be required to go to a police station, a public building, a booze bus or a police car to furnish a sample of breath.
As can be seen, the legislative scheme is somewhat circular because proof of refusal to comply with a requirement under s 55(2) (and so contravention of s 49(1)(e)) requires reference back to s 49(1)(a), (b) or (bc). The specific paragraph which Mr Toner was believed to have contravened was not identified in the charge, but the hearing in the County Court proceeded on the basis that it was s 49(1)(a) and s 49(1)(b).[1] Those paragraphs provide as follows:
[1]Transcript of Proceedings, Nicholas Toner v The Director of Public Prosecutions (County Court, AP-17-1241, Judge Murphy, 13 November 2017) 26, Evidence of Constable Achammer, being Exhibit OPP-4 to the affidavit of Rachele Furletti sworn 16 March 2018 ( ‘Transcript’).
49 Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she-
(a)drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle; or
(b)drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath;
Thus, the prosecution was required to prove beyond reasonable doubt that the police officer who required Mr Toner to accompany him to the Myrtleford Police Station had a reasonable belief that Mr Toner had driven or was in charge of a motor vehicle while under the influence of intoxicating liquor ‘to such an extent as to be incapable of having proper control of the motor vehicle’ (s 49(1)(a)) or ‘while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol’ was present in his blood or breath (s 49(1)(b)).
Sub-sections 55(6) and 55(9) provide limited defences to a charge under s 55(2). They provide as follows:
(6)A person is not obliged to furnish a sample of breath under this section if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle.
(9)A person must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against him or her.
The evidence and submissions
The informant, the first defendant Constable Beecroft, did not give evidence at the County Court. The prosecution called evidence from two witnesses - the police officer who had taken the call from the plaintiff’s mother and caused it to be transmitted to the police patrol vehicle and Leading Senior Constable Achammer. The prosecution had also sought to call the plaintiff’s mother. She made application pursuant to s 18 of the Evidence Act 2008 (Vic) to be excused from giving evidence, which application was granted.
Constable Achammer’s evidence was that when they encountered Mr Toner and his vehicle Constable Beecroft was the first to get out of the police vehicle as Constable Achammer’s role was to notify the communications centre that they had located Mr Toner. He saw Constable Beecroft take a series of photographs which were admitted into evidence without objection. In answer to a question from his Honour, Constable Achammer confirmed that he had himself seen what the photographs depict. He also testified that he saw Constable Beecroft touch the bonnet of the car. Constable Achammer asked him ‘How is it?’ and Constable Beecroft replied ‘It’s still warm’.[2]
[2]Transcript 20 [14]-[16].
Constable Achammer testified that he had some conversation with Mr Toner, who he had known for some time, which did not relate to the charge, but was also present and within hearing, and indeed side by side, to Constable Beecroft when he spoke to Mr Toner. Constable Achammer testified that he could smell alcohol on Mr Toner’s breath.
His evidence as to what Constable Beecroft said to Mr Toner was in these terms:
What did Senior Constable Beecroft say to Mr Toner at this point?---Yeah, he explained that – that we were called to the location and that we had a belief on reasonable grounds that he was the driver of a motor vehicle in the last – within the last three hours and that there was a request made for Mr Toner then to accompany us back to the Myrtleford Police Station for a breath test.
What was that belief based on?---That was – that was based on the information that we received over the dispatch and also the fact that – our own observations, where the vehicle was still warm, there was no other person in the vicinity, and Mr Toner appeared to have been drinking again – or at the time.
After Senior Constable Beecroft made the request for him to accompany you for a breath test, just to summarise that, what did Mr Toner say?---He said that he didn’t want to come and that – he spoke about other matters, yeah, just unrelated. He went on a bit of a tangent, I’d say, yeah.
Was there a reply to that?---He – he said he didn’t want to come. The demand was repeated again. Senior Constable Beecroft assured him that he wasn’t under arrest, that he’s – we’re not going to arrest him for any matter, but, as the driver of a motor vehicle, the obligation – his obligation was to come back for a breath test.
All right, and did - - - ?---He declined that.
Did he say anything else?---No, but Senior Constable Beecroft went through consequences of that failure to accompany for a breath test.
Do you recall anything else that Mr Toner said?---Look, he was – he was waffling to me about different things, but I would say on the whole they were just unrelated, yeah.[3]
[3]Transcript 21 [10], 22 [9].
The final portion of Constable Achammer’s evidence in chief was as follows:
In relation to the belief that he had been driving the car, what was that based on?---That was based on the information we had received and our observations, as I mentioned, of Mr Toner’s consumption of alcohol. There was some in the glass at the time when he was standing there. The vehicle was still warm and there was no other person there, and Mr Toner didn’t offer any other reason that – or any other plausible reason or excuse why the vehicle – how it had gotten there. [4]
[4]Transcript 22 [15]-[24].
The plaintiff was legally represented by counsel on the appeal, Mr Halse. In response to a question from Judge Murphy, Mr Halse identified the defence as going to the reasonableness of the belief of the police officer.[5]
[5]Transcript 1.
Mr Halse cross examined the police officer who had taken the call as to the location where Mr Toner was found, eliciting that while his mother’s property fronted onto a fairly busy road, Mr Toner was located on a secluded road at the rear of the property. He cross examined Constable Achammer on a number of topics – the location at which Mr Toner was found and the fact that he was not driving the car or attempting to drive it; Constable Achammer’s observations and what was shown in the photographs taken by Constable Beecroft; whether Constable Achammer had had ‘a little chuckle’ at what he had seen Mr Toner doing (Constable Achammer’s evidence was that Mr Toner had been dancing); whether or not Mr Toner was a full licence holder, eliciting that he was; conversation he had with Mr Toner at the time; and the extent to which Mr Toner appeared affected by alcohol.
In the course of that cross-examination, Constable Achammer conceded that he would be speculating if he attempted to describe the level of blood alcohol concentration in Mr Toner’s blood. In his evidence in chief, and in re-examination, Constable Achammer testified that Mr Toner was ‘a little bit dishevelled in his appearance, unsteady on his feet, and he appeared to be dancing’;[6] that he had a glass in his hand and Constable Achammer could smell alcohol on his breath;[7] and that he was ‘well away’ in the sense of being affected by alcohol to the extent where he was unsteady on his feet.[8]
[6]Transcript 18 [1]-[3].
[7]Transcript 20 [29], 21 [9].
[8]Transcript 26 [3]-[4].
At the conclusion of the prosecution case, Mr Halse made a no case submission on the basis that there was insufficient evidence to establish a reasonable grounds that Mr Toner had offended either s 49(1)(a) or (b) of the Act. In relation to (a), he submitted that there was no evidence in relation to any substantial incapacity to drive a motor vehicle. In relation to (b), Mr Halse relied on Constable Achammer’s evidence that he would only be speculating as to the level of Mr Toner’s blood alcohol and the fact that as a full licence holder the prescribed concentration of alcohol for him was 0.05 per cent, not zero.[9] Mr Halse did not initially make any submission based on the absence of evidence from the informant, Constable Beecroft, who was the officer who had spoken the demand.
[9]Transcript 27 [10]-[23], 29 [22]-[30].
The prosecutor submitted that the evidence was sufficient to prove reasonable grounds for the necessary belief. His Honour tested this proposition in the course of a vigorous discussion with her, and then himself raised a further issue - being whether Constable Achammer could give evidence about the belief of the informant.[10] The prosecutor conceded that it had to be the informant who held the reasonable belief.[11] Mr Halse for Mr Toner adopted the concern raised by Judge Murphy and submitted that the failure to adduce evidence from the informant was insurmountable. After further submissions from the prosecutor, Judge Murphy held that Mr Toner had a case to answer. Mr Halse called no evidence in defence, but submitted that while the evidence of the accompanying officer may be sufficient to establish a case to answer, it was not sufficient to prove the offence beyond reasonable doubt. Judge Murphy enquired if there was any defence available if the demand was found proved, to which Mr Halse replied that he did not advance any. Judge Murphy then noted that ‘In those circumstances, I’ve really got no alternative but to find the charge proved’.[12] He convicted Mr Toner and sentenced him to the same penalty as had been imposed in the Magistrates’ Court, which as to the disqualification period at least was mandatory given Mr Toner’s driving record.
[10]Transcript 36 [8]-[9].
[11]Transcript 36 [28]-[31].
[12]Transcript 43 [27]-[28].
As Mr Toner was not called to give any evidence, he did not advance in his defence any alternative explanation for being unsteady on his feet or appearing dishevelled. After he had been convicted and sentenced he told the judge that he had been on pain medication and an antidepressant and that his doctor had written a letter saying this was why he was unsteady on his feet. The judge noted this had not gone into evidence. Nor did Mr Toner testify that Constable Achammer was laughing at him and that this caused him distress and was the reason he refused the request to accompany the police officers to the police station, as he now contends.
Judicial review
The plaintiff commenced this proceeding seeking judicial review of the determination by Judge Murphy on 24 January 2018. In this proceeding he is not legally represented. The procedure by which a proceeding for judicial review in this Court of the decision of a lower court or tribunal is to be instituted is specified in O56 of the Supreme Court (General Civil Procedure) Rules 2015. Those rules are procedural. The jurisdiction that the Court exercises in a proceeding for judicial review is the jurisdiction formerly exercised by use of the prerogative writs. The jurisdiction on which the plaintiff relies is that previously conferred by the writ of certiorari.
It is first important to identify the nature and limits of judicial review, as opposed to appeal. The plaintiff had a right of appeal against his conviction to the County Court by which the charge had to be proved afresh. He exercised that right. A person convicted on de novo appeal in the County Court from a conviction in the Magistrates’ Court has no further avenue of appeal to this Court, unless a sentence of imprisonment was first imposed on him or her by the County Court.[13]
[13]Criminal Procedure Act 2009 (Vic) s 283.
Judicial review in this Court is a different process to appeal. It does not afford a person aggrieved by the decision of a lower court a general right of appeal on the law or the facts to the Supreme Court. In broad terms, judicial review is directed to the exercise of jurisdiction and the process by which the court or tribunal below reached its decision; not whether that decision is correct. The grounds on which the decision of a lower court may be set aside on judicial review are limited to jurisdictional error, failure to observe an applicable requirement of procedural fairness, fraud, and error of law on the face of the record.[14]
[14]Craig v South Australia (1995) 184 CLR 163.
This means that judicial review is not available where, for example, the aggrieved person considers that the court or tribunal below reached the wrong decision on the facts, although it adhered to correct process and correctly applied the law. It also means that the relief that is granted if an application for judicial review is successful is limited to the setting aside of the decision tainted by error, and remittal of the dispute to the court below for rehearing. This Court does not seek to re-determine the dispute itself.
It follows that the evidence that this Court can take into account in a judicial review is limited to the evidence before the court below. The evidence cannot be re-run, and fresh evidence is not permitted, except in very limited circumstances none of which here apply.
A further consequence is that, even where a ground for judicial review is established, the grant of relief is discretionary.[15] This Court may, for example, refuse to set aside the impugned decision, even if affected by error, if the decision maker below could not reasonably come to a decision more favourable to the plaintiff on reconsideration according to law. In other words, the significance of the error and whether it made any real difference to the outcome is important. This Court may also refuse to set aside the decision on other discretionary grounds, including whether there was a more appropriate other avenue of redress available to the plaintiff that he or she has failed to utilise.
[15]Mann v Medical Practitioners Board of Victoria and anor [2004] VSCA 148, in particular per Nettle JA (as he then was) at [17] ff.
Grounds in this case and plaintiff’s submissions
As is not uncommon in the case of litigants without legal representation, it seems that the plaintiff has not fully understood that the process he has invoked is limited as set out above. In his originating motion and affidavit in support the plaintiff identifies the following matters of concern:
(i) Judge Murphy made a decision based on insufficient evidence.
(ii) The prosecution didn’t prove their case.
(iii) I was not given the right to a fair trial as the Judge’s decision was irrational and he provided no reasoning in formulating a guilty verdict. This created an unfair hearing.
(iv) One could argue the misinformation created by the prosecution caused Judge Murphy to make a decision upon impulse.
(v) My human rights (under the Charter of Human Rights and Responsibilities Act 2006) were violated at the time I was asked to be breath tested.
(vi) Judge Murphy didn’t consider the relevance of the police officer laughing at me, therefore the Judge didn’t know why I refused the breath test. I felt deeply humiliated and discriminated against at the time I was requested to undergo the breath test because the police officer was laughing at me when I was suicidal.
(vii) The police officer, Brendan Achammer stated he did not perceive me as being affected by alcohol. He gave absolutely different evidence in the County Court. This had a critical impact upon the case.
(viii) I was not driving or in my vehicle when the police turned up when I was listening to music.
(ix)Without really knowing I may lose my life if this injustice continues.
The order sought by the plaintiff in his originating motion was that his licence be returned.
The plaintiff sought to be excused from the preparation of written submissions, due to a mental health condition. I granted this request. The first defendant filed written submissions and for the further assistance of the plaintiff, I heard the first defendant’s oral submissions first.
In the plaintiff’s oral submissions, he said that his main concern was that Constable Achammer lied in his evidence to Judge Murphy by saying only that he may have smiled (as opposed to laughing) and that this was because Mr Toner was dancing. Mr Toner then sought to give his own version of events in evidence from the bar table, which differs in some respects from the evidence given by Constable Achammer. In particular, Mr Toner contends that it was not true that he was dancing, and he could not have been due to an injury to his ankle and back; that Constable Beecroft moved the bottle in the car before taking the photograph of it; and that Constable Achammer was laughing at him continuously. Mr Toner contends that the laughter was the reason that he refused the demand to accompany the police to the station for a breath test. He also referred to another encounter with police a week earlier in which he suffered an injury and which caused him to feel humiliated and lack trust in police officers; the pain medication he was taking and its effect on him; that he was in that secluded location because he had happy memories of being there with his son; and a disparity between the evidence given at the Magistrates’ Court and that given in the County Court. He requested that I listen to the tape of the proceedings in the Magistrates’ Court.
Over objection, I allowed Mr Toner to continue with his account, but noted I could not take it into account and could not listen to the tape of the Magistrates’ Court proceeding.
Defendant’s submissions
In his written submissions, counsel for the first defendant, the informant, submits that the originating motion does not articulate any ground for review that is supported by the evidence or otherwise arguable. In particular, the written submissions contend that the evidence called was sufficient to support the judge’s findings; that the plaintiff was legally represented and that his counsel fully utilised his opportunity to cross examine and put legal submissions and did not raise any of the complaints now made by the plaintiff; that the judge applied the correct legal tests; that the plaintiff has not identified any particular human right said to have been breached at the time of the demand; and that that in any event the plaintiff was afforded all his legal rights at that time.
I asked counsel for the defendant to address two matters that, while not specifically identified by the plaintiff, seemed to me to potentially arise from the transcript, and to be arguably within the broad confines of the plaintiff’s articulated grievances. I invited submissions on these matters on the assumption that if error was identified in either, that may be sufficient to ground the Court’s jurisdiction. As it transpired, it was not necessary to determine if that assumption was correct.
These questions were as follows:
(x) Whether it was open to the County Court to convict, in the absence of evidence from the informant; and
(xi)Whether the reasons given by Judge Murphy were sufficient.
Counsel submitted that the answer to both questions was ‘yes’. In relation to the first question, counsel submitted that the demand made was in substance a joint demand, and so the absence of evidence from the informant was not critical. In the alternative, he submitted that there was sufficient evidence as to the subjective belief of the informant to be found in Constable Achammer’s evidence as to what the informant had said, and sufficient evidence for the court below to conclude that this belief was on reasonable grounds from the evidence as to the call received, to the informant’s knowledge, from Mr Toner’s mother; what was shown in the photographs; and by inference from all the circumstances.
Discussion
Matters raised by Mr Toner
In my oral reasons, I sought to explain to Mr Toner that the evidence that the Court can consider on judicial review is limited to that given below, and the Court must evaluate whether there is any ground for judicial review arising from the decisions of the judge below on the basis of the conduct of the parties below.
I put that explanation in these terms (interjections by the plaintiff removed and some sentence structure corrected):
I can see the distress that the plaintiff has expressed today, but the difficulty that the plaintiff, that is you, Mr Toner, faces is that the way the system works, the opportunity to give your account of what occurred is not here today; it was at the Magistrates’ Court or in the County Court when the prosecution have to give their evidence again and you have an opportunity to contest it. This is not a conviction appeal so it does not deal with the detail of the evidence. We are confined today to scrutiny of the reasoning that the judge adopted on the evidence that was before him. So that is why I said in the course of the exchanges today that I am confined to considering the evidence that was before Judge Murphy and I cannot take into account further evidence that you have sought to give as to your account of events or what occurred …at the Magistrates’ Court…(I)t seems to me the heart of your grievance is about things that were not in fact in evidence before Judge Murphy. So because they were not in evidence before him I can’t look at them and I can’t reach the conclusion that he made a mistake or an error because of those matters because they simply weren’t before him at that time.
I reiterate that explanation and elaborate it briefly as follows. As noted earlier, Mr Toner did not himself give any evidence before Judge Murphy, or indeed adduce any evidence at all in defence of the charge - whether as to what occurred on the day; his reasons for refusing to accompany the police officers; his state of sobriety or insobriety; or any inconsistency between the prosecution evidence given at the Magistrates’ Court and that given at the County Court. It follows that Mr Toner’s account as to what occurred, even if given on oath, is not admissible in this proceeding.
Further, Mr Toner was legally represented below by counsel, and while his counsel did cross examine Constable Achammer to a limited extent as to whether or not he was laughing he did not cross examine him as to any of the other matters now sought to be advanced by Mr Toner, or seek to raise them in some other way before Judge Murphy. Scrutiny of the determination of the proceeding by Judge Murphy can only be on the basis of how the case was run before him. Accordingly, it is not open to the plaintiff to contend that the proceeding below miscarried by reason of matters that were never raised.
I accept the submission by the defendant that the concerns explicitly stated by Mr Toner in his originating motion and affidavit, as elaborated by his oral submissions, do not identify any ground for judicial review.
Absence of the informant
In my oral reasons, I referred briefly to the two matters which I had raised with counsel for the defendant, the first of which was the possibility that the judge made an error of law in finding the offence proved given that the offence turns on the state of mind of the informant when there was no evidence from the informant. In those oral reasons I observed only that having heard the submissions I had concluded that there was no error of this type because notwithstanding that there was no evidence from the informant, it was open to Judge Murphy to reach the conclusion that he did on the evidence before him. I indicated that I would explain that conclusion in more detail in the written reasons. I now do so.
I first deal with matters that I do not take into account. In the hearing before me, counsel for the first defendant submitted that the demand made by Constable Beecroft was a joint demand, based on a belief held by each officer, and for that reason the evidence of Constable Achammer was sufficient. This is an interesting proposition, but it was not an argument advanced below, and indeed as noted the prosecutor conceded that the belief had to be that of the informant. For that reason, I do not accept this submission if it is put to suggest that a belief by Constable Achammer alone was sufficient. I also note that in his submissions before me, the plaintiff himself appeared to treat the demand as being made by both officers, but as he is not legally represented in this proceeding it would not be appropriate to treat that as an admission, and I do not.
I turn now to the question as it was argued below. As noted earlier, that the absence of the informant was a difficulty for the prosecution was not raised by defence counsel in his initial submissions that there was no case to answer. Indeed, defence counsel put those submissions, with one exception, by reference to the state of mind of the police officers in the plural, i.e. without distinguishing between the informant and Constable Achammer,[16] or by reference to the state of mind of Constable Achammer alone.[17] The prosecutor responded to those submissions by referring to the state of mind of the police generally in the plural.[18]
[16]See the references to ‘they’ ‘they’re’ or both officers at Transcript 27 [14]-[15] and 28 [10], [12], [15] and [17].
[17]Transcript 28 [20]. Compare Transcript 28 [25], where defence counsel refers to the informant’s state of mind.
[18]Transcript 30-35, with occasional reference to the belief of the informant in the singular e.g. 34 [16], [21] and [29] in the midst of references to the police in the plural.
Judge Murphy initially engaged with the prosecutor in relation to state of mind by referring to the police officers in the plural. [19] After a considerable exchange with her in relation to the evidence Judge Murphy himself raised the issue in these words: ‘How can this witness give evidence about the belief of the informant?’.[20] The prosecutor conceded that it had to be the informant who held the relevant reasonable belief, noting that as he was unavailable the prosecutor relied on the evidence of the ‘corroborator’ i.e. Constable Achammer.[21] Defence counsel then submitted that the absence of the informant presented an insurmountable difficulty, to which his Honour responded ‘(t)question is whether it is insurmountable’.[22]
[19]Transcript 31 [21].
[20]Transcript 36 [8]-[9].
[21]Transcript 36 [28], 37 [5].
[22]Transcript 38 [2]-[10].
The prosecutor put further submissions on this point, submitting that there was evidence before the court as to the belief held by the informant by reason of:
· what Constable Beecroft said to Mr Toner;
· the fact that Constable Beecroft was present in the police vehicle when the concern raised by Mr Toner’s mother came over the dispatch (that concern being that Mr Toner was intoxicated and was driving); and
· the photographs taken by Constable Beecroft which had been admitted into evidence, which showed amongst other things Mr Toner with a glass in his hand; keys in the ignition; and a bottle of what appears to be alcohol next to the gear stick.
As noted earlier, Judge Murphy held that the evidence was sufficient for a case to answer, and further, in the absence of any evidence from the defence, established the prosecution case beyond reasonable doubt. I do not consider that there was any error in him reaching that conclusion, given the whole of the evidence, some of which was identified by the prosecutor in her submissions.
First, Constable Achammer gave evidence that he and Constable Beecroft were both in the police vehicle when the information from the plaintiff’s mother that he had been drinking alcohol and was driving was conveyed to them by radio and dispatch, and that they both were able to hear this information.[23] I accept the submission that this evidence was admissible because it was relied on as to having been conveyed to the police officers, not as to the truth of the assertions made by the plaintiff’s mother. Next, Constable Achammer testified that when he and Constable Beecroft first located the plaintiff, Constable Achammer said to Constable Beecroft that ‘he looks like he’s “well away”, as in his consumption of alcohol’.[24] Next, Constable Beecroft touched the bonnet of the plaintiff’s car and said ‘It’s still warm’[25] and took a number of photographs of the car and the plaintiff, which together were capable of supporting an actual belief that the plaintiff had been consuming alcohol and driven recently. Finally, and critically, Constable Achammer’s evidence was that he heard Constable Beecroft use the plural form ‘we’ when he spoke to the plaintiff and required him to accompany them to the police station for a breath test.[26]
[23]Transcript 14-16.
[24]Transcript 18 [7]-[11].
[25]Transcript 20 [16].
[26]Transcript 21 [12], [15] and [31].
I consider that Judge Murphy was entitled to conclude that these words expressed a subjective belief on the part of the informant, which Constable Beecroft considered shared by Constable Achammer, that the plaintiff may have contravened s 49(1)(a) or (b) of the Act. Further, I consider that Judge Murphy was entitled to conclude that this belief was based on reasonable grounds, being the information that both the informant and Constable Achammer had received over the police radio, observations made by, and recorded in, photographs taken by Constable Beecroft, and the observation by Constable Achammer to Constable Beecroft about the appearance of the plaintiff.
Adequacy of reasons
The second matter that I raised with counsel for the first defendant was whether the reasons given by Judge Murphy were adequate for reaching the conclusion that he did in relation to a case to answer. In what follows I adopt my oral reasons and elaborate them.
Judge Murphy gave reasons for his determination that Mr Toner had a case to answer in these terms:
I’m satisfied that the informant had a reasonable basis to request that he come back to the station. I do that on the basis of the evidence that I’ve heard from the witness that he knew him, he was well underway, he was well away, he was unsteady on his feet, he was dishevelled, he’d not seen him like that before. He smelt of alcohol on his breath, it was 11 o’clock in the morning, he was out in the middle of nowhere, dancing beside his car.
The other officer, the informant, had a call from the mother to say that he was intoxicated and he’s a danger to the public and, when they arrived, he could smell alcohol on his breath. So I’ve formed the view, or I’ve reached the conclusion, that the informant had a reasonable basis that he was either exceeding PCA or had been driving such as to be incapable of having proper control of the vehicle under s 49(1)(a) or (b). So I’m satisfied that the prosecution have led evidence to that effect.[27]
[27]Transcript 41 [25] - 42 [12].
I noted in my oral reasons that in part I raised this issue because on first and quick reading of the transcript it could appear as though Judge Murphy was heading in one direction and then he changed his mind. As I noted in my oral reasons, on reflection I consider that what occurred is that Judge Murphy fully tested the prosecution case by taking an almost devil’s advocate position – which I noted is something that judges often do – and after thinking about it in the course of that exchange he reached the conclusion that the prosecution was actually right. In other words, he fully tested the prosecution case on whether the absence of the informant was critical and then he reached the conclusion that the prosecution was correct.
The reasons that Judge Murphy then gave for his conclusion were brief and on a line by line analysis, in hindsight, and in isolation from the exchange with the prosecution and defence counsel and the evidence, they could be said to perhaps contain some inconsistencies or errors. This is because Judge Murphy distinguishes between the informant and Constable Achammer (who he describes as ‘the witness’) but could appear to be ascribing to the informant a state of knowledge in respect of some matters that on the evidence was held by Constable Achammer. The evidence was that Constable Achammer knew the plaintiff, had not seen him like this before, and smelt alcohol on his breath. Although these matters may also have applied to Constable Beecroft, there was no evidence to that effect. By contrast, Constable Achammer’s observation that the plaintiff was ‘well away’ was made to the informant.
The first defendant’s submission is that such a close line by line analysis of the reasons, with a view to error, is not warranted because these are reasons given in a summary proceeding, after a full exchange, and they don’t need to be perfect. In other words, for this type of matter it is not appropriate to minutely examine every word and consider whether it could suggest error, or could have been better expressed.
There is authority to support this proposition. To be adequate, reasons for a final order or an order that practically has the result of finally disposing of the rights of the parties need to deal with the substantial points raised by the parties and reveal an intelligible path of reasoning.[28] However, whether reasons will be sufficient in a particular case will be influenced by the ambit of the dispute.[29] Further, there is authority that reasons have to be read fairly and can almost always be more perfectly expressed.[30]
[28]Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188, 30 per Warren CJ and Cavanough AJA.
[29]Helou v Shaya [2013] VSC 297 [24] per Beach J (as he then was), citing Murray Goulburn Coop Ltd v Filliponi [2012] VSCA 230, [28] per Neave JA and Beach AJA.
[30]Helou v Shaya, ibid.
In this case, when the reasons for the determination of the no case submission are considered in the context of the whole of the exchange with both counsel, and the evidence, I consider them sufficient. In particular, the first sentence of the reasons makes it plain that his Honour considered that it was the informant who had to subjectively hold the required belief, and that he did so. As noted earlier, I consider he was entitled to reach that conclusion on the evidence and submissions of the prosecutor. The balance of the first paragraph of the reasons are then directed to the reasonableness of that belief, and in that context are directed to the circumstances in which the police found Mr Toner, as given in evidence by Constable Achammer, which included the observation he made to Constable Beecroft. Further, the second paragraph of the reasons refers to the information conveyed by the plaintiff’s mother, which on the evidence was received by the informant as well as by Constable Achammer.
Conclusion and orders
For these reasons, as now elaborated, I dismissed the proceeding. The first defendant sought an order for costs. After hearing from both parties, I made that order. Counsel for the first defendant gave an indication on instructions that the costs order may not be enforced.
I reminded the plaintiff at the hearing, and now reiterate for his assistance, that as this proceeding has been dismissed, the conviction and penalties imposed by the County Court remain in force.
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