Walto v Gilmour
[2015] ACTSC 411
•5 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Walto v Gilmour |
Citation: | [2015] ACTSC 411 |
Hearing Date(s): | 5 June 2015 |
DecisionDate: | 5 June 2015 |
Reasons for Decision Date: | 19 January 2016 |
Before: | Refshauge J |
Decision: | 1. The appeal be upheld. 2. The orders of conviction and sentence of the Magistrates Court of 4 February 2015 be set aside. 3. The proceedings be remitted to the Magistrates Court for further hearing. |
Catchwords: | APPEAL – Jurisdiction, practice and procedure – criminal law – appeal from Magistrates Court – appeal against conviction – driving a motor vehicle with alcohol in the breath – self-represented litigant – breach of procedural fairness – failure to admit relevant evidence – rejection of evidence – further evidence on appeal |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), Evidence Act 2011 (ACT), s 38 Court Procedures Rules 2006 (ACT), r 5193, Pt 6.2 |
Cases Cited: | Adami v The Queen (1959) 108 CLR 605 Alexander v The Queen (1981) 145 CLR 395 |
Parties: | Lila Walto (Appellant) Joshua Gilmour (Respondent) |
Representation: | Counsel Mr J Sabharwal (Appellant) Mr T Hickey (Respondent) |
| Solicitors Rachel Bird & Company (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 14 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Doogan Date of Decision: 4 February 2015 Case Title: Joshua Gilmour v Lila Walto Court File Number: CC 10920 of 2013 |
REFSHAUGE J:
On 13 November 2013, police attended a single motor vehicle crash on Gungahlin Drive which had been reported to them by ambulance officers who had attended the scene of the collision.
A black Holden Astra hatchback sedan with New South Wales numberplates “AD12ZW” had smashed into a light pole, which had been knocked over.
Constable Joshua Gilmour approached a female who identified herself as the driver and she provided to him the name of “Lila Walto”, a date of birth and a residential address in Bungle Bungle Street, Harrison.
The female was unable to provide a driver licence.
The female was subject to a screening test under s 9 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act). This proved positive and, under s 11 of that Act, the female was taken into custody and conveyed to Belconnen Police Station.
At that police station, Constable Gilmour checked information from the Road Transport Authority and, upon viewing it, was satisfied that the person he had taken into custody was Lila Walto, as the registered address was the same as he had been given and the photograph in the Authority’s record of the licence appeared to him to be of the person he had taken into custody.
Constable Gilmour, an authorised operator of breath analysis equipment, then asked the female to provide a sample of her breath for analysis, which she did, and the result was a reading of 0.091 grams of alcohol per 210 millilitres of breath. That is, under s 4E of the Alcohol and Drugs Act, a prescribed concentration at level 3. He then issued an immediate suspension notice under s 61B of the Road Transport (General) Act 1999 (ACT) to the female in the name of Lila Walto.
A summons was later issued in the name of Lila Walto charging her with an offence against s 9 of the Alcohol and Drugs Act and served at the address given, as noted above (at [3]).
The charge, driving with the prescribed concentration of alcohol, was ultimately listed for hearing on 4 February 2015 and Ms Walto was convicted.
She appealed against the conviction.
On 5 June 2015, I upheld the appeal and set aside the orders of the Magistrates Court made on 4 February 2015. I remitted the proceedings back to the Magistrates Court to be heard by another Magistrate and made no order as to costs.
I indicated that I would provide reasons later. These are my reasons.
Jurisdiction
Part 3.10 of the Magistrates Court Act 1930 (ACT), confers jurisdiction on this Court to hear and determine appeals from the Magistrates Court in criminal cases. Within that Part, Div 3.10.2 applies to the appeals specified in s 208(1) of that Act. Such appeals include “an appeal, by a person convicted, from a conviction for an offence dealt with by the Magistrates Court” under certain specified provisions. Those provisions include the circumstances under which Ms Walto was convicted.
The appeal is by way of re-hearing: Baker v Thorpe (1985) 62 ACTR 1; Campbell v Fortey (1987) 85 FLR 462. In Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [78], I described such a re-hearing in the following terms:
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
In this context, I note what the High Court has said, where in Fox v Percy (2003) 214 CLR 118 at 126-7; [25], Gleeson CJ, Gummow and Kirby JJ held that:
... the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.’’ (Derman v Derman (1908) 7 CLR 549 at 564, citing The Glannibantai (1876) 1 Pd 283 at 287).
As Rares J commented in Lukatela v Birch (2008) 223 FLR 1 at 6; [21]:
And, although the appeal is by way of rehearing, the appellate does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox v Percy (2003) 214 CLR 118 at 127-8; [27], per Gleeson CJ, Gummow and Kirby JJ.
The court may, under s 214 of the Magistrates Court Act, admit further evidence at the hearing of an appeal. There are two bases for the admission of the evidence set out in the two sub-sections of the provision, s 214(3) and (4). I have set out in Grooms v Toohey (2012) 7 ACTLR 1 at 8-10; [35]-[37], the principles applicable to the admission of such evidence.
The hearing
Ms Walto was unrepresented at the hearing. That was unfortunate and a fair reading of the transcript reveals that she may not have been provided with the assistance that the authorities, such as Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [41], require a court to provide to an unrepresented litigant.
The first witness was Constable Gilmour whose evidence has, in broad terms, been summarised above (at [1]-[7]). He also made an in-court identification of Ms Walto as the person whom he had taken into custody and required to provide a sample of breath for analysis at Belconnen Police Station. He did indicate that “her appearance has changed slightly, in regards to her weight, but other than that, yes I am confident that the person that I breathalysed that morning is in the court room today.”
There was no objection to this evidence, despite the fact that such an in-court identification should be treated with great caution. See Grbic v Pitkethly (1992) 38 FCR 95 and Alexander v The Queen (1981) 145 CLR 395.
That there was no objection is understandable, as Ms Walto was not represented by a lawyer; she could not be expected to know of the desirability of objecting to such evidence or its inherent weakness. The learned Magistrate did not draw her attention to this issue as may have been expected.
This evidence was given about fourteen months after the incident, during which period Constable Gilmour is likely to have attended a significant number of other motor vehicle crashes and other incidents. It is not clear, and there was no evidence, as to what, if anything, was likely to make this attendance at this motor vehicle crash remarkable so as to remain particularly in his memory and to ensure an accurate identification.
Constable Gilmour identified a photograph which he said was the photograph he had used from the Road Transport Authority’s record of Ms Walto’s licence. It was tendered.
Ms Walto, when asked about the tender said:
I know for a fact that (indistinct) used my identity. She told me herself over the phone.
I assume that what was shown on the transcript as “(indistinct)” was the name of the person that Ms Walto says used her identity. I shall refer to that person as DZ.
The learned Magistrate admitted the photograph, describing it as being “photo ID purporting to be or of Ms Walto”.
Constable Gilmour then stated that he had subjected the person he had taken into custody – whom he, of course, described as Ms Walto – to breath analysis and he identified the printout from the breathalyser machine, apparently a Drager Alcotest machine, which he said showed a reading of “0.091 grams of alcohol per 10 mls of breath”. I assume that the 10mls was an error and should have referred to 100 mls. It is otherwise almost inevitable that the person would have been dead from alcohol poisoning with such a reading as he stated. The reference to 100 mls of breath is also wrong and Constable Gilmour was obviously confused. The exhibit itself refers to “0.091 grams of alcohol in 210 litres of breath” which I understand is equivalent to 0.091 grams of alcohol in 100 mls of blood, the alternative means of measuring the prescribed concentration of alcohol under s 4C of the Alcohol and Drugs Act.
A statement made by Constable Gilmour as informant was tendered, as was a copy of an immediate suspension notice issued to Ms Walto under s 61B of the Road Transport (General) Act. It included the signature of the person to whom it had been handed. Both were admitted into evidence.
Constable Gilmour then gave evidence of inquiries he had made about the vehicle involved in the crash. It was, he discovered, not registered in the name of Ms Walto.
Ms Walto was then invited to cross-examine Constable Gilmour. Unsurprisingly, she did not really know how to do that and started by merely asserting that DZ had been driving the vehicle and there were differences between them of height and weight.
She then asked whether the records of the Road Traffic Authority showed any signature for the licensed driver; Constable Gilmour said that they did not. She then produced her driver licence which contained her signature and invited the learned Magistrate to compare it with the signature on the immediate suspension notice. Her Honour did not take up the offer.
Ms Walto made some further comments and the learned Magistrate asked whether she had brought DZ to court; Ms Walto said she had not.
Ms Walto asked Constable Gilmour whether the person he took into custody had been wearing glasses and he said she had not. In answer to further questions, he said that the hair of the person he had taken into custody matched that of Ms Walto and that, while he did not measure the person’s height, she “would be about the same height as you”.
Rather gratuitously, and oddly without reproof by the learned Magistrate, Constable Gilmour added:
I mean the discussion about the signature to me is irrelevant. I don’t base my identification on [sic] people or their signature I attest it on which I can see in front of me, the appearance of the person in relation to the photo that’s how we do it.
It is, of course, not for Constable Gilmour to say what is irrelevant or not, and an unrepresented litigant is unlikely to know that or that his addendum to his answer to the question, which was, “Was she taller, shorter?”, was unresponsive and should not have been allowed.
A certificate under s 41(1)(a) of the Alcohol and Drugs Act and a certificate signed by the Chief Police Officer were tendered. These related to the authorisation of Constable Gilmour to carry out the breath analysis and the formal matters relating to the conduct of the analysis. Both were admitted into evidence.
The next witness was Jason Argento. He gave evidence that he had been contacted by DZ in the early hours of 1 November 2013, asking him to come to “Gungahlin Drive Extension” as she had been involved in an “accident”. He said he went there and saw a motor vehicle on the right hand side of the road, a dent in the road and DZ. He was positive it was DZ.
The prosecutor then made an application under s 38 of the Evidence Act 2011 (ACT), for leave to cross-examine Mr Argento as an unfavourable witness. Mr Argento was asked to leave the courtroom for the hearing of that application and did so. The prosecutor called Constable Gilmour on the application.
In brief, the evidence of Constable Gilmour was that when Mr Argento arrived at the scene, he was spoken to by Constable Wiseman; Mr Argento, was, at the time, speaking to DZ.
Constable Wiseman’s statement was tendered and admitted. In it was a reference to copies of the pages of his notebook which recorded the conversation and were said to be attached, but these copies were, in fact, not part of the document tendered on the application. His statement, however, included the following:
13.Mr ARGENTO and I had a short conversation where he stated he attended the scene after Lila had called him.
It appears from Constable Wiseman’s statement that Mr Argento had arrived at the scene of the crash before the police arrived.
From the transcript, I infer that Ms Walto had not seen the statement before. It seems she did not receive the police brief of evidence because of a change of her address.
In any event, the learned Magistrate did not give her an opportunity to cross-examine Constable Gilmour nor to object to the tender of the statement on the application. Ms Walto was clearly denied procedural fairness in relation to the application.
Nevertheless, in the circumstances, it is difficult to see how the application could have been refused. That, of course, does not mean that the breach of procedural fairness was not a serious one; ordinarily it would require the proceedings to be set aside. This was, however, not a ground of appeal.
Mr Argento was recalled and maintained that he had been called by DZ. He agreed that, at the scene, he talked to a number of police officers and told one of them how he came to be at the scene, but could not remember what he said.
It was put to him that he said to Constable Wiseman that “Lila” had called him and he said he did not recall mentioning her name. He denied that Ms Walto had called him.
He agreed that he had spoken to Constable Gilmour shortly before the hearing but said he told them “a girl called me”. He said that, if he had mentioned “Lila”, he had misunderstood the question. He agreed that he may have said that but denied using the name “Lila”. He said that DZ had called him.
He then said that, when DZ called him, he attended the scene, saw that she was not injured and helped her get money for a tow truck.
He was firm in denying that he mentioned the name “Lila” or that she was the driver of the crashed vehicle. He said that he was not a good friend with Ms Walto, whom he knew through a mutual friend and whom he had “seen ... on Facebook”. He denied that his evidence was a fiction.
The learned Magistrate asked him a number of questions along the above lines and then said to him, “You’re making it up aren’t you?”, but he denied that. She then told him he could go.
Apparently realising how inappropriate that was, her Honour then corrected herself and invited the prosecutor to raise any questions arising out of her Honour’s questions. The prosecutor had no further questions.
The learned Magistrate then invited Ms Walto to ask questions but first warned her in the following terms:
Can I just warn you as well, right there’s conspiracy to pervert the course of justice and if it comes to the attention of this court that you and this man have conspired to attempt to pervert the course of justice then you will be facing more charges than just the one that you’re facing now and I’m giving you that warning because you’re not represented, and it’s important that you know that. And perverting the course of justice – and I’m telling you this as well – people go to jail for perverting the course of justice.
They may not go to jail for drink driving, but they certainly invariably receive a sentence of imprisonment if they’re round guilty of a charge of perverting or attempting to pervert the course of justice, and I’m warning you both. So with that warning you can ask him some questions.
Though the first questions then recorded in the transcript are attributed to the prosecutor, it is clear to me that they were asked by Ms Walto, about DZ’s size, which Mr Argento said was about “a six to an eight”.
To a question asked by the learned Magistrate, he said that he had gone to school with DZ.
He agreed with Ms Walto that he had never met her in person but had had contact on Facebook. He said he could not recall whether he had any messages from DZ asking him to attend at the scene of the crash, though he thought it was a text message. He recalled that DZ, to his memory, had no licence at the time.
Ms Walto then said she had no further questions, to which the learned Magistrate said, perhaps unnecessarily, “I’m not surprised”.
Ms Walto then gave evidence. After identifying herself, she said that she was at home in bed at the time of the offence when she was called at 6.00 am by DZ who was in tears and apologising for using Ms Walto’s details. She said, “I got done DUI. I can’t afford to get done again because I’ll end up in jail. I’ll lose Hayden”. Hayden, Ms Walto said, was DZ’s son.
Ms Walto said she went to DZ’s house and spoke to her. Ms Walto told DZ that she was trying to better her life and that she could not afford to lose her licence and that she did not want a criminal record. She told DZ that she did not drink much and did not drink red wine. In the statement of Constable Gilmour admitted as an exhibit, it was recorded that the driver had said she had drunk three glasses of red wine and a bottle of beer.
Ms Walto said that she insisted DZ confess, giving her a week to do so, but DZ ignored her. Ms Walto said she did not know how to proceed, especially as court correspondence was sent to her former address.
It appears that the summons was served on her former partner, with whom she had broken up on bad terms, after which she had moved to Wagga Wagga. This is permitted under s 41 of the Magistrates Court Act.
Ms Walto said she tried to contact police in December to ask what she could do and was told, “You just have to go to court”, and that the police could not give her further advice. It may have been helpful for the police to have suggested that she consult a lawyer.
She referred to her signature on documents which she had with her and which, she implied, was different from that on the immediate suspension notice and which had been given to and signed by the driver of the crashed car. She also said that she had lost weight, down to size 12 from size 16. She thought that Constable Gilmour had said that she had gained weight, but he only had said that there was a difference in her weight.
She said that she asked DZ to come to court but DZ refused, saying that she was sick. She said that she told DZ that she was going to give honest evidence and that DZ then cried, terrified she would lose her son.
Ms Walto offered to show her signature by tendering her driver licence she had signed but the learned Magistrate declined, saying that she was not a handwriting expert. That is not a sufficient reason to reject the tender. The law is, of course, that a court is entitled to make its own comparison of signatures, and perhaps, other handwriting, albeit with caution: Adami v The Queen (1959) 108 CLR 605 at 616-7. Her Honour then rejected the offer of her driver licence as an exhibit. That was an error, though not pleaded in the appeal.
In cross-examination, it was suggested to Ms Walto that her evidence was “a work of fiction”, which she denied. It was put to her that she only made the first mention of DZ at the hearing. She pointed out that she had had duty lawyer representation on earlier occasions and thought that one of them had mentioned that “it wasn’t [her]” but that she was not invited on any earlier occasion to explain her defence to the court or the prosecution. That is, of course, likely to be correct. She had also spoken to police in December, telling them that the offence had not been committed by her but they “didn’t help [her] at all”.
She said that she was not lying and that she would not lie under oath. She said that she thought DZ was a good friend until she did this to her.
Ms Walto said that she spoke to DZ the day before the court hearing and that DZ had urged her to accept the conviction for her as she did not want to lose her son. She also said that DZ had used another woman’s name on another occasion.
She said that the first time she met Mr Argento was at court; they both knew DZ. It was suggested to her that she had met him at a party but she said that “you meet a lot of people at parties” and she was not sure.
She also said that she owned a car which was registered and that she had never been in a crash.
It was put to her that her telephone call to DZ was to ensure that Mr Argento gave evidence exonerating her. She denied it. She was asked whether she heard Mr Argento’s evidence and noted to her that he gave different evidence to that the police said she told them. Ms Walto, not unreasonably, pointed out that he was under oath when giving evidence to the court.
This provoked an intervention by the learned Magistrate suggesting that:
... when police question you, you have an obligation to tell the truth. It’s not a question of making it up or lying or giving three different stories. As a decent citizen people are required and should be responsible enough to tell the truth and not cause trouble, and waste time; court time, police time and everybody else’s time, your time, Mr Webb’s time, my time. You have an obligation to help and to assist where you can ---?
It is not necessary to comment on the correctness of this passage; it was irrelevant to the evidence Ms Walto gave. It was Mr Argento, if anyone, whose evidence was alleged to have changed and Ms Walto was not responsible for his evidence nor was it put directly to her that she had conspired with him to give false evidence.
That was the evidence.
The prosecutor made submissions. Ms Walto did not.
The decision
The learned Magistrate set out the charge and reminded herself that Ms Walto did not have to say anything as the prosecution had to prove the case beyond reasonable doubt.
Her Honour correctly articulated the defence that Ms Walto was not driving the car when it was involved in a crash. Her Honour then summarised Constable Gilmour’s evidence.
Her Honour next referred to Mr Argento’s evidence, finding that he was not a credible witness or a witness of truth, accepting that he told Constable Wiseman that Ms Walto had called him to come to the scene, despite his denials to the court. Her Honour was satisfied that DZ had not called him to the scene.
Her Honour then turned to Ms Walto’s evidence. Despite there being no evidence of service and despite Ms Walto giving sworn evidence, consistent with s 41 of the Magistrates Court Act, that the summons had been served on her ex partner at her former address and that he was a good friend of DZ, her Honour found, curiously and against the evidence, that Ms Walto had been served with the summons. That seems unlikely on the evidence. It is, perhaps, of little moment and it is not a ground of appeal, but it must have been regarded by her Honour as relevant to her finding that Ms Walto was not a reliable or credible witness. Her Honour, accordingly, rejected Ms Walto’s evidence.
That left the evidence of Constable Gilmour and, in accepting that evidence, her Honour found the offence proved.
The court then proceeded to sentence. It is not necessary to deal with that, other than to note that the learned Magistrate particularly stated that Ms Walto had committed no other drink driving offence.
The Appeal
The Notice of Appeal in this matter was filed on 27 February 2015. The grounds of appeal were set out as follows:
a.That the Learned Magistrate erred in rejecting the evidence of the Appellant and a prosecution witness in finding the Appellant guilty.
b.That the Learned Magistrate failed to take into account or give proper weight to the inconsistencies within the prosecution’s case in her finding of guilt.
c.That a hypothesis consistent with the innocence of the Appellant was not considered or properly considered by the Learned Magistrate.
The Notice of Appeal also indicated that an application would be made to adduce further evidence.
Further evidence
At the appeal, certain documents were produced on subpoena. It was, as was foreshadowed in the Notice of Appeal, the documents produced on subpoena that were to be the subject of the application to adduce further evidence.
Rule 5193 of the Court Procedures Rules 2006 (ACT), requires that a party to an appeal who wishes to adduce further evidence on the appeal should apply by Application in Proceedings under Pt 6.2 of those Rules accompanied by an affidavit setting out:
(a)the grounds of the application; and
(b)any evidence necessary to establish the grounds of the application; and
(c)the evidence that the applicant wants the Supreme Court to receive.
I set out the rationale for this rule in Barac v Thexton [2008] ACTSC 137 at [26] as follows:
The reasons for such a provision are clear. It gives the other party a proper opportunity to consider its attitude to the adducing of that evidence and prepare for any argument if it seeks to oppose it, knowing what the evidence will be. It also permits the other party an opportunity to make any necessary inquiries that may be required in respect of that evidence. Finally, it allows the other party the opportunity to have prepared its submissions knowing the full extent of the evidence that will be before the appeal court.
This is a little more complicated in relation to further evidence that is not in the possession, custody or control of the party seeking to adduce it as it may, just like this case, have to be obtained by use of a subpoena.
The applicant may not know until the return of the subpoena whether there is material that may be admissible under s 214 of the Magistrates Court Act.
The preferable approach, it seems to me, is for the subpoena to be returnable not at the hearing of the appeal, but, as is commonly now done in many cases and is perfectly proper, to a date before the hearing so that the material produced can be inspected (if permitted) and the provisions of r 5193 of the Court Procedures Rules followed, giving all parties the opportunity the Rule seeks to afford. Parties who do not proceed in such a way may be refused leave to adduce the evidence.
In this case, however, the respondent, very properly, did not object to the making of the application, despite non-compliance with r 5193 of the Court Procedures Rules. The respondent was given a reasonable opportunity to inspect the documents produced on subpoena and did not seek an adjournment.
The documents that Ms Walto sought to have adduced were:
1. Documents from Roads and Maritime Services of the Department of Transport of New South Wales relating to motor vehicle registered number “AD12ZW” (the registration documents).
2. The prior criminal record of DZ (the criminal record).
Although not conceding that the admission of this further evidence would lead to the appeal being upheld, Mr T Hickey, counsel for the respondent, accepted that the interests of justice did require the evidence to be admitted. I agree and that was a proper submission.
The registration documents showed that the motor vehicle registered number “AD12ZW” was a Holden Astra sedan. That is the vehicle that was involved in the crash, as noted above (at [2]).
Registration of the vehicle was transferred on 28 August 2013 as from 9 May 2013 to 8 May 2014, thus including the date of the crash, as also noted above (at [1]).
The registered owner on transfer was reasonably to be inferred to be DZ. That is because the first name was that of DZ as mentioned in court by Ms Walto but the surname was not. It was, however, one of the names by which DZ was known as recorded on the criminal record, which also showed the name Ms Walto had used in her evidence. Accordingly, I am prepared to find that the owner of the vehicle involved in the single car crash on Gungahlin Drive on 13 November 2013 could be found beyond reasonable doubt to have been DZ.
The criminal record showed that DZ had an extensive criminal history dating back to 2010. All but one of the offences were traffic offences. These, however, included four drink driving offences, two offences of stating false or misleading information to police or a road traffic authority officer, four offences of driving whilst disqualified and three offences of driving whilst suspended and seventeen other offences.
The criminal record, as well as permitting the inference to be drawn concerning the identity of the owner of the motor vehicle, was otherwise corroborative of Ms Walto’s evidence. It showed that DZ would, because of her prior offending, be facing a severe penalty if convicted of another drink driving offence. It also showed that she had, on two previous occasions, provided false information to officials in relation to driving matters. It further showed that, as at 13 November 2013, DZ was disqualified from holding or obtaining a driver licence, as asserted by Mr Argento, which, in the light of the earlier similar offences, did render her more liable to a sentence of imprisonment.
Consideration
As noted above (at [16]), I have earlier considered in Grooms v Toohey the approach to be taken by an appellate court to an appeal following the admission of further evidence. After a consideration of the authorities from a number of jurisdictions, I concluded at 12; [52], as follows:
52. It seems to me that the position is as follows. The appellate court must decide whether, under s 214(3) or (4) of theMagistrates Court Act, the further evidence is to be admitted. If it is, the court must then consider whether a different sentence should, in the light of this further evidence, have been imposed. If it comes to the view that it should have been, then the sentencing discretion is enlivened and the sentencing proceedings must be re-opened. On those proceedings, still further evidence may then be admitted, though often it is not. Some or all of that additional evidence may not have been admissible under s 214(3) or (4), but should have, of course, to be admissible in sentencing proceedings. If, having considered all this evidence and, of course, the evidence before the Magistrate, the appellate court considers in the exercise of its independent discretion that no other sentence than that of the Magistrates Court should be imposed, the appeal should be dismissed. If that is not the case, then the appellate court should either remit the proceedings back to the Magistrates Court to be dealt with according to law or should sentence the appellant.
In that case, I was considering a sentence appeal from the Magistrates Court. I consider, however, that the approach applies to a conviction appeal, as is Ms Walto’s appeal.
Instead, however, of considering whether “a different sentence should, in the light of the further evidence, have been imposed”, what needs to be shown on a conviction appeal is whether, in the light of the further evidence, the offence could not be proved beyond reasonable doubt, in which case an acquittal should be substituted on appeal, or whether there was such a doubt raised about the conviction as to justify a re-trial.
Mr Hickey submitted that the further evidence did not justify either finding. He submitted a number of ways in which the conviction of Ms Walto was nevertheless consistent with the further evidence. I do not need to address them in detail.
What they showed, however, was that the further evidence did not prove, on its own, that Ms Walto was not guilty. They, however, strongly corroborated significant parts of her evidence and raised real doubts about some of the prosecution evidence.
It is clear to me that the learned Magistrate was sceptical of the evidence of Ms Walto and Mr Argento. While her Honour seemed to express that scepticism at a very early stage of the proceedings, there was certainly a basis for it in the evidence of Constables Gilmour and Wiseman and in the apparent inconsistent evidence of Mr Argento.
The further evidence, however, together with the absence of any inconsistency in the version given by Ms Walto, meant that the scepticism was unjustified and, while the evidence would, of course, have to be scrutinised very carefully, there was no inherent improbability in Ms Walto’s defence which she should have a proper opportunity to present. Indeed, with the further evidence, her defence seemed quite likely to be correct.
Together with the other matters about the hearing, such as the improper rejection of Ms Walto’s tendered driver licence so that comparison could be made with the relevant signatures, it seemed to me that the conviction could not stand.
Accordingly, I upheld the appeal and made the other orders referred to above (at [11]) for the reasons set out here.
| I certify that the preceding one hundred and five [105] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge Associate: Date:19 January 2016 |
3
8
6