Weaver, John v D.P.P

[2007] NSWDC 382

CITATION:	Weaver, John v D.P.P [2007] NSWDC 382
EX TEMPORE JUDGMENT DATE:	13 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Drive on road while suspended:; Offence proved. Orders of s.9 bonf for 6 months and disqualification for 2 years imposed by the learned magistrate confirmed.; Drive on road when licence cancelled:; Offence proved. finding of guilt confirmed, conviction quashed, s.10 bond for two years. Disqualification period quashed.
CATCHWORDS:	Criminal Law - District Court conviction appeal - drive whilst licence suspended - issue whether appellant drove - leave given to call fresh evidence from nephew - nephew gives evidenceof driving and entering shop during time police present speaking to appellant - nephew's evidence rejected as being inconsistent with aappellant's comments to police. Finding of Magistrate that appellant's evidence credible rejected - Magistrate determines adverse to appellant by relying upon strict liability - honest belief reasonable held as defence discussed - conviction appeal dismissed
LEGISLATION CITED:	Proudman v Dayman, 67 CLR at 536 (1941)
PARTIES:	John Harold Weaver Director of Public Prosecution
FILE NUMBER(S):	2006/9506

JUDGMENT
This report relates onlt to the first of the two District Court Conviction Appeals referred to in paragraph 1.

1. John Harold Weaver appeals against two convictions recorded by her Honour Magistrate Bapti in the Local Court at Narrabri on 28 July last year. The two convictions relate to two different incidents, both of them driving incidents. The first was a charge of driving whilst licence was suspended on 12 January 2005. The second incident related to driving whilst licence was cancelled on 27 August 2005. There is no dispute between the parties that on 12 January 2005 the appellant’s licence was suspended and there is no dispute between the parties that on 27 August 2005 the appellant’s licence was cancelled, nor is there any dispute in respect of the second matter that the appellant drove on the relevant occasion. There is a very lively dispute between the parties as to whether the appellant drove on 12 January 2005.

2. The Crown tendered the transcripts of evidence given before the learned magistrate and her judgment in respect of both matters. It was clear during the running of the suspension matter that the appellant was claiming that a nephew was driving the vehicle and that he had had some difficulty for one reason or another being able to produce the nephew for court in circumstances where no inference adverse to him could be drawn from the absence of the nephew.

3. His Honour Judge Bell of this court gave leave to the appellant to call the nephew as a witness and in the circumstances today Jason Doyle has given evidence.

4. The matter of 12 January, that is the drive whilst licence suspended matter, is to be determined therefore on the transcripts of evidence before her Honour the learned magistrate and on the evidence of Jason Doyle given this morning. The matter of 27 August, that is drive whilst licence cancelled, is to be determined solely on the evidence before her Honour on material of her Honour's judgment remarking on the credibility or believability of the appellant and on the law.

5. The general effect of the evidence given by Doyle this morning is that he was a licensed driver who was visiting his uncle at the relevant time, that was early in 2005, and had visited with him overall for a period of a couple of weeks. On 12 January 2007 he was able to remember that day, he had been driving with his uncle to a hardware shop which was called Richardson’s, if memory serves me, to collect some items, bolts of some sort, to assist in the construction of a shed. That hardware shop, as I understand it, is in Ugoa Street. On the way home from there Doyle’s evidence is that they turned into a BP Service Station from Ugoa Street at a point in time where Ugoa Street is approaching the Highway. They drove into the service station continuing on in the direction that they had come from Ugoa Street, then did a right hand turn, drove through the bowsers and another right hand turn and parked in front of a carport or into a carport next door to the shop. Three photographs were tendered and in exhibit 2 one of them shows the carport referred to.

6. Mr Doyle’s evidence was completed by photographs and a diagram. His evidence was that he left the car from the driver’s side and made his way into the shop for the purpose of purchasing fast food and some cigarettes. As he was making his way he saw for a second time a police vehicle now travelling basically in the same direction that he had travelled to get to the parking spot and heading towards the carport. He entered the shop, when he entered he had left his uncle seated in the car. He remained in the shop for a period necessary for the fast food to be prepared, and when he returned the police had gone and his uncle was seated in the car. He was informed by his uncle of the allegations the police were making against him, and he reassured his uncle that he would not be charged, because if he was to be charged, they would have taken him to the police station and done so.

7. The issue for me to determine are these, has the Crown proved beyond reasonable doubt that the accused was driving the vehicle in circumstances where the accused upon his oath denies driving and says the nephew was driving and the nephew comes to court denying on his oath that the appellant was driving but claims that he was. Police, by contrast, say there was only one person in the car, the person was the driver and that that person was the appellant. As it seems to me that what the Crown must prove beyond a reasonable doubt is that there was only one person in the car and that that person was the appellant.

8. The first part of the appellant’s case was that the police would never have had an opportunity to see into the motor vehicle. For that purpose he tendered eight photographs which I have numbered now one to eight, more is the pity that they were not so numbered in the hearing. In the photo which I have numbered 1, which I will show everybody, is a front on photo taken from the front passenger corner of the vehicle looking into the vehicle. What can be seen in that photograph is that there is a driver and only one person in the vehicle. That person who is a driver is a male. He is wearing two garments on his top. He is a tallish male because you can also see through the window the sun visor, the sun visor is down and obscures part of his face, the top part of his face and his hairline. Through that window, that is the front windscreen, and quite possibly through the driver side window one can see the outline of a white shed so that one can demark the edges of the shed.

9. In respect of photograph number 2 nothing much can be seen because there are reflections but one can see the steering wheel, the visor and a perpendicular line which may well be what I would call the back part of the vehicle.

10. In respect of photograph number 3 what can be seen, and I am not looking through the open door but rather through - the test was whether one could see through the tinted glass, I can see through the passenger side glass and presumably the front windscreen a pink pillar, some object which I cannot quite define which has an angle here which would appear to be close to or associated with either the building or the car, and I can also see the rear white pillar of the motor vehicle.

11. In photograph number 4 I can see one driver and one person only in the vehicle. I can see his chin line, I can see that he is without beard and without apparent facial hair. I can see again the two garments, they are the same two garments that the driver in photograph number 1 was wearing, and I am satisfied that the driver in photograph number 4 is the same person as the driver in number 1.

12. Photograph number 5 I can see through what I understand to be the passenger side window and quite probably the driver side window, both of which are said to be tinted. I can see the continuation of a brick fence or a brick built up fence to a corner point and then going off at a different angle, convincing me that that house is a corner house. I can see a footpath going in a different angle to the footpath that is shown at the front of the windscreen, again convincing me that it is a corner block. I can see that there is no driver in the vehicle in respect of that photograph.

13. Significantly photograph number 6, which is a photograph from the rear, I can only see the heat lines, I take it to be, across the rear windscreen for the purposes of demisting. I have looked and in fairness to the appellant, I cannot see the front windscreen or through the car at all to anything else.

14. Likewise in photograph 7 I can see through the corner of the vehicle here to a situation where I can see the roofline of the red vehicle that is parked behind it and I can see some of the building structure of the white building behind. In fairness I cannot tell you whether there is a driver or not in that vehicle and I would not be confident about telling you whether there was a passenger in it. So it is fair to say that as a result of reflection, I am unable to see into that.

15. In photograph 8 I can see the roofline of this vehicle, the fence line immediately above it, the hill but I cannot see the line of the roof, but it may be I cannot see that because it would be blocked out by in fact the white.

16. So I am satisfied the police had sufficient opportunity to see into the vehicle for purposes of establishing whether there were one or two drivers (as said).

17. The parties agree that once the car was parked, the appellant emerged from the passenger side. I am unable to be satisfied whether the appellant slid across because the only view I have of the rear does not persuade me that the police must have been able to see through to the vehicle.

18. There is another reason why I have some difficulty with the proposition that it was seen his seatbelt was removed was if I can come back to photograph number 3 one can see the shape of the seats and it may well be that they would have caused an obstruction from anyone behind, particularly bearing in mind that to undo a seatbelt, one is working below the waistline and the rear window would not appear, particularly to somebody seated in a car, to give that view. But I am satisfied, and indeed it seems to be the case of both parties, that the appellant emerged from the passenger side.

19. On the account given by Jason Doyle, there appears to be no apparent reason why the appellant would emerge from that side. That does not mean he would not have, it is just that there is no apparent reason. Doyle’s account also is that the appellant was seated there once the police had gone, which would mean that whatever reason it was that the appellant got out, that reason must have been satisfied when he got back in on Doyle’s account, and I have some difficulty, although it would not be overwhelming, but I have some difficulty accepting that, in other words I regard it as improbable rather than not happening.

20. Then a conversation occurred between the appellant and the police. The conversation that the two police officers swear to on their oath is in these terms, Sergeant Bell said that he asked the appellant what he was doing driving the vehicle and the answer that he was given was that his son Phillip was working. Implicit in that answer are two propositions, firstly that Mr Weaver agrees with the proposition that he was driving his vehicle and gives an explanation for it, so it is an admission against interest, and secondly he gives an excuse which was that the son was working. There is no mention there of Newcastle. He was asked whether he said anything else and then this question and answer “Did you have any discussion with the accused in relation to the status of his licence?”, answer “I asked him if what he was doing was driving - what was he doing driving and he made no reply to that.”. That was a question which begged an answer on the case that the appellant is asking not only that he was not driving but that the person who was driving was in the shop.

21. The appellant’s account is this, “I was not driving the van, I had my nephew who was driving the van, he was in the BP shop when the police allegedly said that they had seen me change seats in the van. He was purchasing cigarettes and food. I mentioned that to Sergeant Bell.”. I accept that the appellant was running his own defence and would not have known, but there was no challenge to the police officer’s evidence that he had said to the police officer that his son Phillip was working when asked what he, Mr Weaver, was doing driving the vehicle.

22. Mr Doyle’s account is rejected by me. Significantly Mr Doyle’s account for why they did not go to the police station was that nothing was going to happen, but the evidence before the magistrate was, and was not challenged, that the appellant had been told he would be given a court attendance notice. I accept that he was so told because in fact a court attendance notice has been issued. I do not accept that he was given any field court attendance notice, although that may have happened, I just cannot make a finding one way or the other in respect of that, it would usually happen but there are occasions when it does not. But I am satisfied that he was told that he would be given a court attendance notice.

23. Consequently when Mr Doyle, on his account, said to the appellant “Look they’re not going to charge you, they would have taken you to the police station to charge you.”, the immediate answer that should have sprung from the appellant’s lips were “I don’t know that you’re right about that because they’ve told me they’re going to give me a court attendance notice.”. There was no mention by the appellant of the court attendance notice.

24. If one looks at the conduct of the appellant in the interaction to the police on either account, his conduct is consistent only with him being the sole person there. It is inconsistent with someone else being there. I am satisfied beyond reasonable doubt he was the only person there, it follows from that that I am satisfied he drove the car.

25. In respect of the other matter the appellant’s evidence is that as a matter of precaution he had made inquiries with the Roads and Traffic Authority, Mt Druitt and was in the process of asking or receiving his licence back when the RTA employees told him they would not do business with him. He asked them why, they said because he had outstanding fines. They told him that he had to sort out those outstanding fines. He then asked “Is there any reason why I cannot have my licence. That is a different question from the one that he would like me to think was asked “Is there any reason why I cannot drive?”, they said “No there was no reason, there’s no action taken against your licence, it’s just over a fine default and you should sort it out.”. There was no impediment, as I understand - that answer has - of the RTA has to be understood against the proposition that there was no reason why he could not get his licence other than the outstanding fines that he had been talking about, or put it another way, there was no other reason why he could not get his licence.

26. I have had some trouble sorting this one out in my own mind because the learned magistrate made a finding favourable to the appellant in terms of his credibility. Her Honour said “While I acknowledge and accept what you have indicated to the court, if it is effectively a strict liability situation, then my hands are tied.”. Her Honour may not have been entirely correct there, it seems to me that the position in respect of these type of offences may allow for some room for an honest belief reasonably held or held on reasonable grounds to be a defence.

27. The first thing to note about Proudman v Dayman, 67 CLR at 536 (1941), was that the defence as advanced there did not succeed. It was a driving case as well. The judgment that most frequently is cited is that of Dixon J, as he then was, at 540, I will quote the relevant passage,

“It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting licence. It is another to say that an honest belief founded upon reasonable grounds that he is licensed cannot exculpate a person who permits that other one to drive.”.

This was a case of someone else driving this lady’s vehicle, she said she believed he had a licence.

As a general rule ”(my emphasis) an honest and reasonable belief in a state of facts which, if they exist, would make a defendant’s act innocent affords an excuse for doing what would otherwise be an offence.

The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise wherein matters of police, of health, of safety or the like the legislation adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground either in reason or in actual probability for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, the presumption is but a weak one.”.

28. This case concerns driving. The driving regulations are predicated in part upon road safety. The presumption that the defence will apply is weak. The presumption of it being a reasonable excuse is weak. At the end of the day even accepting the magistrate’s acknowledgment of the evidence given by the appellant, in my view it is not one that is reasonable and the presumption, that it will apply is far too weak to take advantage of. I find that offence proved also.