Wells v Hibble
[2010] TASSC 17
•15 April 2010
[2010] TASSC 17
COURT: SUPREME COURT OF TASMANIA
CITATION: Wells v Hibble [2010] TASSC 17
PARTIES: WELLS, Eleonore
v
HIBBLE, Kim
FILE NO/S: 980/2009
DELIVERED ON: 15 April 2010
DELIVERED AT: Launceston
HEARING DATE: 25 March 2010
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – General matters – Matters of procedural fairness and propriety – Hearing in the nature of an inquisition – Prosecution not required to prove case with evidence – Finding that charge proved without evidence.
Aust Dig Magistrates [79]
Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Practice on or after hearing – Errors of law – Whether complaint should be retried.
Burston v Brooks A91/1996, [1996] TASSC 152, distinguished.
Aust Dig Magistrates [273]
REPRESENTATION:
Counsel:
Applicant: B H Crawford
Respondent: J P Ransom
Solicitors:
Applicant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2010] TASSC 17
Number of paragraphs: 24
Serial No 17/2010
File No 980/2009
ELEONORE WELLS v KIM HIBBLE
REASONS FOR JUDGMENT CRAWFORD CJ
15 April 2010
Without a plea of guilty, or any other admission of guilt, and without admissible evidence, a magistrate found the applicant guilty of speeding, fined her $350 and ordered her to pay $46.50 costs. There was no due process. The magistrate conducted a hearing in the nature of an inquisition and not in accordance with his duty. The applicant should not have been treated in the way she was. She understated the position when she complained to the magistrate, as she was about to be sentenced, "I feel I am being a bit unjustly done by not having been given a chance to present myself properly."
There are many grounds of her motion to review the conviction. Most have been established. Counsel for the respondent properly conceded that the motion should be upheld and the finding of guilt, the conviction and penalty set aside. One issue remained, whether the complaint should be dismissed by this Court or whether instead it should be returned to the Magistrates Court for hearing by another magistrate in accordance with the law.
The hearing
The charge was driving a motor vehicle in excess of a speed limit of 50 kph in a speed-limited area, contrary to the Traffic (Road Rules) Regulations 1999, reg20 and 22(1). Particulars of the charge were that on 26 April 2009 the applicant was driving on a length of road in a speed-limited area, namely Abbott Street, Launceston, to which a speed limit of 50 kph applied as indicated on the area speed-limit sign on a road into that area, and she drove at a speed over the limit indicated on that sign, namely 65 kph. She appeared before a magistrate on 5 August 2009 and pleaded not guilty. The case was adjourned for hearing on 6 October 2009.
On the day of the hearing she appeared unrepresented by a legal practitioner. The magistrate called her forward. His function was to preside over an adversarial hearing in accordance with the law and established practices and procedures. The prosecutor should have been invited to present her case, but no invitation was extended.
The magistrate opened the proceedings with a question directed at the applicant: "The issue is speed is it, what do you say you were doing?" He asked her again, and she responded: "Not guilty ... not speeding." The magistrate insisted on pursuing an improper inquisition. He asked the applicant: "What do you say you were doing?" She responded: "I would have been in the range of 50 perhaps a little bit more than 50." The magistrate retorted: "Don't guess." She replied: "50." The magistrate told the prosecutor to have a talk with the applicant and adjourned the hearing until later that day.
When the hearing resumed, the magistrate asked the prosecutor for "the summary". The prosecutor said that she did not have one but had a proof of evidence of a witness she intended to call. The proposed witness was a civilian speed camera operator. The magistrate called for the proof of evidence, read some of it and announced: "I always like to know what's in dispute here." He did not show the proof to the applicant. He asked her whether there was any dispute about her being the driver of the car. She said she did not know who was driving and that she was in court because she was the owner of the vehicle. There then followed a discussion between the magistrate and the prosecutor in which the magistrate, who demonstrated an ignorance of usual process in speeding cases, sought to ascertain whether the applicant was out of time for disputing that she was driving the vehicle in question. Of course, at that stage of the proceedings, there was no evidence that any vehicle had been driven anywhere.
The magistrate asked the applicant whether she had nominated the person she said was driving the vehicle. Her response was that she did not think there was anything on the form she received that dealt with that and that the only choice she had made was to go to court. She repeated that she did not know who the driver was. The magistrate then told her: "It seems to me that you're not in a position to dispute anything that the prosecution would say as to the fact that at that time, date and place your vehicle was photographed and that this was the speed. Right." She responded that she intended to raise an argument concerning the reliability of the speed detection device. The magistrate ignored that statement of intention and told her: "If your defence is 'it wasn't me in the car' ...you're simply saying, 'I've got nothing to defend, it wasn't me, and I cannot and am not able to take any issue whatsoever with the prosecutor'." She replied: "I was just going to move right onto the other stuff because we don't really know, nobody knows if it was me or anyone, it's my car though and I'm responsible I feel."
The magistrate said: "Well I think you've said that four times now, so the first time I got it clear. But the situation is if what you're saying is that you weren't the driver and you weren't there at that time and place in your car, then what I'm just thinking is that this gentleman" [the proposed witness] "who's travelled here to be here today doesn't need to be here for another minute because none of the evidence that he would give would be challenged to you."
The magistrate then announced that the prosecution did not need to call the witness and the witness did not need to remain in court any longer. The witness thanked the magistrate. I presume that he left the court as a result of what he had been told by the magistrate. The magistrate said: "The only question then remains is as to whether or not this person was the driver and I think therein lies the situation that the presumption – the other fact is that, is admitted, that the particular car is owned by her, so the only thing therefore remains is the question of whether or not she was the driver. The prosecution point to a presumption" [the prosecutor had not done so] "that the registered owner is the driver because that's the way the legislation's framed, so it's really up to the defendant to establish whether or not she was – well that she was not the driver." The magistrate informed the applicant that there was a presumption that the owner was the driver, that it was for her to establish that she was not the driver and the only way she could do that was to give sworn evidence. He asked whether she wished to do so. He explained that unless she gave evidence he would find the matter proven. That statement was without justification. At that time there was no evidence before the magistrate upon which he could have found the charge proven. There was no evidence at all, not in any admissible form.
Faced with the undoubted threat that she would be found guilty unless she gave sworn evidence, the applicant said that she would do so. She went into the witness box and took the oath. Without allowing her to give evidence in her own way, the magistrate proceeded to cross-examine her.
The following is part of what took place:
"HIS HONOUR: I take it there's no issue that CS 6249 is a vehicle registered in your name?
WITNESS: It is definitely, yeah.
...
HIS HONOUR: And you don't take issue with the fact that the operator conducted the test and did everything in the manner in which he was supposed to. You're not in a position to test that?
MS WELLS: Well I was going to dispute that, you know, being that I was in the position of having to defend this figuring that well I'm the owner of the car, so I was going to dispute all these sorts of things as my next thing, because that's all I thought I could do.
HIS HONOUR: I guess the problem you face is that if you're not the driver at the time in that location, it's very difficult to test those matters.
MS WELLS: Okay. I think I'm understanding.
HIS HONOUR: Well the point about it is, you say, you weren't there –
MS WELLS: Well we don't know who was.
HIS HONOUR: No, no, sorry, you weren't there, you weren't the driver, you weren't at that location, so it seems to me you are not in a position to test the evidence of someone when you're not even able to be there or know what the conditions were at the time.
WITNESS: Okay.
HIS HONOUR: To do – to test that you'd have to be there.
WITNESS: Right, okay.
HIS HONOUR: And I think it's your evidence that you're not there, is that right?
WITNESS: Right. Although, I'm not fully understanding, testing the evidence, because I was going to say things about the evidence, but you're trying to say it's something to do with being there and seeing somebody who's an operator or something like that maybe.
HIS HONOUR: Well it just seems to me that your whole defence is predicated on the fact that you weren't there.
WITNESS: Well we don't know if was me or anyone.
HIS HONOUR: No, no.
WITNESS: That's the problem. Okay, okay, all right, sorry it's getting too complicated.
HIS HONOUR: Can I be quite clear about this. You're saying you weren't there?
WITNESS: All right. Okay.
HIS HONOUR: No, I'm not putting words in your mouth –
WITNESS: Yes, yes.
HIS HONOUR: An 'all right' is not an answer. Now I will ask the question again –
WITNESS: : I don't think it was me.
HIS HONOUR: No, no just wait a moment. I will ask you a question, and you tell me first of all whether you understand the question. I am asking you this, were you or were you not the person driving that car at that location at that time? Yes or no?
WITNESS: That's the hard part –
HIS HONOUR: No, no. Is it a yes or a no?
WITNESS: I don't know.
HIS HONOUR: You don't know.
WITNESS: Because I own the vehicle, that's why I'm here if you see what I'm saying, I feel I'm responsible.
HIS HONOUR: I'll take that as a no.
WITNESS: Okay.
HIS HONOUR: Now the circumstances are that you say you weren't the driver at that time and place. What else do you want to say to me?
WITNESS: I was going to dispute all the other things, not knowing, you know, whether saying no as being the driver, then I was going – I researched all the other things that one needs to –
HIS HONOUR: Well perhaps I will just stop you there because you're going – you're rambling.
WITNESS: I'm sorry.
HIS HONOUR: And what I'd like to say is this –
WITNESS: I don’t think as clearly as you.
HIS HONOUR: Sorry, and also don't talk over the top of me.
WITNESS: I'm sorry.
HIS HONOUR: Or we will be here a lot longer.
WITNESS: I'm very sorry.
HIS HONOUR: The circumstances are that you say that you weren't the driver at the time and I'm asking you whether or not you want to advance any evidence to support that or whether you are going to give any evidence as to where or what you were doing on the day or in what manner do you want to establish that you weren't the driver?
WITNESS: I cannot, I do not know, no. I can't give any evidence to that.
HIS HONOUR: You can't say anything. You don't know where you were on that day?
WITNESS: No, I can't say I'm sorry.
HIS HONOUR: All right. Is there anything else you would like to say?
WITNESS: No."
The prosecutor declined an invitation to cross-examine. The applicant said: "I am sorry for being so rambling." The magistrate responded: "No, no, I've just got to run these things in a proper way." It is because he had that duty, and breached it in many ways, that the motion to review should succeed.
The learned magistrate immediately stated his reasons for finding the charge proved:
"Well the situation is that the prosecution have put forward evidence in relation to this matter and in the circumstances that I was told from the bar table at a time when I am satisfied that I did make proper enquiry that there was no dispute about the regularity of the operator, or the machinery, or the circumstances in which the reading was taken, that the vehicle was owned by the defendant at the time and she was the registered owner. In sworn evidence she's indicated that she is not able to say anything in support of the fact that she says she doesn't believe that she was driver and I'm satisfied she was. I find the matter proven."
What should have happened?
At the outset of the hearing the magistrate should have invited the prosecutor to present her case. It appears from the proof of evidence shown to the magistrate, that it would have taken only a few minutes for the evidence-in-chief of the civilian speed camera operator to be given.
According to the proof, the operator intended to say that he set up the camera in Abbott Street where a 50 kilometre limit applied by reason of it being a suburban road in a built up area. He tested the camera to make sure it correctly displayed information and he operated it. It was intended that he would produce a photograph taken by the camera of the allegedly speeding vehicle in accordance with the Vehicle and Traffic Act 1999, s56E. That section provides that the production of a photograph taken by a photographic detection device is evidence that, at the time and location shown, the speed of the photographed vehicle was the speed shown.
According to the proof, the operator would also have tendered a certificate of testing the device which would have been evidence of that fact.
It was also intended that the operator would tender a certificate under the Vehicle and Traffic Act, s56F, which would have been evidence that the applicant was the registered owner of the vehicle in question. By virtue of the Traffic Act 1925, s54(1AA), the applicant would have been presumed to be the driver unless she established otherwise. Assuming that she lodged a notice of election to have the matter heard in court, which is what she said she did, by virtue of subs(3) she would not have been entitled to rely on a defence that she was not the driver unless she gave, within 21 days of the service of the complaint and summons on her, written notice of intention to rely on that defence together with a statutory declaration, providing that at the time of service of the complaint and summons on her, she was notified in writing of that requirement.
On the face of the transcript, it appears that the applicant did not intend to maintain such a defence and that her intention was to raise an argument concerning the reliability of the speed detection device. It is not known what she would have done in that regard, but it is possible she would have attempted to challenge its accuracy through cross-examination of the operator. She was entitled to take that course.
Why should the motion be allowed?
It should be allowed because:
1The magistrate erred by finding the charge proved without any admissible evidence to support the finding.
2The magistrate erred by having regard to the proof of evidence of a proposed witness without that evidence being given.
3The magistrate erred by having regard to that proof of evidence without giving the applicant the opportunity of seeing or challenging it. It goes without saying, that the learned magistrate erred by telling the witness that he could leave court and that he would not have to give evidence. Of course, that was a matter for the prosecution to complain about rather than the applicant.
4The magistrate erred when he told the applicant that because she was not the driver and was not at the scene, she was not in a position to test the evidence. She was in fact entitled to challenge the evidence in the same way as counsel would have been entitled to do so if counsel had appeared for her.
5The magistrate erred by informing the applicant that the charge would be found proved unless she gave evidence, in circumstances where there was no admissible evidence to support a finding that it had been proved.
6The magistrate erroneously stated that there was no dispute about the regularity of the operator, or the machinery, or the circumstances in which the reading was taken. It was also erroneous to state that the magistrate had made a "proper enquiry" about those matters.
7The magistrate erred in questioning the applicant at the bar table concerning the speed she claimed she was doing and otherwise as to the ingredients of the alleged offence.
8The magistrate erred by cross-examining the applicant and by not giving her an opportunity to give evidence-in-chief in her own way.
9The magistrate erred by failing to require the prosecutor to present the prosecution case against the applicant, including evidence in an admissible form.
10The magistrate erred by failing to explain to the applicant the proper and correct procedure by which hearings should be conducted and by failing to give the applicant a reasonable opportunity to present her defence in her own way.
Outcome of the motion
For the reasons I have given the finding that the charge was proved will be quashed and the conviction, fine and order for costs will be set aside.
Counsel for the applicant submitted that the complaint should not be remitted to a magistrate for rehearing. He pointed to the fact that the charge was not a serious one and the penalty imposed was only a fine of $350. He referred to the inconvenience and expense of bringing a motion to review for the purpose of rectifying what was clearly an injustice. He argued that the prosecutor should have been more assertive with the magistrate and should have pointed out the need for evidence. He referred to the closing paragraphs in the judgment of Zeeman J in Burston v Brooks unreported A91/1996, [1996] TASSC 152.
I do not think that this case bears comparison with Burston v Brooks. In that case the judge was concerned that the prosecution had been conducted inappropriately; that the prosecutor failed to discharge a duty to call material witnesses; that the applicant was denied a fair trial by the actions of the prosecutor; and that it would not be just to put the applicant at risk again in circumstances where the prosecution would be given the opportunity of conducting its case differently to remedy weaknesses found by the learned judge in its case.
I have little criticism of the prosecutor in this case. She was not a legal practitioner. The handling of the case was removed from her by the magistrate who should bear the blame for the miscarriage of justice that occurred.
Both parties were entitled to a hearing in accordance with the law. They have not yet had one. There will be an order that the complaint be retried by a different magistrate.
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