Wighton v Police - [2011] SASC 144

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
WIGHTON v POLICE
[2011] SASC 144
Judgment of The Honourable Justice White (ex tempore)
6 September 2011
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - PROOF AND EVIDENCE - OTHER MATTERS
Appellant found guilty by a Magistrate of using a mobile phone while driving a motor vehicle - appellant denied talking on phone, saying that he was instead scratching his ear with a stereo remote control - the reporting police officer conceded in cross-examination that it was a possibility that the appellant's version of events was correct - whether prosecution evidence capable of excluding a reasonable hypothesis consistent with innocence.
Held: it was open to the Magistrate to accept the police witness's evidence as being capable of establishing the charge beyond reasonable doubt - appeal dismissed.
Australian Road Rules r 300, referred to.
R v Calides (1983) 34 SASR 355; Taylor v Hayes (1990) 53 SASR 282; Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531, considered.

WIGHTON v POLICE
[2011] SASC 144
Magistrates Appeal (ex tempore)

WHITE J. The appellant was found guilty by a Magistrate of using a mobile phone while driving a motor vehicle in contravention of r 300 of the Australian Road Rules. He appeals against that conviction.
The Magistrate accepted that the evidence of the reporting police officer, Constable Reid, was both honest and reliable. He preferred Constable Reid’s evidence to that of the appellant and considered that he had established the offence beyond reasonable doubt.
Constable Reid’s evidence was to the following effect: on 12 August 2010, at about 2.18 pm, he was in a marked police car at the junction of Sir Ross Smith Boulevard and Sudholz Road at Oakden. His vehicle was stationary but he was about to commence a right-hand turn into Sudholz Road. Before moving off, he saw the appellant’s van effecting a left-hand turn from Sudholz Road into Sir Ross Smith Boulevard. The appellant’s van came to within about three metres of his vehicle at the closest point in its path of travel as it made the turn.
The period of time during which Constable Reid had the appellant under observation at the time is unclear. However, on the respective accounts of Constable Reid and the appellant, it must have been for at least a few seconds.
Constable Reid observed that the appellant “appeared to be talking on a mobile phone”. He described the phone as being about seven centimetres by three centimetres or a little larger, silver in colour, with no markings and no aerial. Constable Reid saw the appellant holding the phone in his right hand near his right ear. He repeated in his evidence-in-chief that the appellant “appeared to be talking”. There was no-one else in the appellant’s van. Constable Reid went on to describe the appellant appearing to look in his direction, observing him, and then quite quickly putting the phone down.
Constable Reid then followed the appellant to his home where he had the following conversation with him:
“Q.It’s an offence to drive whilst talking on a mobile phone. I just saw you talking on a mobile as you drove past me. What is your reason for this?
A. No I wasn’t. I was scratching, you know, my ear.
Q. Do you own a silver mobile phone?
A. No comment. I’ve got nothing to say.”
Constable Reid then issued a traffic infringement notice to the appellant and explained to him that an expiation notice would be issued.
In his evidence, the appellant denied using a mobile phone and said that at the relevant time he was holding instead the silver coloured remote control to the van’s stereo system. He said that he had been scratching his head with that remote control.
During the course of his evidence, the appellant produced a small red flipback style mobile phone which he said was the mobile phone he was using on 12 August 2010. He also produced a record provided by Telstra which indicated that no phone call had been made from that mobile phone at or about 2.18 pm on 12 August 2010. However, the Telstra record was of limited utility as it contained no information at all about incoming calls to the red mobile phone.
The appellant agreed that he had had the conversation recounted by Constable Reid, which I mentioned earlier, but said that after the words “No comment”, Constable Reid had gone on to say “Oh, are you going to play that game then? I’m going to charge you”. The appellant also agreed that he had had numerous mobile phones in the past.
Constable Reid was shown a photograph of a remote control and he was shown the red mobile phone itself. He disagreed with the suggestion that the appellant had been using a remote control to scratch his ear and then gave the following evidence in his cross-examination:
“Q.What I suggest to you is what happened is that Mr Wighton had this object, the silver object in his hand which is the remote for his stereo, and he had it up to his ear and was scratching it. Do you agree or disagree with that?
A. Do I disagree with that?
Q. Yes. Do you disagree with that as a possibility?
A. Yes.
HIS HONOUR: The proposition you’re putting is that Mr Wighton had that device with him and he was using that to scratch his ear?
MR CALDICOTT: Yes, at the time the police officer saw him.
Q.Do you accept that or not?
A. I don’t think that’s what happened.
Q. Is it a possibility?
A. Is it a possibility that happened?
Q. Yes.
A. It is a possibility.”
Constable Reid also said that the colour and size of the red mobile phone produced by the appellant in Court were both different from the object which he had seen the appellant using.
As I said at the commencement of these reasons, the Magistrate regarded Constable Reid’s evidence as both honest and reliable. He preferred his evidence to that of the appellant. The Magistrate referred to R v Calides[1] and acknowledged, correctly, that a mere preference for Constable Reid’s evidence was insufficient. He went on to record his positive satisfaction that Constable Reid’s evidence established the prosecution case beyond reasonable doubt.
[1] (1983) 34 SASR 355.
Appellant’s Submissions on Appeal
On the appeal Mr Caldicott, for the appellant, recognised the difficulty in having this Court disturb the Magistrate’s findings based on credit. He submitted however that Constable Reid’s evidence was insufficient to establish the charge beyond reasonable doubt and that, although referring to R v Calides, the Magistrate had failed to consider whether Constable Reid’s evidence by itself proved the prosecution case.
Mr Caldicott emphasised that Constable Reid had said only that the appellant had “appeared” to be talking on a mobile phone and his acceptance in cross-examination, to which I have referred that it was a “‘possibility” that the appellant was using the remote control to scratch his ear. He submitted that, given this evidence, the prosecution had not excluded a reasonable hypothesis which was consistent with the appellant’s innocence.
Consideration
The task of this Court on an appeal such as the present is well established. The Court is required to conduct a real review of the evidence before the Magistrate. On issues which involve an assessment of the quality and reliability of a witness, the Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence given. However, the fact that a Magistrate has reached his or her conclusion by an acceptance of the evidence of one party’s witnesses does not prevent this Court from carrying out its statutory function. In hearing and determining an appeal there may be cases in which incontrovertible facts, or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or from evidence accepted by a Magistrate, this Court can substitute its decision if it comes to a different conclusion as to the correct inference which should be drawn.[2]
[2] Taylor v Hayes (1990) 53 SASR 282 at 291-2; Fox v Percy [2003] HCA 22 at [25]-[29], (2003) 214 CLR 118 at 126-8; Warren v Coombes (1979) 142 CLR 531 at 551.
I have, in preparation for the hearing, reviewed the whole of the evidence of the trial with the principles I have just stated in mind. I have considered carefully the passages in the evidence to which Mr Caldicott drew attention.
In my opinion, some features of the evidence are particularly important. Constable Reid said that the appellant appeared to be talking on a mobile phone but did not give evidence of the particular facts or matters he observed which led him to that conclusion. However, his evidence that the appellant appeared to be talking at the relevant time was not challenged. It can be taken that if the appellant had a remote control to his ear, he would not have been talking on it.
Constable Reid’s unchallenged evidence that the appellant was the sole occupant of the van precludes the possibility that the appellant was conversing at the relevant time with someone else in the van. The appellant did not suggest that he had been talking or singing to himself.
These two items of unchallenged evidence together with the absence of evidence from the appellant which might have explained the observation that he was talking, provide a sound basis for the inference that the appellant was talking on a mobile phone.
Further, ordinarily the actions of a person talking on a mobile phone, while similar in some respects to the actions involved in using an object to scratch an ear, also have some marked differences. There is no reason to suppose that Constable Reid was unable to discern those differences. The appellant came quite close to his position and he had a good opportunity to observe him.
Looked at on the papers, Constable Reid’s statement that the appellant “appeared” to be talking on a mobile phone and that it was a “possibility” that he was using a remote control instead may suggest a hypothesis consistent with innocence. However, much depends on the manner in which this evidence was given. A reading of the transcript of Constable Reid’s evidence as a whole suggests that his personal style is non-categorical and non-dogmatic. Account should be taken of that style of communication. I note that, despite his manner of expression in Court, Constable Reid was sufficiently certain of what he had seen at the time to pursue the appellant, to assert to him that he had seen him using a mobile phone, and to issue a traffic infringement notice. In that circumstance and given what appears to be Constable Reid’s overall style of expression, his statement that the appellant “appeared” to be talking on a mobile phone may have been equivalent to a statement that he saw the appellant using a mobile phone.
In relation to Constable Reid’s concession in cross-examination that it was possible that the appellant had used a remote control device to scratch his ear, I consider that it was appropriate to take into account that it is not uncommon for witnesses to accept a proposition put in cross-examination as being theoretically possible, without that concession indicating anything at all about the reasonableness of the possibility. Many things are theoretically possible and many witnesses recognise that. Many witnesses, by their manner of expression or tone of voice, convey that they accept the asserted fact as a theoretical possibility only.
It is in these respects that the advantage of the Magistrate in seeing and hearing the evidence is particularly important. The manner in which Constable Reid gave his answers was capable of conveying a different impression from that suggested by the printed words. In those circumstances, this Court should be reluctant, in my opinion, to interfere with the Magistrate’s findings of fact, bearing in mind that these may have been based on impressions from tone of voice and manner of expression as well as on the words spoken.
I also note that in his later evidence Constable Reid said that the remote control device of which the appellant had produced a photograph was different from the object he had observed in the appellant’s hand at the relevant time.
Constable Reid’s evidence of the appellant’s reaction when he noticed that he was being observed by a police officer also provides some, albeit slight, circumstantial evidence in support of the prosecution case.
It is to be kept in mind that the appellant’s own evidence corroborated much of that of Constable Reid. His evidence provides support for that of Constable Reid to the effect that he had been driving the van, that he was holding a silver coloured object and that he was holding that object to his right ear at the relevant time.
There is also, to my mind, a certain implausibility in the appellant’s evidence that he was using a remote control to a stereo system to scratch his right ear at the very moment when he was effecting a left-hand turn and when he happened to be observed by a police officer.
In all these circumstances I consider that Constable Reid’s evidence was, despite the critique made of it by Mr Caldicott, capable of establishing the charge beyond reasonable doubt. The Magistrate’s conclusion was not glaringly improbable, nor was it consistent with incontrovertible or uncontested evidence. The features of Constable Reid’s evidence to which Mr Caldicott has referred do not mean necessarily that the prosecution had failed to exclude a reasonable possibility consistent with the appellant’s innocence. As I have said, this is a case in which I consider that the court should pay considerable heed to the advantage of the Magistrate in seeing and hearing the evidence as it was given.
On my own review of the evidence and bearing in mind the Magistrate’s acceptance of Constable Reid’s evidence, I consider that the prosecution had established the charge beyond reasonable doubt. In particular, I consider that the prosecution had excluded as a reasonable hypothesis the possibility that instead of using a mobile phone the appellant was scratching his ear with a remote control.
For these reasons, I dismiss the appeal.