Wilderness Society (Tasmania) Inc v Wild Drake Pty Ltd
[2021] TASSC 12
•29 March 2021
[2021] TASSC 12
COURT: SUPREME COURT OF TASMANIA
CITATION: Johnston v Barnes [2021] TASSC 12
PARTIES: JOHNSTON, Aaron Roy
v
BARNES, Alisha
WALL, Hannah
FILE NO: LCA 1720/2020
DELIVERED ON: 29 March 2021
DELIVERED AT: Hobart
HEARING DATE: 19 March 2021
JUDGMENT OF: Blow CJ
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – When remedy available – Driving charges – Identification issue – Alibi defence – Charges found proved – Whether error in finding identity proved – Whether inadequate reasons for rejecting alibi defence.
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, referred to.
Aust Dig Magistrates [1345]
REPRESENTATION:
Counsel:
Applicant: G Stevens
Respondent: G James
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2021] TASSC 12
Number of paragraphs: 26
Serial No 12/2021
File No LCA 1720/2020
AARON ROY JOHNSTON v ALISHA BARNES and HANNAH WALL
REASONS FOR JUDGMENT BLOW CJ
29 March 2021
This is a motion for the review of two convictions imposed by a magistrate, Mr C P Webster, on charges relating to the driving of a red Holden Commodore. The prosecution case was that on the night of 3 September 2019 the applicant, Aaron Johnston, was performing a burn-out in that vehicle on Gage Road, Gagebrook; that two police officers travelling in a vehicle in the opposite direction saw the Commodore doing the burn-out; that the driver of the police vehicle activated its emergency lights and sirens and drove towards the Commodore; that the applicant then drove past the police vehicle; that the driver of the police vehicle turned it around and commenced to follow the Commodore; and that the applicant failed to stop, and instead accelerated away, turning left onto Briggs Road.
The applicant was charged on separate complaints with two offences:
· "Operating or controlling a vehicle in an unnecessary execution of sustained loss of traction", contrary to s 37J(1) of the Police Offences Act 1935.
· Evading police, contrary to s 11A(1) of the Police Powers (Vehicle Interception) Act 2000.
The two police officers gave evidence before the learned magistrate. The evidence that somebody had committed the two offences was not challenged. One of the officers, Sergeant Bessell, gave evidence that he recognised the applicant. The other officer, Constable Wall, did not claim to have recognised him. The identification evidence was disputed. The applicant and two defence witnesses gave evidence as to an alibi. There was undisputed evidence that the Commodore's registration number was H63HE, and that its registered owner was the applicant's partner of 10 years, Samantha Bond. The applicant's case was that he had been driving the vehicle earlier in the day, but that it had overheated, and he had therefore left it at the home of a friend, Bronte Pearson, and got a lift home in a different vehicle driven by a friend, Jason Cox; that he got home a little after 5pm, and that he did not go out again that night. Both police officers gave evidence they saw the burn-out at 7.46pm. Ms Bond gave evidence that the applicant came home for tea at about 5.30pm in his friend's car; that he did not go out again that night; that she had not seen her Commodore again; and that she understood that it had been stolen. Ms Pearson gave evidence that the applicant arrived at her home before lunch time, probably around 10am; that his friend Jason Cox picked him up and drove him away; that he had not been there very long; that she went to move the Commodore at about 5pm or 6pm, that she found that it was gone; and that she still had its keys.
Ground 1 – Identification
The notice to review contains three grounds. Ground 1 reads as follows:
"The learned magistrate erred in fact and/or law in holding that the applicant was driving."
The finding that the applicant was the driver of the Commodore was based entirely on the evidence of Sgt Bessell. His evidence as to identification was to the following effect. When the Commodore stopped doing a burn-out it was driven straight towards the police vehicle. It narrowly avoided the police vehicle. Its driver passed within a metre and a half of him. It was dark. There were new street lights in the area. He had the lights of the police vehicle on high beam. Those included driving lights. There is an LED light bar on the front of the police vehicle. He observed the other driver as the Commodore came towards him, and clearly identified him to be Aaron Johnston. He had been aware of Mr Johnston for a number of years. He had most recently dealt with him approximately six months earlier when he conducted a search of a vehicle on the Midland Highway. That vehicle was travelling south. The applicant was the front seat passenger. He produced identification at that time.
The learned magistrate was alert to the need to approach identification evidence with caution. He gave short oral reasons for finding the charges proven at the conclusion of the hearing. In those reasons he said the following as to the identification issue:
"Section 165 of the Evidence Act [2001] identifies identification evidence as evidence that may be unreliable and is of such a nature that it may require a warning to a jury that the identification evidence may be unreliable. In this case I must remind myself and I warn myself of the dangers of identification and accordingly I do so."
He went on to quote from the judgment of Sulan J, with whom Duggan and Lander JJ agreed, in R v Southon [2003] SASC 205, 85 SASR 436 at [43] as follows:
"Where there is evidence which identifies the accused as the person who committed the crime, or from which the jury is asked to conclude that it was the accused who committed the crime and the reliability of that evidence is disputed, a trial judge is required to warn the jury of the dangers associated with such evidence. The extent of the warning will vary according to the circumstances of the case. The warning will remind the jury of mistakes that can occur when witnesses are asked to identify a person who committed the crime. Such factors as the lighting at the time, whether the witness knew or had seen the accused before, the length of time that the witness had to observe the accused, whether the witness was panicking at the time, and other matters which may have distracted the witness are just some of the factors to which the judge might refer. The circumstances of the identification are also relevant." [Footnotes omitted.]
In giving reasons for accepting the sergeant's evidence, the learned magistrate referred to the following factors:
· The sergeant knew the applicant from previous dealings with him.
· The sergeant was not panicking at the time.
· The sergeant had his lights shining on the Commodore.
· The sergeant had a clear view of the applicant "when he was within one and a half metres" of him.
The learned magistrate regarded the evidence that the Commodore belonged to the applicant's partner as evidence that tended to corroborate the sergeant's identification evidence.
Counsel for the applicant submitted to me that the learned magistrate had failed to identify or consider certain weaknesses in the prosecution evidence as to identity. He reminded me of the following well known passage in the judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ in Domican v The Queen (1992) 173 CLR 555 at 561-562:
"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. ... It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence." [Footnotes omitted.]
Counsel for the applicant submitted to me that the learned magistrate had erred in failing to address weaknesses in the identification evidence in relation to the circumstances of Sgt Bessell's sighting of the driver of the Commodore, the fact that it was dark, the possibility of the sergeant being distracted by reading the Commodore's registration number and noticing bystanders, and the possibility of smoke from the burn-out interfering with visibility.
There is certainly authority to the effect that a magistrate must expressly remind himself or herself of the weaknesses of identification evidence: Sharrett v Gill (1993) 65 A Crim R 44 at 54; Parker v Espinoza (1996) 85 A Crim R 336 at 340. However the hearing before the learned magistrate was a very short one. It was so obvious as to go without saying that he was aware that the sergeant had a very limited opportunity to observe the driver of the Commodore in the dark as the vehicles passed one another. There was no evidence that smoke might have obscured the sergeant's view. In fact the sergeant gave evidence that the smoke did not obscure anything, and that it was coming from the rear tyres whereas he read the front registration plate. He gave unchallenged evidence to the effect that he first read out the number from the registration plate, then saw who the driver was, and subsequently observed other people on the street when making a U-turn. It is true that the full history of the sergeant's dealings with the applicant was not elicited before the learned magistrate. The probative value of such evidence may well have been outweighed by a danger of unfair prejudice. In my view, the absence of evidence as to the interactions between the sergeant and the applicant did not constitute a weakness in the identification evidence. There was unshaken evidence that the sergeant knew the applicant by sight.
For these reasons, I reject the submission to the effect that the learned magistrate erred in law in failing to identify or consider particular weaknesses in the identification evidence.
Counsel for the applicant has identified a factual error in the learned magistrate's reasons relating to this issue. His Honour said that the sergeant "had a clear view of the defendant when he was within one and a half metres". However the evidence was that the sergeant identified the applicant when his headlights were shining towards him, and that the closest that the applicant got to him would have been about 1.5 metres as he passed. When the driver of the Commodore went past the sergeant, the headlights of the police vehicle would no longer have been on him. Any opportunity for the sergeant to see and identify the driver of the Commodore must have occurred when the two individuals were much more than 1.5 metres apart.
However a motion to review cannot succeed on the basis of errors in fact finding unless it is established that no magistrate acting reasonably could have found the charge or charges proven beyond reasonable doubt: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 at [46]. In the light of the sergeant's unshaken evidence as to the applicant's identity and the corroborative evidence as to the ownership of the Commodore, any magistrate acting reasonably could have found the identity of the applicant proven beyond reasonable doubt if it were also reasonable to reject the alibi defence. That defence is the subject of ground 3.
Ground 2 – The keys to the Commodore
As I have said, Ms Pearson gave evidence that she still had the keys to the Commodore. When she said that, the applicant's counsel sought to tender the keys. The prosecutor did not object, but the learned magistrate refused the tender. Ground 2 of the notice to review reads as follows:
"The learned magistrate erred in law in refusing the tender of a defence exhibit, namely a set of car keys."
The evidence that Ms Pearson still had the keys was relevant. However the keys themselves were of no probative value. They did not constitute relevant evidence. The test of relevance is to be found in s 55(1) of the Evidence Act. That subsection reads as follows:
"(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."
The asserted fact that the Commodore was stolen was a fact in issue in the proceeding. The evidence that Ms Pearson still had the keys to the vehicle was evidence that, if accepted, could rationally affect the assessment of the probability of the fact of the vehicle having been stolen. If the learned magistrate had taken possession of the keys, an examination of them could not have rationally affected his assessment of the probability of the vehicle having been stolen. They therefore did not constitute relevant evidence, and he was right to reject the tender.
Ground 3 – The alibi
The hearing before the learned magistrate was on 23 June 2020. A little over nine months had passed since the events to which the charges related. Ms Bond gave evidence that she had not seen the Commodore since the applicant left home in it that morning; that she had it insured for $25,000; that she had not made a claim under her insurance policy; and that she had not formally complained to the police that it had been stolen. She gave evidence to the effect that she had tried to report a car as stolen once before; that the police would not take a statement; that it took a number of phone calls to different people before she was able to report it stolen; and that that vehicle subsequently turned up. She said she decided not to report it stolen "because it wasn't worth the hassle with the police". She said she figured that the vehicle would turn up.
The applicant gave evidence that he was arrested on the day after he left the vehicle at the home of Ms Pearson. Under cross-examination he said this:
"I had to sign in that day, so they arrested me then, and I said that the car had been stolen. We'd actually tried to report it earlier that day and the police were meant to turn up and they didn't and then obviously I got arrested when I signed in and they charged me and they said I had to do an interview or they wasn't going to do anything about it, so I couldn't report the car stolen."
Ms Pearson gave evidence to the effect that she attempted to report the vehicle as stolen on the night she found that it was missing, but that she "got refused". She said that police officers told her that they knew it was the applicant driving that car, and did not allow it to be reported as stolen.
The learned magistrate disbelieved the applicant and his alibi witnesses. His reasons for rejecting the defence case were as follows:
Ms Pearson says she went out at five o'clock and the vehicle was taken, it was gone by five o'clock. Of course these events occurred later at 7:46, it could well be, and I find that the defendant picked up the car and he took it. Now I don't accept the fact that it was stolen, I don't accept the fact that somebody has a twenty five thousand dollar vehicle missing and doesn't claim insurance when they've got insurance. All they had to do was go to the police and say, 'My car has been stolen. Ms Pearson can give evidence and Ms Bond can give evidence', it's a completely unbelievable story that a person whose car was stolen in the circumstances suggested by the defendant and his witnesses wouldn't make a claim for insurance when they were insured, covered, and indeed apparently had gone through the procedure before. They only had to go to the police and give them a statement and produce the witnesses, but – so I disregard their story even though – in fact their story just adds – it doesn't help at all, it just makes the whole – the whole defence is suspicious, but I accept the police officer, the evidence that he saw the defendant driving the vehicle."
In order to evaluate the adequacy of the learned magistrate's reasons for rejecting the defence case, it is appropriate to have regard to the rationale of the rule requiring the giving of reasons. In Phillips v Arnold (above), Crawford CJ, with whom the other members of the Full Court agreed, said at [64]:
"The reasons why the law requires adequate reasons for decisions have been stated many times. They include that the parties should be given an understanding as to why the case was decided in the way it was. In particular, the losing party should be so informed. The need for open justice is regarded as paramount. Another reason arises out of the fact that Parliament has given a right of appeal or review of a decision. Without adequate reasons, an appeal cannot be laid properly and sufficiently before the appellate court and the decision cannot be examined adequately."
Furthermore, in a proceeding of this nature the court should concern itself with the substance of what the magistrate said, rather than examining an unedited transcript of ex tempore remarks made in a busy court as if the transcript were a document to be construed strictly: Acuthan v Coates (1986) 6 NSWLR 472 at 479 per Kirby P. A magistrate's reasons should not be examined in a nit-picking way: O'Hare v Director of Public Prosecutions (NSW) [2000] NSWSC 430 at [70].
The passage that I have quoted from the learned magistrate's reasons makes it crystal clear why he rejected the defence case. The defence was that the applicant could not have been the driver because he was at home and the vehicle had been stolen. The learned magistrate disbelieved all the evidence about the vehicle having been stolen because he found it "completely unbelievable" that the owner of the vehicle would not have taken all necessary steps to make a formal report that it had been stolen and then to claim on her insurance policy. As a result, he regarded the whole of the defence case as unreliable – "suspicious" was the word he used – and decided to accept the evidence of the sergeant. He had already referred to the evidence of the vehicle belonging to the applicant's partner as evidence that supported the sergeant's evidence of identification.
I therefore reject ground 3. The reasons for rejecting the defence case were adequately stated, and the findings of guilt were certainly not findings that no magistrate acting reasonably could have made.
Conclusion
For these reasons, the motion to review is dismissed.
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