Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.

Judgment Number: [2019] TASSC 12

1. The respondent was charged with the offences of driving whilst disqualified, using an unregistered motor vehicle and using a motor vehicle with no premium cover. The offences were alleged to have been committed on 7 November 2017. The primary allegation was that she had been riding a motorcycle through the intersection of Patterson Street and Wellington Street, Launceston, when she fell from the motorcycle. The complaint was heard by Magistrate K Stanton on 10 August 2018. His Honour was not satisfied beyond reasonable doubt that the respondent had been driving the motorcycle at the relevant time, and dismissed the complaint.
2. The applicant seeks a review of that decision. The sole ground of review is that no magistrate acting reasonably could have been satisfied "other than of the respondent's guilt".
3. The respondent was unrepresented at the hearing and indeed in respect of this review. The Magistrate, however, provided the respondent with a detailed and balanced explanation of the procedure and her rights in respect of the hearing.
4. The issue at hearing was whether the respondent was the driver of the motorcycle at the relevant time. The evidence established, without dispute from the respondent, that she was disqualified from driving at that time, and the motorcycle was unregistered and uninsured. Although the respondent did not give or adduce evidence, her case as it appeared from her cross-examination of relevant witnesses, was that she was a passenger on the motorcycle and that it was in fact being driven by her partner, an unidentified male. The magistrate accepted that there was a reasonable possibility that this was in fact the case, and accordingly was not satisfied beyond reasonable doubt that she had been driving the motorcycle.
5. The prosecution called three witnesses in respect of the driving issue. A summary of this evidence is as follows:
   • Caroline Eastoe said that at around 7.30pm on 7 November, she was the driver of a motor vehicle which was stationary at the relevant intersection, waiting for the lights to change. She noticed "a motor bike, not speeding, coming across and the next thing the driver of the motor bike lost balance, traction, I suppose ... and the person riding that motor bike fell off". Ms Eastoe, a nurse, switched on the hazard lights of her vehicle and went to give the driver medical attention. The person was trapped under the bike. A man who had been parked behind Ms Eastoe helped her get the bike off the person on the ground. Ms Eastoe was adamant that there was only one person on the motorcycle, that it was a female, and it was the person who was trapped under the motorcycle.
   • Ms Eastoe said that as she and the other driver were removing the motorcycle, "somebody else came up .... and said 'she'll be fine she'll be fine she'll be fine'." She asked that person where he had come from, and that person said that "he was driving the bike". The police then arrived and she provided her details to them.
   • The respondent put to Ms Eastoe in cross-examination that there were two people on the motorcycle and the male person had been its driver. She suggested to Ms Eastoe that her observation of the motorcycle may have been affected by the position of her stationary vehicle. However, Ms Eastoe remained adamant that this was not the case, and that only one female had been riding the motorcycle. In my view, her evidence was not undermined by cross-examination.
   • Constable Upston gave evidence that he arrived on the scene as a female was pushing the motorcycle to the side of the road. This was at approximately 7.30pm. He was the first police officer to arrive. The female identified herself to him as the respondent. As he was checking her licence, Constable McLean also arrived at the scene. Constable Upston's checks revealed that the respondent's licence was disqualified. He cautioned her and then asked her "if she knew her licence was disqualified". She stated she would not have ridden "if I had known". He submitted her to a roadside breath test that returned a positive reading, and as a result took her to the police station for a breath analysis.
   • In cross-examination, Constable Upston agreed that a younger male was on the footpath. However, that male did not approach him, and he did not recall speaking to him. He believed that it was determined that the male was the partner of the respondent. Constable Upston said there was no conversation between him and the male person, but also remembered that the male "was going to walk the bike home because ... he wasn't aware of his licence status".
   • Constable McLean, who has been a police prosecutor, recognised the respondent from a recent court appearance as a person who had been disqualified. She asked the respondent "if she'd been riding - and she said 'yes' she had and that she was intending on riding to Riverside". She overheard the conversation between the respondent and Constable Upston and said that the respondent "denied being disqualified". After this, Constable Mclean told the respondent that she believed she was disqualified because she was in court when that order of disqualification was made. She said that the respondent "then stated to me that she remembered me being in court with her at that time". When asked about a male being at the scene, Constable Mclean said that a male did arrive, but she was not sure where he had come from, except that he seemed to have come from a westerly direction. She spoke to the respondent about him and said, "Is this your son" and the respondent said, "No it's not". In cross-examination, Constable Mclean agreed that the respondent had said, "No, that's my boyfriend".
   • During cross-examination, the respondent put to Constable Mclean that she did not speak to the male who "was with her". Constable Mclean replied:

"When I attended he wasn't there your Honour. Sorry, when I first initially attended, the male wasn't present. He came from a westerly direction after I had the conversation with the defendant."

1. The magistrate provided detailed advice to the respondent in respect of her right to give or adduce evidence, or not do so. She chose not to give or adduce evidence.
2. The magistrate announced an immediate decision with ex tempore reasons. He noted the admissions that the respondent had made to the police officers, but observed that "those admissions aren't unequivocal". In relation to the respondent's statement to Constable Upston that she would not have ridden if she had known she was disqualified, his Honour observed that, "it could be read in another way as being imprecise language indicating that she wasn't riding because she was disqualified". He also noted that the reference to "riding" could be riding as a passenger.
3. His Honour then considered Ms Eastoe's evidence. He was satisfied that Ms Eastoe had given her evidence honestly, but considered that she may have been mistaken as to the number of persons on the motorcycle. The basis of this conclusion seems to be his Honour's observation that a male person had come onto the scene shortly after the incident, and had asserted to Ms Eastoe that he was riding the motorcycle. His Honour noted that the fact that the male person was the rider of the motorcycle was "a hypothesis consistent with innocence". It explained how he had come onto the scene in the absence of any other explanation. His Honour concluded that he was not satisfied beyond reasonable doubt that the respondent was the driver of the motorcycle.
4. The applicable test on a ground of review such as this is well established. "On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did": Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, per Crawford CJ at [46]. Of course when the decision under review is one in which the magistrate has not been satisfied of guilt beyond reasonable doubt, the question practically becomes whether on the evidence, no magistrate acting reasonably could have failed to be satisfied beyond reasonable doubt as to the guilt of the respondent.
5. There is no question that the prosecution case was a strong one. An eye witness claimed that only one person was riding the motorcycle before it fell to the ground. The conversation reported by police officers suggested that the respondent had accepted that she was the driver of the motorcycle and had not asserted, for example, that someone else was driving or that she was simply a passenger. The testimony of both Ms Eastoe and Constable Mclean suggested that, although a male who claimed to be the respondent's partner, and to have been the driver of the motorcycle, was present at the scene, he had come to the scene from an unspecified location after the accident. Of course, there was no evidence presented by the accused to contradict the prosecution case. However, the magistrate was not entitled to use the respondent's failure to give evidence to support an inference of guilt, nor to constitute a "make weight" to any gap left in the prosecution case.
6. The issue that the magistrate identified was whether the presence of the respondent's partner at the scene and his claim to have been the driver of the motorcycle left open the reasonable possibility that this was in fact the case, and that Ms Eastoe had been mistaken in her observations that there was only one person on the motorcycle prior to it falling to the ground. Those facts, the presence of the respondent's partner and his assertion, were uncontradicted on the prosecution case. It was also made clear by Constable Upston that the respondent's partner had taken possession of the motorcycle when the respondent was taken to the police station. The assertion by the respondent's partner to Ms Eastoe that he was the rider of the motorcycle was a representation that was led in the prosecution case without objection from the respondent. Because there was no intention to call the maker of the statement, nor any suggestion that he was unavailable to give evidence, the evidence was not strictly admissible for a hearsay purpose. However, given that the evidence was admitted without objection, it was evidence which was, at the very least, consistent with the possibility that another person had been the driver of the motorcycle. Certainly his presence at the scene raised a reasonable inquiry in the mind of the magistrate.
7. Although the prosecution case was a strong one, I am satisfied that it was reasonably open to the magistrate to arrive at the conclusion reached by him. In reaching that conclusion, I have had regard to the following matters:
   • In her evidence-in-chief Ms Eastoe was adamant that there was only one person on the motorcycle. However, it is a reasonable assessment of her answers in cross-examination that she exhibited some uncertainty in that regard. When questioned as to whether a car turned in front of the motorcycle immediately before the accident she responded, "There could have been a car, I have no recollection of the car". When the magistrate put to her that what was being said by the respondent was that there was a male riding the motorcycle, her response was, "No, I don't think there was a male riding the bike, from what I saw was just the one passenger on the bike".
   • Ms Eastoe's evidence was that there were two male persons who came on the scene relatively quickly. She described a young man, who was the driver of a car stationary behind her, who helped lift the motorcycle off the respondent. She then described another person who had come onto the scene who was, it would seem on the whole of the evidence, established to be the respondent's partner. In cross-examination, the respondent put to Ms Eastoe that there was only one male person, and that it was in fact her partner who lifted the motorcycle from her. The questioning at this point became quite confused, largely because of discussion emanating from an objection brought by the prosecutor, and it seems to me that the witness did not answer this question squarely. However, a matter which suggested there may have been some confusion as to whether there was only one male or two arises from the fact that neither of the police officers gave evidence of a second male. This is despite both officers being on the scene very soon after the accident. It would be reasonable to expect that, had there been a second male witness, the police would have referred to that fact, or at least obtained the details of that person.
   • A reasonable inference from the comments of the respondent at the scene, as reported by both police officers, is that she was admitting having been the driver of the motorcycle. It would also be relevant to assess what she said in the light of any failure by her to explain further that another person was in fact the driver of the motorcycle: see Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529.
   • However, there are a number of unsatisfactory aspects of the evidence of the police concerning the conversations with the respondent. Each officer paraphrased the relevant conversation. There was no attempt to recite the conversation in direct speech or to ensure that the whole of the conversation was clearly and accurately described in evidence. Statements by each officer in cross-examination suggested that there may, in fact, have been other conversations not reported in detail to the court. For example, although Constable Upston maintained that he did not recall speaking to the male person, after a further question from the magistrate, he said this:

"I believe there was, might, may have been a question at the very end when, say Constable Mclean attended, and I believe she spoke, she asked me who else is here, or 'who's that male there', I wasn't sure at that stage. I think we determined that the male may have been the partner of the defendant.

And if I spoke to him it would have been at the very end and it was, would have been along the lines of 'you getting' 'how's that bike getting home' or 'are you going to get rid of the bike', but, there was no conversation between him and myself."

His evidence is less than satisfactory from the perspective of giving the court an accurate understanding of the whole of the conversations at the scene concerning the other male driver. In those circumstances, the magistrate was justified in exercising caution drawing inferences adverse to the respondent from the conversations under consideration.

Further, the magistrate was correct to exercise caution about not assuming that the respondent had not said anything else that may have been exculpatory or provided an explanation consistent with innocence at some other time. Although on the face of the police evidence, it seems that the respondent was taken to the police station and charged with driving whilst disqualified, without any explanation or assertion from her about not being the driver of the motorcycle. There was simply no evidence presented as to what was said at the police station, either at the point of charging, or at any other time. Given that the respondent was unrepresented, it could not be assumed that any information helpful to the respondent would be elicited during the course of cross-examination. Accordingly, the magistrate was left with some vague paraphrased statements of what the respondent had said, but also left with the clear indication that there had been further unreported conversation concerning the other male person.

• I agree with the magistrate that what the respondent was asserted to have said to Constable McLean did not necessarily amount to an admission that she had been driving the motorcycle. All Constable McLean said about this was "... then I spoke to the defendant and I asked her if she'd been driving, oh sorry riding - I'd asked her if she'd been riding - and she said 'Yes' she had, and that she was intending on riding to Riverside". The magistrate observed that an admission that the respondent was riding the motorcycle was not necessarily inconsistent with her having been a passenger. Of course, taken in context, and in the absence of any other assertion from the respondent, it may well be that these answers could be construed as admitting that she was the driver of the motorcycle. However, once again there was no real attempt by the prosecutor to elicit from Constable Mclean a full and comprehensive description of the conversation. There was clearly further conversation described by her but again this was paraphrased and, in some respects, inherently contradictory. For example Constable McLean said later in evidence-in-chief that she had a conversation with the respondent concerning the male person. In evidence-in-chief, the conversation was reported as Constable McLean asking "Is this your son", and the respondent saying "No it was not". Constable McLean did not obtain his name. In cross-examination, Constable McLean said that the respondent actually said to her that the male person was her boyfriend. Although Constable McLean described this male person as having come "from a westerly direction after I had the conversation with the defendant", again there was no real attempt by the prosecutor to elicit the detail of this. In particular, it was not satisfactorily established that the male person had not been present at the scene when Constable McLean arrived there.

1. This is a clear case of where the failure of the respondent to give evidence should not be used as a "make weight" in respect of gaps in the prosecution case. If the prosecution was intending to achieve significant probative effect from the conversation between police and the respondent, and the circumstances concerning the respondent's partner's attendance at the scene, then it was incumbent on the prosecution to adduce relevant evidence in sufficient detail to justify the appropriate conclusions. It did not do so, and the magistrate therefore correctly exercised caution concerning the probative effect of this evidence.
2. I am not satisfied that it was not reasonably open to the magistrate to have a reasonable doubt concerning the guilt of the respondent. The ground of review has not been made out and the motion is dismissed.