Bonde v Harris [2012] TASSC 28

Justices Act 1959 (Tas), s107.

Phillips v Arnold [2009] TASSC 43, followed.

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Duty to state reasons - Dismissal of charges - Whether sufficient reasons for decision.

Robinson v Chatters [2010] TASSC 66; Australian Securities Commission v Schreuder [1994] TASSC 127, referred to.

Judgment Number: [2012] TASSC 28

1 George Donald Harris, the respondent, was charged on complaint with one count of driving a motor vehicle while exceeding the prescribed alcohol limit contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1), and one count of driving under the influence of intoxicating liquor contrary to the Act, s4. The charges arose out of events which occurred on the night of 15 August 2010. The allegation which underpinned both charges was that the respondent was driving his dark green Mitsubishi Pajero on William Street, Longford.

2 The respondent pleaded not guilty to both charges, and the matter proceeded to hearing before Magistrate Marron. On 30 August 2011, the learned magistrate delivered his decision. He found the respondent not guilty of both charges and dismissed them.

3 The applicant now seeks to review that decision pursuant to the Justices Act 1959, s107. The amended grounds of review are as follows:

"1 The learned Magistrate erred in fact and/or in law in finding the Respondent had not driven at the time of the offences, when no reasonable view of the evidence supported such a finding.

IN THE ALTERNATIVE: The learned Magistrate erred in fact and/or in law in finding that there was a reasonably [sic] hypothesis consistent with innocence that excluded the defendant driving at the time of the offences, when no reasonable view of the evidence supported such a finding.

2 The learned Magistrate erred in law in failing to provide sufficient reasons in reaching his decision that:

a The possibility of another person other than the respondent driving had not been excluded by the prosecution; and

b The evidence [did] not support or justify a finding that the respondent intended to drive."

4 It was the prosecution case that, on the night of 15 August 2010, the respondent had been drinking at the house of a friend, Kristy Rainbow, at 10 Goose Green Place, Longford. He had arrived there in his dark green Mitsubishi Pajero bearing registered number EL102. He had drunk heavily while there and was significantly intoxicated. He left Goose Green Place driving his own car. He was alone in the vehicle. As he backed out of Ms Rainbow's driveway he hit a neighbour's car parked in the street. He then drove off. Shortly after, he returned, beeped his horn and drove off again. He was found seated in the driver's seat of the vehicle outside his home a short time later and breathalysed. He returned a reading of .274, and was subsequently charged with the offences on the complaint. When the respondent was intercepted by police, the car keys were in the ignition which was turned to the on position.

5 The submissions by the police prosecutor made it somewhat difficult to understand on what basis the prosecution case was put. That is, were they relying on the respondent having actually driven shortly prior to his interception, or were they relying upon an intention to drive to move the car, or both. The learned magistrate referred to both scenarios.

6 A number of witnesses gave evidence for the prosecution. These were Ms Rainbow, Mr Howell (a person who had driven into Goose Green Place as the respondent was said to have been driving out and who either followed or was followed by the respondent back to William Street, Longford where the respondent lived), Ms Penny Williams (another resident of Goose Green Place and the person whose car was hit by the driver of the Pajero), Ms William's son Joel, and Constable Smith (the police officer who arrested the respondent).

7 It was the respondent's case that he did not know how he had got home from Ms Rainbow's house but that someone else could have driven him. He told police he had been framed.

8 The respondent gave evidence at the hearing, as did his mother with whom he lived. It was not disputed at the hearing that, on the night of the events, the respondent recorded a blood alcohol reading in excess of the prescribed limit, that he was under the influence of intoxicating liquor and that the police officer who approached him was entitled to require him to undergo breath analysis. The issue on the hearing was whether or not the prosecution could prove beyond reasonable doubt that the respondent was driving a vehicle on William Street on the relevant night.

9 Ms Rainbow lived at 10 Goose Green Place, Longford. This was a cul de sac. She told the court that the respondent was drinking at her house on the night of 15 August 2010. She drank little. She was unable to say when he arrived or when he left. He arrived alone in his car, a green Pajero. At one point she took his keys from him because he was drunk and she was not going to let him drive. He then got angry, and so she gave the keys back. When he left, she saw him stumble around and stumble into his car. He was the only person in the car. He then reversed out of the driveway without putting his lights on. Another car drove into the cul de sac. The respondent nearly reversed into that car and then tried to overtake it. In doing so he sideswiped a parked car.

10 Ms Rainbow said that, about 15 minutes to half an hour later, when she had gone inside her home, she heard the respondent's car come back into the cul de sac and the horn was beeped. She did not go outside at that point and did not see who was then driving the car.

11 When she was cross-examined, Ms Rainbow acknowledged there were a number of people at her house on the night of 15 August. It was put to her that the respondent got so drunk he passed out and someone else at the house that night drove him home. She was adamant that no-one else drove the respondent's car that night and that he was the only person in the car when he left. It was put to her that she was covering for someone else. She denied that. It was also put to Ms Rainbow that she had a conversation with a neighbour at the time the car came back that night. She said there was no conversation. She also denied destroying the respondent's mobile phone or knowing who did and said he had that on him when he left.

12 Mr Howell was the driver of the car which came into Goose Green Place as the respondent's car was being driven out. He said the Pajero came out and came up behind him with its wheels spinning and engine revving hard. He heard glass smash as the Pajero passed the white Pulsar. Mr Howell then drove out of Goose Green Place and turned left into Pultney Street with the Pajero right behind him. In the 200 metres between turning out into Pultney Street and reaching the intersection with Marlborough Street, the Pajero pulled out and passed him. Mr Howell said the Pajero came to a stop at the corner of Pultney Street and Marlborough Street. It then turned right into Marlborough Street. Mr Howell then drove in the same direction and could see the Pajero in front of him, it having slowed down. Mr Howell saw the Pajero proceed along Marlbourough Street and turn into William Street. He then drove to the police station and reported what had happened. He thought it was between 11pm and midnight, "closer to 11". He did not see who was actually in the Pajero because it was dark and the car's windows were tinted. However he said he could see two figures.

13 Ms Williams lived in Goose Green Place and was the owner of the white Pulsar motor vehicle parked in the street that night which was hit. She said she heard noise and her son came and told her that her car had been hit. She got dressed and went outside and saw that the side mirror had been smashed. She did not actually see it happen. She was outside looking at her car and inspecting the damage to it when a dark four wheel drive vehicle drove into the street and then pulled up outside Ms Rainbow's house. It then drove straight out erratically. She did not see who was driving it or, I infer, know the vehicle. She said Kristy Rainbow was outside on the front lawn when the four-wheel drive came back and said to her, "It's not George driving". Ms Rainbow had denied there was any conversation. The learned magistrate said in his reasons that he did not have regard to this evidence although gave no reason as to why. No objection was taken to it at the time it was led.

14 Ms Williams thought her son, Jesse, left home at this point for a short time and then came back. She thought her other son Joel might have followed him, but was not sure.

15 A police officer arrived after the four-wheel drive had left the second time.

16 Joel Williams lived with his mother and brother Jesse at Goose Green Place. He described being at home on the night of 15 August and hearing cars and a smash. He jumped out of his bedroom window. He went to his mother's car and found the side mirror was smashed. Ms Rainbow was in her front yard and they had a conversation. His brother Jesse then got into his mother's car and drove off. He, Joel Williams, got into his car and followed. He found his brother talking to a man. He said that man was George because they had been told it was George, I infer, who had been the driver who had damaged their mother's car.

17 Joel Williams described where he went. He did not know the person called George and he did not know where he lived. He described the route he took which was the same as that which Mr Howell described. When Joel reached where his brother was, he did not see a car other than his mothers. He and his brother then drove home, back to the Goose Green Place cul de sac. A few minutes after they got home, a four-wheel drive vehicle drove into the street. They went to the doorstep and saw the vehicle. They then heard Ms Rainbow yell, "That's not George driving".

18 When cross-examined, Joel Williams said he could remember the four-wheel drive driving into Goose Green Place and his brother going off to see George. It was put to him he was muddled as to the order of events and he said he could remember the two things happening but not the time.

19 At about 11.30pm on the night of 15 August, Constable Smith was on patrol in the Longford area. He received a radio message to the effect there had been an incident involving a Pajero with a registration number EL102 in Goose Green Place. He was given the address of the registered owner of that vehicle and drove to that address. He did not see the car. He then drove around Longford looking for the car. He then received a further report that the same vehicle was driving erratically through Longford. He then drove past the end of William Street and saw a car with its brake lights illuminated in the street. He could not tell if the car was moving or not. He drove down the street and found the vehicle outside the registered address of the Pajero on the nature strip. The brake lights had gone off by the time he got to the car. He concluded the vehicle had been slowing and then stopped. This was a few minutes after 11.30pm. He approached the car and found the respondent in the driver's seat. He opened the driver's door, and had to stop the respondent from falling out.

20 Constable Smith questioned the respondent about a crash and the respondent denied being involved in any crash and indicated there was no damage to the rear of his car. He was then taken for breath analysis. Constable Smith said he removed the keys from the ignition and had to turn the keys into the off position to do that. He did not know if the engine of the car was running or not. Constable Smith said that the respondent's car was the only car he saw that night that was mobile. He said there was no one else in or near the vehicle when he found it.

21 Constable Smith also went to Goose Green Place. He said he went there between the two radio reports he received. He spoke to a son of the owner of the car which had been sideswiped and he then found the respondent in his vehicle in William Street within about two minutes of that. During the course of the breathalyser process Constable Smith asked the respondent a number of questions. He asked him where he had driven from and the respondent replied, "Nowhere". He asked the respondent what the purpose of his journey was, and he replied to have "a bonk". The respondent said he was framed and denied he was driving.

22 After giving his initial evidence, Constable Smith was questioned more closely about the timing of events that night. He said he received the first radio call about 11.30pm, that he then spoke to a person who was probably Mr Howell for five to seven minutes on the steps of the police station and then went to William Street.

23 The respondent said that on 15 August he had spent the day with Ms Rainbow and her daughter. They had gone driving to the lakes. He was then drinking at her home that night. There were a number of other people there. He only knew one by name. He had a fair bit to drink and was drinking until 10pm or 11pm. He did not know how he got home. He recalled waking up in the passenger side of his Pajero. When he woke he was disoriented and sore. He sat up and realized he was outside his home. He said there were no keys in the car. He agreed when cross-examined that he would not have let anyone else drive his car and it was possible he had driven it. Ultimately however he denied doing so.

24 The respondent said that when he woke up he went round to the back of the house and went inside. He had no phone with him. He went in to find some spare keys to his car. He got his spare keys and went back out to his car. He got in the driver's side, put the keys in the ignition and sat there listening to a CD. He said he was trying to get his bearings and nut out what had gone on. He was there for 10 or 15 minutes when the police car pulled up. He described the police car as coming from a direction other than had been described by Constable Smith. He had a very limited recollection of what happened after that.

25 Ms Harris is the respondent's mother with whom he lived at William Street. She went to bed about 8.30pm. She woke when she heard her son come into the house. She did not know what time that was. She heard him fossick in his room for a couple of minutes. She then heard him leave the house by the front door. She heard the door of the Pajero shut and then heard music playing. She also saw the police car turn up but went back to sleep without enquiring further.

26 The learned magistrate noted that the prosecution had identified the case as being a strong circumstantial case. He said:

"The Prosecution say that this is a strong circumstantial case. I must therefore be satisfied beyond reasonable doubt that either the defendant had immediately preceding Const Smith's arrival, been driving his motor vehicle while in an intoxicated state. Alternatively I would need to be satisfied beyond reasonable doubt that there was at least a reasonable possibility if not likelihood, that the defendant would attempt to drive and so endanger the public."

His Honour went on to summarise the evidence of the various witnesses. There is no challenge to that summary. He then said in relation to the evidence of Ms Rainbow and Mr Howell that there were no internal inconsistencies in their evidence, having already noted the major inconsistency between them. That was that Ms Rainbow was adamant the respondent was the only occupant of the Pajero, while Mr Howell said he saw two shapes in the car. His Honour also noted the lack of physical evidence establishing any link between the white Pulsar and the dark green Pajero. He further commented about Constable Smith's evidence to the effect he could not recall if he heard any music playing in the respondent's car or whether the respondent was or was not wearing a seatbelt.

27 His Honour declined to draw any inference from the fact that Constable Smith had to turn the key in the ignition to get it out because there was no evidence as to how the ignition on that car operated.

"In the circumstantial case it's for the Prosecution to exclude the possibility, in this case, of another person being responsible for the driving. That being raised as a possibility by the defendants and also from the evidence of Mr Howell. Considering the evidence as a whole, I do not believe this possibility is excluded. Alternatively I am equally of the view that the evidence does not support or justify a finding that it was at least a possibility if not a likelihood that the defendant would attempt to drive the vehicle and so endanger the public, and consequently both charges are dismissed."

29 Crawford CJ set out at pars[46] - [47] of his reasons in Phillips v Arnold [2009] TASSC 43 the principles to be applied to a review such as the present. He said:

"46 Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. 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. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117.

47 In most cases an applicant for an evidence based review will find it a difficult test to satisfy. At the end of my judgment in Wood v Smith unreported 37/1991 ([1991] TASSC 12) I commented that 'when a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it'. That comment was based on experience and reflection but, of course, was not a statement of principle."

30 Counsel for the applicant submitted that the test to be applied in considering ground 1 was that identified by Porter J in Kent v Gunns Limited [2009] TASSC 30 at par[7] where his Honour said:

"On this motion I am concerned with the question of whether the magistrate's decision was reasonably open on the evidence; that is, whether on the evidence the only conclusion reasonably open, judged by the criminal standard of proof, was that the respondent was in breach of the Act as alleged. To use the words of Green CJ in Leonard v Newell [1983] Tas R 78 at 81, I should 'allow the motion only if I am satisfied that on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent.'"

31 However, some consideration needs to be given to the wording of ground 1. While it was not adverted to in oral or written submissions I suspect the reason the alternative ground was added was the very reason I now identify. The applicant asserted in ground 1 that the learned magistrate made a finding that the respondent had not driven at the time of the offences and complained that no reasonable view of the evidence would support that finding. With respect his Honour made no such finding. His Honour found that the prosecution had not excluded the possibility that someone else had driven the respondent's car. In the circumstances, the ground as it was originally framed cannot be sustained.

32 As to the alternative ground, that still, with respect, misstates the finding actually made. The learned magistrate did not positively find that there was a reasonable hypothesis consistent with innocence that excluded the defendant driving at the time of the offence. He found that the possibility that another person was responsible for the driving on this night had not been excluded by the prosecution. As a matter of law, I accept that his actual finding had to carry with it a finding that he was satisfied there was a reasonable hypothesis as identified by counsel for the applicant in the first place. I will deal with this ground on the basis that the argument is that on no view of the evidence was it reasonably open to the learned magistrate to have accepted the existence of such an hypothesis.

33 It is necessary to look at what the learned magistrate had to actually do before he could convict. He had to be satisfied beyond reasonable doubt that the respondent had driven his green Pajero immediately prior to his being intercepted by Constable Smith. Constable Smith did not say he saw the respondent driving. He made a number of observations as to the circumstances at and just prior to interception (and it should be said failed to make certain observations which might have been crucial) which equally supported conclusions that the respondent had driven and that he was simply seated in the car listening to music, having not driven. No one else gave direct evidence of having seen the respondent driving the Pajero in or towards William Street. Ms Rainbow's evidence was she saw the respondent drive his vehicle out of Goose Green Place but that is as far as it went.

34 His Honour therefore had to consider the evidence as to what occurred generally on that night and determine if the only rational conclusion which could be drawn from that evidence was that the respondent had driven in William Street. If another reasonable hypothesis consistent with innocence was open on the evidence, the learned magistrate could not be satisfied beyond reasonable doubt as to guilt. If that were the case, the learned magistrate would be obliged to find the respondent not guilty. Although not elegantly stated, that is in fact what the learned magistrate concluded, namely that the prosecutor had not excluded that alternative hypothesis.

35 Counsel for the applicant's submission was to the effect that on no reasonable view of the evidence did that alternative hypothesis even exist, and hence it was not open to the learned magistrate to consider the question of whether the prosecution had excluded it.

36 For the learned magistrate to have found as he did, he would need to have accepted, on the evidence before him, that it supported a reasonable, and not fanciful, hypothesis that someone else drove the respondent's car into William Street that night. It is accepted that this Court did not have the advantage of seeing the various witnesses as they gave evidence and forming impressions of them from that. However, with respect, I am not satisfied that would have made any difference. What the learned magistrate had was events which took place over about 50 minutes (from the time of the report of an incident in Goose Green Place to the completion of the breathalyser process). He had evidence the respondent drove alone out of Goose Green Place (Ms Rainbow) and he had evidence that there were two shapes in the car as it drove to William Street (Mr Howell). The latter, while not inconsistent with the former, might support a proposition the respondent did not drive the vehicle on that journey although it could not be said it was evidence the respondent was not driving. It simply was to the effect there might have been another person in the car.

37 The learned magistrate then had, prior to Constable Smith's visit to Goose Green Place, Jesse Williams driving to the home of "George" and talking to him, with the evidence of Joel Williams, who followed him, that he saw his brother talking to this man, and the only car he saw there was his mother's. The two young men returned to Goose Green Place. At some point (there was a suggestion of uncertainty as to whether this occurred before or after the visit to William Street by Jesse Williams), someone then drives a dark four wheel drive into Goose Green Place. It pulls up outside Ms Rainbow's home and then leaves again. She is said to have said of that (although it was not put to her that she did say this and she said in fact there was no conversation at the particular time), that it was not the respondent driving. Constable Smith then arrives in Goose Green Place and a few minutes later goes back to William Street where he finds the respondent in his car. He then has the evidence of the respondent and his mother as to events there.

38 It was not in my view reasonably open on the evidence for the learned magistrate to draw the conclusion he did. To do so, he would have to have:

•

concluded Mr Howell's evidence was that there were two people in the green Pajero and that the respondent was in the passenger seat, when his evidence was not to that effect;

•

ignored Ms Rainbow's evidence as to what she saw when the respondent left her home (he gave no indication he did);

•

ignored the sequence of events as disclosed by the evidence and the implausibility given the timing he found of the respondent having not driven but been seated in his car listening to music for about 15 minutes;

•

ignored the inferences which could be drawn from Constable Smith's evidence about seeing the brake lights and seeing them then go off;

•

ignored the state of the respondent's intoxication when found. Constable Smith said he had to stop the respondent falling out of the car; and

•

ignored the respondent's evidence insofar as it appeared to disclose a clear memory of some events, and little of others, and contained a concession that it was possible he drove.

39 I am mindful of the concern expressed by Crawford CJ in Phillip's case about interfering with a decision when it depends on the credit of witnesses. However, even with that concern in mind, I am satisfied in the circumstances of this case that the learned magistrate made an error when he expressed himself satisfied that the prosecution had not excluded the possibility of there being a driver other than the respondent, and, by inference, accepting there was evidence upon which it was open for him to conclude that there was a reasonable and not fanciful hypothesis consistent with the respondent's innocence, namely that someone else drove the respondent's car. The alternative to ground 1 should succeed.

40 This ground relates to the adequacy of the learned magistrate's reasons. Her Honour, Wood J canvassed the principles relevant to the duty of a judicial officer to give reasons and the content of that duty at pars[70] - [81] of her decision in Robinson v Chatters [2010] TASSC 66. That is a detailed examination and I do not pause to repeat it. I adopt it and consider the present case within the framework of those principles.

41 The learned magistrate canvassed some of the evidence that he heard and noted some facts which were not disputed. He then outlined the evidence the prosecution relied on, having repeated the prosecutor's submission that this was a strong circumstantial case. Having repeated that however, he did not identify the approach needed in a case involving circumstantial evidence. It might be inferred he had some understanding of the principles from the wording used in the last paragraph of his reasons. However, even then, the understanding is not clear since his Honour referred to the exclusion of a "possibility". That might suggest that the merest possibility would have been sufficient.

42 His Honour referred to the prosecutor's approach to the respondent's evidence. He also observed that timing was critical to the prosecution case and made some findings about that. While making some further observations about the evidence and certain inadequacies in it, he made no findings as to what evidence he accepted and what he rejected. He said nothing in his reasons which might explain what evidence in particular led him to the conclusion he ultimately reached.

43 His Honour failed, in my view, to make findings with respect to the essential facts relied upon relevant to the elements of the charges against the respondent, failed as a consequence to state the basis for those findings and what inferences he drew from facts found and where necessary the basis for drawing inferences, and failed to expose the reasoning process which resulted in the orders he made to the scrutiny of the parties and any appellate court. (See summary by Underwood J (as he then was) at par[21] in Australian Securities Commission v Schreuder [1994] TASSC 127.)

44 The reasons of the learned magistrate were inadequate in the circumstances of this case and ground 2 should therefore succeed.

1 The order of Magistrate Marron by which he dismissed charges against the respondent arising from complaint 34767/10 is quashed.

2 The complaint is remitted to the Magistrates Court of Tasmania to be re-tried by another magistrate.

As to any issue of costs, I will hear further from counsel for the parties.