Chol v Hughes [2025] ACTSC 547

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Chol v Hughes Citation: [2025] ACTSC 547 Hearing Date: 20 March 2024 Decision Date: 16 December 2025 Before: Kelly AJ Decision: The appeal is dismissed. Catchwords: APPEAL – CRIMINAL LAW – Appeal of decision to reject admission of evidence on basis of relevance – whether improprieties in conduct of police when arresting appellant’s associate relevant to arrest of appellant – no causal connection between appellant’s arrest and associate’s arrest – temporal coexistence not indicative of causal link – no error disclosed APPEAL – CRIMINAL LAW – Appeal of decisions to admit evidence – improprieties and illegalities by police – whether body-worn camera use properly disclosed – whether police had power to arrest appellant and conduct breath analysis – s 138 discretion – discretion to admit improperly obtained evidence properly exercised – no errors disclosed APPEAL – CRIMINAL LAW – Where Magistrate admitted CCTV footage – poor quality of CCTV footage – footage played at higher speed at trial than on night of incident – footage not hearsay evidence – no error in admitting footage as evidence APPEAL – CRIMINAL LAW – Appeal of verdict as unsafe and unreasonable – finding of guilt open to Magistrate on all the evidence – appeal dismissed Legislation Cited: Crimes Act 1900 (ACT), s 222 Crimes (Surveillance Devices) Act 2010 (ACT), s 43B Crimes (Surveillance Devices) Body-worn Camera Guidelines 2022 (ACT), Items 4.10, 4.11, 4.12, 4.13 Evidence Act 2011 (ACT), ss 47(2), 55, 137, 138, 165 Intoxicated People (Care and Protection) Act 1994 (ACT), s 4 Magistrates Court Act 1930 (ACT), Pt 3.10, ss 208(1)(b), 214 Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4E, 8, 11, 19 Road Transport (Driver Licensing) Act 1999 (ACT), s 32(2)(a) Road Transport (Vehicle Registration) Act 1999 (ACT), s 18(1) Cases Cited: Alexander v Bakes [2023] ACTCA 49 Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 Browne v Dunn (1893) 6 R 67 Bunning v Cross (1978) 141 CLR 54 Donaldson v Broomby (1992) 60 FLR 124; 50 A Crim R 160 DPP v JJ [2023] ACTSC 318 Em v The Queen [2007] HCA 46; 232 CLR 67 Fletcher (a pseudonym) v Knight (a pseudonym) (No 2) [2025] ACTCA 8; 394 FLR 28 Fox v Percy [2003] HCA 22; 214 CLR Grant v Carey [2023] ACTSC 105 House v The King (1936) 55 CLR 499 Ji v Stone [2023] ACTSC 54 Kadir v The Queen; Grech v The Queen [2020] HCA 1; 267 CLR 109 Koschier v R [2024] NSWCCA 24; 113 NSWLR 491 Mann v R [2023] NSWCCA 256 McFarlane v Van Eyle [2022] ACTCA 68 Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119 MWJ v The Queen [2005] HCA 74; 80 ALJR 329 Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 R v Baden-Clay [2016] HCA 35; 258 CLR 308 R v Ireland (1970) 126 CLR 321 R v Johnson [2018] ACTSC 242; 336 FLR 320 R v Passmore [2021] NSWCCA 201; 110 NSWLR 292 R v Petroulias (No 8) [2007] NSWSC 82; 175 A Crim R 417 R v Rogerson [2021] NSWCCA 160; 290 A Crim R 239 R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 Restricted Judgment [2023] ACTSC 238 Sidaros v The Queen [2020] ACTCA 11; 15 ACTLR 64 State of Tasmania v Crane [2004] TASSC 80 Tran v Stapleton [2021] ACTSC 1; 28 A Crim R 434 th Texts Cited: S Odgers, Uniform Evidence Law (Thomson Reuters, 17 ed, 2022) Parties: Makuol Atem Chol (Appellant) Jordan Lewis Hughes (Respondent) Representation: Counsel T Taylor (Appellant) K McCann (Respondent) Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions File Number: SCA 55 of 2023 Decision Under Appeal: Court/Tribunal: ACT Magistrates Court Before: Magistrate Lawton Date of Decision: 8 September 2023 Case Title: Police v Chol Court File Numbers: CAN 344 of 2023, CAN 345 of 2023 CAN 346 of 2023 KELLY AJ: Introduction

1. This appeal was instituted by Mr Chol (the appellant) against the decision of Magistrate Lawton (the Magistrate). Acting Sergeant Hughes (the respondent) was the police informant at the appellant’s trial. The appeal was argued on 20 March 2024 before Loukas-Karlsson J. The Chief Justice of the ACT Supreme Court reallocated this matter to me with the consent of the parties. In reaching my own conclusion, I have read: (a) Three transcripts of hearing from the court below; (b) The transcript of hearing on appeal before Loukas-Karlsson J; and (c) All written submissions made in the court below and upon appeal, including the appellant’s reply submissions.

2. In addition, I have viewed the exhibits containing CCTV footage and the two recordings of body-worn camera (BWC) footage, together with the transcripts as aide memoires for both BWC videos.

3. I have concluded that the appeal should be dismissed. My reasons follow.

4. On 8 September 2023, the Magistrate found the appellant guilty of three driving-related offences, namely: (a) Driving with a prescribed concentration of alcohol, contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RTAD Act); (b) Driving with a suspended license, contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT); and (c) Using a vehicle with a suspended registration, contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT).

5. At trial, the appellant sought to exclude certain evidence under s 137 and s 138 of the Evidence Act 2011 (ACT) (Evidence Act), namely evidence of the appellant’s breath analysis, the attending officers’ BWC footage, and closed-circuit television (CCTV) footage of the service station where the incident occurred. The Magistrate rejected all challenges and admitted the evidence.

6. The appellant’s amended grounds of appeal are: (a) The Magistrate erred in concluding that the evidence of First Constable Blattman was not relevant to a s 138 application; (b) The Magistrate erred in admitting the evidence of the appellant’s breath analysis; (c) The Magistrate erred in admitting the CCTV footage; (d) The magistrate erred in admitting the BWC footage; (e) The Magistrate erred in finding that the appellant drove a motor vehicle on a road or road-related area; and (f) The verdicts are unsafe and unreasonable and cannot be supported having regard to the evidence.

Applicable law

7. As both parties properly submitted, the Court has jurisdiction to hear this appeal under Pt 3.10 of the Magistrates Court Act 1930 (ACT). Specifically, this court has jurisdiction to hear this appeal under ss 208(1)(b) and 214. Such an appeal is heard by way of rehearing: McFarlane v Van Eyle [2022] ACTCA 68 at [20]-[21] (Mossop J), [96] (Kennett J) (Van Eyle); Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 at [24]; Restricted Judgment [2023] ACTSC 238 (Restricted Judgment) at [34].

8. An appellant may succeed if it can be demonstrated that the verdict was unreasonable or unsupported by the evidence: Van Eyle at [97]-[98] (Kennett J); Alexander v Bakes [2023] ACTCA 49 at [19] (Mossop, Baker and Abraham JJ) (Bakes). However, it is not necessary to find unreasonableness; it is sufficient for an appellant to show that there was a material legal, factual, or discretionary error in the Magistrate’s decision: Bakes at [18]; Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 (Eiffert) at [37] (Baker J); Grant v Carey [2023] ACTSC 105 at [8] (Loukas-Karlsson J).

9. The relevant material error the appellant contended here included the application of s 137 and s 138 of the Evidence Act. The relevant parts of the provisions are reproduced below: 137 Exclusion of prejudicial evidence in criminal proceedings (1) In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained— (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. … (3) Without limiting the matters that the court may take into account under subsection (1), it must take into account— (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Note The International Covenant on Civil and Political Rights is accessible at www.legislation.act.gov.au/updates/humanrights/.

10. The presence of both provisions is salient as to whether appeals against rulings made under s 138 are to be determined under the more restrictive standard in House v The King (1936) 55 CLR 499 (House v The King) or under what has been called the “correctness” standard. This question remains unresolved by the High Court: see Kadir v The Queen; Grech v The Queen [2020] HCA 1; 267 CLR 109 at [10]. The difference between the two standards is that, should the latter apply, it would be up to the appeal court to make the “evaluative judgment” demanded by s 138, and consequently, the “shortcomings of the trial judge recede in importance”: R v Rogerson [2021] NSWCCA 160; 290 A Crim R 239 at [551] (Rogerson). Conversely, in House v The King at 505- 506, the High Court held that it was: […] not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion…

11. As the appellant submitted, the ACT Court of Appeal in Sidaros v The Queen [2020] ACTCA 11; 15 ACTLR 64 (Sidaros) observed that the “correctness” standard is to be preferred when it comes to appeals of a decision to admit evidence under s 138: at [38] (Burns, Elkaim and Loukas-Karlsson JJ).

12. In Fletcher (a pseudonym) v Knight (a pseudonym) (No 2) [2025] ACTCA 8; 394 FLR 28 (Fletcher) at [5] (McCallum CJ), [84] (Mossop J), and [172]-[174] (Baker J), the ACT Court of Appeal confirmed that the approach adopted in Sidaros continues to be appropriate “where the decision appealed from ‘demands a unique outcome’ rather than tolerating a range of outcomes”: citing Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119 at [14]. In reaching its decision, the Court (comprising McCallum CJ, Mossop and Baker JJ) found a substantial causal connection between improper or illegal later conduct by the police and the original improper or illegal conduct which triggered the operation of s 138, to conclude the later conduct was effectively intrinsically linked to the original impropriety or illegality, so as to engage s 138. Baker J stated at [229]- [231]: 229. Alternatively, it could also be said that an attempted cover up of illegality or impropriety is so intrinsically linked to the illegality or impropriety as to properly constitute part of the “way in which the evidence was obtained” in s 138(1). 230. There may be particular force in this argument in a case such as the present. In the present case, Detective Knight [the police informant] was made aware that the 30 day period had expired before the HP laptop computer was examined. He did not correct the technician’s erroneous belief that an extension had been obtained, and instead misled the technician into believing that the time limit did not apply (he directed the technician that he believed that seizure could occur “due to how the investigation had progressed”). In these circumstances, where the roots of the attempted cover up lay in the contravention itself, it may be said that the cover up is ‘part and parcel’ of the contravention, such that the attempted cover up cannot be excised from the illegality which triggered s 138(1). 231. The purpose of s 138 may also provide some support for this approach. Attempts by law enforcement officials to cover up illegal or improper conduct have the capacity to undermine the efficacy of s 138. Where a cover up is not discovered, illegality or improper conduct by law enforcement officials cannot be addressed by the procedure established under s 138. For this reason, there may be as strong an interest in deterring cover ups of illegal conduct, as there is in deterring the illegal conduct itself.

1 First Constable Blattman is incorrectly referred to as “Blackman” in the Magistrates Court transcript. then handcuffed. In cross-examination, First Constable Blattman admitted to giving Mr Deng a “fairly indelicate” warning to comply with directions and not use force after his arrest. The relevant exchange in the transcript, as highlighted by the appellant, was as follows: And in between you handcuffing Mr Deng and him sitting on the ground, do you recall doing or saying anything else to Mr Deng? --- Yes. Yes. You’ll excuse me if I’m getting the exact timings mixed up but I, at one point, gave him a fairly indelicate warning because I needed to leave my colleague in the company of two intoxicated men who were – at least one of them at the time was under arrest – I warned him not to use force and not to – or to comply with directions. And I warned him that police would use force against him if he didn’t. Just as best you can, do the best you can First Constable Blattman to just recall the words that you said to Mr Deng? --- It was something along the lines of – I told him that my colleague would use a taser. Would taser him – I can’t remember I think I said ‘Taser in the neck’ I may have used another term of his body. But it was an indelicate – well I said something like, ‘If you cause any trouble or if you try to move or if you cause any issues for my colleague that she will taser you in the neck’.

29. Meanwhile, while looking for the appellant, the BWC footage shows the respondent walking past a parked car, before abruptly spinning and drawing his taser. The respondent gave evidence that he saw the appellant in a crouched position as he walked past the car, as if the appellant might lunge at him.

30. The Magistrate observed that the appellant could be seen standing up from a crouching position beside the parked car and was compliant whilst the respondent placed him into handcuffs. The respondent then walked the appellant over to where his two associates were stopped. The Magistrate noted he could hear the appellant having a discussion with First Constable Blattman, where First Constable Blattman told the appellant that he had been arrested for a prescribed concentration of alcohol (PCA) offence, and that one of his associates had been arrested for being intoxicated and disorderly.

31. The respondent then walked back to the service station to watch CCTV footage from the service station and confirm who had been driving the vehicle. The Magistrate noted in his reasons that, in his opinion, the CCTV clearly showed that it was the appellant who drove the vehicle into the service station.

32. The respondent then asked the appellant to provide an alcohol screening sample in accordance with s 8 of the RTAD Act. The test confirmed the presence of alcohol in the appellant’s breath, and the respondent took the appellant into custody. Further tests in the Gungahlin Police Station confirmed alcohol in the appellant’s breath, at 0.215 grams of alcohol per 210 litres of breath. As noted in both parties’ submission, this put the appellant’s prescribed alcohol level at Level 4, the highest level in terms of prescribed penalties for contravening s 19 of the RTAD Act: see RTAD Act, s 4E. Appeal grounds

33. I will consider the grounds of appeal in sequence. Both parties were content to largely rely on their written submissions. At hearing, the appellant made further submissions on grounds 3 and 5.

34. In oral submission, both parties agreed that grounds 5 and 6 are related.

Ground 1: Relevance of First Constable Blattman’s conduct

Proceedings at first instance

35. The appellant contended in his written submission that the Magistrate erred in not finding the conduct of First Constable Blattman in arresting Mr Deng to be relevant in considering whether to exclude evidence under s 138 as it related to the arrest of the appellant.

36. As the appellant noted in his written submission, counsel for the appellant at trial asked the Magistrate to take into account the improper conduct of First Constable Blattman as well as the impropriety of the respondent. The appellant’s counsel both at trial and in this appeal sought to rely on R v Rondo [2001] NSWCCA 540, 126 A Crim R 562 (Rondo). The appellant’s counsel at trial submitted that Rondo is authority for the proposition that all improprieties can be taken into account, whether they were against the appellant or another person. The appellant also submitted that the combined “incidental illegalities” against the appellant and Mr Deng were a factor that the Magistrate could consider in exercising s 138.

37. The “impropriety” (or more accurately illegality) that was alleged by the appellant was that First Constable Blattman arrested Mr Deng in contravention of the Intoxicated People (Care and Protection) Act 1994 (ACT) (Intoxicated People Act). The appellant referred to s 4 of the Intoxicated People Act, the relevant sections of which provides: 4 Detention of intoxicated people (1) If a police officer believes, on reasonable grounds, that a person in a public place is intoxicated and is, because of that intoxication— (a) behaving in a disorderly way; or (b) behaving in a way likely to cause injury to himself, herself or another person, or damage to any property; or (c) incapable of protecting himself or herself from physical harm; the officer may take the person into custody and detain the person. (2) The police officer may take the person into custody only if the officer is satisfied that there is no other reasonable alternative for the person’s care and protection

38. Relevantly, the appellant submitted that Mr Deng, despite his intoxication, had not been behaving in a way envisioned by s 4(1) of the Intoxicated People Act, and that First Constable Blattman had made no enquiries into whether there was “no other reasonable alternative” for ensuring Mr Deng’s care and protection.

39. At trial, the appellant’s counsel sought to cross-examine First Constable Blattman on his arrest of Mr Deng. The Magistrate ultimately stopped the line of questioning. On the voir dire, the Magistrate noted that even if he were satisfied that First Constable Blattman had contravened the Intoxicated People Act, he did not think that this was relevant to any impropriety when it came to the arrest of the appellant. The appellant in his written submissions contended that the Magistrate had interpreted Rondo as requiring the impropriety to directly involve the person arrested.

The parties’ submissions

40. The appellant accepted that a “causal link” between the impugned evidence and the impropriety against Mr Deng needed to be established. However, he submitted that the impugned connection could be indirect: citing R v Petroulias (No 8) [2007] NSWSC 82; 175 A Crim R 417 at [55]. The appellant submitted that a causal link that was “tenuous” might still be relevant for the purpose of s 138, although conceded that the tenuousness of the link would be relevant to the balancing exercise required by the second step of the s 138 test: citing Kadir.

41. The appellant submitted it was artificial for the Magistrate to isolate the events of Mr Deng’s arrest from that of the appellant’s arrest: citing State of Tasmania v Crane [2004] TASSC 80 (Crane) at [21]. This was because the two events were “directly done and resulted in furtherance” of each other. The appellant relied on the following features which he submitted were salient: (a) The First Constable’s arrest of Mr Deng and his threat to have his colleague taser Mr Deng in the neck, was done in furtherance of the appellant’s arrest. (b) The First Constable had “stepped outside the bounds of what is prescribed to be proper and legal police conduct” and “in doing so played an active role in the arrest, searching and police duties involving” the appellant. (c) The First Constable was using his BWC at the relevant times. This relates further to ground 4 of the appeal, but the appellant also submitted that the First Constable had committed an impropriety or contravened Australian law in obtaining the BWC recording as it related to Mr Deng. As such, it should have been considered relevant to the s 138 application.

42. The appellant further submitted that even if there were no causal relationship, this Court is entitled to consider the way in which evidence was obtained under s 138(1). This court, it was contended, is also required to consider policy considerations concerning unlawful conduct on the part of law enforcement: citing Bunning.

43. The respondent submitted that there was no substance to this ground and that the Magistrate was correct in finding that First Constable Blattman’s arrest of Mr Deng was not relevant to the fact in issue. The respondent submitted that, even if the arrest had been unlawful, it “could not rationally or logically affect the assessment of the probability of any of the elements of the offences for which the appellant was charged”: Evidence Act, s 55.

44. Furthermore, the respondent submitted that the alleged impropriety or illegality of Mr Deng’s arrest was not relevant to determining the issue of the lawfulness of the appellant’s arrest. The arrest of Mr Deng, it was said, was separate from that of the appellant and had “no rational or logical bearing” on the latter’s lawfulness. The respondent submitted that there was no chain of causation, because the arrests of Mr Deng and the appellant occurred separately to each other and were not causative of one another. Although First Constable Blattman attended the scene to assist the respondent, the respondent submitted this was insufficient to link the two arrests.

Consideration

49. In my view, the Magistrate was correct to find that the arrest of Mr Deng was not relevant to any fact in issue.

50. I accept the respondent’s submission that whether or not Mr Deng’s arrest was lawful, it was separate to the arrest of the appellant and had no bearing on the question of the lawfulness of the appellant’s arrest.

51. As Baker J observed in Fletcher, the discretion in s 138 of the Evidence Act is engaged only where there is a sufficient causal connection between the evidence sought to be excluded and the alleged impropriety or illegality.

52. The appellant’s reliance on the observations made by Blow J in Crane does not assist the appellant.

53. In Crane, the Court was dealing with the exclusion of evidence obtained pursuant to a search warrant which was held to have been unlawful. The facts there were relevantly different. In their evidence at committal proceedings, the police officers had conveyed the impression that they had in fact located the evidence in question during the search, when in fact they had entered the premises unlawfully before applying for a search warrant. The prosecution in that case submitted that, since the false statements of the police were made after the evidence had been obtained, therefore the evidence was not relevant as it was not obtained as a consequence of the false statements. Blow J rejected that argument, and held that the police officers’ subsequent conduct was relevant to the balancing exercise in s 138(3) of the Evidence Act.

54. The circumstances in Crane are not dissimilar to the circumstances which confronted the court in Fletcher. Neither Crane nor Fletcher stand for the proposition that any illegal or improper conduct of the police, no matter what connection or relevance it has to the evidence sought to be excluded, will necessarily be relevant to the exercise of the discretion in s 138(3).

55. In Fletcher, the Court held that once s 138 is engaged, impropriety or illegality which is outside the original impropriety or illegality which caused the obtaining of the evidence can be considered as relevant to the weighing-up exercise required. However, neither Crane nor Fletcher stand for the proposition that any alleged illegality or impropriety, no matter how tenuous or remote, will necessarily be relevant. In Fletcher, the attempted cover-up of the fact that the impugned evidence had in fact been obtained by illegal or improper conduct was plainly sufficiently connected with the impugned evidence, notwithstanding that it occurred later.

56. The appellant’s further reliance on the authority of Rondo does not assist the appellant either. The Court in Rondo, in the course of concluding that the impugned evidence should have been excluded, said: 137 In this case not only should the individual acts of illegality be carefully and separately assessed but regard should be had to the combined effect of all three aspects, namely, the unlawful stopping of the Supra, the invalid detention warrant and the invalid search warrant including the applications disclosing no sufficient ground for the issue of the warrant. The amount of illegal conduct in obtaining evidence is significant. In so concluding I have not taken into account Ground 3A because the evidence the subject of that ground was not objected to. However, the police failure to tape record admissions on which they relied indicated further non-compliance with the law. 138 In exercising his discretion under s.138 as to the evidence obtained on the execution of the search warrant the judge does not appear to have had regard to the unlawful stopping of the Supra, the invalid detention warrant and the pattern of unlawful conduct which emerged all of which resulted in the obtaining of evidence which the Crown used, It cannot be said that the desirability of admitting the evidence improperly and unlawfully obtained outweighs the undesirability of admitting that evidence.

Ground 2: Admitting the breath analysis

63. Ground 2 related to evidence obtained from police conducting breath analysis on the appellant following his arrest.

64. It was not disputed that the appellant’s arrest was unlawful so as to trigger s 138. This finding was made by the Magistrate and was not challenged by the respondent on appeal.

65. The impropriety alleged was that the respondent failed to inform the appellant of the offence he was being arrested for, contrary to s 222 of the Crimes Act 1900 (ACT) (Crimes Act). In the appellant’s submission, at the time of the arrest the respondent had no power to arrest the appellant under either s 8 of the RTAD Act or the Crimes Act.

66. The appellant also drew my attention to the impropriety on the part of First Constable Blattman, namely his threat to have a colleague taser Mr Deng in the neck, the supposed lack of proper basis to arrest the appellant for drink driving, and the failure to inform Mr Deng or the appellant that they were being recorded on BWC.

67. The Magistrate concluded that the desirability of admitting the breath analysis evidence outweighed the undesirability of admitting evidence that was improperly obtained, and decided not to exclude the evidence under s 138.

68. The appellant noted that if ground 2 was found to be made out, the Court would then need to consider what admissible evidence was available to establish the appellant was the driver of the vehicle, because the appellant would then rely on a submission made at first instance, that the evidence capable of identifying him (including the CCTV footage and BWC footage) was obtained as a consequence of his unlawful arrest.

The parties’ submissions

69. The appellant challenged the following aspects of the Magistrate’s consideration under s 138.

70. First, the appellant submitted that the Magistrate provided no detailed reasons for rejecting the submission that the respondent was not empowered to direct the appellant under s 8(3) of the RTAD Act.

71. Second, the appellant submitted that the Magistrate had failed to acknowledge that the respondent did not know who was driving the vehicle when he arrested the appellant, meaning that the arrest and the steps taken to investigate were unlawful. The appellant submitted that the respondent’s investigation and arrest of the appellant bore the “hallmark[s] of tyranny”: citing Donaldson v Broomby (1992) 60 FLR 124; 50 A Crim R 160 (Broomby).

72. Third, the Magistrate found that the respondent had mistakenly believed that he could detain the appellant under s 11 of the RTAD Act and that his contravention in arresting or detaining the appellant was reckless. The appellant submitted that the former finding was not open for the Magistrate to make on the evidence, in circumstances where, the appellant submitted, the respondent had given evidence that he had relied on s 8(3) of the RTAD Act.

73. Fourth, the Magistrate was said to have failed to make a finding on whether the other improprieties alleged were reckless or deliberate. This included detaining the appellant for the purposes of investigation, which was argued to be a discrete illegality.

74. Fifth, the Magistrate was said to have failed to properly consider the conduct of First Constable Blattman or whether he was acting in the execution of his duty while using the BWC.

75. Sixth, the appellant submitted that the Magistrate’s characterisation of the arrest as “only for a short period” undermined the principles in Broomby relating to arbitrary arrest and the right to personal liberty. The appellant submitted that this appeared to normalise the respondent’s conduct as excusable.

76. The respondent submitted that the Magistrate had properly assessed the importance of the evidence (so vital that the prosecution case would fail without it), the seriousness of the appellant’s alleged offending, and the gravity of the contravention, which the Magistrate considered was not “high”.

77. The respondent further submitted that the criticism that the Magistrate failed to find whether the other contraventions were reckless or deliberate was unfounded. The Magistrate’s finding, in the respondent’s submission, needed to be considered in light of the Magistrate’s earlier findings. This included, in particular, a finding that while the respondent had erroneously believed he had the power to detain the appellant, the respondent’s conduct had been reasonable in the circumstances. The Magistrate, the respondent noted, had considered the aggressive conduct of appellant and his attempt to hide from the respondent. The respondent submitted that the Magistrate had found that the respondent had been faced with an unusual situation where a driver had walked away prior to providing a breath sample as required.

Consideration

78. Contrary to the appellant’s argument, I cannot discern any factual or legal error in the Magistrate’s approach to the exercise of the statutory discretion in s 138 of the Evidence Act.

79. I have found that the arrest of Mr Deng by First Constable Blattman was irrelevant to his Honour’s consideration of the discretion in s 138.

80. The Magistrate’s characterisation of the respondent’s unlawful arrest of the appellant as less serious, because it was only for a short period, is understandable in the circumstances as the Magistrate found them to be. The appellant’s submission on this ground overlooks the fact that the police officer, Acting Sergeant Hughes, was faced with a very unusual situation that night. He had never been confronted before with a situation where a person had walked off before he could conduct a breath test. He had only been in the police force for two years and had only been involved in “a few road policing related charges” in that time. Although he had stopped numerous people for drink-driving in that period of time, he had never been confronted with a situation where someone simply walked off. Furthermore, he was faced with two other highly intoxicated companions of the appellant. At that point, one or more of them had behaved aggressively, and the respondent had then called for backup.

81. The reaction of the police officer when he finally located the appellant hiding behind a vehicle some distance away, to draw his Taser, was also understandable in the circumstances. I would add that in light of the appellant’s admission that he was the driver (which was not challenged), the Magistrate’s conclusion as to the applicability of s 8(3) was correct.

82. Furthermore, the complaint that the Magistrate did not give detailed reasons for rejecting the submission that the respondent was not empowered to direct the appellant under s 8(3) of the RTAD Act overlooks the fact that the Magistrate did not need to give any detailed reasons, because he had already explained during the course of argument at the conclusion of the trial why he rejected that submission.

83. During the course of argument at the trial, the Magistrate had also made it plain that he understood that the appellant was relying on various improprieties and illegalities said to have been committed by the respondent, not just one. The Magistrate dealt with all of the circumstances in his reasons.

84. First, the Magistrate noted the aggressive demeanour of the appellant on the CCTV footage and also on the BWC footage of the respondent.

85. His Honour took into account the initial failure of the respondent to tell the appellant what he was under arrest for, noting that it was only for ten minutes and effectively in unique circumstances.

86. His Honour referred to the fact that the police officer could have detained the appellant under s 8(3) of the RTAD Act. However, his Honour noted that in the weighing up exercise required under s 138, again in the unusual circumstances of the matter, that this was a neutral factor.

Ground 3: Admitting the CCTV footage

90. At first instance, the appellant had attempted to have the CCTV footage obtained from the service station excluded based on unfair prejudice under s 137, or alternatively, on the basis that the footage appeared to have been edited before being produced at first instance and had become hearsay evidence. The Magistrate rejected this submission, on the basis that the footage “clearly shows that it was the [appellant] who [drives] his motor vehicle into the service station”, and was corroborated by the respondent’s BWC footage. Proceeding on this basis, the Magistrate concluded that the evidence did not generate unfair prejudice to the appellant, “merely because it makes it more likely that the [appellant] will be convicted”.

91. As acknowledged in submissions from both the appellant and the respondent, and as corroborated by evidence given by the respondent, the CCTV footage played at the first instance hearing played at a faster speed compared to when it was viewed by the 2 respondent on the night in question. The appellant submitted that this discrepancy appeared to be a result of selective edits being made to the CCTV footage before its

2 Magistrates Court transcript at p 46(26)-(27). production at trial, including speeding up the footage at various points. This, the appellant submitted, led to the conclusion that the footage presented at first instance was “not the same footage viewed by the [respondent] on 4 January 2023”.

92. The CCTV footage played at first instance was also played during the appellate hearing, using two different digital media player programs.

93. As the respondent submitted, the admission of CCTV footage had implications relating to grounds 5 and 6, as the CCTV footage formed the evidential basis for the Magistrate’s finding on whether the appellant drove on a road or road-related area.

The parties’ submissions

94. The appellant submitted that the CCTV footage presented at trial was inconsistent with evidence provided by the respondent and his BWC footage. In particular, the appellant submitted that the apparent three-second gap between the appellant’s vehicle arriving at the service station and the respondent arriving suggested by the CCTV footage, was inconsistent with the respondent’s belief that he arrived at the service station around nine minutes after initially observing the appellant’s vehicle. The appellant noted that at various points of the footage, the respondent, the appellant and the appellant’s associates appear to disappear and reappear in frame with no visible movement. The appellant also submitted that the identity of the driver of the appellant’s vehicle could not be identified during the period of the footage where his car was seen entering the service station.

95. The appellant submitted that the allegedly edited footage was potentially misleading and not presented in real time, creating a considerable risk of unfair prejudice to the appellant. Given the evident gaps in what was recorded by the CCTV footage, the appellant submitted that the footage, taken at its highest, could not be used to establish beyond reasonable doubt that the appellant had driven a motor vehicle on a road or road-related area. The appellant submitted that actual unfair prejudice had occurred at first instance because the Magistrate had made a finding that the footage had only recorded “where there is movement on screen” and “clearly shows the [appellant] driving his motor vehicle into the service station”.

96. In relation to hearsay, the appellant submitted that the CCTV footage was no longer direct evidence because it appeared to have undergone editing and was no longer identical to the footage viewed by the respondent on the night in question: Evidence Act, s 47(2). The appellant conceded there was no evidence as to who might have edited the footage.

97. The respondent’s counsel properly conceded that the quality of the CCTV footage was not of a great quality and contained missing portions. Nevertheless, the respondent submitted that the appellant had yet to identify unfair prejudice in the case and had provided no evidence, besides speculation, that the footage was selectively edited. While there remained unanswered questions in relation to the CCTV, the respondent submitted that this did not amount to unfair prejudice. The respondent also submitted that the probative value of the footage was “considerable”, viewed in the context of other evidence given by the respondent.

98. In relation to hearsay, the respondent submitted that the CCTV presented at first instance was direct evidence and was clearly “identical to the [original footage viewed at the service station] in all relevant aspects”, based on the evidence of the respondent and the footage presented. The respondent refuted the appellant’s argument the CCTV footage had been edited, reiterating that the appellant had only presented speculation the representation was edited by someone, without referring to evidence. The respondent submitted that, even if edits had been made, the footage was still admissible as the respondent had sought to lead the evidence as direct evidence of the act of driving and the identity of the appellant.

Consideration

99. This ground of appeal can be dealt with relatively briefly. The CCTV footage, notwithstanding that it contained defects, was direct evidence available to the court. It was not hearsay evidence and did not become hearsay because, in some way, by the time the footage was played at trial, it played at a speed faster than on the night when the respondent had viewed it at the service station.

100. The Magistrate considered the application of the appellant to exclude the evidence of the CCTV footage pursuant to s 137 of the Evidence Act, and declined to do so.

101. Together with the other evidence, the footage was highly probative evidence that the appellant was the driver of the motor vehicle, as the Magistrate so observed. It was also cogent evidence that, contrary to the appellant’s submission that there was no proof that the appellant had been the driver of the vehicle on a road or road-related area, that in fact there was no other reasonable or rational hypothesis consistent with any other conclusion than that the appellant was the driver of the vehicle when it drove into the service station.

102. Once again, the appellant has demonstrated no error in the Magistrate’s approach to the admission of this evidence. It was highly probative and, in my view, the Magistrate correctly admitted that evidence. Ground 4: Admitting the BWC footage

103. At first instance, the appellant had sought to have the BWC footage taken by the respondent and First Constable Blattman excluded under s 138. At first instance, the appellant submitted that the officers had failed to use their BWCs in accordance with s 43B(4) of the Crimes (Surveillance Devices) Act 2010 (ACT) (Surveillance Devices Act), which provides that the use of a BWC worn by a police officer must be “overt”.

104. Section 43B of the Surveillance Devices Act provides examples of “overt use”, including where the camera is worn in a manner visible to the person being recorded, or where the police officer tells the person being recorded that the camera is in use. However, s 43B(5) states, inter alia, that use of a BWC need not be overt if “overt use of the camera could cause or increase a risk to a person’s safety”.

105. At first instance, both the respondent and First Constable Blattman gave evidence conceding they had not announced they were recording the appellant and Mr Deng on their BWCs. Nevertheless, the Magistrate noted that he was “not necessarily satisfied” that the officers had failed to use the BWCs overtly, and referred to the Crimes (Surveillance Devices) Body-worn Camera Guidelines 2022 (ACT) (the Guidelines). Item 4.13 of the Guidelines states: Where the use of a BWC is considered overt depends on all the circumstances.

106. The Magistrate declined to exclude the BWC evidence. The Magistrate noted that, even if he had been satisfied the officers had not used their BWCs overtly, the evidence would still have been admitted, having regard to s 138(3), because the footage provided objective evidence of interactions between police and the appellant.

The parties’ submissions

107. The appellant submitted that the Magistrate’s failure to provide a definitive decision on whether the BWCs were operated improperly had resulted in the Magistrate failing to consider a relevant consideration. The appellant submitted that this should be viewed in the context of circumstances where multiple “cumulative improprieties” had occurred.

108. The appellant noted there was no evidence presented demonstrating that the appellant knew he had been recorded, or that it was reasonably impracticable to inform the appellant or his associates that a recording was being taken.

109. The respondent submitted that the Magistrate had had regard to whether the BWCs were used overtly, and that a failure to reach a concluded view on impropriety did not, of itself, indicate a failure to consider a relevant consideration. The respondent submitted that the Magistrate had nevertheless taken the evidence at its highest (that an impropriety may have occurred) and made an evaluation under s 138(3).

Consideration

110. It is convenient to set out s 43B of the Surveillance Devices Act: 43B Use of body-worn cameras by police officers (1) A police officer may use a body-worn camera in the course of the officer’s duties. (2) A police officer who is wearing a body-worn camera must use the camera when dealing with a member of the public in the course of the officer’s duties. (3) Subsection (2) does not apply in circumstances in which the use of a body-worn camera— (a) is not reasonably practicable; or (b) could cause or increase a risk to a person’s safety; or (c) would unreasonably limit a person’s privacy. (4) The use of a body-worn camera by a police officer under this section must be— (a) overt; and Examples—overt use 1. The camera is used or worn in a way that makes it visible to the person being recorded. 2. A police officer in attendance tells the person being recorded that the camera is being used. (b) in accordance with the guidelines under section 43C. (5) However, the use need not be overt if— (a) the camera is used when a police officer draws or uses a firearm or conducted electrical weapon; or (b) overt use of the camera could cause or increase a risk to a person’s safety. (6) A police officer may also use a body-worn camera if the use is— (a) incidental to the use of the camera under this section; or (b) inadvertent. (7) Parts 2 to 5 do not apply in relation to the use of a body-worn camera under this section. (8) In this section: conducted electrical weapon means a hand-held or other electrical device designed to administer an electric shock on contact.

111. The Guidelines relevantly state: Overt Use of a BWC 4.10. Under section 43B(4) of the Act, the use of a BWC by a police officer must be overt. 4.11. Covert use of a BWC by a police officer may be otherwise authorised by law. Covert use of a BWC refers to purposefully concealing the BWC so a person is unaware that a police officer is wearing and/or using a BWC. This use would only be permitted by warrant or emergency authorisation (for instance, under the Surveillance Devices Act 2004 (Cth)). 4.12. Section 43B(5) of the Act provides the use of a BWC need not be overt if the camera is used when a police officer draws or uses a firearm or CEW, or overt use of the camera could cause or increase a risk to a person’s safety. 4.13. Whether use of a BWC is considered overt depends on all the circumstances. Generally, the use of a BWC may be considered overt where: (a) The BWC is worn in such a way that is plainly visible to the person being recorded, and the recording (both video and audio) is not obstructed; and (b) A police officer announces the use of the BWC as soon as reasonably practicable after commencing dealing with a person in the course of the officer’s duties, in a language that is readily understood by that person.

112. The Magistrate’s reasons are found at pp 7(35)-(45) to 8(1)-(13) of the Magistrates Court transcript dated 8 September 2023: During the course of the voir dire Mr Taylor [counsel for the appellant] also sought to have the body worn camera footage of [the respondent] and First Constable Blattman excluded, for the reason that neither used their devices in accordance with section 43B(4) of the Crimes (Surveillance Devices) Act 2010, which I'll refer to as the Surveillance Devices Act. In that the usage of their cameras was not advert, in as much as neither officer announced that they were recording the incident on their body worn cameras. I note, in the Crimes Surveillance Devices Body Worn Camera Guidelines 2022, specifically guideline 4.13, it notes that: Where the use of a body worn camera is considered overt depends on all the circumstances. Section 43B(5) of the Surveillance Devices Act notes that: Usage does not have to be overt if overt use could cause or increase risk to a person's safety. Whilst I'm not necessarily satisfied that the officers failed to use the body worn cameras overtly, I say, for completeness, that had I been so satisfied I would have, nonetheless, admitted the evidence, having regard to those factors again in section 138(3) of the Evidence Act. The footage provides objective evidence of all the interactions between police and defendant. For completeness, I further note that the exclusion of the body worn camera footage would not have been fatal to the prosecution case.

Ground 5: Finding the appellant drove on a road or road-related area

117. At first instance, the appellant submitted that the evidence was insufficient to establish, beyond reasonable doubt, that the appellant had driven his vehicle on a road or road-related area into the service station. The Magistrate rejected this submission, finding that there was “simply no other reasonable, or, indeed, rational hypothesis that could be drawn”.

118. There was no issue raised at first instance on whether the service station was a road or road-related area. The appellant also noted that identification of the appellant had not been conceded at first instance.

119. Insofar as ground 5 relied on alleged deficiencies in the quality of the CCTV footage, this ground closely related to ground 3 on the admissibility of the CCTV footage.

The parties’ submissions

120. The appellant reiterated his submission that the CCTV footage was unreliable evidence, and submitted that the Magistrate should have warned himself in accordance with s 165 of the Evidence Act.

121. The appellant submitted that the Magistrate had placed excessive weight on the CCTV footage, and had ignored the “reasonable alternative” that the appellant’s vehicle may have been driven into the service station by one of his two associates, and that the appellant and his associates may have switched seats while parked at the service station. The appellant referred to gaps in the CCTV footage which made it difficult to ascertain how long the appellant’s vehicle had been stationary at the service station bowser, or whether the person seen exiting the driver’s door of the appellant’s vehicle was the person driving the vehicle.

122. The appellant also referred to evidence given by the respondent that he had heard the appellant say, “Don’t worry, I was the driver”. The alleged admission made by the appellant was not recorded in the respondent’s BWC footage. The appellant disputed the reliability of the evidence and referred to evidence the respondent gave that he was unable to understand anything else the appellant said. The appellant also noted the respondent gave evidence that anything said to the respondent by the appellant and associates, including the purported admission, would have been recorded on the respondent’s BWC.

123. The respondent submitted that the hypothesis suggested by the appellant was not available, based on the evidence as a whole. The prosecution conceded that the case relied on was circumstantial, but referred to DPP v JJ [2023] ACTSC 318 (JJ). In JJ, in relation to reasonable hypotheses, McWilliam J (citing R v Baden-Clay [2016] HCA 35; 258 CLR 308) stated that “inferences drawn from the evidence must rest upon something more than mere conjecture”, and must be considered in light of the evidence as a whole, not by a “piecemeal approach”.

124. In particular, the respondent submitted the relevant circumstances included that: (a) The CCTV footage purportedly showed the appellant driving into the service station and getting out of the front driver’s seat; (b) The vehicle was registered to the appellant; and (c) The appellant had purportedly made an admission that he was the driver before walking towards the driver’s door of his vehicle.

125. In relation to the purported admission, the respondent submitted that whether it had actually occurred had to be considered in light of the evidence as a whole. The respondent also submitted, relevant to the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn), that the appellant had failed to put the alternative proposition, that the admission had not been made, to the respondent in cross-examination.

126. In reply, the appellant submitted that the cogency of the evidence provided by the CCTV footage, particularly in relation to continuity, was too poor to safely rely on in establishing the appellant’s guilt. The appellant submitted that the respondent had not been asked to identify the appellant in the footage or described what he observed while watching the CCTV footage at the service station, when giving evidence.

Ground 6

128. Both parties agree that the success of this ground depends largely on my findings in grounds 1 to 5. The appellant made no independent written submission for this ground except to refer to the decision of Baker J in Ji v Stone [2023] ACTSC 54 at [150]-[155] for the relevant principles.

Consideration of ground 5 and ground 6

129. It is convenient to deal with both these grounds together.

130. The Magistrate viewed the CCTV footage at the service station more than once. His Honour observed that there appeared to be a lack of continuity in the footage, and that it clearly played at a faster speed than when it was observed by the police officer in situ.

131. Nevertheless, the Magistrate made the finding that the footage, notwithstanding its defects, clearly showed the appellant driving his motor vehicle into the service station, getting out of the vehicle via the driver’s seat and later attempting to re-enter the vehicle by the door on the driver’s side.

132. That, combined with the fact that the respondent had seen the same vehicle, only minutes before, drive past him on Horse Park Drive in Gungahlin at some speed and quite close to him, was highly probative of the fact that the appellant was the driver

133. It is true that the BWC footage did not record the admission claimed to have been made by the appellant at the outset of his interaction with the respondent. However, it is plain from that footage that there was an interaction then between the respondent and the appellant. The Magistrate accepted that it was common knowledge that the first 30 seconds of a BWC recording does not contain audio.

134. Further, the appellant at no stage challenged the fact that he had made an admission at that time, even though his counsel later argued that any admission made was unreliable by virtue of the appellant’s level of intoxication. In those circumstances, it was well open to the Magistrate to find that the appellant had made an admission that he was the driver of the vehicle.

135. It was not in dispute that the vehicle was registered to the appellant.

136. The Magistrate’s conclusion that the appellant drove the vehicle into the service station from a road or road-related area was also open to the Magistrate. As Loukas-Karlsson J said in hearing arguments on this appeal, the Jeep did not arrive at the service station, “landed from Mars”. I agree with that observation; in other words, there was no other explanation reasonably open on the evidence other than that the appellant had driven the motor vehicle on a road or road-related area.

Conclusion

137. I can discern no error in the approach of the Magistrate to the admission of any of the disputed evidence. On the evidence available and properly admitted, as I have found, it was plainly open to the Magistrate to convict the appellant on each offence. Orders

138. For these reasons, the appeal is dismissed.

I certify that the preceding one hundred and thirty-eight [138] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: