SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW - APPEAL - JURISDICTION, PRACTICE AND PROCEDURE - Appeal from the Magistrates Court - appeal against conviction - driving with a prescribed concentration of alcohol in breath - driving without seatbelt fastened - failure to appear following bail undertaking - further charges dismissed - no evidence offered - complaint that dismissal of charge denied opportunity to challenge evidence - alleged abuse of process - dismissal of charge does not prejudice hearing of other charge - summary offence - guilty plea - facts of offence admitted

Bail Act 1992 (ACT), s 49(1)

Director of Public Prosecutions Act 1990 (ACT), s 6(1)(k)

Magistrates Court Act 1930 (ACT), s 143, Pt 3.10, Div 3.10.2

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4C, 4E, 8, 19, 19(1), 24, 26,

Road Transport (General) Act 1999 (ACT), s 61B

Road Transport (Offences) Regulation 2005 (ACT), Item 392, Pt 1.2, Sch 1

Australian Road Rules, r 264(1)

Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75

Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432

Charnock v Coady & Ors [2010] ACTSC 26

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Director of Public Prosecutions (SA) v B (1998) 194 CLR 566

Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1

Maher v Carpenter [2012] ACTSC 38; (2012) 7 ACTLR 216

Neill v County Court of Victoria [2003] VSC 328; (2003) 40 MVR 265

Noonan v Elson [1950] St R Qd 215

Peverill v Crampton [2010] ACTSC 79

R v Carney [2013] ACTSC 266

R v Forde [1923] 2 KB 400

R v Gomez [2007] ACTCA 21; (2007) 1 ACTLR 145

R v Murphy [1965] VicRp 26; [1965] VR 187

R v Sell; Ex parte Attorney-General [1991] 1 Qd R 48

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

Ween v Higgins (1990) 11 MVR 487

Court File Numbers: CC 2014/5037, 2014/ 5038; 2014/6450

1. On 17 May 2014, the appellant, John-Bernard Crimmins, was intercepted by police in Franklin Street, Griffith, ACT. Police observed him holding onto the steering wheel and resting his body against the door because the seatbelt was not, it appears, properly adjusted.

2. He was subject to a breath screening test under s 8 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act). The test proved positive and Mr Crimmins was taken into custody to the City Police Station for the purpose of undergoing breath analysis.

3. In accordance with the directions of the police officer, he provided a sample of his breath that was sufficient for analysis and the result showed that the sample was 0.211 grams of alcohol per 210 litres of breath. This was a prescribed concentration under s 4C of the Alcohol and Drugs Act. This was a level 4 reading under s 4E of that Act.

4. Mr Crimmins was served with an immediate suspension notice under s 61B of the Road Transport (General) Act 1999 (ACT).

5. As a result of these matters, he was charged, inter alia, with being the driver of a motor vehicle without his seatbelt properly adjusted and fastened, and being a driver of a motor vehicle with a Level 4 prescribed concentration of alcohol in his breath, initially as a first offender but that was amended to being a repeat offender.

6. He appeared in court as a result and it seems that he was bailed to appear in court further on 3 June 2014.

7. On that day, he appeared and was further bailed to appear on 24 June 2014 but he failed to appear.

8. Accordingly, he was then charged with failing to appear in accordance with his bail undertaking.

9. Being a driver without his seatbelt properly adjusted and fastened is an offence against r 264(1) of the Australian Road Rules, which, under Item 392 of Pt 1.2 of Sch 1 of the Road Transport (Offences) Regulation 2005 (ACT), renders him liable to a maximum penalty of 20 penalty units (that is, at the time, a fine of $3000).

10. Driving with the prescribed concentration of alcohol is an offence against s 19(1) of the Alcohol and Drugs Act which, under s 26 of that Act, renders him liable, as a repeat offender, to a maximum penalty, for a level 4 alcohol concentration, to 20 penalty units (that is, at the time, a fine of $3,000) and imprisonment for twelve months.

11. Failing to attend in that Court in accordance with a bail undertaking is an offence against s 49(1) of the Bail Act 1992 (ACT), which attracts a maximum penalty of 200 penalty units (at the time, that is a fine of $30,000) and imprisonment for two years.

12. Mr Crimmins appeared in court, ultimately, on 13 November 2015. He was convicted of each of these three offences and sentenced to three months imprisonment wholly suspended with a twelve month good behaviour order for the drink driving offence, a fine of $100 for the seat belt offence and for the failing to appear offence a twelve month good behaviour order.

13. He appealed from the convictions but not the sentences.

14. On 25 July 2016, I dismissed his appeal and indicated that I would deliver my reasons later. These are my reasons.

15. This Court has jurisdiction to hear appeals from convictions and sentences entered and made by the Magistrates Court under Pt 3.10 of the Magistrates Court Act 1930 (ACT). Division 3.10.2 regulates those appeals.

16. I have described in Peverill v Crampton [2010] ACTSC 79 at [24], the principles applicable to appeals from convictions, where I said:

1. Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
   1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
   2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
   3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate's reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
   4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
   5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
   6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
   7. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.

17. See Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1 and Charnock v Coady & Ors [2010] ACTSC 26.

18. Mr Crimmins was initially represented in the Magistrates Court but not at the final sentencing. He prepared the Notice of Appeal himself. He appealed against the convictions for the three offences with which he had been charged.

19. The grounds of appeal were discursive but seemed to complain that two other offences, arising out of the events of 17 May 2014 and with which Mr Crimmins had also been charged, were not to proceed and he said:

The effect of the dropping of the charges of erratic driving was that it was no longer possible to contest police charges or admissibility ...

The dropping of the repeat offence PCA driving charge had the effect of stifling the possibility of contesting police charges and admissibility.

20. The background to the ground of appeal is a little complicated but seems to be as follows.

21. As well as the offences referred to above (at [5] and [8]), it appears that Mr Crimmins was also charged with an offence against s 24 of the Alcohol and Drugs Act, namely that he, driving a motor vehicle on a road, was under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of the motor vehicle.

22. This arose out of an allegation by police that, when Mr Crimmins had earlier turned from Canberra Avenue into Flinders Way before turning into Franklin Street, where he was intercepted, he did so in such a manner that he mounted the centre pedestrian traffic island. The car, police also allege, had when then turning into Franklin Street, again mounting the centre island. Mr Crimmins, it appears, vehemently denied that this manner of driving occurred.

23. He was also charged with another offence of failing to appear in accordance with a bail undertaking. He explained, however, that there were reasons for that failure, as he had explained to the Court, through a call to the registry, on the morning he was to appear, that he was unwell. This seems to have been accepted.

24. There also seems to have been an acceptance that the offence under s 24 of the Alcohol and Drugs Act overlapped so significantly with the offence against s 19 of that Act, that it would not be appropriate to prosecute both offences.

25. At the hearing of the charges, the prosecution offered no evidence on that charge or the other charge, failing to appear in accordance with his bail undertaking, and those two charges were dismissed.

26. Mr Crimmins complains of this, saying that the dismissal of the charge under s 24 of the Alcohol and Drugs Act deprived him of an opportunity to adduce evidence which, he said, would show that the police adduced false evidence.

27. There are a number of difficulties with this submission.

28. In the first place, there is no doubt that the prosecution has a statutory right to discontinue prosecutions. See s 6(1)(k) of the Director of Public Prosecutions Act 1990 (ACT).

29. It has long been held by the courts that the prosecutor's powers of laying or terminating charges are unreviewable. See Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 94-5; Maxwell v The Queen (1996) 184 CLR 501 at 534; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 22; [47].

30. Thus, even should the courts consider that there was some problem in the prosecution discontinuing the charges by offering no evidence, that decision by the Director is not reviewable. It is simply not possible, also, for a court realistically to require a prosecutor to proceed with a charge that he or she does not wish to pursue.

31. In relation to indictable proceedings, the Director may discontinue the proceedings by filing a Notice Declining to Proceed, traditionally called a "nolle prosequi".

32. The entry of a nolle prosequi brings to an end the proceedings on the indictment then presented, but without barring a subsequent prosecution on a fresh indictment: Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432 at 451; [43], 447; [61].

33. Because of the incomplete nature of the termination of proceedings by entry of the nolle prosequi, the courts do retain the power to refuse to receive a nolle prosequi from the prosecution in "rare and exceptional circumstances": Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 at 607; [65]. The consequence of this, however, is not to force the Crown to prosecute the offences necessarily; it could simply offer no evidence, when the accused will be acquitted. That would later found a plea of autrefois acquit were the Crown to seek to lay a fresh indictment for the offence. This is often a reason, if not the main reason, why, on occasion, the court may refuse to receive a nolle prosequi: R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 at 62.

34. Such a procedure, however, is not relevant in these circumstances. In the first place, there is no power to enter a nolle prosequi in respect of summary proceedings. In the second place, that is not what happened. The prosecution offered no evidence.

35. Unlike the entry of a nolle prosequi, where, as noted above (at [32]), proceedings may be re-instituted in due course, the offering of no evidence means that those charges are dismissed. The dismissal of summary proceedings has the capacity to terminate the proceedings for all times. See s 143 of the Magistrates Court Act 1930 (ACT). That places the dismissal on the same footing as an acquittal.

36. Mr Crimmins was unable to point to anything that, in my view, constituted any impropriety in the prosecutor offering no evidence on the charges and their dismissal.

37. Even were there to be some such impropriety, there is, in these circumstances, nothing that the court can do about it. All it can do is dismiss the prosecution which, as indicated above (at [35]), will end the proceedings and provide a bar to further proceedings.

38. Since Mr Crimmins is unrepresented, it is necessary to explore a little further the options that might have been available to him to vindicate his rights. See Maher v Carpenter [2012] ACTSC 38; (2012) 7 ACTLR 216 at 224; [41].

39. It may be arguable that, were the dismissal of one charge to prejudice the hearing of another charge, there may be an abuse of process in the hearing of the remaining charges.

40. If the continuation of the prosecution of other proceedings amounts to an abuse of process so far as the continued prosecution of remaining charges is concerned, then the Magistrates Court has a right to decline to hear the proceeding. The Magistrates Court can decline to hear proceedings that are an abuse of process. See Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 15-16; Neill v County Court of Victoria [2003] VSC 328; (2003) 40 MVR 265 at 275-7; [32], [34]-[38]; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134.

41. In this case, however, Mr Crimmins was quite unable to identify what was said to be an abuse of process.

42. It appears that the complaint Mr Crimmins was making was that he had not driven in the manner that the police had stated, as noted above (at [22]), and that proof of this would show that the police evidence was unreliable.

43. The problem for this argument is that Mr Crimmins was quite unable to say how this unreliability would affect the charge under s 19(1) of the Alcohol and Drugs Act.

44. That is to say, he did not deny that he had been a driver of a motor vehicle on a road, that he had been required by a police officer to undergo an alcohol screening test, that he had been taken into custody and taken to a police station where he had been directed to provide a sample of his breath for breath analysis, and that this had occurred within two hours of him being stopped by police, and that he had been required to undergo a screening test, and a certificate was produced showing the result of the analysis was a prescribed concentration of 0.211 grams of alcohol per 210 litres of breath.

45. These facts, none of which were in controversy, constituted the offence under s 19(1) of the Alcohol and Drugs Act.

46. Accordingly, there is no relevance of any impropriety in police evidence about his earlier manner of driving to the hearing of that charge for even were it to be fabricated, it did not undermine the evidence of the charges of which he was convicted.

47. Having said that, it appears that the description of driving given by police was still contained in the Statement of Facts that was admitted into evidence before the learned Sentencing Magistrate.

48. A court that is to sentence an offender for an offence to which he has pleaded guilty is not bound, however, to accept the facts as stated to it by the prosecution. Usually that arises when a defendant contests the facts as alleged by the prosecution. There is then a need for a disputed facts hearing where the court can hear such evidence as is necessary and make findings in the usual way. See R v Carney [2013] ACTSC 266 at [149], where I set out the principles in respect of such hearings, including the following:

1. An offender who wishes to assert some matter in his or her favour must have a reasonable opportunity of adducing admissible evidence to support such an assertion: R v McPherson [2011] SASCFC 105 at [21].
2. An offender who wishes to challenge some facts alleged by the prosecution must have a reasonable opportunity to cross-examine any prosecution witnesses relied upon to prove those facts: MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at 339; [39]; R v SWC [2007] VSCA 201; (2007) 175 A Crim R 71 at 74; [12]- [15]; Le v R [2007] NSWCCA 330 at [21]- [28], [33].
3. Where the prosecution does not accept the evidence of a witness called by an offender, it should put to that witness the prosecution's alternate view so that the witness may respond and the court will have the benefit of that response: MWJ v R at 339; [39]; R v SWC at 74; [12]-[15]; O'Neil-Shaw v R [2010] NSWCCA 42 at [27], [31].

49. Mr Crimmins did not seek such a hearing. The learned Sentencing Magistrate, however, did not rely on any manner of driving when sentencing Mr Crimmins and, having carefully read the sentencing remarks, I can find no suggestion that there was any weight given to that factor.

50. Thus, Mr Crimmins was not denied the opportunity of challenging any of the police evidence if he wished. I accept that this was perhaps not made clear to Mr Crimmins at the time. Since the matters were not taken into account, there is, in my view, no miscarriage of justice.

51. Accordingly, there has been no abuse of process in the drink driving charge proceeding as it did.

52. Mr Crimmins, at one stage, wanted to withdraw his plea of guilty. A person who pleads guilty may, but only with leave of the court, withdraw a plea of guilty and require the prosecution to prove its case formally. See R v Forde [1923] 2 KB 400 at 403, discussed in R v Murphy [1965] VicRp 26; [1965] VR 187 at 188.

53. The principles on which a court will act when considering whether to grant leave to withdraw a plea of guilty have been set out in a number of cases. In this jurisdiction, the leading case is R v Gomez [2007] ACTCA 21; (2007) 1 ACTLR 145.

54. In that case, the Court held at 152; [38] that:

... the single test applicable to all cases is whether there would be a miscarriage of justice if the plea were not permitted to be withdrawn or rejected by the trial judge.

55. Such a miscarriage may occur where, but are not limited to cases when

• the defendant did not understand the nature of the charge;

• the defendant did not intend to admit guilt of the charge;

• the facts admitted by the plea could not sustain the guilt of the defendant to the charge;

• the defendant asserts a version of the facts inconsistent with guilt.

56. In the case where a defendant voluntarily pleads guilty with the benefit of legal advice not shown to be incompetent or negligent, it will be an unusual case where a defendant will be permitted to withdraw a plea.

57. None of these circumstances pertained here and Mr Crimmins did not allege any of them. Indeed, I articulated several times the elements of the offence under s 19(1) of the Alcohol and Drugs Act and he accepted that each of them had been made out in this case.

58. Mr Crimmins made a suggestion that, as the actual impairment of drivers was not ascertainable by a technical measurement of the breathalyser machine alone, and as he was an experienced drinker, there was no criminality because he was not actually impaired and could exercise effective or proper control of his vehicle.

59. This mistakes the criminal law. While there is no doubt that laws such as s 19(1) of the Alcohol and Drugs Act are intended to render the streets safer by reducing on them the number of drivers impaired by alcohol consumption, the offence does not rely on proof of actual impairment. Actual impairment does not have to be proved and is irrelevant to that offence. Actual impairment, of course, would have been required for proof of the offence under s 24 of that Act. See, for example, Ween v Higgins (1990) 11 MVR 487 at 494-5; Noonan v Elson [1950] St R Qd 215 at 219-20.

60. Mr Crimmins appears to have wanted "his day in court" to challenge the evidence of the police. That is not the purpose of court hearings; they are there to resolve disputes in the criminal law: to determine whether a crime has been committed and, if so, whether the defendant committed it and, if so, to punish the perpetrator and, in doing so, to protect the community.

61. So far as I could determine them, none of the arguments Mr Crimmins put to me would justify upholding the appeal.

62. If he has a sense of grievance that he was denied some right he perceived he had, that is regrettable. At law, he had no right that was not respected in the proceedings in the Magistrates Court. Indeed, even if he had had the charge under s 24 of the Alcohol and Drugs Act proceed, he could be in no better position that he is now. That is to say, the best outcome would have been for that charge to be dismissed. That happened.

63. Nothing in the appeal suggests that, even if that charge had been dismissed because the police evidence that Mr Crimmins challenged was rejected, he would not have been found guilty of the offence against s 19(1) of the Alcohol and Drugs Act. Indeed, on his own admission, he was guilty of that offence.

64. The appeal had to be dismissed as none of the arguments on the appeal could justify the appeal. Accordingly, I dismissed the appeal.

I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.