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[2015] ACTCA 58
General information, not legal advice.
Court of Appeal (ACT)
2015-11-18
Refshauge, Penfold, Ross JJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Heyward v Bishop
Citation: [2015] ACTCA 58
Hearing Date: 7 May 2014
Decision Date: 18 November 2015
Before: Refshauge, Penfold, Ross JJ
Decision: The appeal is dismissed.
Catchwords: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Finding of Fact – whether Magistrate gave inadequate reasons for preferring evidence of police officers. EVIDENCE – Admissibility and Relevancy – whether breath-test evidence had been obtained in contravention of an Australian law or in consequence of such a contravention – appellant properly taken into custody – appellant consented to provide breath sample – no suggestion that provision of breath sample resulted from any use of excessive force on appellant after he was taken into custody – breath-test evidence obtained despite, not in consequence of, any use of excessive force – claim of use of excessive force, even if made out, did not require consideration of admissibility of breath test evidence under Evidence Act, s 138.
Legislation Cited: Evidence Act 2011 (ACT), s 138(1), Human Rights Act 2004 (ACT), s 19 Supreme Court Act 1933 (ACT), ss 37O, 37O(3) Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 11,12, 19(1)
Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472 Richard Heyward v Leigh Bishop [2013] ACTSC 202 Fox v Percy 214 CLR 118 Heyward v Bishop [2013] ACTSC 202 Lawson v Lee (1992) 58 SASR 382 M v The Queen (1994) 181 CLR 487 O’Brien v Noble [2012] ACTCA 13 Papps v Police [2000] SASC 183 Pettitt v Dunkley [1971] NSWLR 376 R v Bormann (2010) 244 FLR 105 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Parties: Richard John Heyward (Appellant) Leigh Bishop (Respondent) Representation: Counsel Mr S Gill (Appellant) Mr J Lundy (Respondent)
Solicitors Sharman Lynch (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number: ACTCA 64 of 2013
Decision under appeal: Court: ACT Supreme Court Before: Burns J Date of Decision: 3 October 2013 Case Title: Richard Heyward v Leigh Bishop Citation: [2013] ACTSC 202
THE COURT:
Introduction
Background
The background to this matter was summarised by Burns J as follows:
On 24 November 2011, police observed the appellant to be the driver of a motor vehicle on a public street in Dickson in the Australian Capital Territory. Police signalled for the vehicle to stop, which it did, and police proceeded to speak to the male driver of the vehicle, the appellant. The appellant identified himself and underwent a roadside screening test, which returned a positive result. The appellant was informed that as a result of the test he would be placed in custody for the purpose of undergoing a breath analysis. What took place immediately thereafter was a matter of dispute. The appellant claimed that he was assaulted by police before being placed in a police vehicle and transported to the City Police Station for the breath analysis. Those police officers who were involved in taking the appellant into custody alleged that he became belligerent, aggressive and uncooperative after being taken into custody, requiring them to use force to place him in a police vehicle to convey him to the City Police Station. They denied that they had used unnecessary or unreasonable force on the appellant. 2. It was not disputed that the appellant was conveyed to the City Police Station in police custody for the purpose of the breath analysis. It is also not disputed that the breath analysis returned a reading of 0.102 grams of alcohol per 210 litres of breath. 3. After undergoing the breath analysis the appellant was apparently released by police from the City Police Station. A summons was subsequently issued requiring the appellant to appear in the Magistrates Court to answer a charge under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) alleging that he, as a repeat offender, on 24 November 2011, having been the driver of a motor vehicle on a road, did have, within the relevant period, the prescribed concentration [of] alcohol in his breath, being level 3. To that charge the appellant entered a plea of not guilty. The hearing of the charge commenced before a Magistrate on 30 May 2012, before concluding on 19 June 2012.
Proceedings in the Magistrates Court
Objection to evidence
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.
Section 138(2) deals specifically with admissions, and s 138(3) sets out a number of matters that court is to take into account in determining whether to exclude evidence to which s 138(1) applies.
A person seeking to rely on s 138 for the exclusion of evidence must first establish, on the balance of probabilities, that there has been an impropriety or contravention of Australian law in the obtaining of that evidence, or that the evidence was obtained in consequence of such an impropriety or contravention (s 138(1)).
Once that is established, the court must weigh the desirability of admitting the evidence and the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained; the evidence may only be admitted if the desirability of admitting it outweighs the undesirability of doing so having regard to how it was obtained.
Before the Magistrate, counsel for the appellant said that he had been subjected to excessive force by the police officers who had taken him into custody for the purpose of conducting the breath analysis. This, counsel said, had led to a contravention of law in consequence of which the challenged evidence had been obtained (counsel expressly disclaimed any intention to rely on an impropriety). The contravention relied on was the taking of a breath sample purportedly under s 12 of the Alcohol and Drugs Act when the appellant was, as a result of the use of excessive force, no longer in custody under s 11 of that Act.
The admissibility of the breath analysis evidence was determined on a voir dire. Evidence was given by the appellant and the two police officers who had taken him into custody. Each witness referred to the circumstances in which the appellant had been stopped, the initial interaction between the three witnesses, and the circumstances in which the appellant had been physically restrained and put into a caged vehicle.
On the voir dire, the first substantive question for determination by the Magistrate was whether the police had used excessive force in transporting the appellant to the police station. There was no dispute that force had been used, but the appellant and the police officers gave conflicting evidence about the use of force. In seeking to persuade the Magistrate to reject the police evidence about the use of force, counsel for the appellant attacked their credibility by referring to inconsistencies in the evidence given by the police officers about events leading up to the use of force.
The appellant gave evidence that he was initially stopped by police after they observed that his reversing lights did not appear to be working. He was both surprised and concerned, because his car was new. He said that he had sought to test the operation of the reversing lights in the presence of police. Both officers were cross-examined at some length about the appellant’s concerns about whether his reversing lights were operating, and how they had reacted to his concerns.
Submissions
Ultimately for Mr Heyward to succeed on the first level, that is that there was an unlawfulness relevant to the application of the section, your Honour would have to prefer his evidence and quite obviously I'd urge your Honour to. And I'd remind your Honour of the evidence that was given by Constable Bishop. Firstly, his oral evidence was different from that contained in his statement, but really what your Honour would have - and I remind your Honour of the way he gave his evidence. His evidence was that the defendant had returned a positive reading, that he left the vehicle unaided and was standing near the rear of the vehicle, I think on the driver's side. When he returned to it, he turned the vehicle on, placed the gear in reverse and your Honour will recall his evidence that the vehicle started to roll backwards towards the police vehicle that was parked behind it. Your Honour will recall his evidence that he then pushed the defendant aside, stopped the vehicle, put the handbrake on, and it was then that he took hold of the defendant.
Your Honour will recall that he was cross-examined about whether that was contained in any contemporaneous record. He agreed it was not in the statement of facts. His explanation was that he didn't see it as relevant to the facts pursuant to a PCA. He was shown the use of force document and he agreed that it was not contained in the use of force document. And again· he said he didn't see it as being relevant at the time. In my submission it's rather hard to stomach. It is what precipitated the use of force. On his evidence Mr Heyward had left the vehicle and then he gave evidence of this sequence of events which led to him intervening, stopping the vehicle and taking hold of the defendant.
Of course then your Honour considers the evidence of Constable Fitzroy. His statement made no reference to that rather stark sequence of events. None at all. His statement had him positioned next to Constable Bishop at the time when relevant conversations took place, and certainly with every opportunity to make observations consistent with those given by Constable Bishop in his oral evidence. It simply doesn't sit with his statement. Your Honour may recall he came along and gave evidence inconsistent with his statement indicating, to some extent, or at least leaving the impression, your Honour; that he was in the vehicle when this might have occurred, and therefore didn't see it.
Of course ... we then cross-examined about that prospect and your Honour might recall that at that stage Constable Fitzroy's memory deserted him and he was unable to recall where he was, what he heard and, indeed, whether or not he was a person who was involved in putting the defendant into the caged vehicle. His evidence couldn't corroborate that of Constable Bishop, either in its written form in his statement or in his oral evidence, and has to only detract from it. It's in those circumstances that that rather stark sequence of events which Constable Bishop gave evidence about your Honour could reject, and safely reject, and therefore your Honour would defer to the evidence of the defendant.
I simply say that your Honour couldn't accept the evidence that was given by the police relevant to the reason why force was used. Your Honour would then defer to what the defendant said and prefer it on balance.
The Magistrate’s conclusions
This is a prosecution for a drive with alcohol in breath and a single issue has been provoked and heard on the voir dire relating to the admission of the certificate of breath analysis, and I am told that the future of the case depends on whether or not the breath analysis certificate is admitted.
Evidence was given in the voir dire and the witnesses were cross-examined and it seems that there was what one might regard as being a routine breath test, random breath test, initiated by the police because they said that they saw the defendant's vehicle reverse and they did not see his reversing lights come on. They decided to pull the car over and that was done in Dickson, and there was some conversation about the brake lights. There was also identification by one of the police officers that the defendant had been drinking because he said that he could smell alcohol and he, the defendant, was requested to submit to a screening test, which he did, which proved positive. That occurred while the defendant was still sitting in his car.
This took a little while because at first he had to produce his licence to the police officers. There was then a return by the police officers to the police car and there was presumably some checking of the identification of the defendant. They then returned and conducted the screening test. After the screening test was done it is common ground that the defendant was advised that he was in custody and asked to get out of the car. From that point on the versions of the occurrences that happened then vary, according to the defendant and the two police officers that were present.
Shortly put, the request for the defendant to get out of the car seemed to be the watershed for the commencement of escalation and deterioration of what had been a formal and official relationship between the defendant and the two police officers. According to the police officers he became abusive and belligerent and, upon considering the evidence, it seemed to me that there were three triggers that may have contributed to this. Firstly, the car was evidently a reasonably new car and the defendant was, on both accounts, concerned about whether or not his reversing lights were working.
More importantly, however, the defendant had been driving with his son in the car and when the police asked him to get out of the car the son also got out of the car and the defendant became increasingly concerned for the security and the safety of his son, because it was dark, it was perhaps late in the evening rather than early in the night, and he said that he was not informed by the police of what the future of his son was going to be. And then the third trigger for, as far as the defendant was concerned, the deterioration of the relations was the fact that he had been consuming alcohol sufficient in quantity to alert one of the police officers when he was standing beside the car to the fact that the defendant had been drinking because he could smell alcohol.
I know that we do not have a great deal of time and I would otherwise refer in detail to some of the evidence, however, it seems to me, considering all the evidence, that the account of the occurrence and the deterioration of the defendant's behaviour is more consistent with what one might expect to have occurred in the real world, rather than the description by the defendant of quite gratuitous violence on the part of the police officers. I can well understand the defendant's concern, particularly for his son, and that concern may have been heightened by the effect of the alcohol that he had been consuming. He was eventually placed into a caged vehicle and taken to the police station where he was submitted to a breath analysis which was positive.
In short, his Honour, having identified three “triggers” that might have contributed to the appellant’s behaviour as alleged by the police officers, rejected the appellant’s evidence of “quite gratuitous violence on the part of the police officers” by reference to his view that the evidence given by the two police officers of the appellant’s belligerence, aggression and failure to cooperate, and generally the deterioration of the appellant’s behaviour, “is more consistent with what one might expect to have occurred in the real world” than the appellant’s account of events. The Magistrate did not specifically address counsel’s challenge to the credibility of the police officers.
His Honour explained the brevity and generality of his comments about the evidence by noting that the court did not “have a great deal of time”; it is apparent from elsewhere in the transcript that the time constraints had arisen at least in part from the fact that counsel had other commitments that needed to be attended to that afternoon.
The Magistrate concluded:
My finding of the circumstances at Dickson do not require me to form any views about the more discretionary aspects of section 138, however, it may be apparent to counsel that I have some misgivings about the proposition that the discretion should be exercised in the defendant's favour. That said, I find that the certificate of breath analysis is admissible, having rejected the submissions of the defendant in relation to its admissibility.
Proceedings in the Supreme Court
(1) His Honour erred in failing to provide any, or sufficient reasons, for determining the factual basis upon which he ruled that the question of the exercise of the 138 discretion did not arise; and (2) His Honour erred in failing to consider the inconsistency in the evidence of the police witnesses in determining the factual basis upon which he ruled that the 138 discretion did not arise.
It is not clear from Burns J’s judgment exactly how the appellant’s oral arguments were put in the Supreme Court, but his Honour dealt with the matter briefly, saying:
In my opinion, this appeal must be dismissed. The Magistrate was confronted with two very different versions of the events which occurred immediately after the appellant was taken into custody for the purposes of undergoing a breath analysis. In order to enliven the provisions of s 138 of the Evidence Act the appellant held the onus of establishing, on the balance of probabilities, that the impugned evidence was obtained either improperly or in contravention of an Australian law, or in consequence of such impropriety or contravention. Where a party to proceedings satisfies that onus, the Court then has an obligation to reject the evidence unless satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it. However, the question of "desirability versus undesirability" does not arise unless the objecting party satisfies the Court, on the balance of probabilities, that the evidence was obtained improperly or in contravention of an Australian law, or in consequence of such impropriety or contravention. 9. It is, I think, clear from the passage from the Magistrate’s decision quoted above that his Honour gave brief, but adequate, reasons for his decision, being his opinion that the version of events given by the appellant of gratuitous violence directed to him by the two police officers was improbable, or at least less probable than the version given by the police officers. 10. It is true that his Honour did not directly address what the appellant says were inconsistencies between the evidence given by the two police officers. The Magistrate was entitled to take the view, as I do, that these alleged inconsistencies were not significant. There was an essential consistency between the two police officers on the significant issues concerning the reasons for the use of force after taking the appellant into custody. 11. The Magistrate was entitled to find, as he did, that the essential events occurred in the way described by the police. The Magistrate gave brief, but adequate, reasons for his decision. No error has been demonstrated on the part of the Magistrate. The appeal must be dismissed.
Appeal to the Court of Appeal
The grounds of appeal
(i) His Honour erred in finding that the learned Magistrate had given adequate reasons for fact finding as to the taking of the appellant into custody; and
(ii) His Honour erred in finding that the learned Magistrate was not required to specifically deal with the inconstancies [sic] within the police evidence in coming to a finding on the facts relating to taking the appellant into custody.
Submissions
The appeal was conducted before us on the basis that we should directly assess the challenges to the Magistrate’s conclusions that were made on the appeal from the Magistrate.
In written submissions, counsel for the appellant cited the summary of the trial judge’s obligation to give reasons for his or her decision contained in O’Brien v Noble ([2012] ACTCA 13 (24 February 2012)) as follows:
A trial judge’s obligation to give reasons for his or her decision is well recognised. For present purposes the authorities can be summarised as follows:
(a) Judges at first instance, as part of the exercise of their judicial office, have a duty to state the findings and reasons for decision adequately to enable a proper understanding of the basis on which the verdict has been reached. Failure to fulfil this judicial obligation may constitute an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 per Asprey JA. (b) An appeal court should not be left to speculate from collateral observations as to the basis of any particular finding: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 per McHugh JA.
(c) Although the obligation does not require the spelling out of every detail of the process of reasoning, the reasons must resolve critical points in contest and facilitate appellate review: Kendirjian v Ayoub [2008] NSWCA 194 at [169] per McColl JA.
(d) Awards for damages should not be arrived at intuitively, but a process of methodical consideration must be undertaken; in Gamser v Nominal Defendant (1977) 136 CLR 145 at 149, Stephen J said: [R]easons should condescend to some degree of particularity concerning the process by which the particular award of damages has been arrived at … An award of damages is not, nor should it ever be, arrived at intuitively. (e) Merely stating a preference for particular evidence as opposed to a competing body of evidence is not sufficient. In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at 191; [28], Ipp JA said: It is not appropriate for a trial judge to merely set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.
(a) that the failure of a Magistrate to give adequate reasons is an error of law (at [33]);
(b) that for reasons to be adequate they must “allow an appellate court to perform its function and they must be such that justice is seen to be done” (at [34], quoting from Lawson v Lee (1992) 58 SASR 382); and
(c) that “the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed”.
(a) That “the resolution of the issue of credit was central and critical to a proper consideration of the charges” (at [36]);
(b) that the Magistrate’s failure to resolve those questions involved a failure to consider all relevant evidence and a failure to give adequate reasons (at [40]); and
(c) that a new trial was therefore required (at [40]).
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done. Where it is necessary, for default of reasons, to resort to inferences which point to a reason for the decision of highly dubious relevance to the statute being applied, the result is that an error of law has occurred which this Court can and should correct.
...this unedited and unpunctuated record of ex tempore remarks in a busy magistrate’s court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.
No other reasoning was pointed to by the appeal court, other than to infer that a failure to address inconsistencies equated to a determination by the Magistrate that they were not significant. Notably, no such reasoning process was identified by the learned Magistrate.
Counsel pointed out that in Papps, the magistrate had explicitly said that nothing turned on the alleged inconsistencies in the police evidence, whereas in the current case the Magistrate had not even mentioned the alleged inconsistencies. On the other hand, in Papps, “the resolution of the issue of credit was central and critical to a proper consideration of the charges”; that is, the dispute was about whether the police evidence of the commission of the offence should have been accepted beyond reasonable doubt. Here, the question of police treatment of the appellant was raised in relation to the admissibility of evidence; the inconsistencies in other police evidence would not have been decisive in any decision about the police treatment of the appellant, and the decision about that treatment would not have been decisive in the Magistrate’s consideration whether to enter into a s 138 enquiry or about the outcome of any such enquiry.
Counsel summarised his argument about the inconsistencies:
What was fundamental was an ability to accept what it was that the police officers were saying, and we say that that in turn required an examination of the inconsistencies. It could be the case that the learned magistrate could examine those inconsistencies and say, “I’m still of the same view that I was of before. I’ve examined the inconsistencies and I find, because I think that there’s an inherent improbability in such events happening, I prefer, notwithstanding their weaknesses, the evidence of the police. Section 138 doesn’t arise.” He could do that. He didn’t do that. He had to do that to get to that point, because he had to deal with the inconsistencies in the police evidence. As to the inconsistencies in the police evidence, they are difficult to express on appeal, because the evidence is a dog’s breakfast on what happened to take the appellant into custody.
Contrary to counsel’s submission, it seems clear from the evidence that “what happened to take the appellant into custody” was the result of the preliminary breath screening process conducted while the appellant sat in his car. Application to exclude evidence
For the purposes of his application for the exclusion of the breath analysis evidence, the appellant was obliged to establish the relevant facts on the balance of probabilities. The fact sought to be relied on was that after taking the appellant into custody for the purpose of breath analysis, the police officers had subjected him to excessive force in the course of transporting him to the police station for that breath analysis.
Evidence about use of force – the appellant
As already noted, some of the evidence of the appellant and the two police officers was directly relevant to the police treatment of the appellant.
The appellant said that after finishing work and having some wine with a client, he had driven to Dickson and picked up his son:
What happened then?---Then I reversed the car out and started driving just near Suburban there. And then I was pulled over by one of the police cars, one of the rapid ones.
Yes?---Yes. I pulled over. The officer came up to the window and said, "The reason you've been pulled over is because your reverse lights aren't working", and I said, "Right. That's surprising'', yes.
And why was that surprising?---Because it's a brand new car. Yes.
Did he ask you anything else at that stage?---No, he said, "Have you had anything to drink tonight?".
Yes?---And, "Can I see your licence?", and to which I handed him my licence and - - -
And to his question, "Did you have anything to drink?", did you reply to that?---I said yes, I had. Yes.
You then handed over your licence?---Yes.
And what happened then?---The officer went back to the police car for a while. I'd say a good couple of minutes. Then came back up to the window and asked if he could - if I'd participate in a breath test.
Yes?---And I said yes.
And did you do so?---Yes, I did. Yes.
And when that test was completed were you informed of anything?---I was - - -
Were you told anything?---I was informed that it was positive, yes. I - yes, that's okay.
And did you say anything at that point?---I said, "Can we test" - I said, "Okay, can we - can we also test the reverse lights?" and he replied yes. And he proceeded to go to the back of the vehicle and I put the vehicle in reverse and I asked just out the window, I said, "Are they working now?" to which he replied, “Yes, they are”.
Did he then return to where you were in the vehicle?---Yes. Yes, he returned back to the window.
And was there a further conversation between you and the officer?---Yes, he asked me to get out - out of the vehicle, which I did, and - - -
Did you do anything before getting out of the vehicle?---! gave him the keys, yes. Yes.
Is it fair to say that you'd turned off the vehicle and gave the keys - - -?---Turned it off, yes. - - - to the officer?---And gave the keys, yes.
And what did you do then?---I got out of the vehicle, so did my son from the passenger seat. It's a utility, so there's only two seats. I walked around the back of the vehicle and across towards the kerb in front of Sammy's the Chinese restaurant there.
Yes?---So I was positioned between the utility and the kerb and my son walked a fair distance away to the kerb by himself, so he would have been at least probably 15 metres away from me, but he was at the kerbside and I was with the officer. He had me - I was right next to him there, sort of halfway between the vehicle and the kerbside.
Okay. Was there any conversation between you and police at that time?---Yes, I was quite concerned about my son, and I just asked, "What's happening with my son? What's happening with my son?"
Was there any reply to your question?---Yes, there was, it was, "Don't worry, he'll be okay".
And was there further conversation after that?---Yes, there was. I continued to ask what was happening with my son.
And why was that?---Because I - they wouldn't - the police officers wouldn't tell me what was happening, they just kept saying, "He'll be okay. He'll be okay".
And did you have any concerns about - what concerns did you have about your son at that particular time?---That - just that somebody would come. I was preferring, like, granny and grandpa to come and pick them up if - if that was possible, but I couldn't really communicate with Richard because he was a little distance away.
Okay?---And - and during this time - during this time I was forced to the ground, I think unprovoked. I was forced to the ground in the gutter. My head was put on the tarmac, then I was handcuffed and stood back up to exactly where I was before. And the officer that was next to me was a police officer with red hair, and he continually just pushed my handcuffs in a vertical direction very, very hardly and said to me, "Stop resisting. Stop resisting'', and - - -
I'll stop you there?---Yes.
Did you understand what he was saying by saying, "Stop resisting"?---Absolutely, yes, and - - -
Were you doing anything that you would understand to be resisting at that point?---Not at that point. I - I wasn't - I thought I had been unjustly handcuffed, to be honest. And I saw -as I was standing there handcuffed there were two officers to my right-hand side, I'd say 5 metres away, and my son was, say 15 metres away on the kerbside again. I still ended up back in the same spot. And I said to the officer, "Why would I be resisting? There's three police officers here, my son's over there and I'm in handcuffs", to which he kept going, "Stop resisting. Stop resisting". And I said the exact same thing again to - and I was appealing to the two officers that were close to me on my right-hand side to let them know that I wasn't resisting. And the officer in - the officer with the red hair who was - continued to put upward pressure on my hands and tighten up the cuffs, and I - I said, "I'm - I'm not resisting", and I was appealing again.
I'll stop you there?---Yes.
The officer with the red hair, was he the officer that you spoke to initially?---Yes. Yes.
And I'll take you to the point where you're standing on the kerb and you’re asking about your son?---Yes.
And they were saying, "He'll be okay". Then you said that you were put to the ground?--- Yes. Are you able to describe the mechanism by which you were put to the ground?---Yes, I was pretty much thrown to the ground. Yes.
But in any further detail than that? Are you able to recall - - -?---Well - - -
But the person who grabbed you, were they in front of you or behind you?---They were -they were next to me. Yes, right next - to my left.
And who do you understand that person to have been?---The policeman with the red hair. ·
Going forward, you've indicated that you were placed back up?---Yes.
You said that you were then told to stop resisting, but you were not resisting, and you were in some way appealing to the two officers you'd seen to your right?---Yes.
Do you recall the words that you were using to appeal to them?---I was saying, "I'm not resisting. I'm not resisting".
...
Okay. Was it the case that you were subsequently moved and to a paddy wagon that had arrived in the vicinity?---Yes. Yes.
Okay. And what can you tell his Honour about how you were placed in the paddy wagon?-- -I was - I was taken over - I just walked over to the paddy wagon and I was thrown in head first. I hit my head against the back of the - well, it was one of the paddy wagons that -which were the - the dual cab. Like a dual cab Hilux, and I was thrown into the back and I hit my head on the back of the cabin. I was lying face down still handcuffed so my head was on the ground and my feet were vertical in the .air. And then next thing somebody just twisted my leg about 180 degrees. And then the door was shut.
You indicated that you had been thrown, to use your words, thrown inside the paddy wagon?---Yes.
Are you aware of who it was that did that?---Yes, it was a - it was - there was two officers with me but it was a combination of the officer with the red hair. I'm not sure of his name, I apologise, yes.
You were then transported in the paddy wagon back to the Civic Police Station, is that right?---Yes. Yes.
Okay. And then you were taken into the station and you participated in breath analysis?--- Yes. Yes.
And sometime later you were released?---Yes. Yes.
Evidence about use of force – the police officers
The two police officers gave evidence of the appellant becoming aggressive and uncooperative despite their assurances to him that arrangements would be made for his son and that he would be okay.
Constable Bishop disputed the appellant’s claims that he was thrown into the back of the police vehicle and that one of the police officers had twisted his leg after he was placed in the vehicle, saying:
And can I suggest to you that one of the officers, either yourself or Constable Fitzroy twisted his leg after he was placed in the vehicle?---It wasn't myself. I don't recall.
That he was placed into the vehicle face first, his legs were protruding and that his leg was twisted, and the door was shut on the vehicle?---If his leg was out we possibly would have pushed the leg inside the vehicle to - to ensure the door would close.
So you would agree that there may have been some contact with his leg but I take it you'd deny twisting his leg in order to exert some pain or to - - -?---Yes, we wouldn't have - - -
To cause him some pain?---subjected him to - - -
I think that's it, your Honour, nothing further.
When the defendant was taken into custody was he concerned about his son?---He made -he did ask about his son, yes, what would happen to his son. It was explained to him that while he was in custody we'd also take his son back to City Police Station as well. We were very concerned about the state of his son because his son was visibly upset with what was going on.
And how did the defendant react to that?---Well, he was belligerent, to say the least. He was struggling against police, he wouldn't follow basic directions. We wanted him off the road because obviously you've got traffic going around, so we asked - directed him, asked him to move from where he was to the side of the road, he wouldn't do that, so we placed him in what we call an escort hold by taking a hold of his - I took hold of his left hand, so left hand and - and his shoulder and directed him to - around his car and onto the road -and onto the footpath on Woolley Street.
And what was the defendant's demeanour when that was happening?---Well, he was carrying on, talking, yelling, "What's going to happen to my son? What are you doing?". He was trying to break free of the escort hold, he was trying to shake away. I was in fear that he would assault us if we didn't perform or take more - better control of the situation.
And when you say carrying on, can you describe that?---Well, shaking his arms, he was trying to break free of our escort hold.
What happened after that?---He continued to be belligerent, he continued to be rude, he continued to try and break free of our escort hold. Unfortunately we then had to place him on the ground and he was then placed in handcuffs.
Did you at any time ask the defendant to stop resisting?---A number of times. A number of times. A number of times I said to him, "You need to stop what you're doing. You need to think of your son. You need to calm down, relax".
At any time did you ask the defendant to calm down specifically?---I can't remember the exact words at the time.
At any time did the defendant calm down or stop resisting?---No. No, at no time.
Did you place the defendant in the caged vehicle?---I don't recall.
Do you recall seeing the defendant placed into the caged vehicle?---Yes.
Do you consider the manner in which the defendant was placed into vehicle forceful?---I - I don't recall it being forceful. The defendant was trying to fight police the entire time, so yes, if - if he was forced into the police - into the police vehicle or harshly treated or - or whatever it would have - it was necessary to get him to do what he needed to do, what we needed to do for his safety.
Do you consider that everything that happened in relation to the force that was applied to the defendant, do you consider that reasonable?---More than reasonable.
Do you - - -?---It was unfortunate. I didn't want to have to do what we were doing in front of a 14 year old boy but we were put in a situation where we needed to protect ourselves to protect him from what was going on.
Did you offer to take the defendant in the back of the car - - -?---Yes.
Do you consider any of the behaviour that you exhibited that night to be excessive?---No.
To be unreasonable?---Not at all.
You would agree it seems that he was repeatedly asking what was going to happen to his son?---I would agree that he was confused and he couldn't follow basic - couldn't follow instructions and couldn't understand what he was being told.
I'm going to suggest to you that at that point he was taken hold of and put to the ground?--- No, he was taken hold of and escorted off to the side of the road. When he was on the side of the road we continued with him to try and negotiate with him to calm down and relax so that we could continue on with what we needed to do. At that point he was taken to the ground because we feared for our safety. It was only going to escalate - it was clear to my mind that at that point it was only going to escalate further and for our safety he needed to be placed in - placed under arrest and handcuffed, and that's what we did.
Can I ask you what did you fear would happen at that point?---What do you - what do you mean what did I fear?
Well - - -?---If I - if - - -
He was then handcuffed?---Yes.
He was then stood back up?---We sat him on the ground and - and tried to get him to calm down while in the seated position. He stood himself. It would have been my preference for him to stay seated and - which is a safer spot for himself and for us.
So it wasn't the case that police lifted him up from the ground - - -?---That's not how I---
And stood him up?---That's not what I recall, no.
No. And at that point he was being told to stop resisting, stop resisting?---Yes.
And at some point Mr Heyward, I suggest to you, said, "Why would I be resisting? My son's here. There are three of you and I'm in handcuffs". .
Do you agree that he said something like that?---He made - I believe he would have made - he made some mention of, "Why would I be resisting?", however, he continued to resist, he continued to fight and struggle against the police the entire time until such time as more police arrived.
And those police arrived after he'd been put to the ground and handcuffed?---Yes.
...
Okay. And in terms of when the caged vehicle arrived, and obviously other officers became involved were you involved in placing Mr Heyward into the rear of the caged vehicle?--- Well, I honestly don’t recall whether I was. I would have been somewhere in the vicinity of him going into the vehicle, yes, given how aggressive and how physical he had been, to make sure myself and my colleagues were okay I would have assisted, if need be. I would have been at the vehicle. Whether or not I was right at - holding him at the time I don’t recall.
Okay. Given you can’t recall I don’t think it’s prudent. You couldn’t say whether or not he was thrown into the vehicle or not?---I wouldn’t - I wouldn’t - - -
And had a leg twisted, or anything of that nature?---I don’t think that would have happened.
Okay?---But I certainly didn’t twist his leg.
The Magistrate’s assessment of the evidence
The Magistrate’s conclusions about this evidence are quoted at [13] above. His Honour indicated that he did not accept the appellant’s allegations of unnecessary violence against him by the two police officers, giving a very general explanation for not accepting those allegations. His Honour did not claim to have based his conclusion directly on an assessment of the relative credibility of the police witnesses and the appellant, but on the inherent probability or otherwise of the two versions of events. In reaching that conclusion, his Honour did point to three things that he considered might have contributed to the appellant’s behaviour, being his concern about whether his new car had a fault, his concern about what would happen to his son, and the alcohol he had consumed. None of those matters was in dispute. Although none of them establishes how the appellant behaved, each of them could legitimately be seen as a circumstance consistent with the police claims about the appellant’s behaviour, and also consistent with the appellant misjudging the incident as a whole and his own behaviour in particular.
The question of how the appellant was treated was not “necessarily posed for judicial decision”, and his Honour’s reasons went well beyond “the mere recording of a verdict for one side or the other”. It is clear how his Honour resolved the challenge to the admissibility of the breath analysis evidence.
That said, the Magistrate’s reliance only on “what one might expect to have occurred in the real world” is somewhat unsatisfying; on the other hand, his approach goes some way to explaining his failure to address explicitly counsel’s submissions about the inconsistencies in the police evidence relating to the circumstances in which the appellant was removed from his car.
Counsel for the appellant conceded that consideration of which version of events is “more probable” is not excluded in an appropriate case. In Pettitt v Dunkley, Asprey JA said at 381-382:
It is unnecessary to stress the prime importance to a party to an appeal, whether he be appellant or respondent, of the findings and reasons at first instance and this is not limited to the acceptance or rejection of evidence on the basis of demeanour for, in arriving at this conclusions, the trial judge may simply have preferred one possible view of the primary facts to another as being in his opinion the more probable, or he may have preferred the evidence of one witness to another for a variety of reasons, although both were considered by him to be telling the truth as they may have observed the facts to be.
... where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge’s findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law.
The credibility of the police officers
The argument put on behalf of the appellant goes beyond this, however. Counsel has submitted that the credibility of the evidence given by the two police officers about the appellant’s belligerence and failure to cooperate was affected by discrepancies in their evidence, and discrepancies between their original records and their oral evidence, about an earlier stage of their dealings with the appellant. That earlier stage was the process by which the appellant got out of his car and went to the footpath.
Counsel offered an example of the inconsistencies complained of:
the evidence of Constable Fitzroy accepted the Appellant’s account of testing the reversing lights, an account denied by Constable Bishop. Constable Bishop’s account of having to take action to prevent the Appellant’s car moving back toward the police vehicle was not a part of Constable Fitzroy’s account.
the testimony of the Appellant was in conflict with the testimony of Constable’s Bishop and Fitzroy. The testimony of Constable Fitzroy was internally inconsistent, supportive of the Appellant in an important respect, and partially in conflict with Constable Bishop.
It is unnecessary given the view we take of the significance of this evidence to analyse it all by reference to counsel’s assertions, but having regard to the evidence quoted in the first extract set out below, it is not clear to us that counsel’s claim that Constable Bishop denied the appellant’s account of testing the reversing lights is correct.
Constable Bishop gave the following evidence in cross-examination:
The words you use in your statement are, "The defendant refused to walk to the side of the road. He was repeatedly saying words to the effect of, 'What is going to happen with my son?'"?---Yes.
Okay. Is it your recollection that he refused to get out of - when you say refused to walk to the side or whether he remained in the car?~-~He was standing beside the vehicle, I believe. It was about the - around the rear wheel of the vehicle. So at this stage he's out of the vehicle?---I believe so, yes.
Okay .. And it's at this point that he's enquiring, "What is going to happen with my son?". You said he's standing outside at the where?---I believe it was at the - the rear quarter of the vehicle.
The rear quarter of the vehicle. And he's asking you what's going to happen with his son. To you your words from your statement you said, "I informed the defendant that his son would be taken back to City Police Station with him in the rear seat of the police vehicle and that someone can collect his son from the station". You told him that using those words, or words to that effect?---Yes.
You said then, "The defendant started to argue that his reverse lights were working and he reached inside his vehicle"?---Yes.
So that tends to support the proposition or support your recollection that he was outside the vehicle at this time?---Yes.
So he's gone from the rear quarter of the vehicle back to the driver's door?---Which is a utility, which was only about a metre away.
Okay, about a metre. He's reached in, okay? He's reached in?---Yes.
Put the transmission in reverse and that's when you said his car started to roll backwards?- --Well, he's actually started the vehicle first before he's put it into reverse, but yes.
Makes sense, doesn't it? So that means he actually got in the vehicle, did he?---He was standing in the doorway. He didn't actually sit in the car. He's reached in, started the car, leant over and put it into reverse.
Okay, so he's all done that- - -?---While standing outside the vehicle.
What you're motioning with your arm is that you didn't grab him at that point, you pushed him aside, so that you could get into the vehicle?---Yes, because my concern was the vehicle rolling backwards.
Now, do you agree in your statement that what you've said is that - and I'll read the two paragraphs to you, "The defendant started to argue that his reverse lights were working and he reached inside his vehicle, started the car and put the transmission into reverse. At the time the handbrake was not activated and the vehicle started to roll backwards". You then say, "I grabbed a hold of the defendant and pulled him out of the vehicle and turned the ignition off and placed the handbrake on to prevent the vehicle rolling further"?---Yes.
Okay. So according to your statement you pulled him out of the vehicle?---So he was in the driver's door. I've put my arm around and pulled him backwards away from the - out of the driver's side.
Grabbed him, pulled him out, turned the ignition off, put the handbrake on?---Yes.
Okay. And what did you do them?---I asked him to come off the side of the road again. Walk to the side of the road which he refused.
Constable Bishop was also asked about a case note that he had created relating to the use of force in taking the appellant into custody. He agreed that the document didn’t refer to the appellant’s actions in putting his vehicle into reverse gear to test the lights, but said that was because those actions were irrelevant to the use of force. In particular, he said that they were not what had precipitated the use of force; rather, it had been precipitated by the appellant’s “level of aggression and his demeanour”.
Constable Fitzroy gave the following evidence in chief:
Where was the defendant when he was placed in custody?---Belligerent, he was in the car. Constable Bishop asked him to hop out of the car. He wouldn't get out of the car. Constable Bishop took hold of his arm and removed him from the - helped him remove - or helped him out of the vehicle. Constable Bishop then leant into the vehicle to do something. I believe after - he told me then after what - that he needed to put the car into neutral or into park, so that the car wouldn't roll away. And that's when I went to help Constable Bishop with the defendant.
Okay. So you've said that you mentioned in your evidence that Constable Bishop had to do something with the car, the car was in neutral?---Well, he'd leant into the vehicle. At a later point Constable Bishop explained to me what had actually had happened. I can't say what happened from where I was standing because I couldn't hear or see.
Okay. If I can backtrack. Where were you when the defendant was placed into custody or when Constable Bishop told him that - - -?---In the driver's seat of the police car.
Okay, thank you. Did you have a clear view?---Well, when - when you effect a traffic stop I have a very clear view because my car is protecting Constable Bishop when he goes to the driver's of the vehicle, yes. So I had a very clear view.
I'm going to put a series of propositions to you, constable. I think you understand that you can agree or disagree. Can I suggest to you that when the car was first pulled over that Constable Bishop approached the vehicle, spoke to the driver?---Yes.
You'd agree with that. He then got the licence from the driver and came back to the police vehicle?---You can suggest that, yes.
Well, is it correct or not? I can suggest it, is your answer yes or no?---Well, at this stage I'm going to have to say I don't recall the exact details because you've proven that I'm mistaken so I don't know for sure.
Okay. Having come back to the vehicle with the licence he then returned with the screening device and conducted the screening test?---Okay.
Now, at this stage can I suggest to you - well, you're not sure, are you, whether you're at the vehicle at this stage or still in the police vehicle?---Well, I - I think I have obviously got out of the vehicle at that point.
Okay?---I mean, I - obviously I'm not 100% positive, so.
Okay. Well, can I suggest to you that at that point Mr Heyward was informed that the result was positive and that he asked could the reverse lights be checked, do you recall that at all?--- I recall him being inquisitive about his reversing lights, yes.
Okay. And that either you or Constable Bishop then went to the back of the car while he put the car in reverse to see if they were working or not?---That I - I believe that may have happened, yes.
Okay. And somebody indicated they seemed to be - "'Well, they're working now"?---Yes.
That sounds right. He was then asked to switch off the vehicle and get out of the car by either you or Constable Bishop?---Okay, yes. That he got out of the car and walked behind the car to the kerb?---No, you can't suggest that. That's not how it happened.
Because on your recollection he was removed from the vehicle?---He was helped from the vehicle - the vehicle, yes, because he wouldn't get out initially.
Well, he was helped and then placed straight into an escort hold, on your evidence, is that correct?---We asked him to move from the vehicle, we asked him - we gave him clear instructions to go to the side of the road. He wouldn’t follow those destructions - those instructions.
I suggest - - -?---He continued to argue about the - the brake lights and one - at that point we want him - to get him off the - off the road for his own safety.
I'm suggesting that he freely walked to the kerbside?---Well, that's not how it happened
In short, Constable Bishop described the appellant standing beside his vehicle, then reaching in to turn on the ignition and put the vehicle into reverse. Constable Bishop said that he then grabbed the appellant, “pulled him out of the vehicle and turned the ignition off and placed the handbrake on to prevent the vehicle rolling further".
Constable Fitzroy said that from his seat in the police car, he had seen Const Bishop take hold of the appellant’s arm, remove him from the vehicle, and then lean into the vehicle to do something, which he was later told involved putting the car into neutral or park so that it wouldn’t roll away. In cross-examination he agreed that the appellant had wanted to check whether his reversing lights were working, and after that had been done, the appellant had been asked to switch off his car and get out. He maintained that the appellant had to be helped from the car because he wouldn’t get out initially.
It seems that neither the original statements made by the two police officers, nor the case note about the use of force on the appellant, contained any reference to the appellant’s interest in whether his lights were working or his attempt to test this.
It does not seem to us that the absence of any such details in the original statements, or in the “use of force” case note, raised any serious questions about whether the officers were telling the truth about why they used force on the appellant, or about whether their memories of the relevant events were unreliable. A witness’s failure to record, in a written statement, events that at the time would not have seemed significant, does not seem to us to have any particular implications for the credibility of the witness’s evidence; still less does an inaccuracy in recalling such events much later suggest that the witness should not be accepted as a witness of truth and of sufficient reliability about more significant matters.
For similar reasons, we are not persuaded that any of the inconsistencies between the evidence of the two constables raised real issues about their credibility. Certainly counsel did not identify inconsistencies of a kind that might indicate that neither of them was telling the truth.
An appeal court is subject to various limitations in concluding that a Magistrate’s findings, based as they must have been on seeing and hearing all the witnesses, should nevertheless be overturned, including (at Fox v Percy 214 CLR 118 at [23]):
the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share.
In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
There is in our view nothing in the evidence directed to the issue of the conduct of the appellant and the two police officers that would entitle this court to conclude that the Magistrate’s finding should be overturned or that the brevity of his Honour’s reasons for that finding would require us to order a new trial for the appellant.
Nor does the evidence before the Magistrate about the testing of the appellant’s lights and the process by which he was removed from his car, or the Magistrate’s failure to address explicitly the asserted inconsistencies in the police officers’ evidence about a peripheral aspect of the incident, entitle or oblige an appeal court to overturn his Honour’s conclusions about the events of the evening despite his Honour’s advantages in having seen the witnesses and heard their evidence.
In the particular circumstances of this case, it was enough that the Magistrate, having regard to all the evidence, did not accept the claims of the appellant about the gratuitous violence. His Honour did not need to accept the evidence of the police officers beyond reasonable doubt before he could conclude that, in effect, the appellant’s claims about the police officers’ behaviour towards him seemed inherently less believable than the evidence from the police officers about the appellant’s behaviour.
For this reason, we reject counsel’s submission that “the conduct of the Appellant on being detained, and the conduct of officers Bishop and Fitzroy on detaining him ... were matters which required findings”. The Magistrate was within his powers to conclude, without making any positive factual findings, that the appellant had not satisfied him on the balance of probabilities that the police had engaged in “gratuitous violence” towards him.
No doubt it would have been preferable for the Magistrate to expand to some extent on his response to the evidence of the appellant and the two police officers, but for the reasons we have explained, his failure to do so is not significant. Where a positive finding on a substantive matter has been made, an appeal court may identify a doubt about that finding that it considers the fact-finder in the court below should have felt (M v The Queen (1994) 181 CLR 487 at [9]); it is a different matter for an appeal court to conclude that the fact-finder in the lower court (despite its advantages in relation to the evidence as mentioned at [57] above) should not have felt a doubt about a particular matter.
Obligation to give reasons
As to the appellant’s basic claim that the Magistrate failed to give adequate reasons for declining to find that police had used excessive force on the appellant, the principle that courts should give adequate reasons for their decisions may apply across the board, including to interlocutory or procedural decisions. However, the nature and significance of the decision must affect the determination of adequacy, even to the extent that there are a multitude of interlocutory decisions, findings or rulings made by courts for which no reasons at all are formally articulated. In particular, as already noted, the obligations on a Magistrate operate at a different level from the obligations imposed on superior courts.
Although, as in this case, an interlocutory decision or conclusion may be conclusive in a matter, the burden imposed on a magistrate explaining an interlocutory decision must be assessed in context, and should not generally be assessed as equivalent to the burden imposed on a Supreme Court judge or a Court of Appeal making a principal decision.
Although more detailed reasons would have provided a better indication of the basis on which the Magistrate declined to find that police had used excessive force in dealing with the appellant, his Honour’s reasons for rejecting the appellant’s claim of unlawful behaviour by the police officers were adequate in the circumstances. This means that the Magistrate did not fall into error in explaining his ruling that he did not need to consider the exercise of the s 138 discretion.
Oral argument
Oral argument before this Court focused on a different aspect of this case, being whether, even if the Magistrate had been satisfied on the balance of probabilities that there had been an excessive use of force by the police officers in restraining the appellant in order to transport him to the police station for breath analysis, that would have brought the case within the scope of s 138 so as to require the Magistrate to consider the exercise of the discretion provided by that section.
It was conceded that the appellant had initially been taken into custody in accordance with s 11 of the Alcohol and Drugs Act, properly and without force, and that at the police station he had voluntarily submitted to breath analysis in accordance with a requirement purported to have been made under s 12 of that Act.
Those provisions are relevantly as follows:
11 Detention for breath analysis (1) This section applies if— (a) a person undergoes an alcohol screening test under a requirement made by a police officer under section 8, section 9, section 9A or section 10 and the alcohol screening device used for the test indicates that the concentration of alcohol in the person’s blood or breath is the prescribed concentration; or (b) .... (2) The police officer may take the person into custody. (3) For subsection (1) (a), if the police officer has reasonable cause to suspect that the person is a special driver, the prescribed concentration for the person is the prescribed concentration for a special driver. (4) If a person is taken into custody under this section, a police officer must take the person, as soon as practicable, to a police station or other convenient place (for example, a police vehicle) for the person to undergo breath analysis. Example—s (4) A person who is injured and is taken by a police officer to hospital for first aid and then to a police station for breath analysis has been taken to a police station as soon as practicable. Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132). 12 Breath analysis (1) A person who has been taken into custody under section 11 must give, in accordance with the reasonable directions of a police officer (the requesting police officer), a sample of the person’s breath for breath analysis. (2) A breath analysis must be carried out by an authorised operator. ... (5) As soon as practicable after the breath analysis has been carried out, the authorised operator who carried out the analysis must give the person a written statement, signed by the operator, containing the particulars required by regulation to be included in the statement. Example––written statement a print-out from the breath analysis instrument Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(a) The use of excessive force as alleged by the appellant was an impropriety or contravention of law that rendered that custody “something other than the detention provided for” under the Alcohol and Drugs Act.
(b) If the appellant was not in custody for the purposes of s 11 of the Alcohol and Drugs Act, then the police had no power under s 12 to subject the appellant to breath analysis.
(c) Therefore, the breath analysis evidence had been obtained in consequence of the impropriety or contravention of law constituted by the use of excessive force.
(d) Therefore, the Magistrate was obliged to consider whether to exclude the evidence under s 138(2).
(a) The use of excessive force as alleged by the appellant tainted the s 11 custody (without terminating it).
(b) Therefore, the breath analysis evidence had been obtained while the appellant was in “tainted” custody.
(c) Therefore, the evidence obtained because the appellant was in that custody had been obtained in consequence of an impropriety or contravention of law, being the holding of the appellant in tainted custody.
The first argument is flawed. The argument is that the alleged use of excessive force had somehow vitiated the appellant’s legitimate custody under s 11 of the Alcohol and Drugs Act and therefore deprived the police of the power under s 12 of that Act to require him to submit to breath analysis.
That is, the appellant does not point to any causal link between any use of excessive force and the obtaining of the breath analysis evidence; rather, he claims that the use of excessive force has broken the causal link between the proper taking into custody and the conduct of the breath analysis procedure.
As Refshauge J said in R v Bormann (2010) 244 FLR 105 at [85]:
What is also relevant is that the impropriety must cause the obtaining of the impugned evidence and the applicant accused bears the onus of showing that: R v Dalley (2002) 132 A Crim R 169 (at 186 [86]), R v Cornwell (at 89 [25]), R (Cth) v Petroulias (No 8) (2007) 175 A Crim R 417 (at 425 [25]).
There was no argument made that the appellant was induced to submit to breath analysis either directly by the use of force, or indirectly because of his earlier treatment by police. Even if it were accepted that the appellant was not as a result of the excessive use of force in the relevant kind of police custody, the breath analysis evidence was not obtained as a result of that use of force and was not achieved either by or as a consequence of the use of excessive force; it was achieved despite that use of force, and despite the fact, if accepted, that the original lawful custody had acquired a new character as a result of police conduct after the appellant was taken into custody.
The second form of the argument is no more convincing, because it too fails to identify any basis for finding that the breath analysis procedure was undertaken in consequence of the appellant being held in “tainted custody”, rather than simply during the period of custody that was properly begun under s 11.
As well, it is not clear that there would be any basis for finding that the availability of the s 12 power would be affected by police conduct or other events after a person was taken into custody under s 11 and before a requirement was made under s 12, being events that were not related in any way to compliance with the s 12 requirement. Counsel in submissions did not mention the distinction between a person “who has been taken into custody under section 11” (as referred to in s 12) and being in custody. The possibility that a person who has been taken into custody under s 11 may at some point cease to be in custody under s 11 and be in some other form of custody appears to be addressed by the s 12 reference to the basis on which the person was taken into custody, and the absence of any reference to the form of custody in which the person may subsequently find him or herself.
For instance, it seems unlikely that a person who is taken into custody under s 11 and who, before being subjected to breath analysis, is arrested (because illicit drugs, prohibited firearms or perhaps a body is found in his or her car) is thereby protected from breath analysis under s 12.
In written submissions counsel for the appellant referred to s 19 of the Human Rights Act 2004, but declined to argue this point at the hearing.
We are satisfied that even if the Magistrate had accepted the appellant’s claim of excessive force, his Honour could not have found that the excessive force was connected with the breath analysis procedure so as to render s 138 applicable. Conclusions
For the reasons set out above, we are satisfied:
(a) that the Magistrate was not obliged to give explicit reasons for concluding that any inconsistencies in the evidence of the two police officers did not require him to reject the evidence of the officers about whether they had used excessive force on the appellant after taking him into custody for breath analysis;
(b) that in the circumstances his Honour did not fail to give adequate reasons for rejecting the appellant’s claim that excessive force had been used against him by the police officers;
(c) that Burns J did not err in his determination of the appeal from the Magistrate; and
(d) that even if the Magistrate’s failure to accept, on the balance of probabilities, the allegation that police had used excessive force on the appellant had been undermined by his Honour’s failure to give detailed reasons for his factual conclusions, his Honour’s resulting failure to consider the application of s 138 to the breath analysis evidence does not vitiate his admission of the evidence of that analysis, because even if excessive force had been used, s 138 would not have been applicable.
I certify that the preceding eight-two [82] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.
Associate: K Harris
Date: 18 November 2015
Heyward
Bishop [2015] ACTCA 58
(1986) 6 NSWLR 472
(1992) 58 SASR 382
(1994) 181 CLR 487
(2010) 244 FLR 105
(1987) 10 NSWLR 247
(1977) 136 CLR 145
(2006) 66 NSWLR 186
There was some inconsistency between the descriptions that the two police officers gave of the actions of the appellant and the two officers in that initial period after the police had stopped the appellant’s car.