PAPPS v POLICE No. SCGRG-99-1330 [2000] SASC 183

Supreme Court of SA|2000-07-07|Before: Gray JJ, Olsson J, Prior J, Wicks J

Judgment No. [2000] SASC 183

OLSSON J I have had the benefit of reading, in draft, the reasons expressed by Gray J. I agree with the substance of them and the orders which he proposes.

GRAY J The defendant was charged with offences against the Road Traffic Act 1961 (as amended) of speeding and driving with more than the prescribed concentration of alcohol in his blood[1]

. He pleaded not guilty and the trial proceeded before a stipendiary Magistrate. He was convicted on both charges. Prior J dismissed an appeal against the convictions. The defendant has appealed with leave to this Court.

The appeal raises three principal issues. First, the Magistrate misconstrued the nature and effect of the evidence, erred in his findings of fact, and in his process of reasoning. Second, the Magistrate failed to give adequate reasons for his rejection of the evidence of the defendant and his witness and his acceptance of the police witnesses. The defendant has given notice that the correctness of the decision of this Court in Lawson v Lee[2]

is challenged. Finally, it is said that the Magistrate failed to exercise a discretion to exclude evidence of the breath analysis test, by reason of the unlawful and improper conduct of the police.

5 The prosecution case was that Senior Constable Thomson was on duty as the driver of an unmarked police vehicle with Constable Hall. Whilst travelling south on the Port Wakefield to Adelaide highway, Senior Constable Thomson observed a vehicle travelling well in excess of the speed limit of 110 kph, north towards Port Wakefield. He observed the vehicle to be a high speed variant VT Commodore, either a SS or a Holden Special Vehicle. He made a U-turn as soon as practicable and pursued the vehicle at speeds of up to 190 kph. He took up a position to the rear of the vehicle and maintained a constant speed of 160 kph for a number of kilometres. He moved closer and followed and timed the vehicle over three-tenths of a kilometre at a constant speed of 160 kph. He then accelerated, activated his red and blue lights, flashed his headlights and pulled the vehicle over. The defendant admitted that he may have been travelling at 140 kph. Senior Constable Thomson formed the belief that anoffence had been committed and required the defendant to undertake an alcotest. As that proved positive he required the defendant to undertake a breath analysis test, which returned a reading of 0.101. His evidence was supported by Constable Hall.

6 The defendant contended that at all times his speed was within the zone limit of 110 kph or at most a little over it. He was adamant that he was not travelling at 160 kph or anything like that speed. He gave evidence which was supported by Mr Cave, his passenger. The defendant became aware of a fast approaching vehicle, the dipping of headlights, then of flashing lights and he immediately pulled over.

7 The defendant argued that there was ample opportunity for the vehicle first observed by Senior Constable Thomson to have left the northbound carriageway before the police came upon the defendant. His case was that the police must have mistaken his vehicle for the one seen earlier. The evidence of vehicle identification was challenged as highly improbable and as an invention. The police officers assumed he had slowed down, and their evidence of following and timing was false. The evidence of the defendant and Mr Cave also put in issue the alleged admission of speed and of other conversations between Senior Constable Thomson and the defendant.

8 The defendant's case was that the evidence of the breath analysis should have been rejected as a matter of discretion by the Court as the police had engaged in improper and illegal conduct and "did not hold the (requisite) belief on reasonable grounds" within the meaning of s 47E(1)(a) of the Road Traffic Act 1961.

9 The Magistrate reserved judgment and in his published reasons said:-

"He [defence counsel] was highly critical of Senior Constable Thomson's suggestion that even from the first point of observation he believed that the vehicle being pursued was a high speed Commodore variant. He said because of the limited ability to make such an observation due to the dark night and foliage in the median strip, I should reject that as highly improbable. In my view however nothing particularly turns on the question as to whether Senior Constable Thomson was in a position to make an observation and assessment at Wild Horse Plains as to whether the vehicle travelling north was a high speed variant Commodore or whether it was only later when he pulled the vehicle over that he could observe that fact. Although Mr Germein suggests that it is pertinent to the prosecution case I respectfully disagree. In my opinion what is critical is whether I can accept the evidence given by the police officers that the vehicle that pulled over at Inkerman was the vehicle that they were able to follow and time over three-tenths of a kilometre at a constant distance and was travelling at a speed in excess of 110 kph namely at about 160 kph. Mr Germein makes something of the issue that Senior Constable Thomson allegedly suggested to the defendant that he must have been seen [by] them (i.e. the police vehicle) coming and therefore slowed down. He said that if that statement were made (and he suggested I should find it was) it places further doubt upon the evidence of the officers that they had the vehicle under constant observation at a speed well in excess of the speed limit. Even if I were to be satisfied that those words may have been said by Senior Constable Thomson, in my opinion nothing turns on them. Senior Constable Thomson denies that he said it but if he said it he may have been referring to the point where the police officers activated the warning lights and then saw the vehicle ahead of them slow and pull over. I repeat that in my view what is critical is whether I can have confidence in the evidence of the officers as to the follow and time procedure over three-tenths of a kilometre."

It was submitted by counsel for the defendant that the Magistrate had erred by excluding from consideration important and relevant evidence going to credit. This was said to be an error of law sufficient to justify a retrial. The Magistrate was faced with diametrically opposed accounts. Somebody was lying. The resolution of the issue of credit was critical to the fact finding process.

Prior J dealt with this complaint as follows:-

"I have no doubt that the magistrate clearly disbelieved the respondent and his witness in their denial of the speeding charge and properly acted on evidence which justified conviction, not overlooking the challenges to credibility of the police evidence but necessarily giving consideration to all the matters raised in support of the defence. Some things could have been made plainer but the reasoning so far as disclosed and the finding of guilt are consistent."

In my respectful opinion the Magistrate's statements that "nothing particularly turns on the question" and "in my opinion nothing turns on them" referring to matters directly relevant to credit, preclude a conclusion that he necessarily gave consideration to all matters raised in support of the defence. I consider that those matters were put aside and no further consideration was given to them. As a result the Magistrate failed to consider evidence relevant to credit, and as such, relevant to the police officers' account of the follow and time procedure.

A consideration of the defence submissions and acceptance of them, in whole or in part, may have led to the police officers' evidence being rejected as false, or being viewed as unsafe, or to a conclusion that the burden of proof had not been discharged. The Magistrate failed to have proper regard to evidence which was important, material and relevant. This in my opinion amounts to error.

Section 47 E(1)(a) of the Road Traffic Act 1961 provides:-

"47E. (1) Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion- (a) has committed an offence of contravening, or failing to comply with, a provision of this Part of which the driving of a motor vehicle is an element (excluding an offence of a prescribed class); ... that member of the police force may ... require that person to submit to an alcotest or breath analysis or both."

The observations I have made concerning the failure of the learned Magistrate to properly consider the issue of credit are relevant to a consideration of this aspect of the matter. It follows from my earlier reasoning that the finding of there being a belief on reasonable grounds is flawed.[3]

All issues that may affect the admissibility of the alcotest or breath analysis test including any breach of the Road Traffic Act or Police General Orders sufficient to enliven any discretion to exclude the evidence can be considered on a new trial.

16 The failure of the Magistrate to have regard to evidence relevant to credit was compounded by his failure to make an assessment of the defence evidence and to give any reasons for his apparent rejection of that evidence.

17 The Magistrate detailed the substance of the evidence of both police officers and the defendant and his witness. He analysed various matters put to the police officers and criticisms made during submissions. He rejected those criticisms, as earlier observed, on the basis that they were irrelevant to the issue in the case. He concluded that he had absolute confidence in accepting the evidence of the police officers as to their follow and time procedure. Under the section in his Reasons headed "AN ASSESSMENT OF THE EVIDENCE" he set out his detailed assessment of the police evidence.

18 The Magistrate made no assessment of the defence evidence. He did not consider criticisms of that evidence, either as put in cross-examination or by way of submission, and gave no reasons for his rejection of the defence evidence. The conclusion that the evidence of the defendant and Mr Cave was rejected is a necessary inference from the Magistrate's acceptance of the police evidence. However, the failure of the Magistrate to assess the defence evidence or to give reasons for its rejection leaves the appellate court in a position where it is unable to properly consider the appeal.

19 The problem that arises has been described in a variety of ways. In Watson v Anderson[4] it was said that the failure to give reasons frustrates the performance of the appellate court's duty. In Mobasa Pty Ltd v Nikic[5]it was concluded that the absence of reasons for judgment impedes the right of appeal, confuses the issues, makes it difficult to decide whether any error occurred, tends to increase the cost of appeal and above all, tends to protract litigation by the necessity of new trials. In Kotz v Police[6], it was said that only if reasons are given that adequately reveal the reasoning upon which the decision is based that an appeal court can effectively discharge its functions.

20 It was submitted to Prior J that a failure to give adequate reasons was an error of law. Reliance was placed on observations of Lander J in Gikas v Police.[7] Reference was also made to the recent decisions of Harwood v Police;[8] Kotz v Police[9]; Stirling v Police[10] and Reid v Police[11].

21 However, Prior J considered the Full Court decision of Lawson v Lee[12] was binding upon him. His Honour noted that the decision included the proposition that a failure to give reasons is not an error of law.

22 Prior J cited a lengthy passage from Lawson v Lee which included the following:-

"One test of the defence repeatedly applied in this Court has been to pose the question: Is the conviction inconsistent with the explanation given by the defendant and is it therefore clear that the court below rejected that explanation? But the primary question must be: Is there evidence which, if believed, justifies the conviction? The next question must be in terms of the test just propounded."

" On a close review of the evidence, I am satisfied that the test propounded in Lawson v Lee leads to the conclusion that the ultimate finding of guilt on the speeding charge was properly reached given that the magistrate so clearly believed the police officers and, by implication, disbelieved the appellant and his witness, not just in their denial of speeding, as alleged, but also in their version of events inconsistent with that deposed to by the police officers."

The Solicitor General conceded that a failure to give adequate reasons constituted an error of law. He accepted that in so far as Lawson v Lee decided to the contrary, it no longer represented the law. I consider that concession to be correctly made. As this issue is an important matter affecting appellate practice and procedure, I propose to state my reasons for reaching this conclusion.

Elsewhere in Australia there is a substantial body of case law expressing the view that a failure to give reasons amounts to an error of law. An oft cited authority is Pettitt v Dunkley[13]

. In a later decision of Soulemezis v Dudley (Holdings) Pty Ltd[14] a detailed review of the history and rationale of the scope of the judicial duty to give reasons was undertaken. Kirby P dealt with the duty in the following terms:-

"The duty of judicial officers to record the reasons for their decisions has been developed in recent decades in this, as in other jurisdictions of the common law as an attribute of the judicial process and an incident to the necessities of appellate review. Jordan CJ, in Carlson v King (1947) 64 WN (NSW) 65 at 66, stated the principle: '... It has long been established that it is the duty of a Court at first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent, not only upon magistrates, Ex parte Powter; Re Powter [1945] NSWStRp 35; (1945) 46 SR (NSW) 1 at 4-5; 63 WN 34 at 36 and District Courts, but also upon this Court, from which an appeal lies to the High Court and the Privy Council: Ex parte Reid; Re Lynch [1943] NSWStRp 14; (1943) 43 SR (NSW) 207 at 212; 60 WN 148 at 150.' In the context of the obligation of District Court judges, the principle was restated and explained by this Court in Pettitt v Dunkley. [1971] 1 NSWLR 376. Asprey JA (at 382), after citing Carlson, expressed the judicial obligation in these terms: '...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 as a judicial person to exercise and such a decision on his part constitutes an error of law.' "

Kirby P considered the question about the extent of reasons on particular issues and said:-

"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. To adapt the words of Chilwell J in Connell v Auckland City Council [1977] 1 NZLR 630 at 634 the failure of a court to afford reasons in such a case may, in a modern community, result in a litigant who is not only 'disappointed' but 'disturbed'. Such a result would be unacceptable precisely because of the statutory limitation on appeals to this Court. It would be doubly so because of the strict approach taken by the Court to that limitation. The corollary of the Court's strict approach is the obligation of the judge of the Compensation Court, by his reasons, to demonstrate, in his determination of relevant factual disputes, that his conclusion amounts to a proper application of the statute. That was not done here."

26 In Fleming v The Queen[15] the High Court, in its joint judgment, said:-

"It was held in Pettitt v Dunkley that the failure of the trial judge, sitting without a jury, to give reasons for his decision made it impossible for the Court of Appeal to determine whether or not the verdict was based on an error of law, and this had the consequence that the failure to give reasons itself constituted an error of law. In Public Service Board of NSW v Osmond, Gibbs CJ said that the decision in Pettitt v Dunkley: 'that the failure to give reasons was an error in law may have broken new ground.' Even if that be so, and we should not be taken as acceding to the view that new ground was broken in Pettitt v Dunkley, the reasoning of the Court of Appeal upon the construction of s 142 should be accepted."

Although these remarks are strictly dicta, they do provide clear guidance on the issue before this Court. The remarks accord with views expressed in Full Court decisions in this State delivered since Lawson v Lee.

28 Those decisions include Boylan v Farthing & Ors[16] where Olsson J (with the agreement of Cox and Mullighan JJ) said:-

" In my judgment in Manos v Oates (1990) 155 LSJS 385, I made reference to the principal authorities bearing on the requirement that a judicial officer publish adequate reasons for any decision come to. Those authorities indicate that what is adequate will depend upon the nature and circumstances of the specific case but, as was said by the Full Court in Lawson v Lee (1978) 19 SASR 442 at 466, the fundamental requirement is that reasons be coherent, intelligible and comprehensive. In my view the reasons published in this matter fail to satisfy all prongs of that test. ... A failure to meet this type of requirement will normally give rise to a conclusion that there has been a mistrial (Mifsud v Campbell (1990-91) 21 NSWLR 725 at 728-9). It certainly amounts to an error of law. Whilst it is true that some issues were identified and addressed, a failure to make adequate findings of narrative fact, to deal with the issues of credibility in a definitive fashion, and to indicate clearly the basis of arriving at certain conclusions render it exceedingly difficult, if not impossible, to come to terms with the issues arising on this appeal."

29 In T v Medical Board (SA)[17] the Court in considering a failure to give adequate reasons for judgment conducted an extensive review of authority, including the cases of Pettit v Dunkley[18]; Watson v Anderson[19]; Connell v Auckland City Council[20]; Lawson v Lee[21]; Mobasa Pty Ltd v Nikic[22]; NRMA Insurance Ltd v Tatt [23]; Stojkovski v Fitzgerald [24]; Sun Alliance Insurance Ltd v Massoud[25] ; and Manos v Oates[26]. A number of these authorities concluded that a failure to give adequate reasons was an error of law. Matheson J (with whom Debelle J agreed) said at page 394:

"I agree with Mr Abbott that the case demanded more adequate reasons. If there was no more in the appeal than what I have already discussed, I would have been disposed to allow the appeal and to remit the case for rehearing."

"... the Tribunal committed an error of law by virtue of the fact that it failed to publish adequate reasons for decision."

31 Lander J addressed the issue in the matter of Gikas v Police[27] His Honour referred to the decisions of Pettitt, Soulemezis and Sun Alliance Insurance Ltd and said:-

" The issue of credibility therefore was the primary issue in this case. There is no doubt that the learned Magistrate dealt with the question of the credit of the respondent's witnesses in some detail and more than adequately. However, he did not deal with the question of the credit of the appellant and his witnesses at all. ... In my opinion, that was an error and in the circumstances of this case an error of law."

32 In Kotz v Police[28] Martin J when considering the adequacy of reasons made reference to Fleming v The Queen said:-

" The authorities also emphasise that justice must be seen to be done. While the adequacy of the reasons in this regard will depend upon the circumstances of each case, in a contested matter where difficult questions arise concerning the use of highly prejudicial evidence, in my opinion the reasons should disclose the use that the Magistrate has made of the contentious evidence (cf Fleming v The Queen (1998) 73 ALJR 1). In such circumstances the failure to give adequate reasons cannot be excused on the basis that the Magistrate is presumed to know the law and to have applied it correctly. As mentioned, a presumption of that nature may be a sufficient answer in many circumstances, but not where a number of complicated questions arise that involve the use of highly prejudicial evidence."

This review of authority establishes that the failure of a magistrate to give adequate reasons is an error of law. In so far as Lawson v Lee expresses a contrary view, in my opinion it does not represent the current law.

The courts have encountered difficulty in articulating a test to determine whether or not reasons are adequate. Much must depend upon the circumstances of each case. As was said in Lawson v Lee [29]

, the reasons must be "coherent, intelligible and comprehensive." But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance Ltd v Massoud [30]:-

"The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:- (a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or (b) justice is not seen to have been done. The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."

In my view, the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed.

The issue that then arises is whether the Magistrate's reasons in this matter were adequate. The resolution of the issue of credit was central and critical to a proper consideration of the charges. The Magistrate dealt with the credit of the police witnesses, and his assessment of them, but he did not deal at all with the credit of the defendant or his witness or his assessment of them. He gave no reasons for his rejection of the defence case.

37 As Samuels AJ said in NRMA v Tatt [31]:-

"By recording only one side of the judicial equation he has deprived this Court of the opportunity of assessing the weight to be given to the finding on credit, which might thus be accorded for (sic) greater cogency than in the whole of the context it properly deserves. It is, to my mind impossible for a judge to make a finding on credit in a vacuum, as it were, without relating the witness' evidence, demeanour and particular circumstances to the other material evidence in the case ... the comparison which an appellate Court may make is between findings made by the judge below; that is to say, his or her finding on credibility viewed against findings on other evidence. It is only by this means that the appellate court can judge whether deference or disagreement is the appropriate response. ..."

This Court is left to speculate as to why the defence evidence was rejected. The Magistrate failed to reveal the reasoning on which the critical finding was based. The lack of reasons frustrates the performance by this Court of its appellate duties. The magistrate's reason were inadequate.

Justice was not seen to be done in this case. The approach taken by the Magistrate does not appear even handed. His manner of dealing with the police case and the defence case is markedly different and could lead to a sense of unfairness and injustice. As was said in Connell v Auckland City Council,[32]

the failure to afford reasons may result in a litigant who is not only disappointed but is also disturbed.

40 In summary, the Magistrate erred in failing to consider all relevant evidence. This failure was compounded by his failure to give adequate reasons. As both errors went to the issue of credit there must be a new trial. In the circumstances, there is no need to further consider the issue of the discretion to exclude evidence.

41 I would allow the appeal, and remit the matter for a further trial before another Magistrate.

1. The complaint was in the following terms:- "(1) On the 10th day of June 1998 at near Inkerman in the said State drove a motor vehicle on a road namely Port Wakefield Road while there was present in his blood the prescribed concentration of alcohol as defined in Section47a of the Road Traffic Act, 1961. It is further alleged that the concentration of alcohol was .101 grams in a hundred millilitres of blood.

(2) On the 10th day of June 1998 at near Inkerman in the said State drove a motor vehicle on a road namely Port Wakefield Road within a speed zone at a greater speed than the speed fixed for that zone and indicted by a sign erected under and which complied with the requirements of this Act Section 50 of the Road Traffic Act, 1961. And the complainant alleges that the sign erected indicated a speed of 110 kilometres an hour and that the speed of the said vehicle was about 160 kilometres an hour."

3 P_etersen v Samuels_ (1979) 20 SASR 474 at 480; Swanevelder v Holmes

15 (1998) 73 ALJR 1 at [22]

24 [1989 & 1990] WAR 328

(1) On the 10th day of June 1998 at near Inkerman in the said State drove a motor vehicle on a road namely Port Wakefield Road while there was present in his blood the prescribed concentration of alcohol as defined in Section 47a of the Road Traffic Act, 1961. It is further alleged that the concentration of alcohol was .101 grams in a hundred millilitres of blood.

(2) On the 10th day of June 1998 at near Inkerman in the said State drove a

vehicle on a road namely Port Wakefield Road within a speed zone at a greater

speed than the speed fixed for that zone and indicted by a sign erected under and which

complied with the requirements of this Act Section 50 of the Road Traffic Act, 1961. And the

complainant alleges that the sign erected indicated a speed of 110 kilometres an hour and that

the speed of the said vehicle was about 160 kilometres an hour.

[3] Petersen v Samuels (1979) 20 SASR 474 at 480; Swanevelder v Holmes (1990) 52 SASR 549 at 557-8

Road Traffic Act 1961(SA)

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