Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - When remedy available - Unsafe and unsatisfactory ground - Need to establish error of fact or law or both.

Kelly v O'Sullivan (1994 - [1995] TASSC 72; 1995) 4 Tas R 446; Australian Securities and Investment Commission v Hosken (No 2) [2000] TASSC 12; Hajdu v Brown [2007] HCATrans 245, referred to.

Judgment Number: [2008] TASSC 6

DAVID WILLIAM PHILLIPS v ASHLEY WILLIAM ROY ARNOLD

1 The applicant has filed a notice to review his conviction for driving a motor vehicle while exceeding a prescribed alcohol limit contrary to the Road Safety (Alcohol and Drugs) Act 1970, s6(1). The conviction relates to an incident that occurred on 5 December 2003 in Stewart Street, Devonport. The hearing that resulted in the conviction took place on 30 October 2007.

2 The grounds of review as particularised are that:

(i) there was insufficient evidence to satisfy the learned magistrate that the defendant had driven a vehicle; and

(ii) the learned magistrate gave no reasons for preferring the evidence of Constable Rigby to the evidence of the applicant.

3 The applicant does not dispute that at the time of the incident his vehicle, a utility, was in a public street, and that his blood alcohol reading was 0.174 grams of alcohol in 100 millilitres of blood. However, he contends that he had not driven his vehicle. The driving of his vehicle was the only element of the offence put in issue by the applicant.

4 The evidence called by the prosecution was given by Constable Sarah Mansfield and Constable Gavin Rigby. Constable Mansfield's evidence was to the following effect. Prior to the interception of the applicant's vehicle, she and Constable Rigby had received information that a vehicle parked in Stewart Street was about to be driven by a drunk driver. They drove to Stewart Street where she saw a utility which matched the description of the vehicle they were looking for parked on the northern side of Stewart Street, opposite the Westpac Bank, facing in an easterly direction. They parked the police vehicle in Stewart Street, facing in an easterly direction, outside the Workers Club and watched the utility. When she first saw the utility, its lights were not on. She saw the taillights and headlights of the utility go on and observed it do a U-turn. She and Constable Rigby drove to and intercepted the utility, which stopped outside the Westpac Bank facing west. She tapped on the driver's side window of the utility and required the sole occupant, the applicant, to submit to a roadside breath screening test, which he did. She then required the applicant to accompany her so as to undergo a breath analysis. He refused, said he had not been driving and told her to "fuck off". In the course of what then ensured, he was handcuffed before being conveyed to the Ulverstone police station where he underwent a breath analysis.

5 Constable Rigby gave evidence to the following effect. He and Constable Mansfield intercepted the applicant's utility in Stewart Street and at the time of the interception the utility was facing in a westerly direction. Prior to the interception, the police vehicle had been parked outside the Workers Club in Stewart Street facing in an easterly direction, and when the utility moved off, the police vehicle did likewise. He described the interception as a "mobile intercept". Constable Mansfield went to the driver's door of the utility and spoke to the applicant. She gave the applicant a breath test and directed him to undergo a breath analysis. He refused to do so, denied having driven the utility and told her to "fuck off". In the course of what then ensued, the applicant was handcuffed and taken to the Ulverstone police station where he underwent a breath analysis.

6 The applicant's evidence was to the following effect. At about 6.30pm on the night in question, he parked his utility in Stewart Street outside the Westpac Bank facing in a westerly direction. He then went to the Workers Club, which he left shortly before midnight. His intention was to telephone a taxi, but he had mislaid his mobile phone. He went to his vehicle to search for the phone, and entered it via the driver's side door, which he unlocked leaving the keys in the door. He located the phone between the passenger side door and the bench seat and as he did so a female police officer knocked on the window and directed him to get out. He was asked to provide a breath test, but he refused saying he had not driven the vehicle. Following an exchange between him and the police officers in which he used coarse language, he was handcuffed and driven to the Ulverstone police station where he underwent a breath analysis. He was then driven by the police officers to his residence in Nicholls Street, Devonport, where he realised that he could not get in as he had left his keys in the door of the utility. When he told the police officers of this they drove him to his utility, where the male police officer took the keys from the utility and told the applicant that he could not have them until the next day. The police officers then drove the applicant to his daughter's residence in Churchill Avenue, Devonport.

7 When cross-examined, both police officers said they had no recall of taking the applicant to Nicholls Street, or returning him to his utility to collect his keys. They both recalled dropping the applicant off at his daughter's residence in Churchill Avenue.

8 In the course of Constable Mansfield's cross-examination, it became plain that she was reconstructing parts of her evidence and some aspects of her evidence reflected poorly on her veracity. Those aspects include evidence she gave as to taking the applicant to the Devonport police station, as to a BAS information questionnaire that she completed, and as to her knowledge of notes she had taken of the incident.

9 When cross-examined, Constable Rigby did not purport to have a complete recall of what had occurred on the night in question. For example, whilst he said that the applicant provided a breath test in Stewart Street, Constable Rigby could not recall whether this occurred whilst the applicant was still in the utility or outside it. Insofar as Constable Rigby was giving evidence about something that had occurred just short of four years previously, his lack of recall did not reflect adversely on his credit. Nothing arose in the course of his cross-examination that cast doubt on his veracity. He was not cross-examined on his evidence that he had seen the applicant's utility move and it was not put to him that the utility had not moved. He was not asked to describe the movement of the utility and he did not do so. In result it cannot be said that his evidence as to the movement of the utility was inconsistent with that of Constable Mansfield and they gave consistent evidence as to: where the police vehicle was parked as they watched the utility; proceeding to intercept the utility when it moved; and the position of the utility at the time of the interception.

10 By the first ground of his notice to review, the applicant asserts that the learned magistrate's finding that the applicant was guilty is unsafe and unsatisfactory. As particularised, this ground is a contention that there was insufficient evidence to satisfy the learned magistrate that the applicant had driven his utility and, as argued, this contention was pressed as if this Court was rehearing the matter. That the contention is advanced under the cover of a ground asserting that the finding of guilt was unsafe and unsatisfactory must not divert this Court from applying the statutory test that governs the review, that is, error on the part of the learned magistrate of fact or law or both; Justices Act 1959, s107(4)(a). As to this statutory test, in Australian Securities and Investment Commission v Hosken (No 2) [2000] TASSC 12, Cox CJ said:

"In this jurisdiction, there is a well established line of authority, drawing largely from a similar line developed in the Supreme Court of Victoria, that an appeal by way of notice to review is not to be treated as an appeal by way of rehearing. In Richardson v Shipp [1970] Tas SR 105, Burbury CJ said, at 117:

'This is not an appeal by way of rehearing ... . The decision of a court of petty sessions upon questions of fact is to be treated upon a motion to review in the same way as an appeal from the verdict of a jury. In Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346, at p 351, in the joint judgment of the Full Court, the Court said:

"We have come to the conclusion that we should adopt the view that the Supreme Court on an appeal from petty sessions by way of order to review should, with regard to any question of fact, act according to long-established practice, and treat the matter in the same way as an appeal from the verdict of a jury. This was the view clearly stated by Hood J, in Aldom v Dunn [1917] VicLawRp 9; [1917] VLR 70, 23 ALR 3, and by Herring CJ, in Young v Paddle Bros Pty Ltd [1956] VicLawRp 6; [1956] VLR 38. It is a very long established practice, and appears to have been adopted by the Full Court in the early days of the colony, by analogy to the practice followed in England, under earlier procedures whereby decisions of magistrates were called in question ¾ see R v Reason [1795] EngR 4145; (1795) 6 TR 375; R v Smith [1800] EngR 191; (1800) 8 TR 588, at p 590; and see in Victoria R v Mollison; Ex parte Crichton [1876] VicLawRp 86; (1876) 2 VLR (L) 144; R v Grover; Ex Parte Parsons [1881] VicLawRp 115; (1881) 7 VLR (L) 334; Quick and Berriman, The Victorian Magistrate (1924), at p 473, and Paul on Justices (1936), at p 479. The rule which prevails with respect to appeals from the county court, or from a single judge of the Supreme Court to the Full Court, or from this Court to the High Court, and which is stated in Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, therefore does not apply. Accordingly, it is not for this Court to make up its own mind upon the evidence, though giving weight if necessary to the fact that the tribunal below has seen the witnesses. This Court has merely to see whether there was evidence upon which the magistrate might, as a reasonable man, come to the conclusion to which he did come".'

Taylor v Armour & Co Pty Ltd (supra) has been followed in Victoria in Durstan v Mercuri [1969] VicRp 62; [1969] VR 507 at 514 (per Menhennett J); Surling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 at 11 (per Stephen J); Hardy v Gillette [1976] VicRp 36; [1976] VR 392 at 395 (per Anderson J) and Jansz v G M B Imports Pty Ltd [1979] VicRp 59; [1979] VR 581 at 589 (also Anderson J). In Tasmania, the same view has been taken in Bedelph v Weedon [1963] Tas SR 69 at 81 (Full Court); Benson v Rogers [1966] Tas SR 97 at 99 (Burbury CJ); Lowe v Burles 46/1976 Chambers J; Hrycyszyn v Groves & Anor 27/1982 Everett J; Greaves v Aikman (1994 - [1994] TASSC 129; 1995) 4 Tas R 196 (Cox J). In Kelly v O'Sullivan (1994 - [1995] TASSC 72; 1995) 4 Tas R 446 Green CJ said that he saw no reason to reconsider 'that long line of authorities', and found it unnecessary to do so for the purpose of that case. Crawford J, at 461, said of the quotation I have cited from Richardson v Shipp (supra) that he was 'not persuaded that it is an incorrect statement of law providing it understood that a criminal jury was being referred to and not a civil jury'."

11 In Kelly v O'Sullivan (supra), the Full Court considered whether a ground in a notice of review that asserted that a magistrate's decision was unsafe and unsatisfactory was necessarily invalid. In holding that this was not so, Green CJ said at 451:

"I hold that if a judge who is hearing a notice to review a magistrate's determination of guilt is not satisfied that it was open to the magistrate to be satisfied beyond reasonable doubt that the defendant was guilty then it has jurisdiction to review the order under the Justices Act 1959 because to find a charge proved when a reasonable doubt ought to have been entertained is an error within the meaning of Justices Act 1959, s107. It follows that this Court cannot say a priori that a ground of a notice to review which alleges that an order made by a magistrate should be set aside because it is based upon a decision which is unsafe or unsatisfactory is not a valid ground. However it will only be a valid ground if in fact it is based upon an allegation that the decision is unsafe and unsatisfactory because the magistrate was in error because he was satisfied that a charge was proved when he ought to have entertained a reasonable doubt. Notwithstanding the terms in which it is drafted that was in fact the basis upon which ground 1 of the notice to review was argued before this Court and I therefore hold that it was a valid ground.

I should make it clear that nothing I have said is intended to suggest that the functions of a judge hearing a notice to review are to be equated generally with those of a court of criminal appeal hearing an appeal from the verdict of a jury. In particular insofar as dicta which lay down how an appellate court should discharge its function are derived from statutory provisions which require the court to allow an appeal if it is satisfied that on any ground there has been a miscarriage of justice they are not applicable to the functions of this Court upon the hearing of a notice to review which may only review the order of a magistrate if it is satisfied that there has been an error of fact or law or both."

12 Consistent with the above, there is no justification for confusing the statutory test for invoking the jurisdiction of this Court on a notice to review with that which invokes the jurisdiction of the Court of Criminal Appeal, or with what has been described as a common law test. Such an endeavour was made and rebuffed in Hajdu v Brown [2007] HCATrans 245 (24 May 2007). In that case, the applicant, who was seeking special leave to appeal to the High Court against the outcome of a notice of review pursuant to the Justices Act, s107(4), contended that the primary judge had employed the wrong test in deciding whether the convictions under review were unsafe, unsatisfactory, or unreasonable. In dismissing the application for special leave, Hayne J, agreed with by Crennan J, said:

"[The applicant] contends that an appeal would require consideration of what he described as 'the correct approach and application of the common law test formulated in [M v The Queen [1994] HCA 63; (1994) 181 CLR 487] applied to a summary finding of guilt'.

The relevant question presented by the applicant's notice to review under the Justices Act was whether there was an error or mistake of fact. This Court's decision in M v The Queen was directed to the different question of whether, in the terms found in the common form criminal appeal legislation, there has been, on any ground, a miscarriage of justice. Although what is said in M v The Queen may provide some assistance in deciding whether a court of summary jurisdiction has made an error or mistake of fact, the ultimate question is presented by the relevant statutory provision, not a 'common law test'."

13 Accordingly, the issue raised by the first ground of appeal is whether the learned magistrate erred as it was not open to him to be satisfied beyond reasonable doubt that the applicant had driven his utility. Plainly that finding was open. Two witnesses before the learned magistrate gave evidence to that effect. Such inadequacies as there were in the evidence of Constable Mansfield, taken together with the applicant's denial that he had driven, provide no basis for concluding that the finding the learned magistrate made was not open and is erroneous.

14 The first ground of review fails.

15 In the course of announcing his reasons for decision, the learned magistrate correctly summarised the evidence given by Constable Mansfield and Constable Rigby as to the applicant having driven his vehicle. With respect to Constable Mansfield's evidence, the learned magistrate adverted to the deficiencies in her evidence and said that he did not place a great deal of reliance on her evidence. His Honour said that Constable Rigby was a more impressive witness than Constable Mansfield in a number of ways, and as to the crucial issue raised by the applicant's evidence that he had not driven his utility, the learned magistrate said:

"Now I prefer Mr Rigby's evidence to that of the defendant as to whether ... this vehicle was moving. Clearly the defendant was the only one in it. If it was moving he had to be driving it. I am satisfied that it was moving when it was intercepted."

16 The second ground of the notice to review is a contention that the learned magistrate erred in giving no reasons for preferring the evidence of Constable Rigby to the evidence of the applicant. Was it necessary for the learned magistrate to do so?

17 This was a case that turned entirely upon credit, and it is well established that ordinarily in such a case it is sufficient for the adjudicator to say that he or she believes one witness in preference to another. This approach has been accepted as correct in both civil and criminal cases. As to the former, in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR at 247, McHugh JA, at 280 said:

"Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary 'for him to go further and say, for example, that the reason was based on demeanour'."

18 In Zaronias v Papaiani [2002] NSWCA 207, Meagher JA, agreed with by Foster AJA and Ipp AJA, said at par7:

"Once a judge says 'This is the evidence I accept', the necessity for formulating reasons has passed - unless, perhaps, the evidence is absurd or self-contradictory. A judge is certainly not under any obligation to sift through all the evidence before him and explain at length why he rejects each item which is conceivably inconsistent with his decision."

19 Examples of a similar approach being adopted in criminal cases are Keyte [2000] SASC 382; (2000) 118 A Crim R 463 and R v Power [2003] SASC 77; (2003) 141 A Crim R 203. In Keyte, Doyle CJ, agreed with by Wicks J, said at par56:

"I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence."

20 A similar approach was enunciated in R v Power, Perry J, agreed with by Williams and Bleby JJ, pars 57 - 59. There may, of course, be circumstances where this approach is not satisfactory and it must be borne in mind that the mere preferring of the evidence of one or more witnesses over the evidence of a defendant is insufficient to satisfy the burden of proof in a criminal case, James v Eyles [2007] TASSC 55 at par29.

21 In this case, the learned magistrate recognised the clear conflict between the evidence of the witnesses for the prosecution and that of the applicant and decided against the applicant. Whilst the learned magistrate did not expressly say that he did so beyond reasonable doubt, I am satisfied that he so found. In the paragraph that followed the finding that resulted in the conviction in question, his Honour acquitted the applicant on another charge, saying: "So I am not satisfied beyond reasonable doubt as to that one, and I'm dismissing [it]." The conflict between the evidence of the applicant and the two police witnesses on the issue of whether the applicant had been driving was such that I am unpersuaded that it was necessary for the learned magistrate to do more than identify the evidence that he accepted. It was not necessary for his Honour to set out his explanation for prefering the evidence of Constable Rigby over that of the applicant.

22 The second ground of review fails

23 The notice to review is dismissed.