Seears v Norman [2013] ACTSC 7

3. The only witness on behalf of the prosecution in the Magistrates Court was Constable James Norman. At 8:30pm on Friday 14 May 2010, he was conducting a mobile patrol on Oodgeroo Avenue in Franklin in the Australian Capital Territory. At about that time he saw a black Harley Davidson motorcycle, ACT registration 75190, travelling south on Gungahlin Drive in Gungahlin. When Constable Norman first saw the motorcycle he was several hundred metres from it. Oodgeroo Avenue forms a T-intersection with Gungahlin Drive. By the time that he got to the intersection of Oodgeroo Avenue and turned left into Gungahlin Drive he could see the motorcycle approaching the intersection at Well Station Drive. He subsequently followed the motorcycle, and maintained a continuous observation of it as it went down Grimwade Street and turned into the rear of 73 Heffernan Street at Mitchell. Constable Norman stated that the rider of the motorcycle appeared to be "an elderly gentleman, slightly built. I'd say approximately sort of 5'8 to 5'10, grey hair wearing a t-shirt and jeans and I believe a black leather vest over the top of the t-shirt". He described the vest worn by the motorcycle rider as a sleeveless leather vest with no obvious markings. The rider of the motorcycle was wearing a helmet, which he described as a black open faced motorcycle helmet.

4. Constable Norman stated that as he pulled up behind the motorcycle, the rider pulled the kickstand down on the bike, got off the bike and walked in through the door at the rear of 73 Heffernan Street. Between the bike and the rear door the rider went through the motion of taking his helmet off. At that time it was dark, but there was light at the rear of the premises which lit up the immediate area where the motorcycle was parked and the area of the door to 73 Heffernan Street.

5. 73 Heffernan Street is the clubhouse of the Rebels Motorcycle club. The rider of the motorcycle in question entered the rear door of 73 Heffernan Street. As he did so two other males came out of that door. One of these was a Mr Mamo, who was known to Constable Norman. Mr Mamo approached Constable Norman and asked whether he could be of assistance. Constable Norman testified that he told Mr Mamo that he wanted to speak to the rider who had just got off the motorcycle and walked through the back door. The two males then went back into 73 Heffernan Street. A short time later a male came out the rear door of 73 Heffernan Street, came to the window of the police vehicle and stated that he had been the rider of the motorcycle. Constable Norman stated that this male did not fit the description of the person he had seen alight from the motorcycle. This male was significantly larger than the rider of the motorcycle, and was wearing a black long-sleeved t-shirt and had a shaved head. Constable Norman said that he was not the rider of the motorcycle.

6. At this point Mr Mamo again came over, and Constable Norman told him that the person he had just spoken to was not the rider of the motorbike. He told Mr Mamo that he wanted to see the rider who had just got off the bike and walked into the rear of the premises. Mr Mamo went back inside. A short time later he re-emerged and advised that the rider was in the toilet and will be out shortly. A minute or so later the appellant walked out the rear door and approached the police vehicle.

7. As the appellant approached, Constable Norman observed that he was wearing jeans, a short-sleeved t-shirt and had grey hair, was of a slim build and appeared elderly. Constable Norman believed that this person matched the description of the person he had seen alight from the motorcycle. Constable Norman said to him "I've just followed that motorcycle down Gungahlin Drive through Mitchell, obviously to the back of where we are now, 73 Heffernan Street. Were you the rider of that motorcycle?" Constable Norman testified that the appellant said that he had been.

8. Constable Norman then required the defendant to undertake a breath screening test, which proved positive. It is common ground that the appellant was then taken into custody, and returned in a police vehicle to Gungahlin Police Station where he underwent breath analysis. The result of the breath analysis was a reading of 0.081 grams of alcohol per 100 millilitres of blood. This is a level three reading for the purposes of the Road Transport (Alcohol and Drugs) Act 1977.

9. The prosecution also elicited through Constable Norman that a search of the registration indexes in the Australian Capital Territory revealed that the motorcycle Constable Norman had followed to the rear of 73 Heffernan Street was registered to the wife of the appellant. Constable Norman also testified that at no time on the evening of 14 May 2010 did the appellant claim that he had not been the rider of the motorcycle.

10. In cross examination Constable Norman agreed that the vest worn by the rider of the motorcycle as it approached 73 Heffernan Street had no obvious markings on it. The appellant suggested to Constable Norman that Constable Norman had not asked him whether he was the rider of the motorcycle, but instead asked him whether he was the owner of the motorcycle. Constable Norman denied that suggestion.

11. The appellant gave evidence in the Magistrates Court. He testified that at the time that the motorcycle was being ridden as observed by Constable Norman, he was not the rider of the motorcycle. He stated that at that time he was in the clubhouse at

73 Heffernan Street Mitchell having a drink. He stated that it is common for people at the clubhouse to take a motorcycle that is parked at the clubhouse. He testified that it is a very common practice for someone to borrow a motorcycle without the person who owns it knowing because they are just going away for a short while.

12. The appellant gave further details of his movements that evening. He testified that he left home between 5:30pm and 6:00pm and rode to the clubhouse at Mitchell. He testified that he drove down the Gungahlin Drive extension and then turned right into Mitchell. He said that he had not been driving on Oodgeroo Avenue that evening. He said that after police had arrived later in the evening someone asked about his motorcycle, and he went out and he believed that the Constable asked him "Is that your motorcycle? Are you the owner of that motorcycle?" He said that he told Constable Norman that he was the owner of the motorcycle, at which point Constable Norman then required him to undertake a breath test. The appellant testified that he protested that he had not been riding the motorcycle, but that Constable Norman did not listen to him. He testified that he ceased protesting because he believed that it was pointless.

13. In cross examination the appellant stated that he was wearing jeans, a t-shirt and his vest with the Rebels insignia on it when he rode to Mitchell that evening. He also testified that when he went out the rear door of the club house there were two police cars on the scene. He believed that both police cars were marked police cars.

14. The appellant called his wife, Christiana Seears, to give evidence in the Magistrates Court. She testified that she recalled him leaving to go to the clubhouse in Mitchell between 5:30pm and 6:00pm on 14 May 2010. She testified that he was wearing jeans, a t-shirt and his "colours". By colours I understand her to mean a vest or jacket with the Rebels Motorcycle Club insignia on its back.

15. The appellant also called Steven Kelly to give evidence. Mr Kelly gave evidence that he had been a member of the Rebels Motorcycle Club for about 20 years. He said that in that time he had never witnessed another member of the club ride their motorcycle without wearing their club colours. He had never witnessed the appellant riding his motorcycle without his club colours. Mr Kelly stated that not everybody in the clubhouse that evening was a member of the Rebels Motorcycle Club, and some may have been wearing black vests without the club insignia on them. He also testified that it is part of the constitution of their club that they are obliged to wear their colours when they ride their motorcycle. He also agreed that from time to time people other than the owners of bikes would use them to go for a ride.

16. In cross examination Mr Kelly stated that the appellant arrived at the clubhouse between 5:30pm and 6:00pm. Mr Kelly stated that the appellant was wearing jeans and his colours. He did not believe that the appellant was drinking that night. As far as he was aware the appellant did not leave the clubhouse before police arrived.

17. The final witness on behalf of the appellant was Shane Anthony Hamilton. Mr Hamilton stated that he was at the Rebels clubhouse on the evening of 14 May 2010. He stated that Mr Mamo came into the clubhouse and said "The police are outside and they want to talk to whoever just rode in". Mr Hamilton went outside and said "That was me that just rode in". He said that the police officer then said "No, I've got the wrong person". At that time Mr Hamilton went back into the clubhouse. Mr Hamilton further stated that he had not seen the appellant either leave or enter the clubhouse in the proceeding half hour. The value of that final statement was somewhat diminished by the fact that the witness said that he had only ridden to the clubhouse a quarter of an hour earlier. Mr Hamilton also stated that there were two or three police cars at the rear of the clubhouse when he went outside. He further stated that all of the club member's bikes were parked together. Mr Hamilton also stated that it was common for nominees of the club to ride member's motorcycles.

18. The Magistrate did not give conventional reasons for finding the appellant guilty. Instead of giving the appellant an opportunity to make uninterrupted submissions, his Honour engaged the appellant in a debate about the evidence. Perhaps his Honour intended to direct the appellant to those aspects of the case that were troubling him, but if that were the case one would have expected that he would then give reasons for rejecting the appellant's evidence. As it was, in the middle of this debate, the Magistrate simply announced that he found the offence proved.

19. Few are as cognisant as I of the pressure of work in the Magistrates Court, but no workload can justify such an egregious failure to provide one of the basic obligations of procedural fairness. In itself, the Magistrate's failure to give reasons constitutes an error of law, albeit one of which the appellant has not complained in these proceedings.

20. The live issue in the proceedings in the Magistrates Court was whether the appellant was the rider of the motorcycle at the relevant time. The appellant gave evidence that he was not the rider. He called witnesses who supported his testimony, albeit that their evidence did not go so far as to preclude the possibility that he was the rider. The Magistrate did not address any of that material so as to demonstrate a rational reason for rejecting it. Nor did he expose his reasons for concluding to the requisite standard that the appellant was the rider.

21. The case against the appellant was circumstantial. No witness identified him as the rider of the motorcycle at the relevant time. The Magistrate made no findings as to the credibility of the appellant, so that I am in as good a position to determine the question of the appellant's guilt as was the Magistrate. The failure of the Magistrate to give reasons for his decision means that the appeal must be upheld. Whilst the prosecution case is not inherently weak, I am left with a doubt as to the guilt of the appellant, and he is entitled to the benefit of that doubt.

22. The appeal is upheld. The conviction and penalty imposed by the Magistrate are set aside and a verdict of not guilty is substituted.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Counsel for the appellant: The Appellant appeared in person

Solicitor for the respondent: ACT Director of Public Prosecutions