Smith v McDonald [2010] TASSC 26

Judgment Number: [2010] TASSC 26

1 The applicant has filed a notice to review his conviction for driving a motor vehicle while exceeding the prescribed alcohol limit contrary to the Road Safety (Alcohol and Drugs) Act 1970, s6(1). He was convicted after a hearing before the learned Chief Magistrate on 17 November 2009. At that hearing the only element of the offence that was in issue was whether the applicant was the driver of the motor vehicle. He did not dispute the other elements of the offence and that his blood alcohol reading was 0.321 grams of alcohol in 100 millilitres of blood. The grounds of review are:

"1 That the learned magistrate erred in law in holding that, upon the whole of the evidence, the complaint was proved beyond a reasonable doubt.

2 The learned magistrate erred in law in finding that evidence given by witness Peter Flynn called for the defence should be discounted on the basis that he was evasive and unresponsive."

2 The applicant's argument on appeal focussed on the first ground of review and the general grievance that the learned Chief Magistrate erred in law in reaching a finding of guilt beyond reasonable doubt. The argument involves an assessment of the evidence before the court and focuses exclusively on the only live issue at the hearing of whether the applicant was the driver. A significant amount of evidence was not in dispute. That uncontentious evidence is set out as follows.

3 On Saturday night 8 February 2009, at approximately 4am, the applicant's Volkswagen "Beetle" collided with a power pole in Fisher Avenue on the corner of Chessington Court in Sandy Bay. Police officers, Senior Constable Barber and Constable Blacklow, were called to attend. They found the applicant lying on the road near his motor vehicle injured but conscious. It transpired that prior to the collision he had travelled in his motor vehicle from a party held in Hampshire Road. At the scene was a nurse, Ms Sue-Ellen Gough, who lived nearby and, on hearing the crash had come to offer assistance. The applicant exhibited signs of intoxication. He was taken by ambulance to hospital. As noted, his blood alcohol reading was .321 grams of alcohol in 100 millilitres of blood. He was admitted to hospital and received treatment for his injuries. In June he attended the police station but declined to participate in an interview with police.

4 As part of the unchallenged evidence the prosecution tendered a document during opening comments which was a letter detailing an interview conducted with the applicant on 30 March 2009 by Mr Terence P McCarthy of Thomas Whayman & McCarthy, addressed to the Motor Accidents Insurance Board. The document was tendered by the prosecutor with the only explanation that it was "by consent". The document reveals that the interview was conducted by Mr McCarthy for the MAIB and was concerned to address allegations made by the applicant that another person may have been driving his motor vehicle. The letter revealed that the applicant did not have a recall of the specific details of the incident. It contained hearsay statements by the applicant about what he had been told by others, an opinion by the author favourable to the defence case as to the applicant's veracity that "Mr Smith presented as a forthright and reliable person who appeared to have a genuine lack of memory in regards to the accident circumstances", and some commentary about the answers given by the applicant.

5 In summary, the contents of the letter were supportive of the defence case. In particular, the letter supported the defence position that the applicant did not have a memory of the incident. The hearsay material supported the defence case that another person from the party had driven the applicant's motor vehicle. Despite the inadmissible quality of much of the contents, and that to a significant extent the contents of the document were adverse to the prosecution case, the document was tendered without any constraints placed on the use that was to be made of it.

6 The witnesses called for the prosecution were Senior Constable Barber and Constable Blacklow. A central aspect of the prosecution case is the evidence of an admission made by the applicant to police officers at the scene of the collision. It was not disputed by the defence that the admission was made and the issue was the weight to be given to the admission. The applicant's case was that if the admission was made it was inherently unreliable because of the accused's medical condition.

7 Senior Constable Barber gave evidence that he asked the applicant what had happened and the applicant told him he had had a crash. Senior Constable Barber asked the applicant if he was the driver of the vehicle and the applicant said "yes". Senior Constable Barber gave evidence that he went on to ask if anybody else had been in the vehicle at the time of the crash and the applicant said "no". In cross-examination Senior Constable Barber gave evidence that he observed that the applicant was injured. He was asked by defence counsel whether the applicant was concussed and he said he had no idea. He was asked whether it was possible he may have been, and the officer responded, "I don't doubt that at all". When asked about whether the answers may have been incorrect because the applicant was dazed and confused, Senior Constable Barber responded that he believed what he had been told by the applicant. Constable Blacklow was asked whether the applicant was concussed when he made the admission and the officer replied that was possible.

8 Other aspects of the prosecution case were not disputed. Senior Constable Barber stated that the applicant was located on the roadway probably 4 - 5 metres from the rear left corner of the vehicle. In cross-examination he stated he was more to the passenger side than the driver's side of the vehicle. Senior Constable Barber gave evidence that the driver's side door was open and the passenger's door was closed. Constable Blacklow also gave evidence that the driver's door was open, but did not say whether the passenger door was open or closed.

9 There was evidence about the damage to the motor vehicle and location of blood found inside the motor vehicle which was relied on to show that the driver was injured and by implication not the passenger. Senior Constable Barber gave evidence that the Volkswagen was against the power pole and "head on central" to the power pole. He observed that the windscreen had popped out and was lying on the ground next to the vehicle. Damage to the windscreen was to the driver's side and it appeared to have been caused centrally from the head of the driver impacting against the windscreen. Senior Constable Barber gave evidence of a small amount of blood on the windscreen where the damage was. There was no damage to the passenger side of the windscreen and no blood on the passenger side. Constable Blacklow gave evidence to similar effect.

10 In cross-examination, photographs of the vehicle were tendered. Senior Constable Barber agreed that the photographs showed damage to the passenger side of the vehicle under the glove compartment area. The photographs that were tendered show damage to the glove compartment area and to the exterior of the motor vehicle on the front left-hand side extending from the middle of the bonnet.

11 The defence case presented at the hearing consisted of the evidence of a nurse and a witness first at the scene, Ms Sue-Ellen Gough, Mr Peter Flynn who gave evidence that he was the driver and that after the collision he fled the scene, and Mr Rohan Powell who hosted the party. The evidence given by the witnesses was challenged by the prosecution. Extracts of the applicant's medical records were tendered by the defence. The following parts of these records were drawn to the learned Chief Magistrate's attention during the defence case:

•

upon presentation at the hospital the applicant was intermittently confused (page 1).

•

that he did not recall the accident (page 3 first paragraph).

•

the applicant was given a brain scan.

•

he was unable to move due to a dislocated hip.

12 The substance of Mr Flynn's evidence was that he and the applicant left the gathering in the applicant's motor vehicle and he drove, and the applicant sat in the front passenger seat. At the commencement of his evidence he declined to say anything on the basis that it may "incriminate" him, and a certificate was sought on his behalf. After some discussion the learned Chief Magistrate gave an indication that he would give a certificate in relation to evidence given by Mr Flynn tending to prove that he had committed an offence (see Evidence Act 2001, s128). The certificate was granted at the conclusion of Mr Flynn's evidence.

13 The account given by Mr Flynn about his act of driving was as follows. He stated that as he drove down the hill, he put on the brakes to go into the right angled corner the left wheel locked up, and the right wheel locked up, and then the foot went flat to the floor and there was nothing. He hit the power pole. He was asked whether he was injured and he said that his head was a bit shaken. He was asked whether it was bleeding and he said he did not know. He was asked what happened after the accident and he said he did not recall.

14 In cross-examination Mr Flynn answered questions about what occurred after the accident and he gave details as if he did in fact have a memory, contrary to his evidence-in-chief. In essence, he said he got out of the car, his friend appeared to be hurt and fell out of the motor vehicle onto the ground. A lady came straight over "before I got a chance to move away from everyone". When asked whether he asked her to call an ambulance for his friend, he responded that he imagined he did ask her to do that. When asked for a definite answer as to whether he made that request, he answered that he has attention deficit disorder. Mr Flynn said that he had many, many medical reports about his head injuries and things like that, and he does not recall things, and he cannot explain things, and he does not understand things.

15 When pressed about why he left the scene, he said he was not planning on leaving but then two people said to him, "What are you still doing here, what are you still doing here, you should go". When pressed further about why he did not wait for the police, his response was that he has attention deficit disorder and he "freaked out". On this topic, he again mentioned he had had a bang to the head and that he had no idea. When asked why he did not later go to the police station, he said he was too scared.

16 He was asked whether he went to see his mate in hospital and he replied that he saw him the next day and he explained exactly what had happened. There was some cross-examination about what he told the applicant at the hospital (at page 33 and following).

17 Ms Sue-Ellen Gough gave evidence for the defence. Her account was that she was at her home in Fisher Avenue and she was woken by a loud bang. She got up, put her dressing gown on and drove to the accident scene. Her evidence was that she saw the applicant lying on the ground, trying to get up, but he could not do so. He was just behind the car to the left-hand passenger side. The applicant was trying to walk, but he kept falling. She asked him to keep still and then one of his friends came running down and they got the police and ambulance involved. She was asked in evidence-in-chief whether she saw anybody else when she arrived at the scene. Her response was:

"Yeah, look the next day I saw - remembered thinking that I saw someone run off and I probably should have told the police that the night before but I wasn't really concentrating on anyone else but Adam."

In cross-examination she was asked about that person who was present when she arrived:

"Okay, so when you got there there was nobody else about?......I think there was somebody else about, but I really was concentrating on Adam.

When you say you think there was somebody else about, did somebody come and talk to you and sort of say, 'Well this bloke's hurt', or 'I'll get an ambulance', or anything like that?......Well there was someone and he sort of said to me, 'I'm out of here', and he sort of said to us - said to me and then ran and I should have probably told the police that the next day, I should have, when I was thinking about it, but I didn't, 'cause I didn't think it would get to court."

Ms Gough was asked what he looked like and she said she didn't know. She was pressed on that:

"Sorry?......Can't remember.

Okay......He had short brown hair. I can't remember.

Never seen him before, never seen him since?......Never seen him before and I've seen him out there.

So that's him out there, is it?......I think it was. Well I gathered that today, I mean -

Well -........Okay, no, I can't remember."

Then later during cross-examination, she gave the following evidence:

"And when you got there the other person may or may not have been there?......No, the other person I think was there, but because I sound really stupid, and I'm not, I can't really remember. I really was just focussing on Adam.

Yep......If you had arrived at that scene and saw that crash you would have too.

When he left - I think you said in your evidence that he ran off, is that right?......Well that's what I think happened.

He ran off?......To my knowledge he ran off.

Yep, he didn't have - there was no other people there after -........Should have I rung the police the next day, absolutely, I should have."

During her evidence she clarified that the male who was at the scene and ran off was a different person to the male who came down Fisher Avenue, arriving after she did. That male had a mobile phone and he rang the police and the ambulance.

There was further questioning about the male who had left the scene:

"Right. The bloke that said, 'I'm out of here' had left before that -.......I don't even know if he said those words, I can't remember, I mean you're asking me to quote somebody at three o'clock in the morning when I'm absolutely half asleep, half awake and looking after somebody who I thought was really injured, I can't remember exactly what he said.

Yeah, but what -......Well you were trying to make me say that, but I can't.

Well you're the one who said it, right, you - you said -......Well then I apologise and I shouldn't say anything.

You said those words. I'm not being aggressive with you, you told us those words, right, so they're the words I'm using.......Okay, but I don't know if I said those words.

Or words to that effect?......Thank you, to words of that effect, that's what he said."

18 Mr Rohan Powell gave evidence that the applicant and Peter Flynn were at his house at Hampshire Road on the evening of the collision. He stated that he "kicked out" a group of people, including the applicant, Peter Flynn, and a few other friends because he wanted to go to bed. He was on his balcony cleaning up and he saw them on the road. There was a group of four or five people around the applicant's car. He saw the applicant open the passenger door and lean into the passenger side. He did not see anyone get in the car. He did not see anyone get into the driver's side. He left the balcony and he continued cleaning up. He heard a bang, crash and Volkswagen Beetle engine noise and he left his house and went out into the street and saw that the applicant's vehicle was gone.

19 Mr Powell gave evidence that he ran to the accident scene and saw the vehicle against a pole and the applicant lying on the ground. The passenger door was wide open and he was pretty sure that the driver's door was closed. The applicant was on the passenger side of the vehicle and about a metre away from the vehicle. Mr Powell gave evidence that a few minutes after he got to the scene he saw Mr Flynn there. In cross-examination he stated that Mr Flynn came down the street "from very near the car where I was". He had a conversation with Mr Flynn about the applicant's condition. Mr Flynn left the scene.

20 At the conclusion of the defence case the learned Chief Magistrate delivered his decision. There was no application made for leave to make submissions, or enquiry from the bench in relation to whether leave was sought.

21 The learned Chief Magistrate referred to the evidence that is not in dispute, including the letter from Mr McCarthy. He referred to the following aspects of it:

" ... the defendant said that he'd not intended driving home from this party. He believe he'd left with someone else, he didn't say who that someone else was. He said he hadn't been wearing a seat belt and that explained the injuries. There are some observations in that document about his condition. He was obviously drunk on any version of the facts, it seems to me."

22 If the remark that the applicant "believed he'd left with someone else, he didn't say who that someone else was" is taken out of context, it could be seen as critical of the applicant. However, the learned Chief Magistrate makes no adverse comment about such a belief and in the circumstances of this case, the remark could not be seen as a criticism. This is not a case where there is any suggestion of a convenient memory loss by the applicant. It is plain from Mr McCarthy's letter that the applicant's belief that he had left with someone else was explored by the investigator against a background of a lack of memory. The learned Chief Magistrate did not use this evidence to draw an adverse inference against the applicant, no doubt conscious of the evidence that the applicant did not have a specific recall of the incident at the time of the interview with Mr McCarthy.

23 The learned Chief Magistrate found various aspects of the prosecution case to be persuasive and they were:

• that the defendant was found close to the vehicle;

• that the vehicle was the defendants;

• the admission by the defendant that he was driving.

24 The learned Chief Magistrate referred to the evidence from the defence relevant to the issue of who was driving. The learned Chief Magistrate found Mr Flynn to be an evasive witness, and he rejected his evidence. He found that the evidence of Ms Gough raised a possibility that there was someone else around but it did not do more than that. He found Mr Powell to be unimpressive.

25 The learned Chief Magistrate referred to the admission made by the applicant to the police and accepted that it was a reliable admission. He stated as follows:

"Now there's some suggestion in cross-examination, but no evidence, that in fact the defendant was confused, drunk, whatever, injured and that that admission, and it is an admission, is not to be taken as a reliable one."

The learned Chief Magistrate referred to the admission in his conclusion:

"I'm satisfied on the evidence that this was the defendant's motor vehicle, he admitted to the police officers that he was driving the vehicle, I accept that that admission was made and I accept that there's nothing before the Court by way of evidence to suggest that that particular admission is unreliable or in some way not to be considered as a considered admission. I'm satisfied beyond any reasonable doubt that this complaint's proved."

26 In advancing the first ground of review it was submitted that the learned Chief Magistrate made errors of fact, and that the finding of guilt was unsafe and unsatisfactory. The first ground of review asserting an error in law was expanded to encompass errors of fact. Notice of the expanded version of the first ground of review was provided in a document with the heading "Further and Better Particulars" dated 22 February 2010. The respondent did not take issue with this approach. There were three aspects of the learned Chief Magistrate's decision referred to in the submissions and the particulars of ground 1 that were challenged as erroneous:

(a) The applicant's admission to police that he was the driver was not reliable.

(b) The learned Chief Magistrate failed to take into account the applicant's injuries and his position on the road and the damage to the motor vehicle suggesting that the applicant was in the passenger's seat at the time the motor vehicle collided with the pole.

(c) The finding that the applicant was the driver of the vehicle was challenged as contrary to evidence from a number of witnesses which ought to have been accepted.

27 The second ground of appeal that the learned Chief Magistrate erred in law or in fact by discounting the evidence of Mr Flynn as evasive and unresponsive, was advanced by endeavouring to show that his poor demeanour was consistent with a witness who was confronting his wrongdoing and should be attributable to the fact that he was admitting to a crime that he had previously tried to avoid.

28 It was submitted for the respondent that it was open to the learned Chief Magistrate to make the findings of fact under challenge. It was open for a magistrate to conclude that the admission made to police was reliable and, even without that admission, there was sufficient evidence to substantiate a finding of guilt beyond reasonable doubt.

29 The respondent relied on Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217 as having application because the applicant did not give evidence and so it was open to a magistrate to more readily draw an inference in the prosecution's favour.

30 In relation to ground 1, it was submitted that the ground of appeal is very limited in application and cannot succeed if the learned Chief Magistrate could have come to the conclusion to which he did. Reliance was placed on Phillips v Arnold [2009] TASSC 43, and comments made by Crawford CJ, as authority indicating that the ground of appeal of unsafe and unsatisfactory is no longer available. It was emphasised that the sole issue raised by the ground of review in this case was whether the learned Chief Magistrate erred on the basis that he could not have concluded that the applicant was the driver. It was noted in submissions that where the decision depends very much on the credit of witnesses a reviewing court will rarely overturn it (Phillips v Arnold, par[47]).

31 In relation to ground 2 and the witness Mr Flynn, detailed submissions were made highlighting various inconsistencies in his evidence and references from the transcript where his poor demeanour was evident, such as references to him smiling during his evidence and needing to be directed to answer questions.

32 In this case, a submission that the learned Chief Magistrate's conclusion was unsafe and unsatisfactory was made to support the first ground of review that an error of law was made in reaching the conclusion that the complaint was proved beyond reasonable doubt. Recently it has been emphasised that an assertion that a finding of guilt was unsafe and unsatisfactory is not a proper ground of appeal. For the purposes of the Justices Act 1959, s107(4)(a), the Court is only concerned with the question of law whether there was evidence before the magistrate upon which he or she was reasonably entitled to hold that the charges were proved: Murray v Maingay [2008] TASSC 18.

33 It may be noted that in this case the first ground of review is in proper terms and framed to reflect the terms of the Justices Act, s107(4)(a).

34 The question may be asked whether consideration of whether a magistrate's finding of guilt was unsafe or unsatisfactory is a valid enquiry on review and could have a bearing on the outcome. The commencement point for the consideration of reviews from magistrates to judges of this Court is the governing statutory provision. The Justices Act, s107(4)(a), provides:

"The grounds set forth in a notice to review shall allege -

(a) an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law; or ... "

This section may be contrasted with the appeal provision regarding jury verdicts in the Criminal Code, s402(1), permitting a focus on whether there has been a miscarriage of justice.

35 In Phillips v Arnold (above), Crawford CJ restated some of the pertinent principles governing reviews from a long line of authorities (par[46]):

"A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."

36 Crawford CJ went on to make an observation about reviews where the decision depends on the credit of witnesses (par[47]):

"In most cases an applicant for an evidence based review will find it a difficult test to satisfy. At the end of my judgment in Wood v Smith unreported 37/1991 ([1991] TASSC 12) I commented that 'when a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it'. That comment was based on experience and reflection but, of course, was not a statement of principle."

37 In an earlier passage (par[42]) there was reference by the learned Chief Justice to the comments of Hayne J, with whom Crennan J agreed, when refusing special leave to appeal in Hadju v Brown (2007) HCA Trans 245, and a ground in a notice to review that the magistrate's findings were unsafe, unsatisfactory or unreasonable. It can be seen from the short transcript of those High Court proceedings that counsel for the applicant sought to argue special leave should be granted with the contention that the appeal would require consideration of "the correct approach and application of the common law test formulated in (M v R [1994] HCA 63; (1994) 181 CLR 487) applied to a summary finding of guilt." The reasons for dismissing the application are short and as follows:

"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'."

38 These reasons emphasise the contrast between the statutory provision considered by the High Court in M v R involving a miscarriage of justice, and the statutory provision in the Justices Act. However, it is entirely in line with the reasons in Hajdu that in deciding a notice to review under the Justices Act that the court may give consideration to matters discussed in M v R. Distinct questions are posed by the statutory provisions, but the paths of enquiry set in train by these different statutory provisions may, in any one case, depending on the evidence, converge and result in the same outcome, the appeal being upheld.

39 The considerations from M v R that may assist in determining the notice to review may be if the evidence "contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force ..." in such a way as to lead the court of criminal appeal to conclude that, "even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted" (at 494 - 5).

40 It is acknowledged that the application of such considerations does not amount to an error or mistake for the purposes of the Justices Act, s107(4)(a), and therefore will not necessarily be determinative of a notice to review under the Justices Act. However, these considerations could assist in a focus on problems with the evidence and the Court's determination of whether a magistrate was reasonably entitled to hold that the charge was proved. For example, if the evidence is considered to be so weak or unreliable that a magistrate could not reasonably rely on it, then, depending on other evidence, that conclusion might dispose of the appeal.

41 This approach of treating such "unsafe or unsatisfactory" considerations as capable of informing the statutory test in the Justices Act, s107(4), but subservient to the ultimate question of whether the magistrate was in error because he could not reasonably be satisfied beyond reasonable doubt, seems to be the approach that was articulated by Green CJ in Kelly v O'Sullivan [1995] TASSC 72; (1995) 4 Tas R 446 at 451.

Ground 1: whether it was reasonably open to the learned Chief Magistrate to find that the applicant was the driver

42 While considerations in M v R may assist in deciding a review of a magistrate's decision, the ultimate question is whether the finding that the applicant was the driver, was reasonably open. The critical piece of evidence referred to by the learned Chief Magistrate substantiating his conclusion that the applicant was the driver was the admission made by the applicant to police. He noted that there was "no evidence" that the applicant was confused and no evidence to suggest that the admission is unreliable or in some way not a considered admission. This description of the evidence is erroneous. There was objective, uncontroversial evidence giving rise to real questions about the applicant's memory and whether he was confused.

43 The medical records reveal that at the hospital shortly after the collision, the applicant was displaying confusion. The learned Chief Magistrate did not mention this evidence. The extracts of the medical records, which I have summarised, describe him in the following terms:

Triage notes 05:03

confused

GCS 14

restless difficulty keeping patient still (intermittently confused)

Clinical Assessment

Does not remember happened

Medical Imaging notes

CT Brain, cervical spine and pelvis on 8/02/09

Reference to head injury currently GCS 15/15

44 The first reference to "confused" on the triage notes was a box that was ticked on a checklist for conscious level, with options of alert, confused, agitated, verbal response, pain response and no response. While nothing turns on this point, it is assumed that the reference to "GCS" is a reference to the Glasgow Coma Scale, and that 15/15 is full function.

45 An assessment of whether the admission by the applicant is reliable evidence of guilt does not turn on an issue of credit. There is no dispute that the admission was made. There is no dispute that the applicant was assessed as confused shortly after his admission to hospital. There is no dispute that the applicant did not remember the incident and who was driving when spoken to at the hospital shortly after the collision and then some weeks afterwards (medical records and Mr McCarthy's letter). The findings that there was no evidence that the applicant was confused and that there was no evidence that the admission was unreliable and not a "considered admission" overlooked uncontentious evidence and were grounded on an erroneous view of the evidence.

46 Furthermore, a finding that the admission was reliable evidence of guilt was not reasonably open. This is not a case where there is other evidence that could be viewed as shedding favourable light on the reliability of the admission. After the brief admissions were made, there was no further conversation with the police, and the applicant was taken by ambulance to hospital. The unchallenged evidence of deficient memory and confusion so completely undermined the reliability of the admission that it could not reasonably be treated as probative evidence of guilt, and the only reasonable approach was to allocate minimal weight, if any, to the admission.

47 There are other considerations that may cast further doubt on the reliability of the admission which it has not been necessary to take into account. The evidence of the applicant's blood alcohol reading of .321 grams of alcohol in 100 millilitres of blood might be seen as enough on its own to cast some doubt on the reliability of the admission. It has not been necessary in this case to consider authorities regarding the dangers associated with relying on unsigned admissions (Carr v R [1988] HCA 47; (1988) 165 CLR 314, and in relation to police notes of conversation and the risk of error: Allison v Kees Van Meer B31/1993 per Zeeman J at 4).

48 The other evidence relied on by the learned Chief Magistrate in reaching his finding of guilt was that the applicant was close to the vehicle and that the vehicle belonged to the applicant. Proximity of the applicant to his vehicle tends to establish that the applicant was travelling in the vehicle at the time of the collision, but does not assist in establishing that the applicant was the driver rather than a passenger. While ownership of the vehicle is a relevant consideration, this is not a case where the evidence suggests that it would be improbable for the applicant to be travelling as a passenger with another person driving his vehicle. There was uncontradicted defence evidence that other people left the party at the same time as the applicant and were seen milling around his vehicle.

49 The evidence taken into account by the learned Chief Magistrate as establishing that the applicant was the driver, was insufficient to ground that conclusion. The main piece of evidence had to be seen as unreliable and the other evidence was consistent with the defence case that the applicant was the passenger. However, in assessing whether it was reasonably open to the court to find that the applicant was the driver, all the evidence should be taken into account and not just the evidence relied on by the learned Chief Magistrate. At the hearing of the review the submissions for the respondent highlighted certain prosecution evidence as capable of supporting a finding of guilt. The applicant pointed to evidence from the prosecution case as well as the defence case to support the contrary position that a finding of not guilty was the only reasonable conclusion available to the court. I turn now to consider these aspects of the evidence.

50 There was reference to evidence regarding the car doors of the applicant's vehicle, the applicant's position on the road relative to his vehicle and observations regarding damage to the vehicle and the location of blood inside the vehicle. The learned Chief Magistrate did not mention these aspects of the evidence. That observation is not a criticism. This was an ex tempore decision given on a straightforward matter. I expect that the learned Chief Magistrate did not find the evidence of much assistance in determining the case and that is the reason it did not feature in his reasons. Some of the evidence tends to support the prosecution more than the defence and some tends to favour the defence more than the prosecution. Viewing the evidence from an overall perspective, it does not appear capable of advancing a consideration of the issues to a significant extent.

51 The police evidence was that the driver's side door was open and the passenger door shut. Putting to one side the witness Mr Flynn (rejected by the learned Chief Magistrate), defence witnesses who arrived at the scene before the police officers gave evidence to the contrary. If the learned Chief Magistrate had resolved this dispute in favour of the prosecution then it is of slight probative value given the defence case that there were two people in the vehicle.

52 As the first witness to attend the scene, the evidence of Ms Gough regarding the position and whereabouts of the applicant on the road was unchallenged and not in conflict with prosecution evidence. Noting the nature of the applicant's injuries, the evidence of Ms Gough on this point supports the defence case that the applicant got out of the passenger side of the vehicle. However according to her account he was moving about, albeit with difficulty, and he kept moving backwards and falling over, so the possibility is open that he managed to move from the driver's side.

53 It was argued for the applicant that damage to the front passenger side of the vehicle and the evidence that the applicant suffered injury to his left hip indicated that he was a passenger. The evidence showed that the damage intruded into the interior of the vehicle and can be seen under the glove compartment area. There is other evidence tending to suggest that the driver may have been injured. There was evidence of damage to the steering wheel. There was also evidence that the applicant suffered some lacerations to his face. There was evidence of a small amount of blood in the location of the damage to the windscreen on the driver's side. However, an inference that the blood was deposited by the driver and not the passenger is in the realms of speculation. Overall, the damage to the vehicle and the applicant's injuries might be thought to favour the defence contention that he was a passenger but it would be reasonable to treat it as equivocal evidence.

54 The applicant did not give evidence and there is a question of whether an inference ought to be drawn in the prosecution's favour in accordance with Weissensteiner v R. I emphasise that the learned Chief Magistrate did not suggest that the principles referred to in Weissensteiner v R applied to this case. The High Court decision is relied on by the respondent to support the learned Chief Magistrate's finding of guilt and demonstrate that it was reasonably open to him to reach that finding.

55 The principles in Weissensteiner v R permit a court to more confidently draw inferences from uncontradicted evidence. The failure of an accused to testify can only be used for the purpose of evaluating other evidence and cannot fill gaps in the prosecution case (Mason CJ, Deane and Dawson JJ, in a joint judgment, at 229). It is not every case where an accused fails to give evidence that the principles apply. They only apply if an accused would be expected to give evidence and would be able to shed some light on the events in question. This was emphasised in the joint judgment of Mason CJ, Deane and Dawson JJ at 228:

"Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them."

56 In this case there could have been no expectation that the applicant would give evidence such as to justify an inference. There is undisputed evidence that the applicant does not remember what happened and such evidence was before the court at the commencement of the prosecution case (letter to MAIB from Mr McCarthy dated 15 April 2009), and then supported by the medical records tendered during the defence case.

57 The applicant relied on evidence called by the defence as establishing that the applicant was not the driver and that someone else, Mr Peter Flynn, had driven the vehicle. It was argued that the evidence ought to have been given weight by the learned Chief Magistrate. The question that arises is whether the views taken by the learned Chief Magistrate regarding the defence evidence were reasonably open.

58 As noted above, findings made by the learned Chief Magistrate regarding Mr Flynn were that he was unresponsive and evasive and that his evidence ought to be rejected. These were findings of credit that were entirely open to the learned Chief Magistrate. He had the undoubted advantage of seeing Mr Flynn give evidence and observing his demeanour. Even without that advantage and judging Mr Flynn on the transcript, Mr Flynn seemed an unimpressive witness.

59 There was other evidence that placed Mr Flynn in the area. Mr Powell gave evidence that he saw Mr Flynn at the accident scene. The evidence of Mr Powell was found to be "largely unimpressive". While not all aspects of his evidence were rejected, it appears that the learned Chief Magistrate found his evidence was not helpful in resolving the issues in the case. He was reasonably entitled to take that view.

60 The evidence of Ms Gough also placed someone else at the scene. The evidence of Ms Gough on this point was dealt with by the learned Chief Magistrate in one sentence in the following terms:

"In relation to the evidence of Ms Gough that raises a possibility that there was someone else around, but it does no more than that in my view and I don't think, with respect to her, that she sought to do more than that."

61 The question that arises is whether it was reasonably open to the learned Chief Magistrate to find that Ms Gough's evidence did no more than raise a possibility that there was someone else around. There are some matters that are pertinent to a consideration of her evidence. There were no adverse findings about her credibility or reliability. I imagine that ordinarily she would have been called as a prosecution witness. She was an independent witness and the evidence did not suggest that she was known to the applicant or his associates. An adverse finding about the credit of those witnesses could not somehow contaminate her evidence. Her evidence was not inconsistent with the evidence given by the police officers. It is clear that they attended the scene after the person referred to by Ms Gough had fled.

62 The learned Chief Magistrate's finding that Ms Gough only raised a possibility that there was "another person around" is at odds with the evidence she gave. The key parts of her evidence are as follows:

•

the next day she remembered thinking that she saw someone run off.

•

she should have told the police about that the night before or the next day.

•

the person said words to the effect of "I'm out of here" and then ran.

•

the person who ran off was different to the person who came later to the scene and assisted her.

63 There was an answer that expressed hesitancy (set out above in par[17]). However afterwards she indicated that to her knowledge the person ran off and that she "absolutely" should have called the police the next day. While other aspects of Ms Gough's evidence expressed some degree of uncertainty about aspects of the sighting, that uncertainty related to the specific details such as the identity of the person, whether he was the applicant and the precise words he uttered.

64 Ms Gough's account that she thought she saw someone, she thought they ran off, and she thought they said words to the effect of "I'm out of here", were matters of fact that were positively asserted by her. In my respectful view the finding of the learned Chief Magistrate that Ms Gough did no more and sought to do no more than raise a possibility that there was "another person around", was not reasonably open. In the absence of adverse findings about her veracity, her evidence provided proof of the defence case that the applicant was not the driver.

65 In this case the learned Chief Magistrate was left with limited evidence supporting the prosecution case that the applicant was the driver. The evidence of the admission was not reliable evidence of guilt and on any reasonable view, should have been accorded minimal weight, if any. There was insufficient evidence led by the prosecution that could satisfy a magistrate, to the requisite standard, that the applicant was the driver. The evidence was inadequate, with a key aspect of it unreliable and lacking in probative force.

66 At the hearing the defence assumed the role of persuading the court that another person was the driver. The assumption of that role by the defence and a magistrate's function of subjecting the defence case to proper and full scrutiny can tend to distract attention away from where the burden lies. Of course, the defence did not need to establish that the applicant was not the driver, the onus on that issue remained on the prosecution.

67 On any reasonable assessment of the evidence, the account of the defence witness Ms Gough that she thought she saw someone at the scene when she arrived who said words to the effect of "I'm out of here" and then fled, had to be seen as supportive of the contention advanced by the defence that another person was the driver. It would have been reasonable for a magistrate to treat her evidence as independent support for other defence evidence such as Mr Powell's sighting of the applicant at the scene of the accident. Indeed, her evidence could have been seen as so significant as to be capable on its own of giving rise to a reasonable doubt without regard to the weaknesses in the prosecution case. However, it was also open to the magistrate to take a more circumspect view of it. Nonetheless on any reasonable view, and giving full allowance for the advantages the magistrate had in hearing the case and observing the witnesses, Ms Gough's evidence supported at least to some extent the defence contention that someone else had driven the vehicle.

68 The evidence before the learned Chief Magistrate could not have persuaded him of the element of the offence in issue in this case. Putting to one side the evidence of Ms Gough, the only reasonable conclusion was that the evidence could not establish that the applicant was the driver. Taking into account Ms Gough's evidence, it is even more evident that a finding that the applicant was the driver was not reasonably open. Acting reasonably, a magistrate ought to have entertained a reasonable doubt. An error of law has therefore been established and the first ground of review succeeds.

69 Ground 2 challenges the approach of the learned Chief Magistrate in rejecting or discounting Mr Peter Flynn's evidence because it was evasive and unresponsive. It is argued that the learned Chief Magistrate ought to have taken into account the hypothesis that Mr Flynn was unimpressive because in giving evidence he was confronting his wrongdoing and the repercussions of his conduct. It is not necessary to say much about this ground of appeal.

70 The learned Chief Magistrate did not need to give consideration to the reason for the unimpressive quality of the witness's evidence. Having found the evidence unimpressive, he was perfectly entitled to reject it. Once the magistrate hearing the case had determined that Mr Flynn was not a reliable witness then it was appropriate to discount his evidence rather than to base any findings on it. I add that it seems beyond the scope of the issues that were explored at this hearing for the magistrate to have made a positive finding about the reason or reasons for Mr Flynn's poor evidence. As a final point, I note that this ground does not raise an error of fact or law. This ground of review fails.

Disposition of the charge and the notice to review

71 There may need to be an amendment to the notice to review (Justices Act, s108(2)). The respondent was given notice prior to the hearing that the applicant made an assertion of an error of fact as well as an error of law, but on checking the grounds of review I see that an error of fact is not reflected in those grounds. I have not reached a concluded view about whether an amendment is necessary and I will give counsel the opportunity to be heard on this question.

72 The finding of the learned Chief Magistrate that the charge was proved should be set aside and the conviction quashed. I will give the parties an opportunity to be heard about the order that should be made in relation to the charge.