Court of Appeal (WA)|1999-11-26|Before: Kechnie J

Thompson v Berkley [1999] WASCA 293 (26 November 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THOMPSON -v- BERKLEY [1999] WASCA 293

Road traffic - Driving - Issue of conduct - Judicial officers - Judicial officer's reasons for decision - Necessity to explain why witnesses are accepted - Mistake as to evidence - Loss of a fair chance of an acquittal

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137

Brunskill v Sovereign Marine and General Insurance Company Ltd [1985] HCA 61; (1985) 59 ALJR 842

Carew v Carone (1991) 5 WAR 1

Dawson v Westpac Banking Corporation (1991) 166 ALJR 94

Devries v Australian National Railways Commission (1993) 177 CLR 472

McDermott v R (1948) 76 CLR 501

Narrier v Fallows, unreported; SCt of WA; Library No 970175; 11 April 1997

Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505

Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; (1996) 140 ALR 227

1 McKECHNIE J: On 28 May 1999 the appellant stood trial on two charges, both of which allegedly occurred on Boxing Day 1998, the first being that he, not being a person authorised by the Traffic Act 1974 s 48C, s 48D or s 48E, drove a motor vehicle, namely, a Holden Commodore, registration number 9CY-329, on a road, namely, Way Road, while legally disentitled from holding a motor driver's licence; and further that he drove a motor vehicle, namely, a Holden Commodore registration number 9CY-329, on a road, namely, Way Road, with a percentage of alcohol in his blood exceeding 0.08 per centum. Each of those offences is particularised as occurring in Way Road, South Perth.

2 The prosecution called two witnesses, both police constables, who gave evidence that the appellant had admitted to each of them separately that he had been driving the vehicle in question. The appellant gave evidence that he did not drive at all that day and that he did not make the admissions alleged. He called another witness, Mr Law, who gave evidence that he was in the car during two relevant journeys. On neither occasion did the appellant drive. The driver was a person now deceased called Tammy.

3 The learned Magistrate convicted the appellant who appeals on two grounds, each of which were amended by leave. Ground 1(a) reads:

"The learned Magistrate erred in law and fact in finding that the defendant committed the act of driving alleged in the complaint.

(a) The terms of each of the alleged confessions do not at all, or with reasonable clarity, identify the act of driving which is the subject of the charge as the act which is the subject of the confession."

4 The admission to Constable Bethe was in the following terms at pp 11 and 12. After deposing that he was on duty on a police motorcycle travelling in Way Road, he was approached. The appellant got out and then:

"I had a conversation then with a number of people. As a result of that - - of those conversations I then had a conversation with the defendant. I asked the defendant if he was driving the vehicle. He said yes. As a result of him saying yes, I gave the defendant a preliminary breath test. As a result of that I - - the defendant was conveyed to Perth City Police Station."

5 At that point he had another conversation on which he took notes. He said: "Were you driving the vehicle?" and the appellant said, "Yes", he was. Constable Bethe said: "Were you drinking tonight?" He said, "Yes". He was asked where and he said his friend's stepfather's house in South Perth and that he was drinking Jim Beam and said how much. He then was asked: "Did you realise you were under fine suspension?" and the defendant said: "Yes, I realised I was under the influence and I was under fine suspension but I had to drive."

6 The admission to Constable Puccinelli, p 22, was as follows. This was at a period at the scene when he was with the appellant while Constable Bethe went about his duties and he said:

"I asked him if he had been drinking during the afternoon and early hours of the evening and he said to me that he had."

"I asked if he had been driving the car during the evening and he said to me that [he] had. He also explained why he had driven the car during the evening. It was explained to me that whilst at the party he was having problems with his girl friend and as a result of those problem (sic) he had to leave the party and the state of intoxication of the other people he was in company with unfortunately caused him to be the driver of the car when he left. Mr Thompson explained to me in detail the reasons for leaving the party and the reasons or the circumstances around that reason."

7 The appellant's evidence, confirmed to a degree by Mr Law, was that he went with his girlfriend to a party in South Perth. They left in company with Mr Law whose girlfriend was driving. An argument developed between the appellant and his girlfriend. The car pulled over in Mill Point Road, his girlfriend got out. Other people, apparently not connected with the party, became involved, including a man with a badge who said he was a police officer. The appellant returned to the car and went back in the car to the party, leaving his girlfriend behind. He remained at the party for about 5 minutes and was driven back towards his girlfriend. Again the same person, Tammy, drove. At the scene he started running towards his girlfriend when he was apprehended by police.

8 The appellant submits that the admissions do not refer to the driving charged; that is, in Way Street. I am unable to accept the submission. The appellant was under suspension. Any driving was unlawful. The two acts of alleged driving were so close in time as to make little difference to the blood alcohol reading obtained. The alleged admissions read together are consistent with driving on both occasions. The admission to Constable Puccinelli is not inconsistent with that to Constable Bethe which is specifically about driving in Way Street.

9 The place of driving is a particular. There is no latent ambiguity in the charge. The evidence of the earlier driving would, in any event, be admissible as a contemporaneous course of conduct rendering the latter event more probable. Finally, I do not consider there is a miscarriage of justice by reason of any failure to identify a precise act of driving in the circumstances of this case. Amended ground (b) reads:

"The findings that the evidence of the two police officers 'was much the same' and that 'the defendant ... told both of them he had been driving' were unreasonable and cannot be supported having regard to the substantial differences in the evidence of the two officers and the evidence of Officer Bethe that the appellant did also say that he did not drive."

10 It is true that there are differences in their evidence. None of those differences appears to be so glaring as to necessarily conclude that reliance upon the officers' evidence was unreasonable. I have read their evidence. In my judgment it was open to the Magistrate to accept the constables' evidence as reliable. The estimate of the time spent at the scene, initially a significant difference between the officers, was qualified by the cross-examination of Constable Bethe. The fact that each gave accounts as to reasons advanced by the appellant as to why he drove may be a reflection on what he stated to them at different times rather than their credibility.

11 These were all matters before the learned Magistrate. However, the Magistrate did not reconcile any of the differences or articulate in detail why, notwithstanding the differences, the witnesses' evidence should be accepted. In this case such an exercise was particularly important. There was no direct evidence of driving. The case depended therefore entirely upon both the honesty and reliability of the evidence of the officers concerned when they said that the appellant had confessed. What the learned Magistrate said at 68 was:

"Now the two police officers were young officers but they struck me as giving their evidence very forthrightly. I was impressed when both of them were giving their evidence. I must confess at this stage that I was impressed by the manner in which they gave their evidence. They didn't appear to me to be saying something that was not correct. They, both of them, could easily have said, oh, yes, I saw the defendant get out from behind the steering wheel of the motor vehicle. That was never said. In fact both officers kept well away from that."

12 That statement is in brief terms why he accepted the police officers' evidence. Cases will differ but in a case where there are differences in the evidence of the witnesses, it is incumbent on a Magistrate to consider those differences and to articulate why he or she does or does not accept the reliability or credibility overall of the particular witness. As I say, the Magistrate in this case did not attempt to reconcile these differences apart from saying that their evidence was much the same.

"Given that the appellant was intoxicated at the time, in an excited state, was under arrest, had been involved in a struggle with police, was in a public place, had at the scene denied driving, was not cautioned by the police, and that whether any confession had been made was an issue in dispute, the learned magistrate erred in law and fact by admitting into evidence the accounts of the alleged unrecorded oral confessions or, if that evidence was admissible, finding that any of the alleged confessions was credible."

14 There was no request for a voir dire or to have evidence excluded. The appellant was represented by counsel. No caution was given prior to the question about driving the vehicle. The fact that a defendant denies making a confession does not in all cases absolve a judicial officer from determining whether a confession was in fact made and if so, whether it was voluntary, or alternatively, suffered from such a defect that it should be excluded in the exercise of discretion.

15 The failure of counsel to raise the point is no final barrier to the point being considered on appeal. In this case, however, I am satisfied there was no injustice in admitting the admissions. The question was simple; the concept was simple. Constable Bethe had not seen the appellant driving and did not at the time he asked the question have reasonable grounds for suspecting an offence had been committed. In the case of Constable Puccinelli, it appears that the admission emerged during the course of a lengthy conversation during which the appellant had also denied being the driver. Furthermore, there is no evidence that the statements were in fact involuntary and there appears to me no basis for exclusion on discretionary grounds.

16 While it is no final barrier, the fact that counsel fails to raise a point is nevertheless an obstacle in the way of a point being raised on appeal, it being hard to suggest that the Magistrate has erred when nobody has pointed out the possible error. I would therefore not uphold this ground.

"The learned magistrate's adverse finding regarding the credibility of Mr Law, a defence witness, was unreasonable because -

(i) there was no reasonable basis for him to hold that he 'seemed to ... be an extremely confused witness';

(ii) it was unreasonable for the learned magistrate to find that Mr Law, contrary to his evidence, could not have been told about the production of a badge by a civilian back at the party: there was no evidence to suggest that the display of the badge happened other than as testified by the appellant and Mr Law, that is, when the car was first driven from the party to the scene--after which time it was driven back to the party to be, again, driven back to the scene."

18 The evidence of Mr Law was required in this case to be scrutinised with particular care. He gave direct evidence that the appellant did not drive the car. If his evidence, either with or without the evidence of the appellant, raised a reasonable doubt as to that issue, the appellant was entitled to be acquitted. The learned Magistrate described him as an extremely confused witness, particularly in cross-examination. He also recounted that Mr Law had got events out of kilter when he said:

"...Mr Law got it completely out of kilter and said he was told about that back at the party, which of course he couldn't have. He couldn't have been told that back at the party. He didn't go back to the party after that badge was produced because the defendant went into custody, so the defendant could not, as Mr Law said, have told him back at the party. No matter how Mr Law may have tried to recover that, he didn't, and seemed to me, that he didn't really know what the position was and it seemed to me that when what Mr Law was saying was more in defence of his friend and trying to assist his friend than trying to assist me to reach a particular conclusion."

19 On my reading of the transcript, Mr Law's evidence was coherent. He did not appear to be confused. The confusion appears to have arisen in the mind of the prosecutor and the Magistrate. His account is generally plausible, which is not to say that it would necessarily be accepted. It may or may not be that on a careful analysis of his evidence and differences, if any, between his evidence and that of other witnesses his account might be completely rejected.

20 However, the Magistrate purported to reject the evidence for wrong reasons in that his evidence, contrary to the Magistrate's finding, did not display confusion. Furthermore, he was not out of kilter. The story he told about the time he saw the badge is a consistent story which ties in with what the appellant said about there being an incident with a man with a badge, then a return to the party, then driving back to the scene.

21 It was not necessary for the evidence of the appellant and Mr Law to positively establish that Tammy, not the appellant, was driving the vehicle at the time in question. It was enough that the evidence may have raised a reasonable doubt as to that issue. By the Magistrate's rejection of the evidence on wrong grounds, coupled with the Magistrate's failure to properly articulate and reconcile the differences in the evidence of the two police officers, the appellant had lost a chance of an acquittal which was fairly open to him. That being the case, there is a miscarriage of justice and the prosecution fails to satisfy me that in the circumstances it was not a substantial miscarriage of justice.

"The learned magistrate erred in law in failing to give any, or sufficient, regard to the unexplained failure of the prosecution to call material witnesses."

23 This matter arises from a portion of cross-examination of Constable Bethe, p 17. He was asked this question:

"So although you didn't actually see the defendant drive, you were just going by what you were told by some civilian bystanders?---Yes.

And were any of those people contacted by you to give evidence?---No, no, they haven't.

24 The matter was not pursued and does not appear to be the subject of argument in final address. There does not seem to be any tactical ploy by the prosecution to withhold evidence. It is idle to speculate what might have been said, but in the circumstances I consider there was no miscarriage of justice and no error of law by the Magistrate in relation to that ground.

25 For the reasons which I have given, I consider that the appeal ought to be allowed, the conviction quashed and the matter remitted for trial according to law before a different Magistrate.

Thompson v Berkley [1999] WASCA 293

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Thompson v Berkley [1999] WASCA 293 (26 November 1999)

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