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[2023] ACTSC 331
Supreme Court of the ACT
2023-11-16
Baker J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Wolter v Broomhall Citation: [2023] ACTSC 331 Hearing Date: 18 October 2023 Decision Date: 16 November 2023 Before: Baker J Decision: (1) The appeal is allowed. (2) The convictions of the appellant for the offences of drive while disqualified as a repeat offender (CC2021/9349); drive while disqualified as a repeat offender (CC2021/9351); and aggravated dangerous driving as a repeat offender (CC2022/9051) are set aside. (3) The proceedings are remitted to the Magistrates Court for redetermination according to law. Catchwords: APPEAL – PRACTICE AND PROCEDURE – Appeal against decision to refuse stay application in the Magistrates Court – whether Supreme Court has jurisdiction to hear appeal against interlocutory decision of the Magistrates Court – where the decision had no impact on conviction – whether Magistrates Court has jurisdiction to hear ‘back-up’ charges – Magistrate correctly found that the Magistrates Court had jurisdiction to hear and determine the ‘back-up’ charges – stay application correctly dismissed. APPEAL – CRIMINAL LAW – Appeal against conviction in the Magistrates Court – where conviction relied on in-court identification of the accused on the basis of CCTV footage – where Supreme Court unable to make new in-court identification – quality of footage was sufficient to found identification. APPEAL – PRACTICE AND PROCEDURE – Failure of Magistrate to give adequate direction and reasons with respect to in-court identification – where identification evidence was the sole basis for conviction – where direction was given in generic terms – further reasons were required – appeal upheld. Legislation Cited: Crimes Act 1900 (ACT) Criminal Code 2002 (ACT) Legislation Act 2001 (ACT), s 191 Magistrates Court Act 1930 (ACT), ss 19, 90B, 208 Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 7B Supreme Court Act 1933 (ACT), ss 68C, 68CA – 68G Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472 Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271; 254 LGERA 274 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; 222 A Crim R 106 DL v The Queen [2018] HCA 26; 266 CLR 1 Donges v Ratcliffe (1975) 1 NSWLR 501 DPP v Guarini (No 2) [2023] ACTSC 269 Evans v Dziubinski [2023] ACTSC 312 Festa v The Queen [2001] HCA 72; 208 CLR 593 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Fox v Percy [2003] HCA 22; 214 CLR 118 Heyward v Bishop [2015] ACTCA 58; 73 MVR 426 Island Maritime Limited v Filipowski [2006] HCA 30; 226 CLR 328 Ji v Stone [2023] ACTSC 54 Johnson v Giumelli [2003] ACTSC 58; 175 FLR 467 M v the Queen [1994] HCA 63; 181 CLR 487 McDougal v Doyle (1987) 6 MVR 119 McFarlane v Van Eyle [2022] ACTCA 68 Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; 109 NSWLR 604 New South Wales Police Force v Winter [2011] NSWCA 330 Nona v The Queen [2012] ACTCA 55 North East Equity Pty Ltd v Proud Nominees Pty Ltd [2010] FCAFC 60; 269 ALR 262 Parkinson v Alexander [2017] ACTSC 201 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 R v Cranston (No 17) [2022] NSWSC 1522; 373 FLR 263 R v Kirby [2000] NSWCCA 330 R v R, R & R, LJ [2008] SASC 35 Satchithanantham v Folkes [2019] ACTSC 165 Simmons v Director of Public Prosecutions [2009] NSWSC 1062; 75 NSWLR 453 Smith v The Queen [2001] HCA 50; 206 CLR 650Stephenson v Santos [2020] NSWCA 262 The Queen v Carroll [2002] HCA 55; 213 CLR 635 Thiess Pty Ltd v Hall [2014] QCA 129; [2015] 2 QdR 125 Wainohu v The State of New South Wales [2011] HCA 24; 243 CLR 181 Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; 60 NSWLR 127 Texts Cited: Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (last updated Update 39, October 2012) Presentation Speech, Courts Legislation Amendment Bill 2013 (ACT) (Hansard, 28 November 2013, p 4381) Parties: Dylan Wolter (Appellant) Lisa Broomhall (Informant) Representation: Counsel T Taylor (Appellant) M Howe (Informant) Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Informant) File Number: SCA 11 of 2023 Decision Under Appeal: Court/Tribunal: ACT Magistrates Court Before: Magistrate Stewart Date of Decision: 15 February 2023 Case Title: Broomhall v Wolter Court File Numbers: CC2021/9349; CC2021/9351; CC2022/9051; CC2021/9350; CC2021/9353 BAKER J: Introduction
On 15 February 2023, the appellant was found guilty by a Magistrate of the following three charges following a defended hearing in the Magistrates Court: (a) Drive while disqualified as a repeat offender (CC2021/9349); (b) Drive while disqualified as a repeat offender (CC2021/9351); and (c) Aggravated dangerous driving as a repeat offender (CC2022/9051).
Upon the Magistrate’s determination of guilt, the prosecutor withdrew the following charges, which had been laid as ‘back-up charges’ to the offence of aggravated dangerous driving as a repeat offender: (a) Fail to stop (CC2021/9350); and (b) Enter an intersection when a traffic light was red (CC2021/9353).
The appellant appeals against the Magistrate’s findings of guilt in respect of each charge. The appellant also appeals against the Magistrate’s refusal to order that the prosecution be directed to elect as to the charge to be preferred or, alternatively, that the charges be permanently stayed.
In support of these contentions, the appellant relies on five grounds of appeal. The first and second grounds concern the Magistrate’s refusal to stay the proceedings. The third ground of appeal is an allegation that the findings of guilt were unreasonable. The fourth and fifth grounds of appeal concern the adequacy of the directions given by the Magistrate regarding identification and the adequacy of the Magistrate’s reasons for finding the offences proved.
For the reasons outlined below, I have upheld the fifth ground of appeal, namely that the Magistrate did not provide adequate reasons in finding the appellant guilty of charges CC2021/9349, CC2021/9351 and CC2022/9051. The convictions are set aside, and the proceedings will be remitted to the Magistrates Court for redetermination according to law.
Background
The prosecution case
At approximately 1:30am on Monday 5 July 2021, a silver Volkswagen Golf drove into a 7-Eleven service station on Cooyong Street in Braddon in the Australian Capital Territory. There were two people in the car. A male exited from the driver’s side, refuelled the vehicle, and entered the service station. He then returned to the driver’s seat and drove the vehicle away. These events were captured on CCTV footage recorded by the service station.
Sergeant Lisa Broomhall was near the service station and observed the male standing at the vehicle before driving the vehicle away. Sergeant Broomhall recognised the male as the appellant. Sergeant Broomhall drove behind the vehicle and signalled the vehicle to stop by activating her lights and siren.
The driver did not stop, but instead accelerated away from police, giving rise to the back-up charge CC2021/9350 of fail to stop. The appellant then allegedly drove through a red light at an intersection of Northbourne Avenue in Braddon (back-up charge CC2021/9353). The charge of aggravated dangerous driving (CC2022/9051) related to the totality of the appellant’s driving during the pursuit by police.
On 9 July 2021, police located the silver Volkswagen Golf at a unit complex in Belconnen. Police seized the vehicle and spoke to the registered owner of the vehicle and her partner. The owner and her partner informed police that on the evening of Monday 5 July 2021, she had asked the appellant to move the vehicle to a new carpark and had given the appellant the keys to the vehicle.
As at 5 July 2021, the appellant was a disqualified driver. The first charge of driving while disqualified (CC2021/9349) related to the appellant’s alleged conduct in driving to the service station. The second charge related to the appellant’s alleged conduct driving away from the service station (CC2021/9351).
The proceedings in the Magistrates Court
The charges were first heard before Chief Magistrate Walker on 19 September 2022. At this hearing, the appellant pleaded not guilty to all charges (including the back-up charges).
In support of the charges, the prosecution relied on the following evidence: (a) Evidence given by Sergeant Broomhall that she recognised the appellant while driving past the service station, and then parked near the service station to observe the vehicle occupants. Sergeant Broomhall gave evidence that she had previously had several dealings with the appellant. (b) The CCTV footage of the service station, taken both within the service station and at the petrol bowser within the station forecourt. (c) Circumstantial evidence that the appellant had access to the vehicle at the time of the incident, by way of evidence of the conversation police had with the registered owner of the vehicle on 9 July 2023 adduced from Senior Constable Benjamin McCarthy (including body worn camera footage) and from the registered owner of the vehicle.
The appellant raised two arguments in his defence: (a) That there was no statutory basis for charges CC2021/9350 (fail to stop) and CC2021/9353 (enter an intersection when a traffic light was red) to be separately charged as ‘back-up charges’ in the ACT Magistrates Court; and (b) That the evidence was not sufficient to identify the appellant. In particular, the appellant contended that Sergeant Broomhall’s evidence that she recognised the appellant should be given no weight, because the CCTV footage showed that the driver was wearing a medical face mask at the time that Sergeant Broomhall drove past the service station, which is when she indicated she had the best view of the appellant.
After hearing brief submissions as to the first issue, the Chief Magistrate suggested that it may be appropriate for a case to be stated to the Supreme Court. The prosecutor then indicated that he required an adjournment to make full submissions on the issue. Mr Taylor, who appeared for the appellant in the Magistrates Court and in the present appeal, informed the Court that the appellant was anxious to have the matter dealt with. Mr Taylor submitted that it would be appropriate for the court to hear the evidence in the proceedings, and to reserve submissions as to the legality of the back-up charges to a further occasion. This suggested course was followed and the evidence in the prosecution case was adduced. The proceedings were then adjourned to 30 September 2022.
However, on 29 September 2022, the Chief Magistrate informed the parties that she considered it necessary to recuse herself from further hearing the matter. Her Honour noted that the case could rely heavily on a comparison of the appellant’s appearance with the offender depicted on the CCTV footage. The Chief Magistrate disclosed that she had previously had significant dealings with the appellant in earlier court proceedings, and continued: …I am compromised because I cannot delineate between the identification I am able to make in court and the untested recognition I rely on from earlier exposure to this defendant whom I find to have a somewhat striking appearance.
Introduction
By an amended notice of appeal filed 4 September 2023, the appellant relied on the following four grounds of appeal: (a) The primary Magistrate failed to provide adequate reasons for dismissing the appellant’s Application in Proceedings (the interlocutory application) dated 17 October 2022; (b) The primary Magistrate made an error of law in assuming and exercising a jurisdiction he did not have; (c) The findings of guilt are unreasonable; and (d) The primary Magistrate erred in his directions about evidence of identification.
At the hearing of the appeal, the appellant was granted leave to rely on a further ground of appeal, namely: (e) The primary Magistrate failed to give adequate reasons in finding the appellant guilty of charges CC2021/9349, CC2021/9351 and CC2022/9051 resulting in a miscarriage of justice.
Pursuant to the grant of leave, on 23 October 2023, the appellant filed a further amended notice of appeal reflecting this additional ground.
Each of these grounds of appeal are considered below.
Grounds (a) and (b): The interlocutory application relating to the back-up charges
The first two grounds of appeal are related and will be addressed together.
Both grounds of appeal concern the Magistrate’s rejection of the appellant’s contention that the prosecutor should have been required to elect whether it wished to pursue the primary charge, or the back-up charges.
There is some doubt as to whether this Court has jurisdiction to determine these grounds of appeal.
The present appeal was commenced under s 208 of the Magistrates Court Act, which confers this Court with jurisdiction, inter alia, to determine an appeal by a person convicted of an offence dealt with by the Magistrates Court. The appellant was not convicted of either back-up charge. This Court does not have appellate jurisdiction to determine an appeal against an interlocutory order of a Magistrate made in criminal proceedings: Evans v Dziubinski [2023] ACTSC 312 at [23] – [25]; Satchithanantham v Folkes [2019] ACTSC 165 at [22].
Of course, an interlocutory decision may be challenged in the course of determining an appeal against conviction, provided that the interlocutory order “affected the final result”: see Nona v The Queen [2012] ACTCA 55 at [53]. In the Magistrates Court, the appellant sought either that the prosecution be directed to elect between the primary charge and the back-up charges; or, alternatively, a stay of the back-up charges only (the application for a stay did not extend to the primary charge). It is difficult to see how the dismissal of the interlocutory application can be said to have “affected” the appellant’s conviction for the primary charge. The relief sought by the appellant – a stay of the back-up charges – would have led to the same ultimate outcome.
Although the Court does not have appellate jurisdiction in respect of interlocutory orders made by a Magistrate in criminal proceedings, interlocutory orders may, in some circumstances, be challenged by way of proceedings for judicial review. Mr Taylor indicated that the appellant may wish to seek leave to seek an order of prohibition.
However, any controversy as to whether the prosecution should have been required to elect as between the primary charge and the back-up charges has been rendered moot by the prosecution’s withdrawal of the back-up charges upon the entering of the conviction for the primary charge. At least one of the back-up charges is now statute barred. The prosecution has not indicated any intention to re-institute the remaining back-up charges in the event that the appellant demonstrates error in the Magistrate’s decision. In those circumstances, there could be little utility in the Court granting an order of prohibition. Mr Taylor did not ultimately seek leave to amend the Notice of Appeal to include a claim of judicial review.
In these circumstances, I am of the view that the Court lacks jurisdiction to determine the first two grounds of the appeal.
Ground (c): Whether the Magistrate’s findings of guilt are unreasonable
In Ji v Stone [2023] ACTSC 54, I noted that doubt had been raised in cases such as McFarlane v Van Eyle [2022] ACTCA 68 as to whether a ground of appeal alleging that a Magistrate’s verdict is “unreasonable” should be determined by application of the principles applying to review of jury verdicts set out in M v The Queen [1994] HCA 63; 181 CLR 487, or the principles applying to review by way of rehearing from decisions of trial judges enunciated in cases such as Fox v Percy [2003] HCA 22; 214 CLR 118. The former approach may include making assumptions and allowances when assessing the decision which are not made in the latter approach. Nonetheless, I observed that in most cases, there would be “little difference in practical outcomes” between the two approaches: Ji v Stone at [153]. In particular, I concluded (at [154]): In other words, whether applying the test in M v The Queen or applying “rehearing” [Fox v Percy] principles in the court’s determination of whether factual error is established, the Court will be required to perform its own assessment of the evidence, but in doing so, the Court must also take into account any advantage that the tribunal of fact had in the proceedings below.
In the present case, the presiding Magistrate had an obvious and significant advantage over this Court – namely, the ability to compare the appellant, who was present in the Magistrates Court, with the person depicted in the CCTV footage. The appellant was not present for the hearing of the appeal and I was therefore unable to compare the appellant with the CCTV footage.
In these circumstances, both parties agreed that I could only uphold ground (c) if I concluded that the CCTV footage was insufficiently clear for the Magistrate to make any identification beyond reasonable doubt.
I have carefully examined the CCTV footage. I am satisfied beyond reasonable doubt that the footage was of a sufficient quality to enable the Magistrate to make an identification. In so concluding, I have taken into account the following matters: (i) The segments of CCTV footage taken inside the petrol station and outside of the petrol station (at the bowser) are both in colour. Contrary to the appellant’s contentions, I do not consider the footage to be “pixelated”. The footage taken inside the petrol station is in a bright, well lit area of the store. In the bowser footage, although the background is in darkness, the area in which the car is parked is well lit, and the offender is in good light when he is filling his car with petrol. (ii) Whilst the offender has a mask on at some points in the footage, he removes his mask and his face is clearly visible in the footage taken inside the petrol station and at the bowser. (iii) Both the bowser footage and the footage taken inside the petrol station clearly depict the offender’s facial features (with sufficient quality to be able to ascertain, for example, the shape and structure of the offender’s face, including the general shape of his eyes, nose, ears and forehead), the offender’s hair (with sufficient quality to identify the offender’s hair colour and hairstyle), and the offender’s overall build. (iv) The offender is depicted in both sets of footage both stationary and whilst moving, so that the whole of the offender’s face, head and body can be seen in both sets of footage. (v) The CCTV footage in the petrol station has a closer view of the offender. The CCTV footage in the petrol station has some degree of distortion arising from what appears to be a fish-eye lens (which has the effect of widening the image to some degree). However, the footage at the bowser is not subject to distortion (for example, the numbers on the car licence plate are distinct).
Grounds (d) and (e): Adequacy of the identification direction and the Magistrate’s reasons Principles
Where a judge tries an indictable offence without a jury in the Supreme Court, the judge has a statutory obligation to take into account in reaching a verdict any “warning, direction or comment” that would be required to be taken into account by a jury: s 68C(3) of the Supreme Court Act 1933 (ACT). The judge is also obliged to provide reasons which “include the principles of law applied by the judge and the findings of fact on which the judge relied”: s 68C(2) of the Supreme Court Act.
In Fleming v The Queen [1998] HCA 68; 197 CLR 250 at 263 [33], the High Court held that the combination of these provisions: … require[s] the recording and heeding of the warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account.
There are no provisions which are equivalent to s 68C(2) of the Supreme Court Act that apply to summary proceedings heard before a Magistrate. Nonetheless, the provision of reasons is central to the judicial function: Wainohu v The State of New South Wales [2011] HCA 24; 243 CLR 181 at [54]. As the New South Wales Court of Appeal observed in Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; 109 NSWLR 604 at [27]: … giving reasons facilitates justice being seen to be done. So doing may assist in avoiding the unsuccessful party not only being disappointed but having a sense of grievance and disturbance because they cannot understand why the decision went against them. More broadly, ‘the general acceptability of judicial decisions is promoted by the obligation to explain them’.
Accordingly, even though there is no equivalent to s 68C(2) in respect of decisions of the Magistrates Court, it remains “part of the Magistrate’s duty to state the facts found and the legal principles applied to those facts, for the purpose of reaching a verdict”: Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713; 222 A Crim R 106 at [56], citing Donges v Ratcliffe [1975] 1 NSWLR 501 at 507.
The content of the duty to give reasons will vary depending on the issues in dispute. An appeal court’s evaluation of the adequacy of a Magistrate’s reasons must also take account of the “pressures under which Magistrates are placed by the volume of cases coming before them” (Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at [15]), or what Hamill J has more succinctly described as the “sometimes absurd workload of the magistracy”: Director of Public Prosecutions (NSW) v Peckham [2022] NSWSC 713 at [23]. For this reason, an appeal court must be concerned with the substance, rather than the form, of the Magistrate’s reasons: Heyward v Bishop [2015] ACTCA 58; 73 MVR 426 at [26], citing Acuthan v Coates (1986) 6 NSWLR 472 at 479.
Consideration
The Magistrate’s ex tempore reasons for his positive identification of the appellant were brief. At the commencement of his reasons, the Magistrate stated: In this matter, after viewing the footage, I’m satisfied beyond reasonable doubt that it’s the defendant on the footage. In my view the video imaging on the forecourt of his face is crystal clear. And after considering the warnings that I’ve read and listened to for nearly 20 years for the first time I can safely come to the conclusion without any lingering doubts that it is the defendant in the footage.
Later in the reasons, his Honour referred to the circumstantial evidence that the appellant had been granted access to the car keys and continued: That evidence was all very interesting until I saw the footage and it was immediately obvious to me that it's the defendant in the forecourt of the service station. He raised his right hand today and what I saw was a very feint tattoo on his hand. There was no evidence adduced at the hearing about when that tattoo was placed on his hand and what type of tattoo it is or was and whether it was in place at the time. But regardless, the identification of his face stands and I'm left in no doubt whatsoever. Even after warning myself very, very carefully in the traditional way through the New South Wales Bench Book and reminding myself of decades of being concerned about the danger of identification. (emphasis added)
The applicant submitted that these findings were inadequate in two respects: ground (d) contended that the identification direction that the Magistrate provided himself was insufficient, whereas ground (e) particularised a more general complaint about the overall sufficiency of the reasons that the Magistrate provided for concluding that the appellant was the person depicted in the CCTV footage (and convicting the appellant on this basis).
I accept the appellant’s contention (which was not disputed by the prosecution) that the Magistrate was required to direct himself about the dangers of identifying the appellant from a comparison of the CCTV footage. Although s 116 of the Evidence Act does not apply where the evidence requires a comparison by the Court rather than evidence of an identification by a witness, the common law concerns about the reliability of such evidence which underlie s 116 apply with added force to such evidence: see R v Kirby [2000] NSWCCA 330 at [43] – [44] and [57].
As can be seen from the above extracts, the Magistrate recorded that he had warned himself in accordance with “the New South Wales Bench Book” and that he had approached his identification of the appellant as the man depicted in the CCTV footage with significant caution. The appellant complained that the Magistrate did not identify which “Bench Book” he had referred to, noting that the NSW Judicial Commission maintains a number of different Bench Books (including the Local Court Bench Book, the Sentencing Bench Book, the Criminal Trials Bench Book and the Equality before the Law Bench Book). However, as the NSW Criminal Trials Bench Book is the only “Bench Book” in which identification evidence is addressed, I consider that it is clear that the Magistrate was referring to the identification direction contained therein. That Bench Book contains a comprehensive identification direction: see Judicial Commission of New South Wales, Criminal Trial Courts Bench Book at [3-000]. Accordingly, I am of the view that ground (d) has not been established.
Conclusion
As outlined above, a Magistrate’s reasons must be sufficient to enable the losing party to understand properly the grounds upon which the case was lost and to enable an appellate court to discharge its statutory duty on any appeal from the decision.
In a general sense, the Magistrate’s reasons were sufficient to enable the appellant to understand why the Magistrate found against him: the Magistrate rejected the appellant’s contention that the CCTV footage was insufficiently clear to make an identification. Having made that finding, the Magistrate concluded that the appellant was the offender pictured in the CCTV footage.
However, the Magistrate’s reasons were not sufficient to enable an appellate court to discharge its statutory functions. In particular, where an in-court identification is made, it is necessary for the Magistrate to make a record of the accused’s appearance at the time of the hearing, so that this appearance can be taken into account in any subsequent appeal by way of rehearing. Further, in circumstances where the sole evidence relied on for the finding of guilt was the in court-identification, it was necessary for the Magistrate to describe how the identification direction was taken into account when comparing the appellant’s appearance in court with the appearance of the offender on the CCTV footage.
Accordingly, I uphold ground (e).
Consequential relief
Where an appeal is by way of rehearing, a finding of a failure to give reasons will not usually result in the setting aside of the decision below if the appellate court is otherwise satisfied that the decision of the court below was correct: New South Wales Police Force v Winter [2011] NSWCA 330 at [89] – [90]. However, the absence of the appellant from the appellate hearing has meant that it was not possible for this Court to make a comparison between the appellant and the CCTV footage on the present appeal.
In these circumstances, both parties accepted that if ground (e) only was established, the Court should order that the proceedings be remitted to the Magistrates Court for redetermination according to law. I will make this order.
In some cases, redetermination according to law will require the proceedings to be reheard and determined by a different decision maker. In my view, this is not such a case: see similarly Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271; 254 LGERA 274 at [169]; North East Equity Pty Ltd v Proud Nominees Pty Ltd [2010] FCAFC 60; 269 ALR 262 at [41]. Accordingly, my order remitting the proceedings to the Magistrates Court should not be construed as requiring that the proceedings be reheard before a different Magistrate.
Orders
I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 16 November 2023
Wolter
Broomhall [2023] ACTSC 331
(1986) 6 NSWLR 472
(1975) 1 NSWLR 501
(1987) 6 MVR 119
Both parties agreed that the proceedings should be determined by a new Magistrate who could determine the matter on the transcripts of the evidence heard before the Chief Magistrate.
On 17 October 2023, the appellant filed an application in the proceedings seeking orders that the prosecution be directed to elect between the charge of aggravated dangerous driving or the back-up charges; or, in the alternative, that the proceedings in relation to the back-up offences be permanently stayed. The application was heard with the charges before Magistrate Stewart on 15 February 2023.
The appellant contended that the back-up offences (CC2021/9350 and CC2021/9353) were not available as alternative charges to the charge of dangerous driving. He submitted that the specification of certain identified charges as alternative charges in the Road Transport (Safety and Traffic Management) Act 1999 (ACT), Crimes Act 1900 (ACT) and Criminal Code 2002 (ACT) evinces a clear intention on the part of the legislature that alternative charges are available where specified in the legislation. The appellant submitted that where this has not occurred, numerous charges for the same conduct cannot be levelled at an accused in the hope that “some … will stick”.
The appellant also noted that the legislation makes specific provision for back-up offences tried on indictment in the Supreme Court (ss 60CA, 68D-68G of the Supreme Court Act 1933 (ACT)); for the Magistrates Court when dealing with back-up offences which are to be dealt with in the Supreme Court (s 90B of the Magistrates Court Act 1930 (ACT)); and for the Supreme Court to remit a back-up charge to the Magistrates Court (s 68F of the Supreme Court Act). The appellant submitted that the contrasting absence of a specified mechanism for dealing with back-up offences in the Magistrates Court, and of any provision granting the Magistrates Court general jurisdiction to hear a back-up offence, demonstrates that the legislature did not intend for the Magistrates Court to have jurisdiction to hear back-up offences.
Finally, the appellant noted that the protection against double jeopardy may extend to the prosecution of an accused for “successive charges based on … substantially the same facts” (citing The Queen v Carroll [2002] HCA 55; 213 CLR 635; Pearce v the Queen [1998] HCA 57; 194 CLR 610; and Island Maritime Limited v Filipowski [2006] HCA 30; 226 CLR 328). The appellant submitted that his prosecution for additional charges which were entirely subsumed within the primary offence and based on the same facts amounted to “being prosecuted twice for the same conduct”.
The Magistrate dismissed the appellant’s application for a stay of the proceedings. His Honour emphasised the ‘“generally unfettered” discretion of the [prosecution] to lay charges and run their cases how they choose within the bounds of due process”. Noting the broad jurisdiction conferred by s 19 of the Magistrates Court Act for the Court to hear and decide the prosecution of any summary matter, his Honour considered that back-up charges are not procedurally “special”, and the failure to mark charges as back-up charges is no bar to their prosecution. The Magistrate held that double jeopardy principles do not arise in circumstances where the primary and back-up charges are tried simultaneously, observing that s 191 of the Legislation Act 2001 (ACT) “strictly allows prosecution [for offences arising from the same acts] under two laws but not punishment for both”.
The substantive proceedings were determined by the Magistrate largely by reference to the transcripts of the previous hearing.
Both parties made additional oral submissions in relation to the reliability of the identification made by Sergeant Broomhall; the ability of the Court to make an identification from the CCTV footage; and whether the evidence that the appellant was in possession of the car keys could “bolster” the identification evidence. The parties agreed that the Magistrate was required to make his own assessment of whether the appellant was the male depicted in the CCTV footage, in accordance with Smith v the Queen [2001] HCA 50; 206 CLR 650 at 655 [11]. In this respect, the appellant’s legal representative asked the appellant to show the Magistrate a tattoo on his hand, which he submitted was not visible on the hand of the offender depicted in the footage.
In ex tempore reasons delivered immediately after the conclusion of the oral addresses, the Magistrate found the appellant guilty of the three primary charges (drive while disqualified as a repeat offender, CC2021/9349; drive while disqualified as a repeat offender, CC2021/9351; and aggravated dangerous driving as a repeat offender, CC2022/9051).
His Honour delivered ex tempore reasons for these findings, in which he first stated as follows: In this matter, after viewing the footage, I’m satisfied beyond reasonable doubt that it’s the defendant on the footage. In my view the video imaging on the forecourt of his face is crystal clear. And after considering the warnings that I’ve read and listened to for nearly 20 years for the first time I can safely come to the conclusion without any lingering doubts that it is the defendant in the footage. I really don’t need to consider any of the other evidence in those circumstances. And I find the offence proved.
The prosecutor then withdrew the back-up charges (fail to stop, CC2021/9350 and enter intersection when traffic light was red, CC2021/9353). Both parties confirmed that they were in a position to proceed to sentence. Before that occurred, his Honour indicated that he would “put a few reasons on the record” to further explain the rationale for his finding.
His Honour then delivered the following more detailed ex tempore reasons: In this matter there was a summary hearing before her Honour the Chief Magistrate. But after the evidence was closed her Honour discovered a conflict of interest as I understand it, and recused herself from finalising the matter. Today, time being set aside, I read the hearing transcript, looked at all of the exhibits and then in front of the advocates watched the CCTV footage. The prosecution case essentially has been conceded other than identification in this matter. That is, if it is the defendant then it's accepted that the driving, I think, amounted to what the charges were and that he was driving disqualified. There appears to be little dispute about that. The issue was always identification. There was identification adduced in the form of recognition evidence from a police officer who is actually seen in the footage driving past at the time. Her evidence was quite strong on paper as I understand it; that is, Sergeant Broomhall. But it's apparent that when she drives past the defendant his mask is actually covering part of his face. I did not accept that evidence as being evidence that would amount to recognition in those circumstances. I thought that at best there could be some circumstantial evidence that the hairline of the man at the vehicle at that time matched what she recognised to be the defendant. There was also some circumstantial evidence that the defendant was in the area of Northbourne Avenue at the relevant time with the keys to that car and that came out of the evidence of the Lee's Who otherwise were unsatisfactory. Whether that was due to illicit drug use prior to the hearing I don't think I need to make a finding on but it's clear given the body worn camera evidence and the eventual evidence of Mr Lee that the defendant did have the keys at the relevant time. Of course, that's not proof that he was the driver but it's a significant piece of circumstantial evidence that he was in the area at the time with access to that vehicle through the primary source of the keys. That evidence was all very interesting until I saw the footage and it was immediately obvious to me that it's the defendant in the forecourt of the service station. He raised his right hand today and what I saw was a very feint tattoo on his hand. There was no evidence adduced at the hearing about when that tattoo was placed on his hand and what type of tattoo it is or was and whether it was in place at the time. But regardless, the identification of his face stands and I'm left in no doubt whatsoever. Even after warning myself very, very carefully in the traditional way through the New South Wales Bench Book and reminding myself of decades of being concerned about the danger of identification. There's no doubt in my mind that it's the defendant in the footage. And on that basis, he's the driver of the vehicle and the evidentiary certificates he was disqualified at the time of driving into the service station and driving out of the service station. So those offences are also proved beyond reasonable doubt. And it was largely uncontested that the manner of driving after leaving the service station was how the police described. And I find that to have been in accordance with the way the charge was particularised. That is, he failed to comply with a signal given by police to stop the vehicle and proceeded through various intersections with lights off at times and also over Northbourne Avenue and the tram line. In the circumstances, in what was clearly a dangerous fashion. So for that reason I returned a verdict on the spot on the basis that I identified Mr Wolter and that really little else was in contention. So charge 9051, the aggravated dangerous driving is proved beyond reasonable doubt. As are charges 9349 and 9351 which are the disqualified driving into and out of the service station prior to that driving becoming dangerous. Determination
However, in view of the importance of the issue, and in the event that I am in error as to the question of jurisdiction, I am of the view that it is appropriate to address the substance of the appellant’s complaint in respect of the first two grounds of appeal, namely whether it is permissible for the prosecution to rely on ‘back-up’ charges in summary prosecutions in the Magistrates Court.
The use of ‘back-up charges’ is common in summary prosecutions in the ACT, New South Wales and other jurisdictions. In Simmons v Director of Public Prosecutions [2009] NSWSC 1062; 75 NSWLR 453 at 459 [20], Rothman J noted that “[t]he term ‘back-up charge’ is not always used in the same sense and, therefore, has an inherent ambiguity.” The term is sometimes used to describe an alternative charge that may be proved with the same elements as the primary charge (such as common assault and assault occasioning actual bodily harm), but the term may also refer to other forms of charge which, although not containing the same elements as the primary charge, will only be considered by the court in the event that the primary charge is dismissed (such as possession of stolen property as an alternative to robbery): see Simmons at 459 [21] – [22]. See also McDougal v Doyle (1987) 6 MVR 119 at 124 and Thiess Pty Ltd v Hall [2014] QCA 129; [2015] 2 QdR 125 at [31].
Contrary to the appellant’s submissions, there is no requirement for legislation to expressly authorise the laying of back-up or alternative charges in summary proceedings. Rather, as the Magistrate correctly held, s 19 of the Magistrates Court Act, which confers the Magistrates Court with general jurisdiction to hear and determine summary offences, authorises the Magistrates Court to hear and determine all summary charges, regardless of whether they are characterised as ‘back-up’, or alternative, charges.
Section 191 of the Legislation Act 2001 (ACT) relevantly provides that: 191 Offences against 2 or more laws (1) If an act or omission by a person is an offence against 2 or more ACT laws, the person may be prosecuted for and convicted of any of the offences, but is not liable to be punished more than once for the act or omission.
In other words, a person may be prosecuted and indeed, found guilty, of two or more offences arising out of the same act or omission, provided only that the person is not “punished” more than once for the same act or omission.
Contrary to the appellant’s submissions, the laying of back-up charges does not contravene double jeopardy principles. The expression “double jeopardy” is employed at different stages of the criminal process: prosecution, conviction and punishment: Pearce at [9]. A “plea in bar”, such as autrefois acquit or autrefois convict (or the analogous principles which apply in summary proceedings), will only apply where a person is prosecuted for the same offence which “was the subject of an earlier conviction or acquittal”: Island Maritime Limited v Filipowski at 345 [49] (Gummow and Hayne JJ). In the present case, no “plea in bar” could arise, as the prosecution immediately withdrew the back-up charges after the Magistrate entered findings of guilt in respect of the primary charges.
Nonetheless, as Payne JA observed in R v Cranston (No 17) [2022] NSWSC 1522; 373 FLR 263 at [34], … a plea in bar is not the only way in which the law manifests a concern about double jeopardy. Even if a plea in bar is not available, this Court retains an inherent power to prevent abuse of its processes.
In Cranston, Payne JA noted that an “important consideration” in determining whether proceedings should be stayed as an abuse of process is whether the elements of one of the offences is the same, or included, in the elements of the other offence: Cranston at [37]. Where the elements of two offences are different in important respects, the laying of both charges will not justify a stay: Pearce at [31]. Specifically, as there is a need for the prosecution to lay charges that reflect “the whole of the accused’s criminality”, the laying of two charges that contain different elements “could not be said to be vexatious or oppressive or for some improper or ulterior purpose”: Pearce at [31].
In the present case, the elements of the primary charge (dangerous driving) and the back-up charges (fail to stop and enter intersection when traffic light was red) differed in important respects. The back-up charges were not “alternative lesser charges” where the elements of the lesser offence are entirely subsumed within the primary offence (such as common assault and assault occasioning actual bodily harm). In these circumstances, if the prosecution had not withdrawn the back-up charges, separate penalties could have been imposed for the back-up charges and the primary charge, provided only that the Court did not doubly punish the appellant for the elements that the charges had in common.
However, even if the elements of the back-up charge had been entirely subsumed within the elements of the primary charge, I do not consider that the laying of both the primary and back-up charges would constitute an abuse of process. The prosecution’s purpose in laying both the primary charge and the back-up charges was to ensure that the appellant was properly tried for conduct which was alleged to constitute the criminal offences alleged, and to ensure that if the court had any doubt about the dangerousness of the driving, consideration could then be given to whether the appellant was guilty of the less serious traffic offences. This purpose could not be described as improper, nor was it vexatious or oppressive.
The legislative provisions relied on by the appellant do not alter the above analysis. The enactment of s 90B of the Magistrates Court Act and ss 68CA to 68G of the Supreme Court Act, which permit back-up summary charges to be transferred to, and determined by, the Supreme Court, was necessary to resolve the “hopelessly flawed” system in which back-up offences within the jurisdiction of a lower court were held up whilst the more serious primary offence was determined by the higher court: see note to McDougall v Doyle [1987] 6 MVR 119 at 125; see also Presentation Speech, Courts Legislation Amendment Bill 2013 (ACT) (Hansard, 28 November 2013, p 4381). In other words, these provisions were enacted to confer the Supreme Court with jurisdiction to finally resolve all related charges arising out of a single incident, a jurisdiction which it had previously lacked. Similarly, the provision for alternative verdicts in s 7B of the Road Transport (Safety and Traffic Management) Act is a facilitative provision, which enables a court to find an accused guilty of a specified statutory alternative, even though that alternative was not the subject of a separate charge. The enactment of those provisions has no effect on the broad jurisdiction of the Magistrates Court conferred by s 19 of the Magistrates Court Act.
For these reasons, the Magistrate had jurisdiction to hear and determine the primary charge. Accordingly, it follows that ground (b) of the appeal must be dismissed.
As the Magistrate’s ultimate determination that he had jurisdiction to hear the charges was correct, it follows that ground (a) must also be dismissed: Stephenson v Santos [2020] NSWCA 262 at [24]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [67]. In any event, there was no deficiency in the Magistrate’s reasons for dismissing the contention that the Court lacked jurisdiction to determine the back-up charges. In his ex tempore reasons, the Magistrate correctly held that s 19 of the Magistrates Court Act conferred jurisdiction on the Magistrates Court to determine all charges. His Honour also correctly referred to s 191 of the Legislation Act, and concluded that no other principle or provision precluded the prosecution from proceeding on the back-up charges. It was not necessary for the Magistrate to say more.
I have also borne in mind the fact that the Magistrate’s identification was made almost eighteen months after the CCTV footage was taken. The offender is an adult male, and the features of the offender that are visible in the CCTV footage are not the kind of features that would necessarily be the subject of significant change in an adult over an eighteen-month period. Accordingly, whilst any differences between the offender’s and the appellant’s features would need to be explained (for example, a different hair style could be explained by a haircut), in the absence of any such differences, it would be well open to the Magistrate to make an identification on the basis of this footage beyond reasonable doubt.
Accordingly, this ground of appeal is dismissed.
Nonetheless, in all cases, the reasons must be sufficient to “enable the losing party to understand properly the grounds upon which the case was lost”: Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; 60 NSWLR 127 at 136 [59] (per Ipp JA, Bryson JA and Stein AJA agreeing) citing Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 at 666–667. The reasons must also be sufficient to enable an appellate court to “discharge its statutory duty on [any] appeal from the decision”: DL v The Queen [2018] HCA 26; 266 CLR 1 at [32].
Accordingly, a Magistrate’s decision must include the legal principles that were applied in reaching their decision, including any warnings or directions that were material to the Magistrate’s determination. As Gray J (White J agreeing) held in R v R, R & R, LJ [2008] SASC 35 at [21], adequate reasons: … should demonstrate an appropriate awareness of the burden of proof and the need for that burden to be satisfied in regard to each of the elements of an offence. The reasons should also allow the conclusion that proper regard was had to particular risks, for example, the dangers of convicting in the absence of supporting evidence, the weaknesses and the risks attaching to identification and recognition evidence and the significance of prior inconsistent out-of-court statements. These are but examples of difficulties that need to be addressed in particular circumstances. The reasons in appropriate cases should explain the way in which such issues have been addressed. There is no fixed formula for how this should be done. It is a matter for the individual judge. Some judges may choose to demonstrate their awareness in the language of a warning or direction. Other judges may choose to demonstrate their awareness by their process of reasoning.
Of significance to the present case, in Johnson v Giumelli [2003] ACTSC 58; 175 FLR 467, Gray J held that a Magistrate is required to expressly warn him or herself as to the dangers of identification evidence. In the circumstances there considered, Gray J held that the warning that was “called for” required reference to the experience of courts generally with respect to identification evidence as well as specific reference to aspects of the particular identification which may have undermined its reliability: Johnson at [12] – [13]. When admitting the identification evidence, the Magistrate had referred generically to the giving of an “appropriate direction”, but had not recorded the terms of that direction in her reasons (or indeed, recorded specifically that it had been given). Justice Gray found that the Magistrate’s reasons were inadequate, allowed the appeal and remitted the proceedings to the Magistrates Court for redetermination.
However, in Parkinson v Alexander [2017] ACTSC 201, Refshauge J concluded that, in the absence of a provision equivalent to s 68C of the Supreme Court Act, a Magistrate’s failure to set out directions in the terms required by Fleming will not, of itself, constitute legal error. His Honour explained (at [84]): It may be thought odd that a judge should be required to give such directions to himself or herself when that is not required of a magistrate. That may have its origin in the fact that, at least for many years, an appeal from a decision of a magistrate was conducted as a hearing de novo and still is in some jurisdictions. Whatever the reason, that appears to be the law. Given that appeals in this jurisdiction are no longer appeals de novo (and have not been so for a very long time), that reasoning may no longer apply, but I am not prepared to say that the requirements on a judge in a trial without a jury are yet imposed on a magistrate as a matter of law such that a failure may amount to an error of law. That day, however, may not be far off. In any event, stating such principles would be highly desirable and I commend to the Magistrates Court to do so and avoid an appellate court finding that failure to do so resulted in an error of law.
On first reading, it might be thought that Parkinson held that a Magistrate’s reasons need not refer to the legal directions which have been applied by the Magistrate in reaching their verdict. If his Honour so held, I respectfully disagree for the reasons outlined at [61] – [66] above.
However, I do not understand Parkinson to have held that a Magistrate is not required to record the legal directions that they have applied in reaching their verdict. Rather, I understand Refshauge J’s decision in Parkinson to relate to the structure and detail of the reasons which must be given by a Magistrate. As outlined above, it remains necessary for a Magistrate to refer to any directions or warnings that they have taken into account in reaching their decision. However, bearing in mind the absence of a provision that expressly requires that a warning or direction be recorded, and recognising that appropriate allowance should be made in respect of ex tempore judgments delivered by Magistrates with limited resources in a busy list, this may be done through demonstration within the Magistrate’s reasons for decision that the direction or warning has been taken into account.
Nonetheless, after careful consideration, I have concluded that the appellant’s complaint in ground (e) concerning the adequacy of the reasons which the Magistrate provided in respect of his identification of the appellant has been made out.
Two factors have been influential in reaching this conclusion.
First, the Magistrate’s identification of the appellant from the CCTV footage was the sole basis upon which the Magistrate was satisfied beyond reasonable doubt of the appellant’s guilt. The Magistrate had correctly concluded that Sergeant Broomhall’s evidence of recognition should be given no weight. Although it may have been open to the Magistrate to place some weight on the circumstantial evidence that the accused had been in possession of the car keys at an earlier point in time, his Honour did not do so, finding that the clarity of the footage was such that he did not “need to consider any of the other evidence in those circumstances”. Where an identification is the sole evidence relied on by the finder of fact in determining guilt, more detailed reasons are required than where such an identification or recognition merely supports other evidence relied on by the finder of fact.
In this respect, it is also to be borne in mind that an in-court identification is unusual, because the “evidence” on which guilt is determined (that is, the appearance of the accused at the time of the hearing) is not contained in the court’s record of the proceedings. As a person’s appearance may change over time, where a Magistrate relies on an in-court identification, it is necessary for the Magistrate to briefly describe the accused’s appearance at the time of the hearing, so that there is a record of the evidence that has been acted on.
I am conscious of the fact that describing why a person appears to be the same as a person pictured in CCTV footage can be difficult: see DPP v Guarini (No 2) [2023] ACTSC 269 at [61]. However, as the decision in Guarini (No 2) also illustrates, it will usually be possible for a judicial officer to provide some particulars as to the basis upon which the accused has been identified: Guarini (No 2) at [57] – [63]. As noted at [56] above, in the present case, a number of features of the offender are depicted in the CCTV footage, including the offender’s hair colour and style, facial features and his overall build. Brief reasons could, and should, have been given as to whether the appellant had identical or similar features in each of these respects.
Second, the Magistrate’s record of the warning was expressed in generic terms. Bearing in mind the pressures on Magistrates arising from the volume of cases being dealt with the Magistrates Court, in my view, there is no need for a Magistrate to extract the terms of a direction in full, and a reference to a direction contained in a Bench Book or an authority which sets out an appropriate direction will often suffice. However, in some circumstances, it will be necessary for the Magistrate to record how the warning or direction was taken into account in reaching the particular conclusions made.
In the present case, there were particular aspects of the identification warning which needed to be borne in mind by the Magistrate when assessing his identification of the appellant. For example, the identification made by the Magistrate was made eighteen months after the CCTV footage; in different light; the appellant was, presumably, wearing different clothes; and was, presumably, seen by the Magistrate in a different posture to the person pictured in the CCTV. As noted above, one of the CCTV cameras used a fish-eye lens, which distorted the appellant’s appearance to a degree, whereas the other camera was further away but did not distort the image taken. Finally, the Magistrate needed take into account the particular risks of an in-court identification, which is “usually performed in circumstances that strongly suggest the answer that is ultimately given”: Festa v The Queen [2001] HCA 72; 208 CLR 593 at 601 [18]. The Magistrate’s reasons should have recorded how these matters were taken into account when making the identification in question.
Bearing in mind the pressures of the Magistrates Court, such reasons need not have been extensive. A sentence or two addressing the matters referred to at [79] and [81] above would have sufficed. Nonetheless, in circumstances where an in-court identification constituted the sole evidence that was relied on by the Magistrate in convicting the appellant, in my view, these reasons were required.