Colin Robert Campbell v Michael John Fortey [1986] ACTSC 43 (30 May 1986)

SUPREME COURT OF THE ACT

COLIN ROBERT CAMPBELL v. MICHAEL JOHN FORTEY
S.C. No. 1227 of 1985
Courts and Judges - Sentencing - Costs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Courts and Judges - nature of appeal from Court of Petty Sessions to the Supreme Court - reception of new evidence - principles applicable.

Courts and Judges - penalty imposed by magistrate - appeal to Supreme Court against severity of penalty - principles applicable.

Sentencing - PCA offence - whether maximum custodial sentence appropriate for offender sentenced to imprisonment for first time.

Costs - no practice that successful appellant on severity should get costs.

Messel v. Davern (1981) 9 NTR 21

R v. Latimore and Others (1975) 62 CAR 53

Smith v. Tawney (1984) NTR 31

McEwen v. Siely (1972) 21 FLR 131

HEARING

CANBERRA
30:5:1986

ORDER

The appeal against sentence be upheld.

The order of the magistrate be set aside. In lieu thereof the appellant be sentenced to six months imprisonment to be suspended upon his entering into a recognizance without sureties in the sum of $500 to be of good behaviour for a period of two years from this date.

The recognizance be further conditioned that he will, during that period, accept the supervision of the Director of the Alcohol and Drug Service of the ACT Health Authority. All licences under the Motor Traffic Ordinance be cancelled and the appellant be disqualified from holding any such licence until a magistrate otherwise orders.

The recognizance may be taken before a Justice of the Peace.

Each party pay his own costs before the magistrate and in this Court.

DECISION

This is an appeal against the severity of penalty imposed by a magistrate in the Canberra Magistrates Court on 29 October 1985 for a breathanalysis offence under s.19 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977. The reading upon analysis of the breath sample was 0.170, a high reading. The appellant pleaded guilty before the magistrate and was convicted and sentenced to imprisonment for 12 months, to be released after four months upon entering into a recognizance of $200 to be of good behaviour for a period of two years and further conditioned that he attend the Alcohol and Drug Service as often and for as long as required to do so by the person in charge of that service. The magistrate further ordered that all licences held by the appellant under the Motor Traffic Ordinance be cancelled and that the appellant be disqualified from holding any licence under the Ordinance unless and until permitted to do so by order of the court.

2. The facts are simple. At about 9.05 p.m. on Wednesday, 22 May 1985, a police officer on mobile patrol saw the appellant driving a white Volvo station wagon in Hardwick Crescent, Holt. The vehicle was seen to be weaving within its lane. The appellant was stopped and spoken to. The arresting officer formed the opinion that the appellant was slightly affected by intoxicating liquor.

3. The appellant, who gave evidence before me, said that he had been driving to his home from the Kippax Tavern, about a kilometre distant. He also said that he had expected his son to come to the tavern to collect him and drive him home, but when he rang, the son said that he was too ill to be able to assist. The appellant was not effectively challenged on this version of events, and I accept it.

4. The appellant is 45 years of age and has been licensed to drive motor vehicles for some 24 years. There was no record of any offence committed by him at all until 1971. On 9 September that year, he was fined $10 in the Sutherland Court of Petty Sessions for an offence of driving with more than the prescribed concentration of alcohol.

5. On 16 August 1978, in the Canberra Court of Petty Sessions, he was convicted for a breathanalysis offence on a reading of 0.120, for which he was fined $300 and his licence was suspended for three months. On 10 May 1984, in the same court for the same offence, he was fined $500 and his licence was suspended for six months. On that occasion, the reading was 0.210. There were two or three other matters of a minor nature for which the appellant was fined.

6. The hearing of the appeal commenced with the appellant seeking to put evidence before me that was not before the Magistrate. This course was strenuously opposed by the respondent prosecution. In fact, this was the fourth case in as many days in which I was required to consider the nature of an appeal to this Court from a conviction or sentence by a magistrate.

7. The present appeal is brought pursuant to amendments to the Magistrates Court Ordinance 1930, which amendments came into force on 26 October 1984. S.214 now provides as follows:

"(2) In an appeal to which this section applies,

the Supreme Court shall have regard to the evidence
given in the proceedings out of which the appeal
arose, and has power to draw inferences of fact.

(3) In an appeal to which this section applies,
the Supreme Court shall -

(a) if it thinks it necessary or expedient to do
so in the interests of justice -

(i) order the production of any document or
other thing that was an exhibit in, or was
otherwise connected with, the proceedings
out of which the appeal arose, being a
document or thing the production of which
appears to it to be necessary for the
determination of the appeal;

(ii)order any person who was, or would have been
if he had been called, a compellable witness
in those proceedings to attend for examination
before the Supreme Court; and

(b) receive evidence with the consent of the
parties to the appeal.

(4) Where evidence is tendered in an appeal to
which this section applies, the Supreme Court
shall, unless it is satisfied that the evidence
would not afford any ground for allowing the
appeal, receive the evidence if -

(a) it appears to the Supreme Court that the
evidence is likely to be credible and would have
been admissible in the proceedings out of which
the appeal arose on an issue relevant to the
appeal; and

(b) the Supreme Court is satisfied that the
evidence was not adduced in those proceedings and
there is a reasonable explanation for the failure
to adduce it."

8. As I have had occasion to remark in other cases, an appeal to this Court from a magistrate is no longer a complete hearing de novo, as it used to be. Nor is it an appeal in the strict sense. The statutory provisions in the Northern Territory as to an appeal from a court of summary jurisdiction to the Supreme Court there, are close enough to the provisions in this Territory as to be almost identical. In Messel v. Davern (1981) 9 NTR 21, a full court of the Northern Territory was convened especially to consider the nature of such an appeal, and on pages 27 to 28, the court set out its views on that matter:

"In our view an appeal to this court under Pt. VI
of the Justices Act is not an appeal Stricto
sensu. If the legislature intended such appeals
to be appeals in the strict sense, it would not
have conferred upon this court the broad ambit of
powers conferred by the Act. . . . . .

The jurisdiction of this court is to provide for
such a judgement to be given on the hearing of the
appeal as ought to be given if the case came at
that time before the court of first instance. The
function of this court is to determine the appeal
on the material before it. Because the material
is not necessarily confined to the material before
the lower court, this court's function goes far
beyond deciding whether the judgment complained of
was right when given on the material which the
lower court had before it. It may not be
appropriate to label the proceedings as a
rehearing. . . . . .

We have said enough to indicate our view that the
nature of an appeal under Pt. VI is not an appeal
in the strict sense and is not a rehearing de
novo. It is a rehearing, i.e. a new trial of the
issue raised by the notice of appeal using the
evidence in the court below with a discretion to
receive further evidence. In the exercise of that
discretion the court may in special circumstances
hear the whole case again. Whatever way the court
proceeds, its function is to determine the rights
of the parties by reference to the circumstances
as they then existed at the conclusion of the
appeal, by reference to the law as it then exists
and to give such judgment as ought to be given if
the case at that time came before the cort of
first instance."

9. It is to be observed that in Messel v. Davern the Supreme Court of the Northern Territory was not called upon to decide the question as to whether additional evidence should or should not be allowed in the appeal under consideration by it. Nor was it concerned with an appeal against the severity of a sentence or a penalty. Both of those factors, I think, are important ones in the appeal now before me.

10. In deference to some of the argument that was put on behalf of the respondent, it is necessary, I think, for me to state that it is my view that this Court, sitting on appeal from a magistrate, is not required to act, and should not act, according to the rules which have evolved in relation to a court of criminal appeal sitting on an appeal after a trial on indictment or on appeal from a sentence for an indictable offence.

11. Counsel for the respondent, whose industry is not to be criticised, drew my attention to the fact that the provisions of sub-sections (3) and (4) of s.214 of the Magistrates Court Ordinance 1930 are in terms substantially identical with the provisions of sub-sections (1) and (2) of s.23 of the English Criminal Appeal Act 1968.

12. In R v. Latimore and Others (1975) 62 CAR 53, the English Court of Appeal emphasised the distinction between the equivalent of sub-s. (3) and sub-s. (4) of s. 214 of our Ordinance. Sub-section (4) imposes a duty on the court to receive further evidence, if the conditions of the sub-s. are met, but sub-s. (4) in no way restricts the power to receive further evidence under sub-s. (3), if the court thinks it necessary or expedient in the interests of justice. Counsel for the respondent then went on to cite numerous authorities to the effect that the discretion to receive further evidence will be exercised only in exceptional cases, or where error has been shown.

13. I think it sufficient answer to the last submission to say that the cases cited were concerned with the powers of a court of criminal appeal or, if concerned with an appeal from a court of summary jurisdiction, the statutory provisions under consideration were substantially different from those in the Magistrates Court Ordinance 1930 as it now stands.

14. In Smith v. Tawney (1984) NTR 31, Mr. Justice Muirhead, sitting in the Supreme Court of the Northern Territory, on an appeal from a magistrate against the severity of a penalty, considered an application for the reception of further evidence and stated as follows at p.33:

"Appeals under this Act may vary greatly in form
and substance and in my view the appellate judge,
in deciding an issue as to the admission of new
evidence, must inevitably do so on a discretionary
basis, the principal consideration being, perhaps,
fairness to the accused."

15. In the light of the above, I come to the conclusion that the discretion to allow further evidence on an appeal under s.214(3) is unfettered and not circumscribed by any consideration that the appellant must show that the magistrate was in error on some question of law or fact or that special circumstances exist. Further, the Ordinance does not distinguish between appeals against conviction and appeals against sentence, and a person appealing against penalty does not have to show, for the purpose of adducing further evidence, error or exceptional circumstances.

16. However, of course, for the appeal to be successful the Supreme Court must ultimately decide that a lesser penalty is appropriate. The result might well be in practice that this Court, sitting on an appeal from a magistrate on the question of penalty, may more readily exercise its powers to allow additional evidence and indeed to allow the appeal than would a court of criminal appeal sitting on an appeal against sentence for an indictable offence.

17. I turn now to the question as to whether the appellant is entitled to call further evidence, that is to say, whether the court is obliged to receive the evidence tendered under sub-s. (4) of s.214. The evidence tendered relates to the progress of the appellant in response to counselling from the Alcohol and Drug Service of the ACT Health Authority since the date of sentence in the court below. Clearly, that evidence is likely to be credible and would have been admissible in the proceedings before the magistrate. Accordingly, it satisfies paragraph (a) of sub-s. (4). Whether it satisfies sub-s. (b) in that there is a reasonable explanation for the failure to adduce that evidence before the magistrate is another matter. As the evidence tendered relates to events which have occurred since the proceedings before the magistrate, it was submitted on behalf of the appellant that that fact alone constitutes reasonable explanation. On the other hand, and as was submitted on behalf of the prosecution respondent, it does not make sense to speak of the failure to do the impossible. To call evidence as to events which have not occurred is not possible. Nor does it make sense, in my view, to speak of an explanation for the absence of evidence of such future events. A proper construction of sub-s. (4) is that it does not apply to evidence of events which have occurred subsequent to the proceedings out of which the appeal arises.

18. I turn then to the question as to whether the court in the exercise of its discretion in the instance case will, under sub-s. (3) of s.214 receive the evidence tendered because it thinks it is necessary or expedient to do so in the interests of justice. After some hesitation, I think it desirable in the present case to exercise the discretion to receive the evidence. As I have said, the discretion is an unfettered one according to the terms of the Ordinance and is not to be circumscribed by any requirement to show error on the part of the magistrate. Nevertheless, it may be appropriate to look at what the magistrate did and said and in my view is appropriate in the case before me.

19. The appellant was sentenced to the maximum term of imprisonment for the breathanalysis offence. A prison sentence for such an offence is not usual, necessary as it may be in an exceptional case. Furthermore, the appellant has never been sentenced to prison previously and it would be rare indeed for a person sentenced to prison for the first time to receive the maximum sentence. It is possible the magistrate was under some misapprehension as to the appellant's then and present employment. His Worship is recorded as saying, "there is no reason why he should not go to gaol", and adding the words, "he is not employed". The latter may have merely been a slip of the tongue or an error in transcription. However, I think it is a matter to be taken into consideration. Furthermore, the magistrate said that the appellant had not made "any real effort to do something about his drinking", and went on to indicate that in his view the effort expected involved total abstinence from alcohol. That view is open to question. Lastly, the magistrate seems not to have taken into consideration the fact that the first drink driving offence in 1971 must have been little more than a technical offence in view of the nominal punishment imposed.

20. I conclude then that the evidence tendered should be accepted for consideration by me in this appeal. Having seen and heard the appellant in the witness box and also Dr Slater, and after reading the various reports including, in particular, the report of the social worker who has had responsibility for counselling the appellant under the Alcohol Education Programme, I am of the view that the appellant has reached a degree of self insight that he has not previously attained. If that has been partly due to the realisation that he has had a prison sentence hanging over him, so be it.

21. He is 45 years of age and poorly educated. He has recently and successfully brought up several children on a supporting parent's pension and only recently returned to the workforce as a storeman on what must be close to a minimum wage payable to an adult worker, namely $210 net per week.

22. In my view, the competing requirements of a sentence in the circumstances of the present appeal duly acknowledging the seriousness of a fourth conviction for a drink driving offence in fourteen years, is to impose a prison sentence, but a sentence short of the maximum term and a sentence totally suspended upon the appellant entering into a recognizance.

23. I will say that I do not regard this case as a precedent whereby a person charged before a magistrate may consider that it is a permissible course to refrain from giving or calling evidence so that in the event of an unfavourable result he may seek to rely on appeal to this Court on the evidence so withheld. Furthermore, I would think that the power of this Court to admit further evidence on the appeal is the more likely to be exercised if the appellant has set out in proper affidavit form the nature of the evidence to be tendered and the reason or reasons why it was not called in the court below, and further, has served a copy of that affidavit upon the respondent or his representative prior to the hearing of the appeal. Those are, in fact, the procedural requirements of the law in the Northern Territory but not in this Territory at the present time.

24. Stand up, Colin Robert Campbell. The appeal against sentence is upheld. The order of the magistrate is set aside. In lieu thereof the appellant is sentenced to six months imprisonment to be suspended upon his entering into a recognizance without sureties in the sum of $500 to be of good behaviour for a period of two years from this date. The recognizance is further conditioned that he will, during that period, accept the supervision of the Director of the Alcohol and Drug Service of the ACT Health Authority. All licences under the Motor Traffic Ordinance are cancelled and the appellant is disqualified from holding any such licence until a magistrate otherwise orders. The recognizance may be taken before a Justice of the Peace. I will hear counsel on the question of costs.

25. In this matter there is an application for costs following a decision allowing an appeal against the severity of a penalty imposed by a magistrate. I have already given my reasons for upholding the appeal. Counsel for the appellant informed me that the practice in this Court was that a successful appellant normally gets costs. Counsel for the respondent told me that the practice is that on an appeal against severity, neither party gets costs. If responsible and experienced counsel for either side put forward such boldly contrasting statements as to the practice, I conclude that there is no settled practice either way. In any event, I would be surprised if there is a practice that an appellant successful only on the question of penalty gets an order that the respondent pay the costs of the appeal to this Court or of the proceedings before the magistrate.

26. The decision in McEwen v. Siely (1972) 21 FLR 131 which was not referred to by counsel but which might, on some exercise of the imagination, be considered to be in point is not, in my view, in point at all. That was a case in which the court was concerned with the costs of what was described as an acquitted defendant. I know of no principle whereby a person convicted before a court of summary jurisdiction should get his costs and I have never heard of that happening.

27. The appeal to this Court in this case was a re-hearing after a plea of guilty. The principle that in such cases that costs would follow the event is of no application because there has been, in effect, no event in the sense of issues determined between the parties which ought to be followed.

28. The appellant has not sought to point to any discretionary factors to justify an order for costs in his favour, and it is hard to imagine what they might be. The respondent does not seek costs. The only appropriate order is that each party pay his own costs before the magistrate and in this Court I so order.