Graeme Leslie Moore v Ian Douglas Skinner Sca [1990] ACTSC 21 (18 June 1990)

SUPREME COURT OF THE ACT

GRAEME LESLIE MOORE v. IAN DOUGLAS SKINNER
S.C.A. No. 70 of 1989
Magistrate - Evidence

COURT

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

CATCHWORDS

Magistrate - appeal against conviction - Part XI Division 2 Magistrates Court Ordinance 1930 - appeal upon grounds of unsafe conviction rather than by way of rehearing.

Evidence - refreshing memory - witnesses reading from notes - admissibility.

Petreski v. Cargill (1988) 79 ALR 235

Black v. Smith (1984) 30 NTR 29

Cooper v. Pryce (1984) 28 NTR 10

Cooling v. Steel (1971) 2 SASR 249

R v. Hanias (1976) 14 SASR 137

R v. Bicanin (1976) 15 SASR 20

R v. Howes (1964) 2 QB 459 at 466

HEARING

CANBERRA
18:6:1990

ORDER

The appeal be allowed.

The conviction and orders of the Magistrate be set aside.

There be no order as to costs.

DECISION

This is an appeal against conviction by a Magistrate in the Canberra Magistrates Court on 16 October 1989 on a charge of refusing to provide a sample of breath for breath analysis under sub-s.22(c) of the Motor Traffic (Alcohol and Drugs) Act 1977 (ACT)(the Act). The notice of appeal is dated 16 October 1989. The appeal is one which is brought under Division 2 of Part XI of the Magistrates Court Ordinance 1930 (the Ordinance). Very briefly, the prosecution case, which was proved to the satisfaction of the Magistrate, was that the appellant had been driving his motor car in Cooyong Street and Mort Street, Canberra. He attracted the attention of police when he drove through a red traffic light, he was required by a police officer to undergo a screening test in accordance with s.8 of the Act, he refused to undergo the screening test, was taken into custody to the Canberra Police station, was there and then required by a member of the Police Force to provide a sample of his breath for breath analysis under s.12 of the Act, and failed to do so.

2. The appellant was unrepresented before the Magistrate, a fact which is central to the submissions that were put on his behalf by Mr Whitelaw of counsel who appeared on the appeal. It was submitted on the appellant's behalf, in effect, that the hearing before the Magistrate constituted a miscarriage of justice and that the Magistrate's decision to convict was unsafe and unsatisfactory. I have some reservations about whether such matters are appropriate to raise on an appeal under Division 2 of Part XI of the Ordinance. The procedure to be followed on such an appeal is laid down by s.214 of the Ordinance and the nature of such an appeal is to be ascertained from the provisions of s.214 and s.218. The appeal is regarded as a re-hearing on the evidence below (sub-s.214(2)), with such additional evidence as may be permitted by leave (sub-ss.214(3) and 214(4)). The Supreme Court has power to draw its own inferences of fact (sub-s.214(2)). Where the appeal is against a discretionary decision it is necessary to show that the Magistrate erred in exercising his discretion or that the penalty was otherwise manifestly unjust. The Supreme Court's power under s.218 to make orders in lieu of those of the Magistrate are very wide. (Petreski v. Cargill (1988) 79 ALR 235). Questions relating to the unsafe and unsatisfactory nature of a finding of guilt or the failure to afford a fair trial to an accused person are customarily regarded as appropriate to a court acting as a court of criminal appeal from a verdict of a jury and are of doubtful application to an appeal by way of rehearing. However, counsel for the respondent took no point that an appeal under Division 2 of Part XI of the Ordinance may not raise such matters and, bearing in mind the broad jurisdiction of this Court under s.11(c) of the ACT Supreme Court Act 1933, and its duty under s.24 of that Act, I propose to deal with the appeal as it was argued. There is precedent for that course in Black v. Smith (1984) 30 NTR 29 and Cooper v. Pryce (1984) 28 NTR 10, decisions of the Supreme Court of the Northern Territory.

3. In Black v. Smith and some decisions of the Supreme Court of South Australia such as Cooling v. Steel (1971) 2 SASR 249, R. v. Hanias (1976) 14 SASR 137 the appellate court has set aside a finding of guilt on the basis that it was not satisfied that there had not been a miscarriage of justice in the court below in circumstances where the unrepresented appellant showed an insufficient understanding of the issues involved. In R. v. Bicanin (1976) 15 SASR 20, a decision of the Supreme Court of South Australia (in banco) it was said at p 25 that the lack of representation at a trial does not in itself constitute a ground of appeal, but "may form part of a composite set of factors leading to the conclusion that there was an overall miscarriage of justice". Amongst those circumstances are the efforts of the accused to obtain legal representation and any adjournments or refusals of adjournments for that purpose.

4. Counsel for the appellant also relied on a passage from the decision of the Court of Appeal in England in R. v. Howes (1964) 2 QB 459 at 466 per Lord Parker C.J. (referred to with approval in Hanias) as follows:
"The real question at the end of the day is whether

the court is completely satisfied that,
notwithstanding the unfortunate course this case
took in regard to the defendant not being
represented, there has been no miscarriage of
justice. If there is the slightest doubt in the
matter, then the court ought to quash the
conviction."

5. I doubt, with respect, whether this passage ought be read outside the context of the circumstances of the particular case under consideration. If it means that the appeal court is bound to set aside the conviction of an appellant who was unrepresented in the court below, unless the prosecution can prove beyond doubt on appeal that there was no miscarriage of justice below, then I think that it is incorrect.

6. Counsel for the appellant relied upon a number of factors which emerged from the transcript of the proceedings in the Magistrates Court to support his submission that there had been a miscarriage of justice. These were as follows:

1. The Magistrate refused an application by the
appellant for an adjournment so that he could obtain
legal representation. This occurred after the
solicitor who had previously been appearing in the
matter announced to the Magistrate on the morning of
the hearing that he was withdrawing from the case.
It appears that there had been some misunderstanding
between the appellant and his solicitor, although
the appellant had known since April that the hearing
date had been set for 16 October 1989. In refusing
the application for the adjournment, the Magistrate
said that he was
"unwilling to allow this thing to drag on any
longer".
2. The prosecutor was permitted to lead witnesses on
material and controversial issues. For instance,
Constable Skinner, the chief police witness,
initially said that he first saw the defendant at
about 1.47 a.m. Later after answering a series of
leading questions and referring to notes, which was
done without the leave of the Court, the Constable
corrected this to 12.47 a.m. However, in my view,
nothing turns on any question of time.
3. Certain exhibits tendered by the prosecution were
not shown to the appellant before being admitted
into evidence by the Magistrate. For instance,
according to the transcript, the screening test
statement obtained under s.10A of the Act was
tendered in evidence and apparently admitted without
any reference to the appellant, without any advice
to him as to his right to object and without any
enquiry from him whether he objected. On the other
hand, however, as counsel for the appellant properly
conceded, there was no conceivable basis upon which
any objection could have been maintained to the
admission of that document.
4. The Magistrate prevented the appellant from asking
legitimate questions in cross-examination of police
officers. The questions themselves, however, were
argumentative and the answers to them could not have
affected the outcome of the case in any way. At the
very most, it could be said that the appellant,
being inexperienced in court procedures, may have
been thrown off balance by the refusal to allow the
questions and his capacity to cross-examine may have
been reduced. On the other hand, a reading of the
transcript as a whole suggests strongly that the
appellant did not suffer from this sort of handicap.
5. The prosecutor handed documents to the Magistrate
during the course of the hearing, which were not
tendered as evidence and which were inadmissible.
This occurred during the appellant's address at the
end of the evidence. The appellant sought to refer
in his address to a document which was apparently a
statement by one of the police witnesses but which
was not in evidence. When the Magistrate asked the
appellant what document he was referring to,
counsel for the prosecution, for some reason,
interrupted and handed to the Magistrate what he
claimed was a copy of the statement. It appears
that the appellant handed the Magistrate another
document at the same time. These documents were
read by the Magistrate (or so it appears) but were
not admitted into evidence. The appellant went on
in his address to refer to these documents as prior
inconsistent statements. Strictly speaking, the
Magistrate should not have allowed the appellant to
pursue this course without giving leave to the
appellant to reopen his case and have the documents
marked as exhibits, but no doubt he sought to relax
the rules of procedure in the interests of the
appellant. The appellant can hardly complain at
this stage of the course taken by the Magistrate
which cannot be shown to have been against the
interests of the appellant or to have prejudiced his
case in any way.

7. None of the above matters in isolation provides ground for concluding positively that there was a miscarriage of justice.

8. There were further submissions in the appeal that the Magistrate made errors in rulings on evidence as follows:

1. The Magistrate erred in rejecting evidence relating
to the appellant's medical condition at the time of
the alleged offence. However, the evidence tendered
does not appear to have been strictly admissible, as
it consisted of a medical certificate only. True it
is that the strict rules of evidence are often
waived in the interests of an accused person,
particularly when unrepresented, and fairness may
have required the reception of the medical
certificate (possibly as a statement under
Part VI of the Evidence Ordinance 1971) if it could
have been shown to bear on the issues in the case.
Counsel for the appellant submitted in the appeal
that the appellant's medical condition was relevant
to a defence under s.14(2)(a) of the Act to the
effect that the police had no right to require him
to provide a sample of his breath if it appeared to
the police officer concerned that it might be
dangerous or not practicable for the appellant to
submit a breath sample. The medical certificate in
question, however, merely went to show that the
appellant suffered from a high blood cholesterol
level and this evidence, even if taken in
conjunction with the appellant's own evidence to the
Magistrate that he suffered from a heart condition
and was feeling faint on the night in question, was
of such little potential probative weight in
relation to the possible defence, that it cannot, in
my view, be regarded as contributing to any possible
miscarriage of justice.
2. The Magistrate erred in allowing the three
prosecution witnesses to give evidence by reading
from contemporaneous notes. Constable Skinner read
from his notes after the Magistrate ruled over
objection that he could look at them for the purpose
of refreshing his recollection. Constable Clayton
read from her notes after the appellant, in
answer to an inquiry from the Magistrate, stated
that he had no objection. Constable Anderson read
from her notes without reference to the appellant
and without the granting of leave.

9. The purpose of allowing a witness to refer to contemporaneous notes is to allow the witness to refresh the recollection of the witness and unless the defendent consents, a prosecution witness should not simply read them. The appellant gave evidence that he had in fact submitted to the screening test and it was his case that the police were not entitled to require him to undergo a breath analysis under s.22 of the Act. The argument is irrefutable that an offence is committed under s.22 only where the driver has been required "in accordance with the provisions specified in this Act". In the circumstances of the present case, it was necessary for the prosecution to prove that the appellant had failed to undergo a screening test when required by a police officer. If that failure on the part of the appellant was not proved, it was not possible to prove that the appellant had in accordance with the provisions specified in the Act failed to provide a sample of his breath for breath analysis.

10. With the arrogance of hindsight it is possible to see that astute counsel appearing for the appellant, instructed by the appellant that he had in fact submitted to the screening test, would have strenuously opposed the reading of the notes by the police witnesses. If that had been done, the Magistrate would presumably have taken the correct course of not allowing the witnesses to read from their notes, but would possibly have exercised his discretion to allow them to refresh their recollection from the notes. It is impossible to say what the effect on their credit as witnesses would have been if they had not been allowed to read from the notes. The Magistrate, of course, had not been put on notice by the appellant of the exact nature of the appellant's defence and he was not in a position to anticipate the conflict that eventually arose between the accounts given by the police witnesses from their notes on the one hand and the sworn evidence of the appellant and to a lesser extent of his son on the other hand. This is certainly not a case where "nothing was done to ensure a fair trial" to use the words of Nader J. in Black v. Smith at p 31. But where an unrepresented defendant has pleaded not guilty and has been refused an adjournment for the purpose of obtaining legal representation, a court should be careful to observe the rules of evidence. At the end of the day I must say that taking all the circumstances into account, I think that the decision to allow the police witnesses to read their notes (which was erroneous in the case of Constables Skinner and Anderson and allowed with the uninformed consent of the appellant in the case of Constable Clayton) gives an impression of emphasis on haste and insufficient attention to compliance with the rules of evidence. I am left without a comfortable feeling of satisfaction that a miscarriage of justice did not occur.

11. I should add that had this matter proceeded by way of rehearing which I now think may have been the proper course, the appellant could have objected to the reception in the appeal of the evidence given by the prosecution witnesses and which they read from their notes. If that evidence had been excluded, as I think it would have been if the objection had been taken, there would have been insufficient evidence to support the conviction. The prosecution may have sought leave to call fresh evidence on the appeal, but even if leave were granted it is impossible to speculate as to its weight. This alternative approach to the appeal reinforces the conclusion that the appeal should be allowed.

12. I have given consideration to remitting the matter to the Magistrates Court for further hearing according to law, but in all the circumstances I think that the proper course is simply to allow the appeal, set aside the conviction and orders of the Magistrate and dismiss the information. I so order. I make no order as to the costs of the appeal.