Gregory Martin Hinton v John William Brisbane Sca [1992] ACTSC 42 (8 May 1992)

SUPREME COURT OF THE ACT

GREGORY MARTIN HINTON v. JOHN WILLIAM BRISBANE
S.C.A. Nos. 129 and 130 of 1991
Appeal

COURT

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

CATCHWORDS

Appeal from Magistrate - Witness evidence - Clear dichotomy between evidence for the prosecution and evidence for the defence - Influence of demeanour - Issue as to credibility - Requisite standard of proof.

HEARING

CANBERRA
8:5:1992

Counsel for the Appellant: Mr J. Pappas

Instructing solicitor: Mr J. Pappas

Counsel for the Respondent: Ms P. Deveau

Instructing solicitors: Director of Public

Prosecutions

ORDER

The Court orders that:
1. The appeals be upheld.

2. Verdicts of acquittal be recorded.

DECISION

On 27 November 1991, two informations were heard in the Magistrates Court by Mr A. Hardiman, Special Magistrate. Each alleged an offence by the appellant. The respondent, a member of the Australian Federal Police, was the informant.

2. The first (PP 91/156) alleged an offence against s.164B of the Motor Traffic Act 1936 in that the appellant:

"..... at a time when a prescribed vehicle, to wit,
motor utility registration number ACT YTX 636, the driving
position of which was fitted with a seat belt, was being
driven forward on a public street, to wit, Mort Street,
(the appellant) being the person occupying the driving
position of the prescribed vehicle, did not have the said
seat belt securely fastened around him."

3. The second (PP 91/159) alleged an offence against s.132 of the Act in that the appellant:

"..... did drive a vehicle, to wit, motor utility
registration number ACT YTX 636 upon a public street, to
wit, Bunda Street, did cause the said vehicle to travel
backwards whilst he could not do so with safety having
regard to the movement of traffic on the said public
street at the time and for a greater distance or time than
was reasonably necessary."

4. The respondent gave evidence that the appellant's vehicle was in the driveway of R B Autos. It was facing north. He said:

"As I approached the vehicle, and about 8 metres
away, the vehicle reversed from where it was parked,
reversed into Bunda Street, continued
reversing and went into Mort Street, where it stopped
approximately near the median strip."

5. The respondent then signalled the driver to come to him. The driver did so. He recognized the driver as the appellant. At that time he said, "I also observed that his (the appellant's) seat belt was not secured".

6. There was then a conversation which was recorded by the respondent in his note book. The conversation was, he said, as follows:

"..... I asked him did he have any reason for
reversing in the manner in which he did to which he
replied, he said, 'No. Yes, I would have turned around.'
I then asked him did he have any reason for failure to
wear his seat belt to which he replied, 'I was just
putting it on. You have got to put it on to get it on.'"

7. These statements were largely meaningless. However, they could be construed as acceptance of the allegations put. In relation to the seat belt matter, they could be construed as an assertion by the appellant that he was about to put the seat belt on when called back by police.

8. The respondent paced out the distance for which the motor vehicle had reversed from the driveway back into Mort Street. It was, he said, "... 22 metres or approximately."

9. Unfortunately, the respondent did not offer any evidence as to the reversing distance in Bunda Street nor did he describe traffic movement or any other matter, other than the reversing itself, by reason of which the reversing was not able to have been performed with safety.

10. There was no formal evidence that the motor utility was not a "prescribed vehicle", the driver of which is not required to wear a seat belt. However, it was open to the learned Special Magistrate to have concluded that it was not such a vehicle. No issue was raised that it was not. However, it is not a requirement of s.164B that a person fasten a seat belt whilst reversing. The vehicle was said to have moved forward at the request of the respondent. It was only then that the obligation to fasten the seat belt arose.

11. Neither information referred to Mort Street. Each specified only Bunda Street as the place of the alleged offence.

12. It is clear that there was no prima facie case on the unsafe reversing charge. There was, technically, a prima facie case in relation to the unfastened seat belt allegation.

13. Constable Scott Andrew Bourke was with the respondent at the time of the events referred to above. His evidence supported the respondent's account.

14. The appellant gave evidence that he did not reverse or even enter the vehicle before speaking to the respondent and Constable Bourke. He gave an account of a conversation the effect of which was that the two police officers were intent on causing false charges to be laid. Their motive was suggested as being a dislike of the appellant. It was suggested that he was unfavourably known to police generally. The respondent and Constable Bourke each rejected such suggestions.

15. As it happened, the appellant's version of events was corroborated by two persons, namely, Nicole Tanya Bain and Melinda Louise Semple. They were "spying" on the appellant. Nicole Bain gave evidence that she was, on 31 August 1990, the appellant's girlfriend. She was suspicious, it seems, that he might be unfaithful to her. She and her friend, Melinda Semple, were watching him to see if he was accompanied by a woman when he went to his motor vehicle. They both gave evidence that they saw the police officers speak to the appellant before he entered his vehicle. They said that there was no reversing action as described by the police officers in their evidence.

16. No obvious contradictions were exposed by the cross-examination of any of the witnesses.

17. His Worship assessed the demeanour, the impression he had of the witnesses, as follows:

"It has been stated by Mr Pappas, and I agree with
this, that the evidence of the witnesses was given in a
forthright manner. But this includes the evidence of the
police officers as well. The evidence of all the witnesses
in this matter has been given in a forthright manner."

18. It appears that, having been unable to prefer the evidence of either side by reference to the demeanour of the witnesses, his Worship then asked himself, "Why would the police want to fabricate this evidence?"

19. His Worship concluded that it was unlikely that the police officers would have wished to fabricate the evidence they gave.

20. However, his Worship had to be satisfied beyond reasonable doubt that the version of events attested to by the police officers was true. It followed that, to be so satisfied, his Worship had to reject with certainty the version given by the appellant and his witnesses.

21. The prosecution has conceded that, without an adverse finding by his Worship as to the credibility of the appellant and his witnesses, the findings of guilt made by his Worship cannot stand. That was a proper concession.

22. Accordingly, I uphold the appeals and set aside the convictions and penalties accordingly.

23. It was, however, submitted by the prosecution that I should, nevertheless, remit the matters back to the Magistrates' Court for rehearing.

24. I do not propose to do that. There was no prima facie case in relation to the reversing matter, though that was not raised by Mr Pappas before the learned Special Magistrate. The trivial nature of the second matter and the possibility that it was committed only as a result of the respondent's direction, even on the prosecution evidence, is also relevant. However, more significant is the fact that on the evidence before the learned Special Magistrate as he then appears to have assessed it, he should have acknowledged a reasonable doubt. To send the matter back would, in a real sense, be a form of double jeopardy. Having regard to those matters and to the legal expenses already incurred in relation to them, I propose merely to uphold the appeals and record verdicts of acquittal.

25. I will hear the parties on the question of costs.