Sikorski v Gritsch [2002] ACTSC 55 (6 June 2002)

Last Updated: 11 June 2002

PATRICK JOHN SIKORSKI v PETER GRITSCH

[2002] ACTSC 55 (6 June 2002)

CATCHWORDS

APPEAL - "driving with prescribed content of liquor" - whether information under s 19(1) of the Road Transport Alcohol and Drugs Act 1977 was correctly so laid.

APPEAL - conflicting evidence before Magistrate - Magistrate found all witnesses reliable - whether conflict between witnesses could be resolved only by hypothesis of guilt.

Road Transport (Alcohol and Drugs) Act 1977, s 19

Magistrates Court Act 1930, Pt 11, s 28

Supreme Court Act 1930, s 20

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; [1999] HCA 3

Kelly v Apps (2000) 98 FCR 101; [2000] FCA 687

McLachlan v Mackey (1994) 124 ACTR 1; 119 FLR 332

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 85 of 2001

Judge: Miles CJ

Supreme Court of the ACT

Date: 6 June 2002

IN THE SUPREME COURT OF THE )

) No. SCA 85 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: PATRICK JOHN SIKORSKI

Appellant

AND: PETER GRITSCH

Respondent

ORDER

Judge: Miles CJ

Date: 6 June 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed, the conviction set aside and the information be dismissed.

2. The respondent pay the appellant's costs of the appeal and in the Magistrates Court.

1. This is an appeal against a conviction in the Magistrates Court on 23 October 2001 in which the appellant was charged on an information in the following terms.

"That he in the Australian Capital Territory on 14 June, 2001, did drive a motor vehicle, in a public place, with level 4 or more alcohol in his blood."

2. The information identified s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (the Act) as the Act and section under which the proceedings were taken or the charge was laid. For reasons which will appear, the whole of the section is relevant. It provides:

"19 Prescribed blood alcohol concentration exceeded

(1) A person who-

(a) has been the driver of a motor vehicle on a public street or in a public place; and

(b) has, within the relevant period, a concentration of alcohol in his or her blood equal to or more than the prescribed concentration;

commits an offence punishable, on conviction, by a penalty ascertained in accordance with section 26.

(2) In proceedings for an offence against subsection (1), evidence may be given of the concentration of alcohol in the person's blood as determined by-

(a) an analysis of a sample of the person's breath or blood carried out in accordance with this Act; or

(b) any other analysis.

(3) In subsection (1)(b):

relevant period means the period commencing when the person ceased to be the driver of the vehicle and ending at the latest time at which-

(a) a breath analysis of the person may be carried out in accordance with this Act; or

(b) where section 15 or 15AA applies - a sample of the person's blood may be taken in accordance with that section.

3. The only issue argued in the appeal was whether the Magistrate should have found that the appellant was the driver of the vehicle concerned at the relevant time. In this respect the nature of the appeal, brought pursuant to Pt 11 of the Magistrates Court Act 1930 (the Magistrates Court Act), must be acknowledged to be a re-hearing on the evidence before the Magistrate (there being no application to call further evidence in the appeal). The Magistrate's advantage in seeing and hearing the witnesses must be given proper weight and this Court will not interfere with findings of primary fact which depend on that advantage. However, as far as inferences from the primary findings are concerned, this Court is in as good a position as the Magistrate and will not shrink from its responsibility to draw inferences for itself even though they may conflict with those drawn by the Magistrate. It is not necessary to cite the usual and many authorities for those basic principles of the function of this Court in appeals from the Magistrates Court. One of the most recent decisions, and, with respect, one of the clearest and most authoritative, is that of the High Court in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; [1999] HCA 3.

4. One of the grounds taken in the notice of appeal is that the conviction is unsafe and unsatisfactory. That ground is available in courts of criminal appeal whose appellate powers conferred by statute include the power to set aside a conviction on the ground that there has been a miscarriage of justice. It is available in appeals to the Federal Court from a conviction in this Court following a trial by jury. Whether it is available in appeals from conviction after trial by judge alone has not been the subject of a considered decision and does not fall to be decided in the present case. Whether the ground that a conviction is unsafe and unsatisfactory is available in an appeal to this Court from a Magistrates Court is also not the subject of a considered decision. Whether the ground is available under the extraordinary general appellate power of this Court under s 20 of the Supreme Court Act 1930 is also not clear: see Kelly v Apps (2000) 98 FCR 101; [2000] FCA 687.

5. However, the success of the present appeal is not dependent upon establishing a miscarriage of justice. The error, if any, on the part of the Magistrate, falls to be corrected by this Court proceeding by way of re-hearing on the evidence of the Magistrate, subject to the restraints mentioned above. If upon such re-hearing this Court considers that there is reasonable doubt as to the appellant's guilt, then the appeal must be allowed, the conviction set aside and the information dismissed. The grounds of appeal set out in the notice of appeal do not enlarge or narrow the nature of the appeal. They identify the issues that the Court is called upon to consider.

6. The appellant lived in a caravan at Southside Caravan Park with Mrs Janet Rogers. That lady's daughter, Ms Belinda Rogers, lived with Mr Lindsay Murphy in a caravan in the opposite row of caravans. Mr Alan Muggridge lived in another caravan being the caravan adjacent to the appellant and opposite Ms Belinda Rogers.

7. In the mid to late afternoon of 14 June 2001, Mr Muggridge drove the vehicle in question, a Ford Falcon sedan owned by and registered in Victoria in the name of Mrs  Rogers, within the caravan park. The appellant was a passenger in the vehicle. Before about 4.00 pm Mr Muggridge left the appellant in the back seat of the car, with the car radio playing, in a corner of the camping area within the caravan park.

8. During the same afternoon, Ms Belinda Rogers, in her mother's caravan, saw the appellant walking nearby. He approached the caravan and, after a conversation lasting about five minutes, he left. After some five to 15 minutes or so she saw the appellant go to the passenger's side of the car parked near the caravan. Her attention was diverted. She then saw the car driven away.

9. At about the same time Mr Murphy, from his caravan, saw something essentially similar, but with one important addition. He saw the appellant get into the passenger side of the car, sit there for about five or ten minutes, then get out, walk around the back of the car and get into the driver's side of the vehicle, reverse and drive off "down the street".

10. As a result of some notification, Constable Gritsch arrived at the caravan park at about 3.45 pm. Some 15 to 20 minutes later, in the area designated for camping at the rear of the caravan park, he saw the vehicle. He saw the appellant in the driver's seat of the vehicle, apparently asleep. After several attempts Constable Gritsch succeeded in waking the appellant. The appellant reached in the direction of the ignition keys, removed them and dropped them on the floor. Constable Gritsch instructed the appellant to get out of the vehicle. When he did so, the appellant displayed symptoms of intoxication. Constable Gritsch administered a screening test and conveyed the appellant to the City police station, arriving at about 4.10 pm. At 4.42 pm the appellant's blood reading was 0.170 grams of alcohol per 100 millilitres of blood.

11. On questioning by police at about 5.17 pm the appellant denied being the driver of the vehicle and asserted that a person called Darren had been the driver and that he, the appellant, had been in the vehicle some two hours previously.

12. Not surprisingly, the Magistrate regarded the matter of times as "critical" and attempted to reconcile the various items of evidence about the time of various events with facts otherwise established and with the rest of the evidence.

13. Belinda Rogers in her evidence in chief said that she left her own caravan at about 3.00 pm with her mother and arrived at her mother's caravan shortly thereafter. She said that she saw the appellant after about ten minutes (that is after 3.10 pm). She further said that the appellant left about five minutes after that (that is after 3.15 pm) in order to get into the car before it was driven off. In cross-examination she said that it was about 3.15 pm when the appellant arrived at her mother's caravan.

14. Evidence was led from Lindsay Murphy in his evidence in chief that he first saw the appellant on that day at about 3.30 pm and that the appellant "came back five or ten minutes later before getting into the car". In cross-examination Mr Murphy said that the appellant turned up at about "3.30, quarter to four. In that time frame".

15. Mr Alan Muggridge did not say what time it was when he drove the vehicle to the camping area and left the appellant asleep with the car radio playing. The Magistrate concluded by way of inference that this occurred between 2.00 pm and 3.00 pm. In the light of the evidence of Mr Muggridge, the Magistrate also rejected the appellant's evidence that it was the appellant who turned on the car radio, from which the inference would appear to be that it was Mr Muggridge who had turned it on.

16. Mr Gill for the appellant submitted that the Magistrate had embarked upon a flawed reasoning process, beginning with the erroneous finding that the evidence of Belinda Rogers and Lindsay Murphy was "in unison". On the contrary, the submission goes, the two witnesses gave evidence each of "an entirely different sequence of events". This discrepancy was said to lie in the difference between the account given by Ms Rogers of the appellant getting into the passenger side of the vehicle and of the vehicle being driven off without the appellant getting out in the meantime and the account given by Mr Murphy of seeing the appellant get out, and walk around to the driver's side before driving off.

17. The second discrepancy relied upon for the appellant in the appeal was said to lie in the timing. Ms Rogers had the appellant driving off at about 3.15 pm. On Mr Murphy's account it could have been as late as 3.53 pm. Further, Mr Murphy's account is consistent with that of Constable Gritsch who was on the scene by 3.45 pm.

18. Thirdly, and most significantly according to the submission, was the consistency of the account given by Mr Muggridge that he drove the appellant as passenger between about 2.30 and 3.30 pm with the hypothesis that it was Mr Muggridge who drove, not the appellant, who was likely to have been lying in the passenger seat, presumably asleep, and hidden from the view of Ms Rogers and Mr Murphy.

19. As already indicated, the assessment of the credibility of the witnesses was a matter for the Magistrate and this Court will not interfere with such assessment unless it can be shown to be wrong on some basis other than credibility. Mr Gill's submission that the Magistrate's findings cannot stand against the different versions in the evidence of the timing of various incidents is not without merit. But is not, in my view, conclusive of error on the part of the Magistrate. Where I find greater difficulty with regard to the Magistrate's ultimate finding of guilt is in reconciling the evidence of Mr Murphy with that of Mr Muggridge. I do not think that the divergence between the evidence of Ms Rogers and Mr Muggridge is in itself of great importance, but the conflict between Mr Murphy on the one hand and Mr Muggridge on the other is stark. Both versions cannot stand together. Either Mr Muggridge drove the vehicle with the appellant inside it or he did not. If he did, there is no explanation of how Mr Murphy failed to see him.

20. Yet the Magistrate accepted the evidence of all three witnesses and sought to reconcile the differences by an hypothesis that Mr Muggridge drove the appellant to the camping area at an earlier stage during the afternoon, leaving sufficient time for somebody to drive the vehicle back to a position outside Ms Roger's caravan, without her or Mr Murphy noticing either the absence of the vehicle or its return and allowing the appellant time to drive back to the camping area and settle down to sleep before the arrival of the police.

21. In my view this hypothesis is substantially more unlikely than the hypothesis that somehow neither Ms Rogers nor Mr Murphy noticed all that went on outside the caravan that afternoon and they simply failed to see Mr Muggridge get into the car and drive off towards the camping area, by which stage the appellant was inside the vehicle, possibly lying on the passenger seat unseen. There was uncontradicted evidence that, unlike Mr Muggridge, the people from the other caravans had been drinking and accordingly may well have been affected by liquor.

22. The Magistrate's finding that Mr Muggridge was an acceptable witness is consistent with the rest of the case. He was no close friend of the appellant, merely a neighbour at that stage of about two months standing. His readiness to accept the invitation of the appellant to get into someone else's car and drive to the camping ground is remarkable, but experience in these courts indicates that there is no end to the variety of situations into which people allow themselves to be drawn.

23. Once Mr Muggridge's evidence is accepted, as it was accepted by the Magistrate who had the advantage of seeing and hearing the witnesses, it seems to me impossible to exclude the hypothesis that, impressive as they may have been as witnesses, Mr Murphy was mistaken in his account of the appellant getting into the vehicle and driving off and that Ms Rogers merely assumed that it was the appellant who was driving since her attention was diverted between the time she saw him get into the passengers side and the time she saw the vehicle moving off.

24. What happened subsequently with the arrival of the police, although on the face of it suspicious as far as the appellant is concerned, is consistent with the evidence of Mr Muggridge and explicable on the basis that the appellant simply remained in or around the vehicle from after the time Mr Muggridge left until the police arrived, getting into the driver's seat and falling asleep in the meantime.

25. For those reasons alone the appeal should be allowed.

26. Although it was not a matter addressed in submissions there is another difficulty in relation to the time in which the appellant is alleged to have driven the car and the time at which it was established that his blood sample contained an excessive quantity of alcohol. The printed result of the blood analysis, which was in evidence, shows the estimated starting time at 16.42 hours and the estimated test time as 16.47 hours. There is no reason to doubt the accuracy of this document, although the Magistrate said that the test was at 4.25 pm.

27. The importance of this issue emerges from the terms of the section that creates the offence. As far as I am aware, the information, as it was expressed, does not allege an offence known to the law in this Territory at the relevant time. It certainly does not allege an offence within the terms of s 19(1). The Magistrate described the issue at page 82 as "whether or not the defendant was indeed over the limit at the relevant time, whatever the relevant time may be".

28. Without expert evidence to show otherwise, or some statutory provision to deem otherwise, the result of the test must be taken to be evidence of the concentration of alcohol in the blood at the time of the test itself.

29. Allowing that the misdescription of the offence in the information was not fatal to the prosecution (Magistrates Court Act, s 28) it was incumbent on the prosecution to establish beyond reasonable doubt that the appellant had been the driver of the vehicle in a public place and the time at which he ceased to be the driver of the vehicle. The importance of the latter element must not be overlooked. Without establishing the time at which the appellant ceased to be the driver, it would not be possible to determine whether the concentration of alcohol in his blood, established by the breath test, was present during the "relevant period".

30. Section 19 in its present form became part of the Act on 5 April 1993. In McLachlan v Mackey (1994) 124 ACTR 1; 119 FLR 332, Higgins J (at 14) drew attention to some of the pitfalls facing the prosecution in a prosecution under the section and drew attention to the change of focus of the offence away from the result and on to the presence of a prescribed concentration within the relevant time period.

31. This issue appears not to have been addressed at the hearing before the Magistrate. It appears that the case was conducted on an assumption that the evidence was sufficient to show that at the time of the arrival of the police soon after 3.45 pm the appellant was the driver of the vehicle and that the "relevant period" commenced to run only from that time. The Magistrate made no finding in that regard. The evidence is not clear enough for it to be found established beyond reasonable doubt at the stage that the test was administered during the "relevant period", because it is not possible to show when that period commenced and when either it ceased or would have ceased. If the information had been laid in the terms of s 19(1) the hearing might have focussed on this essential issue.

32. Unless the parties wish to be heard I propose to order that the respondent pay the appellant's costs of the appeal and in the Magistrates Court.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 6 June 2002

Counsel for the appellant: Mr S Gill

Solicitor for the appellant: pappas, j - attorney

Counsel for the respondent: Mr J Lundy

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 25 February 2002

Date of judgment: 6 June 2002