Kempe v Bailey [2003] ACTSC 13 (14 March 2003)

Last Updated: 18 March 2003

STEPHEN KEMPE v PAUL ADRIAN BAILEY [2003] ACTSC 13 (14 March 2003)

CRIMINAL LAW - "burnout" - nature of offence considered.

APPEAL FROM MAGISTRATES COURT - analysis of reasons - need to adequately assess credibility of prosecution witnesses notwithstanding rejection of evidence adduced by defence.

APPEAL - allegation of apprehended bias - special Magistrate maintaining employment as officer of the Commonwealth Director of Public Prosecutions - appellant prosecuted for traffic offence under Territory laws - relevance of finding based on perceived implausibility of conduct attributed to police officer.

Road Transport (Safety and Traffic Management) Act 1999, s 5B(1), subs 5(B)(2)

Road Transport (General) Act 1999, s 63

Director of Public Prosecutions Act 1983 (Cth)

ACT Self-Government (Consequential Provisions) Regulations

Serratore, 81 A Crim R 363

Patrick John Sikorski v Peter Gritsh (unreported), [2002] ACTSC 55 Miles CJ, 6 June 2002

Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (Liq) [1999] HCA 3; (1999) 73 ALJR 306

R v Justice R S Watson, a Judge of the Family Court of Australia, Ex Parte Armstrong [1976] HCA 39; (1976) 9 ALR 551

R v Cavit & Anor; Ex Parte Rosenfield (1985) 33 NTR 29

Nickelseekers Ltd v Vance (1985) 1 Qd R 266

R v Williams; Ex Parte Phillips [1914] 1 KB

Re Polites; Ex Parte Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78

Abdul Haque Omarjee (1995) 79 A Crim R 355

"The Courts as Legislators", The Lawyer and Justice, (Sweet & Maxwell) (1978)

Macquarie Dictionary of Slang

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 46 of 2002

Judge: Crispin J

Supreme Court of the ACT

Date: 14 March 2003

IN THE SUPREME COURT OF THE )

) No. SCA 46 of 2002

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: STEPHEN KEMPE

Appellant

AND: PAUL ADRIAN BAILEY

Respondent

ORDER

Judge: Crispin J

Date: 14 March 2003

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be allowed;

2. the conviction, penalty and orders be set aside; and

3. the matter be remitted to the Magistrates Court for re-hearing.

1. This is an appeal against a decision of Special Magistrate Lalor convicting the appellant of a "burnout" of his motor vehicle in contravention of s 5B(1) of the Road Transport (Safety and Traffic Management) Act 1999.

2. The case for the prosecution was substantially dependent upon the evidence of two police officers. Constable Bailey gave evidence that he had seen the wheels of the appellant's vehicle spinning and that he had heard a loud screeching noise which lasted for four seconds. He said that when he spoke to the accused, the accused told him that he had thought that he "had three seconds". His evidence was substantially corroborated by that of Constable McIntosh, who said that he had heard the sound of tyres spinning on bitumen and that the sound had lasted for approximately three or four seconds.

3. On the other hand, the appellant gave evidence denying these allegations that he had caused the wheels of the vehicle to spin in this manner. He maintained that Constable Bailey had not told him why he had been pulled over and that he had assumed it had been due to the noise emanating from a device called a "blow off valve" fitted to his vehicle, which he had understood could lawfully be operated for up to three seconds. His evidence was substantially corroborated by Ms Read who had been in the vehicle with him at the relevant time.

4. Whilst a number of subsidiary points were raised in argument, only two grounds of appeal were pressed; namely

(a) the decision was unsafe and unsatisfactory in that the learned Special Magistrate ought to have entertained a reasonable doubt as to the appellant's guilt because the evidence in the case failed to prove that the appellant operated his motor vehicle in a way that caused their vehicle to undergo sustained loss of traction by one or more wheels; and

(b) in the alternative, consistent with the decision of R v Cavit, Ex Parte Rosenfield (1985) 33 NTR 29, the learned special Magistrate ought to have disqualified himself on the ground of apprehended bias.

5. Mr Sharman, who appeared for the appellant, commenced his submissions in support of the first of these grounds with the contention that the learned special Magistrate had either misdirected himself as to the nature of the offence in question or, alternatively, had failed to adequately direct himself to that issue.

6. The offence charged is created by subs 5(B)(2) of the Road Transport (Safety & Traffic Management) Act 1999, which provides that the driver of a motor vehicle must not "burnout" the vehicle on a road or related area. Subsection (1) provides that the word "burnout" means, in relation to a motor vehicle other than a motor bike, to "operate the vehicle in a way that causes the vehicle to undergo sustained loss of traction by 1 or more of the driving wheels".

7. Subsection (3) provides that it is a defence to a prosecution for an offence against subs (2) if the driver establishes that "the motor vehicle, although operated in contravention with the subsection, was not deliberately operated in that way".

8. Mr Sharman submitted that the words of subs (2) should be construed as applying only to cases in which a driver had operated the vehicle in a manner intended to cause the driving wheels to spin for a sustained period of time whilst the vehicle remained essentially in the same position. He pointed out that the consequences of conviction include the impounding or even forfeiture of the vehicle (see s 10A) as well as automatic disqualification from holding a driving license (see s 63 of the Road Transport (General) Act 1999). Having regard to the nature of these penalties and the well known principle that penal provisions should be construed strictly rather than expansively, Mr Sharman argued that the legislature should not be taken to have authorised the imposition of such sanctions upon motorists whose vehicles had lost traction only because they had unexpectedly encountered a patch of oil on the roadway or been forced to brake violently as a result of some sudden emergency. He also argued that the construction for which he contended was supported by the terms of the Explanatory Memorandum, which stated that the Amending Bill "intends to prohibit racing vehicles, testing them and their drivers at high speed or deliberately spinning the wheels of a vehicle - or `burnouts' on public streets".

9. Mr Refshauge SC, who appeared for the respondent, did not demur from the proposition that the legislation had not been intended to apply to cases other than those in which drivers had intentionally caused the driving wheels of their vehicles to spin. He submitted, however, that the answer to the concerns expressed by Mr Sharman was to be found in the statutory defence provided by subs (3). A person whose vehicle lost traction due to heavy braking as a result of a sudden emergency would be entitled to argue that the vehicle had not been deliberately operated in the manner required by subs (2), because the loss of traction had not been occasioned by any intention to cause the wheels to spin, but only by an intention to stop the vehicle as quickly as possible or otherwise avoid an accident.

10. In my opinion, the nature of the defence provided by subs (3) effectively precludes a conclusion that an intention to cause the vehicle to act in the proscribed manner is an element of the offence created by subs (2). It is true, of course, that a person who unintentionally causes a vehicle to act in that manner should not be convicted of the offence, but that is not because it is incumbent upon the prosecution to prove such an intention but, rather, because the absence of such an intention provides a defence under subs (3). The distinction may be of some importance, because a defendant seeking to invoke the defence bears of the onus of establishing that the burnout was not carried out deliberately.

11. On the other hand, subs (2) does not, in my opinion, apply to situations in which a vehicle merely loses traction due to heavy braking or skidding, unaccompanied by any spinning of the driving wheels. As Mr Refshauge pointed out, the Macquarie Dictionary of Slang defines the word "burnout" as meaning "a car stunt in which the back tyres are made to spin on the spot at very high speed and thus cause as much smoke as possible". It is clear from the Explanatory Memorandum that the legislation creating the offence was directed to conduct of this kind. I accept that the language of the section is obviously amenable to a more broad interpretation. However, the application of the provision to cases such as those posited by Mr Sharman would lead to absurd, inconvenient and unjust results and courts have long construed statutes by reference to the presumption that Parliament would not have intended to produce results of that kind. See, for example, Serratore 81 A Crim R 363 per Kirby P at 373.

12. As Lord Diplock observed in an oft-quote aphorism, if "the courts can identify the target of parliamentary legislation their proper function is to see that it is hit, not merely to record that it is missed": see "The Courts as Legislators", The Lawyer and Justice, (Sweet & Maxwell) (1978) at 274. Whilst this proposition is undoubtedly correct, it must be understood within the context of other accepted principles of statutory interpretation. I do not understand his Lordship to have been suggesting that courts have an overriding jurisdiction to ignore the clear and unambiguous words of statutes and effectively re-write them to accord with their own views of how perceived legislative objectives could best be achieved. Properly understood, however, the principle is an important guide to statutory construction and my only objection to the formulation which I have quoted is that it does not go far enough. In my opinion, the proper function of courts is not merely to see that the target of the legislation has been hit but, where possible, to avoid the risk of collateral casualties.

13. There are a number of factors which suggest that the provisions of s 5B should be narrowly construed, including the usual meaning of the word "burnout", the terms of the Explanatory Memorandum, the severity of the consequences of conviction and the principle that penal provisions are to be narrowly construed. In my opinion the offence created by subs (2) is committed only when a vehicle is operated in a manner that causes one or more of the driving wheels to undergo a sustained loss of traction by spinning in a manner that would commonly be referred to as a burnout and the section does not extend to skidding due to heavy braking or loss of traction due to other causes.

14. Mr Sharman also submitted that his Worship had fallen into error in construing the word "sustained" to mean "more than momentary". The term is not defined by the Act and Mr Sharman was unable to suggest a more precise formulation. The term was presumably inserted in the definition to make it clear that the loss of traction must continue for a period sufficient to cause the wheels to spin in the manner normally described as a burnout, rather than as an incident of rapid acceleration or cornering. I can see no reason to doubt that his Worship's interpretation was correct.

15. In addition, Mr Sharman argued that the evidence was incapable of establishing the commission of the offence because, even on the account given by Constable Bailey, the vehicle had been moving and had, in fact, turned the corner whilst the wheels were still spinning. Whilst, as I have mentioned, the definition contained in the Macquarie Dictionary of Slang refers to the back tyres of the vehicle being made to spin "on the spot", I do not accept the mere fact that a vehicle may be able to make some progress along the roadway whilst the wheels are spinning is sufficient to take the incident outside the operation of the section.

16. Mr Sharman mounted a more wide ranging attack on the evidence of Constables Bailey and McIntosh by arguing that contrary evidence had been given by the appellant and by Ms Reid who had been a passenger in his car at the relevant time and that the special Magistrate had not identified any adequate reason for discounting that evidence.

17. An appeal from a decision of a Magistrate is appeal by way of re-hearing and if the Court considers that there is a reasonable doubt about the appellant's guilt then the appeal must be allowed. (See Patrick John Sikorski v Peter Gritsh (unreported), [2002] ACTSC 55 Miles CJ, 6 June 2002). However, the appeal does not involve a hearing de novo and a decision can be set aside only if the appellant court is satisfied that the Magistrate's decision is wrong. Furthermore, in addressing that issue, due allowance must be made for the advantage enjoyed by the Magistrate of assessing the credibility of witnesses by reference to their demeanour in the witness box and in assigning weight to various factors affecting findings as to their credibility. As the High Court has observed, an appellate court may be placed in a "position of real disadvantage" compared with that of a trial judge or magistrate. See Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472. Hence, as Brennan, Gaudron and McHugh JJ said at 479, findings of fact based upon the credibility of a witness should not be set aside merely "because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact". On the contrary, their Honours affirmed the principle that "the finding must stand unless it can be shown that the trial judge `has failed to use or has palpably misused his disadvantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the evidence' or was `glaringly improbable'". These principles must, of course, be applied in the context of the evidence in the case and in the particular findings made by the trial judge or magistrate. In Devries, Deane and Dawson JJ warned, at 480, that if the finding in question is affected by an error of principle or a demonstrated mistake or misapprehension about the relevant facts, the advantage may be of little significance or even irrelevant. More recently, in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (Liq) [1999] HCA 3; (1999) 73 ALJR 306 Gaudron, Gummow and Hayne JJ warned, at 321, that in some circumstances the demeanour of the witness may provide too fragile a base to support a finding as to his or her credibility.

18. In the present case, the evidence adduced by the prosecution was clearly capable of establishing the offence charged. However, it is by no means clear that his Worship applied a correct process of reasoning in determining the crucial question of whether that evidence proved the appellant's guilt beyond reasonable doubt, notwithstanding the evidence to the contrary.

19. His Worship's reasons for accepting the evidence of the two police officers and rejecting that of the appellant and Ms Reid are encapsulated within the following paragraphs:

I am satisfied from what the Constables have given evidence on oath is in fact what happened, and I base that on the evidence of the defendant, that at no time was he told why he was pulled over, that he was asked what have you done, and most improbable situation, in fact almost entirely improbable that a police officer would simply pull over a vehicle and say to the driver "what have you done", without indicating where or why.

So the officer never at any time told him why he was being pulled over, notwithstanding there was a period of discussion it would seem, and I am not prepared to accept that at any time he was not made aware of why he was pulled over. I am not prepared to accept that he was asked "what have you done?" without any explanation being given to that question.

In those circumstances I don't accept that the evidence of the defendant and his witnesses who said that they had discussed the matter a few times I think their words were, went over it a few times and been over it a couple of times. Their words were, their evidence was pat, it was even bound to the definition of sarcasm.

I accept the Constables evidence and I convict the accused. (sic)

20. There were a number of obvious difficulties with this approach.

21. First, any perceived implausibility in the evidence of the defendant and/or Ms Reid could not have effectively established the truth and accuracy of the evidence given by Constables Bailey and McIntosh or have relieved his Worship of the need to make an appropriate assessment of the credibility of that evidence. Yet the only reason offered for accepting the evidence of the two police officers is to be found in the statement "I base that on the evidence of the defendant . . .".

22. Secondly, his Worship's belief that it was unlikely that "a police officer" would pull over a vehicle without telling the driver why he had done so, did not relieve him of the obligation of considering the evidence that Constable Bailey had, in fact, done so on this occasion. There is, of course, no established principle that judicial notice may be taken of a proposition that police officers, unlike other mortals, always behave reasonably or that they always act in a particular way in particular circumstances.

23. Thirdly, there is, with respect to his Worship, no coincidence of language employed in the accounts given by the appellant and Ms Reid to justify the criticism that their evidence was "pat". It is true that when the appellant was asked whether he formed any impression about the manner in which Constable Bailey said "have a nice night", he replied "just sarcastically" and that when a similar question was later put to Ms Reid she replied "it sounded to be really sarcastic" (sic). However, that was the type of impression which both might genuinely have recalled and, in any event, they candidly admitted having discussed the incident on a number of occasions.

24. It is true, of course, that judgment was given extemporaneously and due allowance must be made for the fact that the Magistrate did not have the opportunity of reviewing it and correcting any slips of the tongue, as one might do when preparing a written judgment. Nonetheless, this is not a case in which one can discern from the reasons for judgment, however inelegantly expressed, that the matter has been approached in an appropriate manner and that there were valid reasons for the conclusions. On the contrary, there is nothing in the judgment to indicate that the passages that I have quoted do not accurately reflect his Worship's reasons for finding the offence proven.

25. Mr Refshauge argued that there were, in any event, strong, if not compelling, reasons for his Worship to have accepted the evidence of the police officers, including the consistency of their accounts, the inherent plausibility of their evidence and the paucity of any cross-examination as to critical aspects. In some cases, a respondent can successfully resist an appeal by pointing out that, even if the reasons for the decision were misconceived or inadequate, there were other grounds upon which the decision can be supported. In the present case, however, the appellant is entitled to complain that, since the relevant findings as to credibility were not soundly based, there has not been a valid adjudication of the critical issue as to whether the credibility of the evidence given by the police officers was so compelling that, notwithstanding the sworn evidence of the appellant and Ms Reid to the contrary, it proved the guilt of the appellant beyond reasonable doubt. Speculation that the Magistrate could, or even should, have been equally impressed by the credibility of the police officers for other reasons can offer no adequate answer to such a complaint.

26. Mr Sharman went further, arguing that there were actually strong reasons for doubting the credibility of the police officers, including the suggestion that they had initially responded to the incident only by issuing an infringement notice for negligent driving and that the more serious charge of performing a burnout had been laid, perhaps as an act of retaliation, after the appellant had made a written complaint about their conduct.

27. Whilst the competing contentions were cogently argued, I do not accept that I can form any adequate impression of the potential credibility of witnesses whom I have not had the opportunity of seeing give evidence. Issues of that kind should be determined only after a re-hearing in which the competing accounts have been tested in cross-examination and a magistrate has had the opportunity of assessing the witnesses in the witness box.

28. Nonetheless, I am satisfied that the first ground of appeal has been established. In my opinion, the finding of guilt is unsafe and unsatisfactory, not because the evidence adduced by the Crown was inherently incapable of proving the commission of the offence, but because the line of reasoning which led to the acceptance of that evidence appears to have been defective.

29. I should, perhaps, mention that Mr Refshauge began his submissions by arguing that the mere assertion that a finding of guilt is "unsafe and unsatisfactory" does not constitute a valid ground of appeal in proceedings of this nature. He conceded that such a formulation may be appropriate in an appeal against conviction following a trial by jury, but suggested that this was because a jury verdict is not accompanied by any statement of reasons and an appellant may be incapable of defining the grounds of appeal with greater precision. He submitted that, where the finding of guilt has been made by a Magistrate, the appellant should identify the precise error or errors upon which the appeal is based.

30. It is certainly true that a Notice of Appeal should identify the grounds upon which the appellant intends to rely with sufficient precision to enable the respondent to know what case he or she may have to meet. Hence, I accept that where the perceived errors upon which the appeal is actually based can be identified, it is insufficient to plead a blanket ground alleging that the finding of guilt is unsafe and unsatisfactory. Nonetheless, there may be cases, particularly when a brief extemporaneous judgment has been given during the course of a busy list, in which the brevity or vagueness of the findings may not be amenable to such an approach and a ground alleging, in general terms, that the finding is unsafe and unsatisfactory may be the best that the appellant can do. Furthermore, there may be cases, such as the present, in which it is appropriate for an appellant to plead that a particular finding is unsafe or unsatisfactory for a particular reason. The ultimate test is whether the appellant has done what he or she can to alert the respondent to the nature of the case to be argued on appeal.

31. Mr Refshauge also pointed out that the submissions made on the appellant's behalf had ranged outside the ambit of the first ground. However, while seeking to uphold the principle that the Crown was entitled to be given due notice of the grounds that would be relied upon at the hearing of appeals, he did not suggest that he was unable to adequately respond to the points raised by Mr Sharman in his submissions or seek either an order striking out the relevant ground of appeal or an adjournment to prepare submissions in response