Southwell v Gallagher [2006] ACTSC 24 (5 April 2006)

Last Updated: 6 April 2006

DAVID KENNETH SOUTHWELL v NEAL RAYMOND GALLAGHER [2006] ACTSC 24 (5 April 2006)

CRIMINAL LAW - severity appeal- fresh evidence demonstrating miscarriage of justice-failures on the part of police, prosecution, defence and custodial authorities discussed.

Magistrates Court Act 1930 (ACT) s. 216(1)

Road Transport (General) Act 1999 (ACT) s 63

No SCA 5 of 2006

Judge: Crispin J

Supreme Court of the ACT

Date: 5 April 2006

IN THE SUPREME COURT OF THE )

) No SCA 5 of 2006

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID KENNETH SOUTHWELL

Appellant

AND: NEAL RAYMOND GALLAGHER

Respondent

REASONS FOR JUDGMENT

Judge: Crispin J

Date: 5 April 2006

Place: Canberra

1. This is a disturbing case in which it appears that the Magistrate's Court has been seriously misled and a man inappropriately sent to prison.

2. On the evening of Friday, 11 March 2005, the appellant went to the Kambah Shopping Centre to buy groceries. When he emerged from the supermarket he observed a group of drunken young men standing outside, who were using bad language and behaving in an objectionable manner. He advised them to go home. In response, he was subjected to repeated verbal abuse by the men, and when he attempted to return to his vehicle they followed him. The gravity of their conduct quickly escalated and, as the appellant began to drive away, some of the young men began to throw various projectiles, including cans of alcohol, at his vehicle. He stopped, reversed a short distance and got out, apparently intending to remonstrate with them. This was, of course, in hindsight, unwise. However, it was not suggested that he had made any attempt to return the violence and the law does not require people to endure abuse and damage to their property without protest. He was then physically attacked and, having quickly realised that it had been a mistake to stop, managed to get back into his vehicle and tried to drive away.

3. The precise sequence of events that then ensued was apparently difficult to reconstruct, even from the account that the appellant gave to the police when interviewed, though it did appear that further projectiles had been thrown and that the young men had been intent upon further assaulting him. He would, no doubt, have been shocked and frightened. He explained that as he began to leave he looked to the left, in the direction of those who had been attacking him, and that when he looked back he saw one of them immediately in front of his vehicle. There was no time to stop and he ran over him. He later told police "I didn't bloody see him for the life of me".

4. Sadly, however, the young man suffered serious injuries from the impact with the appellant's vehicle. The appellant was subsequently charged with negligent driving causing grievous bodily harm, an offence involving a maximum penalty of 12 months imprisonment and/or 100 penalty units. He pleaded guilty and the proceedings were adjourned for the preparation of a pre-sentence report.

5. On 21 February 2006 the matter was listed before Magistrate Fryar for sentencing. During the course of the proceedings, the prosecutor tendered a document bearing the somewhat optimistic title, "Statement of Facts". Documents of this kind are commonly used in sentencing proceedings and usually contain a concise statement of the salient facts alleged by the prosecution, including any relied upon as aggravating features of the offence charged. Those allegations that are not denied can then be admitted without the need for further proof, and any disputed issues can be identified and resolved by a contested hearing. In the present case, however, the document did not contain a clear statement of the circumstances in which the prosecution alleged that the appellant had run over the young man. Instead, it contained statements about what had been seen by the attending police officers, short summaries of what some other witnesses had claimed to have observed, and a few excerpts from the record of the appellant's interview with police. No attempt was made to articulate the prosecution case with the clarity required, or to identify, let alone resolve, any areas of dispute or uncertainty. The appellant's counsel did not object to this course and the learned magistrate was apparently left to do the best she could to deduce what had happened from the varying accounts contained in the document.

6. Her Honour clearly formed the impression that the accident occurred as a consequence of the appellant deliberately driving his vehicle at the young men, and either being unable to stop because he had been travelling too fast, or deliberately driving over the young man who was injured. Her Honour said that, in either event, the degree of negligence had been extraordinary. She then sentenced the appellant to 6 months imprisonment, noting that the sentence would have been more severe but for the plea of guilty.

7. It now appears that these conclusions were quite wrong, and that the learned magistrate had been seriously misled by the manner in which the case had been investigated and prosecuted. During the course of this appeal, counsel for the appellant adduced fresh evidence from an independent witness, Mr Sweeney, who had seen the events leading up to the accident. Counsel for the respondent did not object to any portion of Mr Sweeney's affidavit, and indicated that he did not wish to cross-examine him as to its contents or to call any evidence in reply. Accordingly, Mr Sweeney's account of the incident remained undisputed. The relevant portions of that account are as follows.

I noticed six (6) young men come out of the Kambah Tavern - I noticed them because of their behaviour - they were obviously intoxicated but they did not look old enough to drink. My attention was drawn to the young men when I heard one of them yell (words to the effect), "Here comes the cunt. We'll fuckin' fix him now". I saw a white ute approaching in the car park and some of the young men started throwing stubbies and abuse at the ute. The ute stopped near the young men; one of the young men picked up a branch of a tree (that was about 4 inches thick and lying on the ground) and started attacking the male driver of the ute with the branch; the driver jumped back into the ute and drove off; the young man with the tree branch hit the ute about 3 or 4 times with the branch. When I saw the young men attacking the ute and it's driver, I called 000 on my mobile telephone and reported to the ACT Police that an assault (of the driver of the ute) was occurring at the Kambah shops. I was still speaking to the police on my mobile when the ute drove off turning left toward the exit of the car park into Marconi Crescent - the 6 boys chased after the ute, running straight across the grassed area adjacent to the car park, yelling and throwing things at the ute; it looked like they were pursuing their confrontation with the driver and were trying to intercept the ute before it could get onto Drakeford Drive. The boys ran over a mound in the grassed area towards Drakeford Drive and out of my line of sight. A short time later, I heard some commotion and as I walked over the mound, I saw one of the boys lying face down on the edge of the pedestrian crossing near the corner of Marconi Crescent and Drakeford Drive. Another one of the boys said "Oh shit. He stumbled and fell in front of the car".

8. It should be noted that this account of the incident is very different to that suggested by some portions of the "Statement of Facts" that had apparently formed the basis for the magistrate's view that the appellant had been guilty of an extraordinary degree of negligence. Mr Sweeney's affidavit reveals that, far from driving rapidly towards the young men and then being unable or unwilling to stop, the appellant had been fleeing from them as they approached, equipped with makeshift weapons, to maintain their assault. It also appears that they were anxious to prevent his escape from the car park, and that the young man who was injured may have stumbled into the path of the car whilst attempting to intercept it.

9. It seems clear from this undisputed evidence that any negligence on the part of the appellant could have consisted only of permitting himself to be momentarily distracted by the understandable fear of further violence from the angry mob chasing him, and failing to notice one of its number, who had apparently outstripped the others, until he emerged from the grass area and stumbled into the path of his vehicle. I should stress that the young man is not a party to these proceedings and there has been no opportunity for any case to be presented on his behalf but, on the evidence before me, it appears that, whilst the appellant's brief distraction may have been a contributory cause of his injuries, they were primarily attributable to his own conduct in choosing to pursue and attempt to intercept the vehicle.

10. It is true that the appellant did not stop after the accident but, given the perilous situation in which he had been placed, that is hardly surprising. It is also true that he subsequently failed to report the incident and moved his vehicle to another house so police would not see it. There is no reason to doubt his explanation of having panicked and been left in a state of shock by the incident, though this may not wholly excuse his failure to respond appropriately, but, in any event, he was not charged with any offence relating to such conduct. Had Mr Sweeney's undisputed evidence been put before the magistrate, as it has before me, I have no doubt that she would have instantly dismissed any suggestion that the appellant should be sent to prison, and that she would have dealt with the matter in a manner that reflected the leniency plainly warranted by the exceptional circumstances in which the accident occurred.

11. It is disturbing to note that the police were well aware of Mr Sweeney's presence during the altercation in the car park. Indeed, they apparently attended the scene in response to his telephone call. He had gone to the area because his daughter, who was pregnant at the time, had been involved in a minor car accident some time earlier, and she and Mr Sweeney's son-in law apparently also saw the events described in his statement. Mr Sweeney said that he told the attending police officers what he had seen and gave them his name and telephone number so that they could contact him to make a statement. Yet they not only failed to take a statement from him, despite two further phone calls offering to provide one, but failed to disclose the fact that he, his daughter and his son in-law had seen the events leading up to the accident. It would appear that if he had not contacted the appellant's legal representatives after reading a newspaper report of the proceedings before the magistrate, the truth may not have emerged and the appellant may have remained in prison.

12. This territory has generally been well served by the Australian Federal Police. There have been few, if any, of the scandals that have sometimes seemed to provide much of the daily fare of tabloids published in other jurisdictions, and the present case should not be seen as evidence of a deeper malaise or lack of due standards. Nonetheless, in an era in which the traditional safeguards of our legal system are being progressively eroded, the public will be increasingly reliant on the fairness and competence of the police to ensure that they do not become victims of unintended injustice. They are, at the very least, entitled to expect that relevant and credible evidence will be recorded and acted upon, irrespective of whether it tends to incriminate or exculpate any person under investigation. In the present case, a failure to do so appears to have led to a significant miscarriage of justice.

13. The approach adopted by the prosecutor at the original hearing was also quite inadequate. If it had been contended that the appellant ran the young man down deliberately, then he should have been charged with a more serious offence of intentionally or at least recklessly inflicting grievous bodily harm, either of which would have exposed him to much heavier sentences. If not, then any such suggestion should have been disavowed. If it had been contended that he had not intended to run anyone down but that he had, nonetheless, driven his car at the young men in an attempt to frighten them, then that should have been clearly stated so that the defence would have been put on notice of the need to adduce evidence or otherwise address that contention. As it was, the prosecutor simply relied upon a document that, in some respects, appeared to offer the forensic equivalent of an each way bet.

14. Counsel for the appellant should have objected to this course, insisted that the prosecution articulate any allegation that the offence had been aggravated by the appellant attempting to run down or frighten the young men who had attacked him, and disputed any such allegation. In that event, whilst the evidence of Mr Sweeney and his family might have remained unknown, the appellant would at least have known what he was being accused of having done and a hearing could have been conducted to resolve any areas of dispute.

15. Regrettably, the chronicle of errors did not end with the sentencing process. Whilst the appellant promptly appealed, the effect of that appeal did not seem to be properly understood. Section 216 (1) of the Magistrates Court Act 1930 (ACT) provides as follows:

If an appeal to which this division applies has been duly instituted, the enforcement or execution of the conviction, order, sentence, or penalty appealed from is stayed until the appeal is concluded or is abandoned or discontinued and, if the appellant is in custody, the appellant may, if not detained for any cause, be granted bail in accordance with the Bail Act 1992.

16. The appellant applied for bail on 24 February 2006, but it was refused. In that event, he should have been detained in a remand centre in the ACT but, instead, he was apparently sent to a NSW prison to commence serving his sentence, despite the fact that it had been stayed by the operation of s 216. On 28 February 2006 the court issued a warrant to have the appellant brought to court for the hearing of his appeal, but during the month that followed the Corrective Services staff that should have been responsible for his detention apparently ignored it and failed to even inform the court that he was no longer held in the ACT. The fact that he was being held in a NSW prison was discovered only minutes before the hearing of the appeal and I was obliged to deal with the argument substantially in his absence. When it became apparent that he should not have been sent to prison, I raised the question of bail overnight but was told that there was no facility for a bail undertaking to be executed without issuing a further warrant and having him brought to Canberra. I thereupon ordered his immediate release, dispensed with bail and adjourned the matter to the following morning.

17. The appellant's counsel had foreshadowed seeking leave to amend the notice of appeal in order to challenge his conviction on the ground that he had been unaware of Mr Sweeney's evidence at the time he decided to plead guilty. If pressed, that application would almost certainly have been granted. However, it was not pursued, presumably because the appellant's experiences with the criminal justice system had done little to bolster his confidence and he was not anxious to prolong them. Accordingly, I upheld his appeal, confirmed his conviction, and set aside the other orders of the magistrate, deciding that in all of the circumstances it would be inappropriate to impose any further penalty upon him. I also declared that the automatic period of disqualification imposed by Section 63 of the Road Transport (General) Act 1999 (ACT) commenced from 21 February 2006, which was, of course, the date of his conviction.

18. Whilst these orders may have done something to alleviate the injustice done to the appellant, he has plainly been badly treated by the criminal justice system. I would like to think that this case will provide a catalyst for any necessary review of relevant procedures so that others may be confident of being treated more fairly in future.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 5 April 2006

Counsel for the Appellant Ms J Keys

Counsel for the Respondent Mr C Todd

Solicitor for the Respondent ACT Director of Public Prosecutions

Date of hearing 23 and 24 March 2006

Date of reasons for judgment 5 April 2006