Ralph George v Kerry Leanne Rigby [2004] NTSC 38

[Back to Main List] [Back to NTSC 2004 List]

Ralph George v Kerry Leanne Rigby [2004] NTSC 38






FILE NO: JA 163 of 2003 (20317810)

DELIVERED: 6 August 2004

HEARING DATES: 3 August 2004



Appellant: T. Davies
Respondent: G. Dooley

Appellant: Katherine Region Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Judgment ID Number: ril0416
Number of pages: 9


Ralph George v Kerry Leanne Rigby [2004] NTSC 38
No JA 163 of 2003 (20317810)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against conviction and sentence handed down in the Court of Summary Jurisdiction at Katherine







(Delivered 6 August 2004)

[1] On 3 November 2003 the appellant was convicted of driving a motor vehicle whilst intoxicated and driving a motor vehicle whilst disqualified from driving. The appellant appeals against the convictions.
[2] The principal issue at the trial was whether the appellant was the driver of the motor vehicle at the relevant time or whether he was a passenger in the vehicle which was then being driven by William Wilfred. It was the Crown case that the appellant drove the vehicle and, immediately before the police arrived, swapped seats with his passenger William Wilfred.
[3] On the hearing the prosecution called William Wilfred. The evidence of Mr Wilfred started with what may be regarded as an unusual request on the part of the prosecution that he be cautioned that he need not answer questions that might tend to incriminate him. Given that it was the Crown case that he was a passenger, the need for such a warning at that time is not apparent unless the Crown expected him to give false evidence that he was the driver of the vehicle.
[4] Mr Wilfred proceeded to give evidence and stated that, at the relevant time, he was the driver of the vehicle. He was then asked by the prosecutor whether at the time of driving he was sober and he said he was. Thereafter, and without more, the prosecutor sought to tender a certificate of breath analysis taken at the time from Mr Wilfred and which revealed a concentration of alcohol in the blood expressed as 219 milligrams per 100 millilitres of blood. The purpose of the tender was to contradict Mr Wilfred on a matter that was not fundamental to the case against the appellant. His sobriety was not a fact in issue. The certificate went solely to his credit. There was no objection from defence counsel and the document was received into evidence.
[5] There was no application to declare Mr Wilfred an adverse or hostile witness nor any application pursuant to s 18 of the Evidence Act. Section 18 is in the following terms:
“A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, if the Court is of opinion that the witness is adverse –
(a) contradict the witness by other evidence; or
(b) by leave of the Court, prove that the witness has made at some other time, a statement inconsistent with his present testimony:
Provided that, before such proof is given, the circumstances of the supposed statement sufficient to designate the particular occasion shall be mentioned to the witness, and he shall be asked whether or not he made the statement.”
[6] In finding the appellant guilty, the learned magistrate dealt with Mr Wilfred’s evidence as follows:
“It is clear that I cannot accept William Wilfred’s evidence that he was the driver; he is a person who is not to be believed bearing in mind his evidence that he was sober and had not been drinking. The statement that he was sober and had not been drinking the night prior to driving is not to be believed, it is not believed by me. He was breathalysed at 29 minutes past 12 on 5 September 2003 with a reading of .219. That he did not blow in the breathalyser is not to be believed.”
[7] His Worship then went on to conclude:
“I disbelieve Mr Wilfred on the basis that it is clear that he is not sober, it is clear that he had been drinking contrary to his denial. Accordingly, I do not believe him when he says he drove.”
[8] The learned magistrate then referred to the evidence of the attending police officers as to what they saw as they approached the vehicle. In effect that evidence was that the driver of the vehicle had moved to the passenger seat. By a process of elimination that meant the driver was the appellant and not William Wilfred.
[9] In its submissions on appeal the respondent conceded that the prosecution at trial was “mismanaged” by the prosecutor then appearing and acknowledged that the prosecutor had, before calling Mr Wilfred, formed the view that Mr Wilfred was going to give evidence that contradicted his original statement to the police. The submission made on behalf of the appellant was that, whilst a prosecutor should call all relevant witnesses whose credibility is not in doubt in order to secure a fair trial: R v Apostilides (1984) 154 CLR 563, it is clear that a prosecutor is not bound to call a witness, even an eyewitness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief: Whitehorn v The Queen (1983) 152 CLR 657 at 674. The respondent acknowledged the correctness of the submission.
[10] The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown: R v Apostilides (supra at 575). In the present case I would not be prepared to find that the prosecutor was necessarily guilty of an error of judgment in calling Mr Wilfred simply because he formed the view that Mr Wilfred was going to give evidence that contradicted his original statement to the police. It is only where the prosecutor forms the view that the witness is “unreliable, untrustworthy or otherwise incapable of belief” that he or she will not be “bound” to call the witness. As was observed by Dawson J in Whitehorn v The Queen (supra at 674):
“All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case.”
However, as the respondent concedes, there is a strong basis for concluding that the prosecutor had formed the view that Mr Wilfred was “unreliable, untrustworthy or otherwise incapable of belief”. The request for a warning regarding self-incrimination and the immediate tendering of the certificate of breath analysis indicate the view the prosecutor had of the witness before calling him to give evidence. He later submitted Mr Wilfred was a witness “of little credibility”.
[11] The respondent also conceded that, once called, Mr Wilfred should not have been subjected to an attack on his credibility by way of production of the breath analysis certificate in the manner that occurred. It was acknowledged that the process of discrediting Mr Wilfred was not undertaken in accordance with the provisions of s 18 of the Evidence Act. The concession was correctly made.
[12] Notwithstanding the failure of defence counsel to object, the evidence of the breath analysis certificate should not have been received into evidence without compliance with s 18 of the Evidence Act. The learned magistrate was required to be “astute to secure for the accused a fair trial according to law”: R v Pemble (1971) 124 CLR 107 at 117; R v Meier (unreported NSWCCA 3 April 1996). It was submitted by the appellant, and not challenged by the respondent, that the failure to object arose from the inexperience and inadvertence of counsel for the defence. In such circumstances where prejudicial evidence which was, at the time, inadmissible has been received without objection by counsel the conviction may be quashed: R v Samuels (1962) NZLR 1036.
[13] In the circumstances the learned magistrate erred in allowing the admission of the evidence of the results of the breath analysis test contrary to s 18 of the Evidence Act.
[14] The real issue in the case was whether the failures, which are acknowledged by the respondent, gave rise to a miscarriage of justice. By virtue of s 177(2)(f) of the Justices Act the Supreme Court, upon the hearing an appeal of this kind, may “notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred”.
[15] The respondent submitted that the “mismanagement” of the case did not give rise to a miscarriage of justice. The evidence of the police officers provided compelling evidence that the appellant was the driver. It was submitted that if Mr Wilfred had been called by the defence he would have been subjected to the same attack as occurred and his evidence would have been rejected by the learned magistrate. The end result, so it was said, would have been the same, being the discrediting of the witness.
[16] The issue is whether the appellant lost “a chance of acquittal which was fairly open”: Glennon v The Queen (1993-1994) 179 CLR 1 at 12. Put differently, in the absence of the identified error, would the learned magistrate have “inevitably reached the same verdict”: Glennon v The Queen (supra at 9 and 13). In the circumstances of this matter, in my opinion, the appellant did lose a chance of being acquitted because of the approach taken by his Worship to the evidence of Mr Wilfred. The same verdict, although likely, was not inevitable.
[17] Reference to the reasons for decision of his Worship (which were brief) reveals that he disbelieved Mr Wilfred on the issue of whether or not he was sober on the night in question and, having so found, and without further analysis, then concluded: “Accordingly I do not believe him when he says he drove”. The fact that a witness is disbelieved on one aspect of his or her evidence does not mean that the whole of the evidence should be rejected. As has been observed on many occasions it is open to a finder of fact to accept part of the evidence of a witness and reject part of the evidence of the same witness. The fact that a witness has been disbelieved or found unreliable in respect of one aspect of the evidence is but one matter to be considered when determining whether or not to accept other parts of the evidence. In this case it was open to the appellant to argue, and his Worship to find, that whilst Mr Wilfred may not be accepted on the state of his sobriety on the night, his evidence that he was the driver of the vehicle was still capable of acceptance. Because of the way the evidence came before his Worship and the immediate focus upon the question of the sobriety of the witness it would seem that this possibility was overlooked by his Worship. At no stage in his reasons did his Worship give consideration to the prospect that Mr Wilfred may have been telling the truth when he said he was driving, even though his Worship concluded that he was wrong when he said he was sober. He did not consider the evidence of the police officers in the light of the evidence of Mr Wilfred as to him being the driver.
[18] It may be that the learned magistrate would have reached the same conclusion if the prosecution had endeavoured to proceed in accordance with the requirements of s 18 of the Evidence Act but he would not necessarily have done so. It is not now possible to confidently predict how the trial may have developed had the section been applied. The same observation would also apply if the prosecution had chosen not to lead evidence from Mr Wilfred but rather had made him available to defence counsel.
[19] In this matter error occurred, as is recognised by the respondent. In my opinion the verdict cannot be preserved by reliance upon the provisions of s 177(2)(f) of the Justices Act.
[20] The appeal is allowed. The convictions are set aside. The matter is remitted to the Court of Summary Jurisdiction for a retrial before another magistrate.