New South Wales District Court CITATION: Appeal of David Keene [2006] NSWDC 73 JUDGMENT DATE: 18 May 2006 JURISDICTION: District Court Appeal JUDGMENT OF: Nicholson SC DCJ DECISION: The conviction appeal in respect of the speeding offence is confirmed. ; The penalty imposed by the learned magistrate confirmed. ; The penalty imposed by the learned magistrate confirmed. ; The period of disqualification imposed by the learned magistrate confirmed. ; That period of disqualification will now have expired.; The conviction in respect of drive under the influence of alcohol is quashed. ; The period of disqualification and the fine in respect of the drive under the influence of alcohol conviction are quashed. CATCHWORDS: Criminal Law - Conviction Appeal from Local Court - DUI - Exceed Speed - use of teape recorder by investigating police officer "as practice" - Listening Devices Act - taped prejudicial convcersations and remarks between officers - admisibility - issues of credit. LEGISLATION CITED: s 5, s11 Listening Devices Act 1984 Regina (Respondent) PARTIES: David Keene (Appellant) David Keene FILE NUMBER(S): 05/22/0450 SOLICITORS: Fw: Self Represented Cr: Mr Khlentzos JUDGMENT 1 HIS HONOUR: On 3 May, 15 July, and 15 September last year the appellant was before his Honour Magistrate Gordon Lerve upon four charges. I understand he was acquitted of one, as to another I have not been informed of its outcome. He does however appeal against the findings of guilty and conviction recorded in respect of a charge of driving under the influence of alcohol and a further charge of exceeding the speed limit by greater than 45 kilometres per hour. 2 These two offences were said to have occurred at the same time on 7 February 2004. The appeal is by way of a re-hearing on the transcript and evidence before his Honour in the court below. On that occasion the appellant did not give evidence. He has been granted leave to adduce his own evidence and evidence from his wife. I gave leave to the Crown to adduce evidence in reply so it could deal with allegations that had not been made in evidence by the appellant that had not been put in the court below. The appellant was unrepresented and appeared in person. 3 The prosecution case was that at about 11.35 pm two highway patrol officers were patrolling in the Kellyville area. They saw the appellant turn right into Memorial Avenue from Windsor Road. They followed him. They noticed he was speeding. Memorial Avenue is a short street, little more than half a kilometre. The appellant turned left into Balmoral without using indicators. He increased speed. Their radar equipment locked onto the vehicle doing 119 kilometres per hour. The patrol officers pursued the vehicle. At least one of them knew who the driver was and where he lived. They were anxious to reach him before he reached home. They activated their blue strobe lamps and flashed the high beams. 4 The appellant reached his home which was several hundred meters south of Old Windsor Road. The appellant indicated and turned left into the drive of 494 Old Windsor Road when he alighted from the motor vehicle. It would appear he had driven something in the order of two kilometres or so from the time he was locked in at 119 kilometres per hour. Time-wise that appear to be about a minute or so of driving between the vehicle's speed being measured and the appellant pulling up at his back door. 5 When he arrived at 494 Old Windsor Road the appellant alighted from his motor vehicle. Each patrol officer independently formed the view he was under the influence of alcohol. In the light of that uncontested evidence it is not surprising the learned Magistrate convicted the appellant of these two offences. 6 The appellant's evidence is he neither sped nor had drunk more than 700 mils of Crown lager since 8 pm that evening. In the light of his denials a more careful scrutiny of the Crown evidence is required. 7 Any examination of the appellant's evidence suggests that he is intelligent, and that has a real hesitancy in his speech patterns. He is cautious, rephrases and allows himself time to think by frequent use of the speech filler "um". That is not to say he does not express himself with precision. He does, his evidence occupied all of four hours and possibly more. 8 His wife gave evidence first. It is fair to say her evidence contributed nothing to the resolution of this case. She was in China on 7 February 2004 and did not return until a month later. He had talked to her between 8 and 8.30 pm on 7 February and so far as she could tell, he was sober during that telephone conversation. 9 The appellant's account was that he had been working all day Saturday 7th. It was a hot day. He was physically tired when he returned home at about 8 pm. His wife reminded him of the 700 mil bottle of Crown lager. He consumed some, or all of the beer, whether warm or cold is unclear on the evidence, watched a movie and dozed in front of the TV. He awoke invigorated, decided he would go for a drive, made his way to Vineyard, refuelled in the dark the tractor he was using the following day, and returned home. He stopped to shop at a local BP service station and collected four bags of groceries. 10 On the return journey he noticed the highway patrol vehicle at Memorial Avenue travelling in the opposite direction to him. He followed other cars into Memorial and Balmoral, he maintained the speed limit, he turned into Old Windsor Road and then into his premises. He had to stop to open the driveway gate. He drove down what he said was 120 meter driveway, had delivered two loads of groceries in bags to the back steps and was in the process of delivering a third when the police vehicle arrived in his driveway with lights flashing. 11 He recognised Senior Constable Crompton, the patrol officer driving the highway patrol vehicle who, by this time had left the police vehicle and was making his way on foot towards the appellant. The appellant lifted the two groceries bags holding them in front of him, shaking them slightly to indicate that he was taking them from the car towards the house as the case may be. 12 Senior Constable Crompton was holding a handheld tape recorder and informed the offender he was taping the conversations. I will return to this aspect of the case shortly. 13 There were conversations between them. On the appellant's account Senior Constable Crompton approached quickly, grabbed him and said "You were going to decamp." The appellant was handcuffed. A VB bottle lid was picked up from the ground and Senior Constable Crompton said "Is this a souvenir from the night?" The appellant refused to engage in any conversation other than on two occasions because he recognised he was being framed. 14 A caged truck was called. He was taken to the police station. Two charges were ultimately preferred, neither said the appellant had any merit. 15 There is no doubt Senior Constable Crompton taped with a handheld tape recorder all conversation between him and the appellant, and other conversation in which he does not appear to have played a role, although the appellant does. That conversation occurs later, apparently at the police station. 16 The now Senior Sergeant Crompton said something in evidence before me which leads me to believe that it is his practice to use the tape recorder to "protect himself." The evidence was not objected to in the Local Court. The appellant was unrepresented in this court. The evidence coming from the tape conversations as matters turned out favoured both sides. 17 While I have not heard submissions nor researched other than to note the provisions of s 5 of the Listening Devices Act, my preliminary view is both the taping of conversations and the publication of the contents of the tape amount to criminal offences that carry a maximum penalty of two years. I make available to the parties s 5 and s 11 of the Listening Devices Act hopefully for the edification of both sides. It may well be that there is some exception to the police although I doubt it, because I note that there is a provision in the Listening Devices Act allowing police to tape a refusal of somebody to engage in an ERISP. Put another way, the evidence tendered from the tape conversation may well have been illegally or unlawfully obtained. 18 The cross-examination of Senior Sergeant Crompton discloses a "history" with the appellant. In 1997 the appellant complained to the Ombudsman and/or some other authority about a specific incident involving then Senior Constable Crompton. Senior Constable Crompton, in his evidence before the Local court, was of the view that not only had the appellant complained about him but every other officer at the Castle Hill Police station (see tape). Senior Constable Crompton told his Honour in evidence that police had frequently been called to the appellant's premises and that he was a high risk offender. Senior Constable Crompton also agreed in the Local court he had breathalysed the appellant two nights earlier and had stopped him for that purpose because he was a high risk offender, there being as I understand it, no other probably cause to use an American phrase. 19 It is not difficult to discern from the cross-examination of Senior Constable Crompton he has a very fixed antipathetic attitude towards the appellant. Indeed his willingness, gratuitously to reveal this antipathetic attitude to the appellant through cross-examination raises the question of whether this officer of twenty-one years has maintained his professionalism in this case. 20 The unlawful use of the tape recorder also raises the same issue of one of professionalism. His statement makes reference to the appellant's "rolling his body out of the car seat", "slowly, clumsily movements wiping his face with his right hand", "bloodshot eyes, glazed in appearance with enlarged pupils" (observed from 5 meters on a dark night), I interpolate in darkness pupils would become enlarged in any event. 21 The patrol officer's observations continued "his movements were sluggish and he continued to stumble and trip over himself as he walked", "he lurched to the left falling against a metal frame near the wall of the house." There were occasions when the appellant looked "blankly" at Senior Constable Crompton. Senior Constable Crompton's evidence was the appellant was at the high end of moderately affected by alcohol. 22 Senior Constable Jurd, the other highway patrol officer, while he comes to a view the appellant was "well affected by alcohol", makes an assessment that does not appear to be based upon the same assessment of events as Senior Constable Crompton. For example he has the offender "immediately getting out of the driver's side seat", "stumbling about and stumbling on the spot", "unsteady on his feet", "slumped over when he was standing", "unable to walk a straight line", "tripped over his own feet." "So he tripped over his own feet a number of times", "making a dash for the back door of his residence", "sweating profusely", "bloodshot eyes (as does Senior Constable Crompton)" and "clothes, disorganised." 23 Senior Constable Jerd has I think seven years experience. I do not regard Senior Constable Jerd's assessment as supporting Senior Constable Crompton's. The details do not match. Both, it is true, reach a view the appellant is well affected but they could have been assessing two different persons. 24 Nor was I impressed with the corruption of the use of the tape recorder. My understanding of its purpose was to record conversations between the appellant and Senior Constable Crompton. He, Senior Constable Crompton, told the transporting officers they were not to speak to the appellant unless the tape recorder was activated. Yet conversations containing opinion evidence and self serving statements were recorded at the scene. See for example Senior Constable Jerd, "You look like you had a bit to drink"; see also paragraph 22 (of Senior Constable Crompton's statement) when Senior Constable Crompton says, "It was obvious to us that you were well and truly exceeding the speed limit." Conversations at paragraph 25 of arrangements being made between the two police officers; conversations at paragraph 27, "Why did you elbow me, now you've got an assault police on your hands"; paragraph 28, "he just took exception to me and smacked me in the chest"; comment from Jerd, "the smell of alcohol is strong"; reply from Senior Constable Crompton, "Yeah, he's rotten, there's no doubt about that"; Senior Constable Jerd, "That would explain why he didn't stop until he got into his premises"; Senior Constable Crompton, "That's right and try to walk away from me and go into his house for his licence and he's got his wallet in his pocket"; paragraph 30, "I said, "He's already had a shot at me, put his elbow into my chest...so." 25 Each of those items of conversations I have referred to was never admissible as evidence in a trial on the issues before me. The fact that it is contemporary comment does not make it admissible, but does make it dangerous. Its appearance on the tape again brings into question the professionalism of the officers involved. 26 The two transport officers would appear to have been told the basis of the appellant's arrest and the likely charges. Neither transport officer had the quality of contact with the appellant that Senior Constable Crompton and Senior Constable Jerd had. However, it is to be remembered Senior Constable Crompton makes the point that from the moment the appellant alighted from the car it "became apparent to me very quickly the appellant was under the influence of alcohol or a drug." 27 From Jerd's perspective the first thing the appellant did when he alighted from the car was to "step away from his vehicle where he stumbled about... I watched as he continued to stumble on the spot." 28 Detective Senior Constable Crompton said the appellant was "very unsteady on his feet", "unable to walk in a straight line as I guided him towards the gate." 29 Constable Nasser, one of the officers who transported the appellant to Castle Hill was apparently not gifted with the same obvious observations. His only comment was that when he opened the door of the caged truck he noticed "a strong smell of alcohol coming from the appellant." At the police station the appellant walked in front of them into the station apparently without any assistance. Constable Nasser made no comment otherwise suggesting the appellant was incapacitated in any way in his walking or otherwise affected by alcohol. 30 Constable Voigt was even less helpful to the prosecution case. She made no comment about smelling alcohol or observing any symptom of behaviour that would be consistent with the appellant being under the influence of alcohol. 31 I have heard the tape of Senior Constable Crompton and the appellant walking down the driveway to the front gate of the appellant's premises. There is nothing in the rhythm of the footsteps as I hear the crunch upon the gravel that would persuade me one of the walkers was stumbling, tripping over himself or otherwise having difficulty maintaining a constant gait as he walked with the other. 32 Sergeant Vince Fusca was a shift supervisor/custody manager at Castle Hill station in the early morning of 8 September 2004. He made a visual assessment of the appellant. He had of course been told by Senior Constable Crompton that the appellant was moderately affected by intoxicating liquor. That conversation between those two officers occurred at 00.35 am. One minute later, at 00.36 am Sergeant Fusca's visual assessment based upon an unsteady on his feet, strong smell of alcohol and a strong thirst of the appellant (amazing that that was noticed within one minute), was, "I formed the view that the appellant's behaviour was suggestive of him being under the influence of drugs and alcohol." I give little weight to that opinion in those circumstances. 33 I have heard the tape of the appellant speaking at the police station. There was none of the hesitancy apparent at court. He was articulate, clearly spoken, there were no slurring of words, much of what is said did him no credit in the sense that it was aggressive and on at least one occasion threatening towards Senior Constable Crompton. Be that as it may it did not sound like the voice of a man who was so unsteady on his feet that he was stumbling on the spot or could not walk a straight line. 34 Both police observed the appellant's driving. Each has reported upon the speed at which he was driving. Neither suggests that in any feature of his driving was he lacking in eye, hand coordination or vision or judgment or steering other than the speed at which he was travelling and his failure to indicate a left hand turn at a point in the road where the intersection was of a Y kind and the appellant chose the left hand option and the turn was not anything more than thirty or so degrees. 35 In my view there is a reasonable possibility the three descriptions given as to the appellant's state of sobriety are overstated. I am satisfied there was a smell of alcohol upon his breath. Before the appellant can be convicted of driving under the influence of alcohol it is necessary to establish beyond reasonable doubt that he was under the influence of alcohol at the time of driving. The prosecution in my view has failed to do so. 36 On the other hand the evidence of both officers as to the speed of driving and the path of the vehicle was supportive of each other. In my view it is highly unlikely that this evidence is fabricated and that the police would have appeared at the appellant's premises perhaps a minute or two after he had driven other than because they were satisfied they had him caught, if I can put it that way, for speeding. 37 Senior Constable Crompton's evidence was that the target window of the radar was still flashing 119 when he pointed it out to the appellant. The appellant's case is that this was not done and that his car was incapable of travelling at such a speed. 38 The appellant has not impressed me as a witness of truth. I regard his account of travelling to refuel a tractor, twenty minutes drive away, at night after a hard day's work as incredible. Given his desire to conserve time, to travel to Vineyard and back was a waste of 40 minutes, precious time, when he would be with the tractor the following morning after a drive he had to make in any event. In those circumstances he would have dedicated only ten minutes to refuelling the tractor rather than the 50 minutes he sought to persuade the court he had used for that purpose. 39 Further, it is inexplicable to me why he should take such a large sum of money as he had in his pocket. Ultimately he purchases four bags of groceries on his account, yet among the property seized were several one hundred dollar bills. 40 I am satisfied from what I heard on the tape he did have a bottle top in his pocket. I reject his account that it was on the ground. The way in which it was itemised satisfies me it was part of his property. I reject his account that the bottle top was on the ground. What significance that bottle top has in any event is another matter, but his account of it being on the ground adversely affects his believability. 41 Nonetheless I still must be satisfied even though I reject his account on the speed that the prosecution has proved its case. I have already indicated I would be so satisfied and I am. Therefore I find, beyond a reasonable doubt, the appellant's speed was accurately clocked at 119 kilometres per hour. 42 The formal orders I will be making are that the conviction for the drive whilst under the influence of alcohol will be quashed, but the drive speed 119 kilometres per hour or in excess of 45 kilometres of the speed limit will be proved and the conviction will stand. SUBMISSIONS MADE BY PARTIES 43 HIS HONOUR: The conviction appeal in respect of the speeding offence is confirmed. The penalty imposed by the learned magistrate is likewise confirmed. The penalty imposed by the learned magistrate is likewise confirmed. The period of disqualification imposed by the learned magistrate is likewise confirmed. That period of disqualification will now have expired. 44 The conviction in respect of drive under the influence of alcohol is quashed. The period of disqualification and the fine in respect of the drive under the influence of alcohol conviction are likewise quashed. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.