District Court New South Wales Medium Neutral Citation: Shane Justin McEwen v R [2015] NSWDC 248 Hearing dates: 23 February 2015 Date of orders: 26 February 2015 Decision date: 26 February 2015 Jurisdiction: Criminal Before: Judge AC Scotting Decision: See paragraph [23] Catchwords: CRIMINAL LAW – appeal – conviction – driving offence – unrestrained passengers – findings of the magistrate – reasonable doubt - EVIDENCE – properly admitted evidence - maker of statement not available – credibility Legislation Cited: Crimes (Appeal and Review) Act 2001 Australian Road Rules 2008 Evidence Act 1995 Cases Cited: Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Category: Principal judgment Parties: Shane Justin McEwen (Appellant) Regina (Respondent) Representation: Counsel: Mr S Boland (Appellant) Solicitors: S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/90734 Judgment 1. Shane Justin McEwen (the appellant) appeals against the convictions entered by Ms Kennedy LCM on 12 September 2014 at the Downing Centre Local Court in relation to a breach of Clause 265(3) of the Australian Road Rules 2008 (the Road Rules) that involved the appellant being the driver of a motor vehicle with 3 unrestrained passengers in the back seat. The appellant was fined the sum of $979.00, which was the amount on the traffic infringement notice. 2. On the appeal, Mr Boland of Counsel appeared for the appellant and Mr George, solicitor, appeared for the Director of Public Prosecutions; the respondent in the proceedings. 3. The prosecution case can be summarised as follows. On 1 January 2014 the Police had set up a random breath testing station in the northbound lanes of Clark Road, Neutral Bay. The police officers used a police vehicle and orange witches hats to create a preclusion zone, where cars would be directed from lane two into lane one, in front of the police vehicle so that the drivers could be safely submitted to random breath testing. Senior Constable Smith then used a sign and a torch fitted with an orange opaque cover to direct drivers from lane two into the preclusion zone. 4. At about 8.15pm Senior Constable Smith signalled to the appellant to bring his vehicle into the preclusion zone. As the vehicle passed Senior Constable Smith he noticed that the rear nearside passenger was not wearing a seatbelt and he called out to the police officers who were performing random breath testing "seatbelt" as he pointed to the rear passenger area of the vehicle. Senior Constable Gaskell was waiting to breath test the appellant and when the appellant's vehicle came alongside of Senior Constable Gaskell, he noticed that none of the three rear passengers were wearing a seat belt. After performing the breath test and returning to the police vehicle, Senior Constable Gaskell issued the appellant with a traffic infringement notice. 5. The appellant's case can be summarised as follows. The appellant was travelling north on Clark Road, Neutral Bay in his vehicle, an M series Mercedes-Benz, with 4 passengers; being his wife Kathryn McEwen in the front passenger seat and 3 passengers in the back seat being; Ms Crabtree, Mr McIntyre and another male. The back seat passengers, the subject of the charge, were backpackers from the United Kingdom. The appellant's case was that his vehicle was directed by the first police officer into the preclusion zone and that it then came to a stop alongside a second police officer behind some other stationary vehicles. The appellant waited for a short time presumably whilst the drivers of the vehicles in front were being breath tested. At about this time the back seat passengers removed their seatbelts. The vehicle was then directed forward to a third police officer, Senior Constable Gaskell, who breath tested the appellant and then spoke to him about the three unrestrained passengers, ultimately issuing him with the traffic infringement notice. The Relevant Law 1. The applicable principles to be applied in determination of the appeal are as follows: 1. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31]; 2. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22]; 3. Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24]. 1. Tendered before me was the Crown bundle (Exhibit A), which comprised of a site diagram, the In-car footage (the ICV footage, Exhibit B), the statement of Francesca Jade Crabtree dated 1 September 2014, the statement of Cameron James McIntyre dated 29 August 2014 and the transcript of the hearing before the magistrate on 12 September 2014. 2. I have read Exhibit A and I watched the ICV footage contained on Exhibit B in Court during the hearing of the appeal. 3. Clause 265 of the Road Rules provides: A passenger in or on a motor vehicle that is moving, or that is stationary but not parked, must comply with sub-rule (2) if he or she: is 16 years old or older, and is not exempt from wearing a seatbelt under rule 267. The passenger: must occupy a seating position that is fitted with an approved seatbelt, and must not occupy the same seating position as another passenger (…), and must wear the seatbelt properly adjusted and fastened. The driver of a motor vehicle (except a bus or taxi) that is moving, or that is stationary but not parked, must ensure that each passenger in or on the vehicle who is 16 years old or older complies with subrule (2) unless the passenger is exempt from wearing a seatbelt under rule 267. 1. I am satisfied from reading the transcript that the case for the prosecution before the magistrate was that the three backseat passengers were at no stage wearing a seatbelt; that is from the time the vehicle passed Senior Constable Smith and entered the preclusion zone. I am also satisfied that the prosecution did not seek to make out the offence before the magistrate by relying on the appellant's case, by arguing that even if the backseat passengers had removed their seatbelts after the vehicle entered the preclusion zone that the offence had still been committed. Analysis of the magistrate's reasons 1. The magistrate recited the evidence in the case for the prosecution and the defence. The magistrate noted the issue between the parties as to the timing of the relevant events. The magistrate considered the timing issue to be "probably more relevant to general credibility than any real issue in the case". The magistrate further considered that the appellant and Mrs McEwen were not in a position to see what the backseat passengers were doing and that each of them had no recollection of inquiring as to whether the backseat passengers were wearing their seatbelts. The magistrate considered the police officers' evidence to be clear and inferentially accepted it. The magistrate did not expressly reject the evidence of the appellant or Mrs McEwen, but decided that they were not in a position to see and had no knowledge of whether or not the backseat passengers were wearing their seatbelts. The magistrate made no express finding as to the evidence of Ms Crabtree and Mr McIntyre. 2. The magistrate made no express credit findings to which I must have regard. The magistrate's decision was based on an acceptance of the police evidence and a finding that the appellant and Mrs McEwen were not in a position to contradict the police case. Consideration 1. After considering all of the evidence and the submissions of the appellant and the Crown, I am not satisfied beyond reasonable doubt that the appellant committed the offence for the following reasons. 2. First, I am not satisfied beyond reasonable doubt that Senior Constable Smith had sufficient opportunity to observe that the backseat passenger on the nearside of the appellant's vehicle was not wearing a seatbelt as the vehicle drove past him. It was 8.15pm and it was dusk. The evidence was that Senior Constable Smith was using a torch, presumably because it was dark enough to need to do so. The vehicle's windows were tinted. The vehicle moved past him in a very short period of time and his opportunity to see the chest and shoulder area of the relevant passenger would have been even further limited by his line of sight past the front passenger and the door pillar of the vehicle. Further, once the vehicle passed him his line of sight would have been obscured. 3. Under cross-examination, Senior Constable Smith conceded that his first opportunity to observe the passenger was when the vehicle was 1 metre away and going past him (T13 lines 5-10). In that context I do not accept Senior Constable Smith's estimate of having a 2-3 second chance to observe of the vehicle (T20 line 46) travelling at between 10-20 km/hour, as being realistic. In my view his opportunity to observe the rear passenger must have been much shorter than 2-3 seconds. Senior Constable Smith stated in cross-examination that he believed the window he looked through was up (T9 line 2). In those circumstances I cannot rely on his observations as being accurate. Senior Constable Smith made no notes on the night of the incident (T40 line 37) and prepared a statement on the day of the hearing being 12 September 2014, some 9 months after the incident (T8 line 5). He relied on the statement prepared by Senior Constable Gaskell, which itself was prepared on 8 June 2014, some 6 months after the incident (T8 line 10). Senior Constable Gaskell stated in his evidence that he asked the appellant to lower the rear passenger window (T41 line 8). 4. I note the evidence that both officers had conducted many other random breath testing operations between 1 January 2014 and the date of the hearing. The evidence was to the effect that they would be involved in random breath testing on every shift, weather permitting. I cannot accept Senior Constable Smith's clarity of recollection of this particular incident and I do not accept his evidence to the required standard. 5. Second, I have respectfully come to a different view on the timing evidence to that of the magistrate. In my view the evidence in the appellant's case to the effect that he had to wait alongside a second police officer before proceeding to Senior Constable Gaskell, is to be preferred to the evidence in the prosecution case. The appellant's witnesses were ad idem on this issue. In contrast, Senior Constable Gaskell was "100% sure" (T53 line 50) that there was no intervening officer. I do not accept the purported clarity of Senior Constable Gaskell's recollection because he made limited notes on the night of the alleged offence, he only prepared his statement on 8 June 2014 and he has been involved in a large number of random breath testing operations between the incident and the time when he gave evidence. I note that Senior Constable Gaskell recorded some oral notes on the ICV footage. 6. I have listened to that recording and they do not assist in corroborating Senior Constable Gaskell's evidence on this point. On the other hand, this was an unusual event for the appellant and Mrs McEwen and they had reason to remember the details of it. Further, the appellant raised character in the course of the case before the magistrate and I am entitled to take into account that he is a person that is less likely to give a false account of what occurred on the night, and I accept his evidence on this point and generally. 7. Third, the evidence of Ms Crabtree and Mr McIntyre was in my view properly admitted into evidence, pursuant to either sections 64 or 65 Evidence Act 1995. The witnesses were available, but residing in the United Kingdom and calling them would have caused undue expense and would not in the circumstances have been reasonably practicable. In the appeal the prosecution took no issue about the admissibility of the statements. In paragraphs 9 and 10 of her statement, Ms Crabtree stated; "When the car stopped he [Mr McIntyre] took off his seatbelt and looked across at me and Jordan … I followed [Mr McIntyre] and took my seatbelt off too and waited to see what was going to happen next". 1. In paragraphs 9 and 10 of his statement, Mr McIntyre stated; "[The appellant] stopped the car and there were a number of police cars about. When the car stopped I thought that we all had to get out of the car so I undid my seatbelt and looked at [Ms Crabtree] and Jordan who undid their seatbelts as well". 1. Once in evidence, the statements of Ms Crabtree and Mr McIntyre raised a reasonable possibility that the appellant was not guilty of the offence charged. In particular, there is evidence that could not be contradicted, by reason of circumstances outside the appellant's control, that the backseat passengers were wearing their seatbelts when the appellant's vehicle entered the preclusion zone, but had removed them in response to the short delay that ensued, which for the reasons stated I have found had occurred. The police officers had the opportunity to take statements from the backseat passengers, but chose not to do so. The police had the ICV system available to them, but chose not to have it activated at the relevant time. 2. After taking the statements, the appellant forwarded them to the prosecution and sought a response, going so far as offering to fly the witnesses from the United Kingdom or to arrange an audio-visual link (T2 lines 25-28). The appellant's solicitor was available to give evidence as to the efforts that had been undertaken to obtain the statements (T2 lines 10-17). The appellant's solicitor was not required by the prosecution for cross-examination (T2 line 20). The prosecution bore the onus of proving the elements of the offence at all times and in the event that the circumstances of procuring the evidence of the back seat passengers gave rise to any reasonable doubt, the benefit of that doubt must go to the appellant. 3. In conclusion, I am not satisfied beyond reasonable doubt that the prosecution has proved the elements of the charge and I make the following orders: 1. Appeal against conviction allowed; 2. Set aside the orders of the magistrate of 12 September 2014; 3. Dismiss the Court Attendance Notice. ********** 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. Decision last updated: 03 November 2015