PARTIES:	RICKY JOHN LANE

		v

		PETER MARK JOHNS THOMAS

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	Appeal from the Court of Summary
		Jurisdiction exercising Territory
		Jurisdiction

FILE NO:	JA 135/97 (9715953)

DELIVERED:	12 March 1998

HEARING DATES:	16 February 1998

JUDGMENT OF:	THOMAS J

REPRESENTATION:

Counsel:

	Appellant:	J. Lawrence
	Respondent:	J. Blokland

Solicitors:

	Appellant:	Close & Carter
	Respondent:	Office of the Department of Public
		Prosecutions

Judgment category classification:	C
Judgment ID Number:	tho98003
Number of pages:	11

(tho98003)
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. JA 135/97 (9715953)
		BETWEEN:

		RICKY JOHN LANE
			Appellant

		AND:

		PETER MARK JOHNS THOMAS
			Respondent

CORAM:   THOMAS J

REASONS FOR JUDGMENT

(Delivered 12 March 1998)

	This is an appeal from a conviction imposed in the Court of Summary Jurisdiction against the appellant on a charge that on 13 July 1997 at Darwin in the Northern Territory he drove a motor vehicle on a public street, namely Daly Street, whilst under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of that motor vehicle.

	The grounds of appeal are:

	“1.	That the findings of the stipendiary magistrate and the conviction and/or Orders were against the evidence and the weight of the evidence.

	 2.	That upon the whole of the evidence the stipendiary magistrate should have entertained a reasonable doubt as to the guilt of the defendant.

	3.	That the conviction is unsafe and unsatisfactory.”

	I have specifically addressed Ground 3 since that was the primary issue on appeal.  The essence of the appeal is that this Court should quash the conviction as being unsafe and unsatisfactory because:

	1)	The evidence of Constable Lyndon as to his observations of the appellant’s state of sobriety does not support the evidence of Constable Evans; that Constable Lyndon was in a better position than Constable Evans to assess whether the appellant was under the influence of alcohol as it was Constable Lyndon who spent time with the appellant in the breath analysis room at the police station.

	2)	Constable Evans made a statement which was tendered in the proceedings before the Court of Summary Jurisdiction (Exhibit D1).  This statement was dated 12 September 1997 and makes no reference to certain observations made by Constable Evans and given in his evidence before the Court of Summary Jurisdiction, in particular as to observations of the appellant when he alighted from his motor vehicle.

	The principles to be applied by this Court in reviewing the decision of the learned stipendiary magistrate have been recently considered by the High Court in Jones v The Queen (1997) 72 ALJR 78.  It was there decided that “the test formulated by the majority in M v The Queen [(1994) 181 CLR 487] must be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory”.  The majority in Jones v The Queen (supra) explained the application of the test as follows:

		“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”  (Gaudron, McHugh and Gummow JJ at 85).

	I commence with a summary of the evidence called for the prosecution.

	CONSTABLE EVANS gave evidence that he was on traffic patrol on 13 July 1997, driving outbound along Daly Street.  He gave evidence that he observed the vehicle driven by Mr Lane veer from the median outbound lane in Daly Street into the left lane and at about the same time the left front passenger’s door opened and closed.  The vehicle almost hit the gutter to the left of the road and then veered back sharply to the right hand lane.  Mr Lane did not use any indicators during the changing of the lanes, either at that time or when driving through the bend in the road near Bridge Toyota.  He did not use any indicator when he made a right hand turn into Duke Street.  Constable Evans apprehended the vehicle a short distance into Duke Street.  The driver stumbled as he got out of the vehicle and hung onto the side of the vehicle, apparently for support as he was walking.  Constable Evans noticed a strong smell of intoxicating liquor.  He asked Mr Lane some questions and then required him to submit to a roadside breath test.  Constable Evans stated when he was having a conversation with Mr Lane it appeared to him that Mr Lane was intoxicated.  The result was positive and Mr Lane was arrested and conveyed to Berrimah Police Station for breath analysis.  Constable Evans stated Mr Lane’s speech was slurred and because he did not know Mr Lane he did not know if this was his normal speech or not.  When Mr Lane had been asked to produce his licence, he seemed to fumble with his wallet and had a hard time actually getting the licence out of his wallet.

	Under cross-examination Constable Evans agreed he had sworn a statutory declaration in relation to this matter on 12 September 1997.  He agreed that nowhere in this document did he make reference to Mr Lane hanging onto the side of his car, fumbling with his wallet, or slurring his speech (t/p 11).  Constable Evans agreed he made this statutory declaration after he became aware that the charge of drive under the influence was to be defended.  This statutory declaration was tendered in the hearing before the Court of Summary Jurisdiction and marked Exhibit D1.

	CONSTABLE LYNDON gave evidence that he was performing traffic duties with Constable Evans at 12.20am on 13 July 1997.  Constable Evans was driving the police vehicle.  As they proceeded  outbound along Daly Street in the right hand lane, Constable Lyndon noticed the Holden Commodore vehicle driven by Mr Lane in front of them swerve to the left.  It appeared the driver was leaning across the passenger’s seat.  He saw the passenger door open and close again.  At this stage the Commodore had actually moved completely into the left-hand lane and was fairly close to the left-hand kerb.  Once the door had closed, the vehicle swerved back into the right hand lane.  On neither of these occasions was there any indication that the vehicle was about to change direction.  The vehicle appeared to be travelling above the speed limit.  Constable Lyndon noted the speed on the radar display was 86 kilometres an hour.  At the bend in the road near Bridge Autos, the Commodore moved to the left lane and back to the right lane without indication.  The vehicle turned right into Duke Street, again without indication.  The vehicle was apprehended in Duke Street.

	Constable Evans commenced a conversation with the driver who identified himself as Ricky Lane.  Constable Evans asked questions relating to personal details and the expiry date of his licence and then asked questions about his drinking.  Constable Evans asked Mr Lane “Have you been drinking tonight?”.  Mr Lane replied “Yes, I’ve had a couple.”  Mr Lane had also stated he had been drinking at the Pub Bar and when asked to submit to a roadside breath test Mr Lane had replied “Do I have to?  Can’t I just surrender myself?”  Constable Lyndon stated that during this conversation he noticed that Mr Lane’s breath smelt of liquor.  Following the roadside breath test Mr Lane was conveyed to Berrimah Police Station.  In the breath analysis room, Constable Lyndon conducted an analysis of the breath sample.  The sample came up with a reading on the display of .217%.  Because the breath analysis machine had run out of paper the certificate did not issue correctly.  Mr Lane declined a request to submit to another breath analysis.  He was then arrested for the offence of exceed .08 and other related traffic offences.  Constable Lyndon gave further evidence that he couldn’t recall with clarity Mr Lane’s speech, the only thing he noted was the smell of liquor on his breath which gave him an indication Mr Lane had certainly been drinking.  When Mr Lane took a roadside breath test this indicated he was over the limit and he was arrested for the purpose of breath analysis.  Constable Lyndon was cross-examined and gave the following evidence (t/pp 18-19):

	“’Are you able to point to anywhere in your statement made yesterday about the breath smelling of liquor?---No, no, that’s not included in the statement.

	It’s not?---No.

	Okay?---No.

	And there is no reference in – even though this statement was prepared after you’d read your colleague’s statement, there is no reference in your statement to my client, the defendant, stumbling as he got out of his car, is there?---No, there’s nothing in my statement, no.

	No.  And that’s because it didn’t happen, isn’t it?---That’s not my observation.  What happened, when we book off on a traffic apprehension, generally the passenger is the one that gives the details over the radio to our communication’s (sic) section.

	Okay?---Now, at that time, the driver in this case, Constable Evans, would generally be getting out of the car and going to – towards the apprehended vehicle.  Now, I didn’t – I don’t recall seeing him getting out of the car and therefore I can’t say anything about his demeanour when he actually got out.

	You’re saying it might have happened but you didn’t see it?---That’s correct, yes, yes.”
I now address the first point raised by counsel for the appellant under    Ground 3.
	It is the submission of counsel for the appellant that the evidence of Constable Evans is inconsistent with the evidence of Constable Lyndon and that the learned stipendiary magistrate should have had a reasonable doubt based on this inconsistent evidence.

	I do not agree with this submission.  The evidence of Constable Lyndon, when analysed, supports the evidence of Constable Evans as to the observations both police officers made of the driving of the vehicle, from the time Mr Lane came under police observation, to the point of apprehension.  Constable Lyndon has stated he did not see Mr Lane when he got out of the car and could not comment on his demeanour.  It is not unusual for two or more witnesses to an incident to give differing evidence as to their observations.  This does not necessarily mean a conflict in their evidence but rather reflects the fact that different witnesses, including police witnesses, may observe different aspects of a particular incident.  In his evidence Constable Lyndon states a reason why he did not observe Mr Lane getting out of his vehicle.  Namely, because it is generally the passenger in the police vehicle who is occupied giving details over the radio to the communication’s section.  I do not regard the differences that exist in their evidence as a conflict.  What has occurred is that Constable Evans has made more detailed observations relevant to the state of sobriety of Mr Lane than are made by Constable Lyndon.  This does not give rise to a conclusion that the learned stipendiary magistrate ought to have had a doubt.  Counsel for the appellant have gone further and submitted that Constable Lyndon was in the better position to make observations of Mr Lane than Constable Evans because of the time he spent with Mr Lane in the breath analysis room.  Mr Lawrence, counsel for the appellant, points out that when specifically asked about this point, Constable Lyndon had stated his only reasons for assessing Mr Lane as being under the influence of alcohol, was that he smelt liquor on his breath and because of the reading of .217 on the breath analysis machine.  With respect, the learned stipendiary magistrate quite correctly rejected the evidence of the breath analysis reading sought to be tendered by the respondent, which was not in accordance with the Traffic Act (NT).  Nowhere in his reasons for decision does the learned stipendiary magistrate state that he relied on that reading or took it into account at all.

	His Worship applied the correct legal test in the assessment of the appellant’s culpability, namely, the offence was proved if the driver was intoxicated to a degree which rendered him incapable of proper control of the vehicle (s19(1) Traffic Act).  He correctly ruled that it was not necessary to prove actual bad driving but rather whether the level of intoxication could lead to an impairment of driving to a noticeable degree.  It was permissible for the learned stipendiary magistrate to rely on evidence of bad driving given by both Constable Evans and Constable Lyndon, together with the observations by Constable Evans as to the signs of intoxication after the appellant had been apprehended (R v Davies  [1962] 1 WLR 1111 at 1113).  In his reasons for decision the learned stipendiary magistrate states (t/p36):

“I find beyond reasonable doubt that he was under the influence of intoxicating liquor on his own admission and on the evidence of the two officers.”

On the evidence this finding was open to the learned stipendiary magistrate.

	I do not accept that the appellant’s first point establishes that the conviction was unsafe and unsatisfactory.

	The second point related to the statement, Exhibit 1 in these proceedings, made by Constable Evans on 12 September 1997 and the omission from this statement of observations which, he stated in his evidence, he made of the appellant at the time of apprehension.

	The learned stipendiary magistrate had the benefit of seeing and hearing the witnesses (Jones v The Queen (supra)).  In the course of his reasons for decision, the learned stipendiary magistrate stated that he found Constable Evans and Constable Lyndon credible and reliable witnesses.  His Worship specifically referred to the omissions in Constable Evans’ statement in his reasons for decision (t/p 36-37):

	“….  I have heard from Constable Evans and Constable – Senior Constable Lyndon.  Constable Evans gave his evidence in an impressive and in my view believable and honest fashion and in a credible and reliable fashion.  Despite not having put some of his observations in his initial statement, I do not apprehend at all and do not find that he gilded the lily or tried to be less than frank with me about his physical observations both of the driving and physical mannerisms of the defendant that – in the early hours of that morning.

		I also similarly find the evidence of Lyndon to be just as impressive.  Believable, impressive, credible and reliable though they are, that is not the end of the matter.  The Crown has to prove that charge beyond reasonable doubt and as I say I have got no doubt they have done that.  In respect of the defendant driving that car at that time, on that day, on that street, whilst under the influence of intoxicating liquor.  The next question is, is it to the requisite degree that is to say was he under the influence of intoxicating liquor to the requisite degree as to be incapable of having improper control of the motor vehicle?

		It is a question of degree and indeed there does not in my opinion have to be proved complete intoxication.  It is necessary though that it is proved that the alcohol taken should have rendered the driver less fit to drive.  That is to say with an ability to drive with safety impaired to a noticeable degree.”

	In addition to the offence of driving under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of the motor vehicle, the appellant had also entered pleas of not guilty to charges that he failed to drive entirely within a single marked lane and that he drove at a speed in excess of the speed limit.  The learned stipendiary magistrate dismissed these last two charges and acquitted the appellant.  Counsel for the appellant submits that a finding of guilty in respect of the first mentioned charge is inconsistent with the decision to dismiss the latter two charges.  Counsel for the appellant referred me to the decision of Jones v R (supra).  The submission is that the first mentioned charge should also have been dismissed.  I do not agree with this submission.  The elements of the latter two offences are quite different from the elements of the offence of “drive under the influence”.  As noted by the learned stipendiary magistrate (t/p 34), the charge of fail to drive within lane should more appropriately have been a charge of “fail to indicate”.  I note that failing to signal an intention to turn, is an offence pursuant to Traffic Regulations 45.  I agree with the decision of the learned stipendiary magistrate to dismiss this charge as the facts did not support the charge.  With respect to the second charge dismissed by the learned stipendiary magistrate i.e. the charge of ‘exceed the speed limit’, the prosecution had failed to prove the police radar system was in good working order.

	I agree with the submission made by Ms Blokland, counsel for the respondent, that the learned stipendiary magistrate correctly applied substantial rigour in his assessment of the prosecution case, acquitting the appellant of these two charges.  I do not accept that an acquittal on these two charges has any bearing on the charge of ‘driving under the influence’.

	In determining whether the verdict is unsafe and unsatisfactory, the question for this Court is whether or not the learned stipendiary magistrate, acting reasonably and properly instructed on the law, should have entertained a reasonable doubt as to the guilt of the accused (Fitzgerald v The Queen (1992) 2 NTLR 200; Chidiac v The Queen (1991) 171 CLR 432; JK v Waldron (1988) 93 FLR 451).

	I have had the opportunity of reading the transcript of the evidence and the learned stipendiary magistrate’s reasons for decision.  I have made an independent assessment of the evidence, both as to its sufficiency and quality.

	On the evidence before the learned stipendiary magistrate there is no reason for him to entertain a reasonable doubt as to the guilt of the accused.

	Accordingly, the appeal is dismissed.
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