Citation: Shane Justin McEwen v R [2015] NSWDC 248
Court: District Court of New South Wales
Date: 26 February 2015
Judge(s): Judge AC Scotting
Background
The appellant was convicted in the Local Court of a driver's obligation offence under clause 265(3) of the Australian Road Rules 2008, which requires a driver to ensure that all passengers aged 16 or over wear properly fastened seatbelts while the vehicle is moving or stationary but not parked. The conviction arose from an incident on 1 January 2014, when the appellant's vehicle was directed into a random breath testing station in Clark Road, Neutral Bay, at approximately 8:15pm. He was fined $979.00, the amount specified on the traffic infringement notice.
The prosecution's case was that none of the three adult back-seat passengers were wearing seatbelts at any point after the vehicle entered the preclusion zone. The appellant's case was that the passengers had their seatbelts on when the vehicle entered the zone, but removed them during a brief stop while waiting behind other vehicles being breath-tested. Two of the back-seat passengers, British backpackers who had since returned to the United Kingdom, provided statements supporting the appellant's account.
The appellant appealed the conviction to the District Court under the Crimes (Appeal and Review) Act 2001, which provides for a rehearing on the certified transcripts rather than a fresh trial.
Legal Issues
- Whether the magistrate's finding of guilt was established beyond reasonable doubt, having regard to the quality and reliability of the police observations
- Whether the statements of the two back-seat passengers (whose makers were overseas and unavailable) were properly admitted into evidence and what weight they carried
- Whether the short delay within the preclusion zone before the breath test gave rise to a reasonable possibility that the passengers had removed their seatbelts only after the vehicle entered the zone
- Whether the prosecution had discharged its onus of proof in circumstances where it had not taken statements from the passengers and the in-car video system had not been activated
Decision
Judge Scotting conducted a rehearing on the transcript and ICV footage, applying the principles from Charara v R [2006] NSWCCA 244: the appellate judge forms an independent view of the facts while acknowledging the magistrate's advantage in seeing and hearing witnesses.
The District Court was not satisfied beyond reasonable doubt that Senior Constable Smith had a sufficient opportunity to observe the rear nearside passenger's lack of seatbelt. It was dusk, the vehicle windows were tinted, Senior Constable Smith was using a torch, and his line of sight was obstructed by the front passenger and the door pillar. Under cross-examination, the officer conceded his first opportunity to observe was when the vehicle was one metre away and passing him. The court found his estimate of a 2-3 second observation window was unrealistic in those conditions. Compounding this, the officer made no notes on the night and prepared his statement nine months later on the day of the hearing.
The court found credible evidence that a short but real delay occurred after the vehicle stopped in the preclusion zone, consistent with the appellant's account that the passengers removed seatbelts during that pause. The statements of Ms Crabtree and Mr McIntyre, admitted under provisions governing unavailable witnesses, supported this version and could not be contradicted. The police had the opportunity to take statements from the passengers at the time but did not, and the in-car video was not activated. The court noted that the prosecution bore the onus of proof throughout, and any reasonable doubt arising from those circumstances must benefit the appellant.
The magistrate had not made express credit findings against the appellant or his wife, and had not addressed the passengers' statements at all. On the District Court's own assessment of all the evidence, the prosecution had not proved the elements of the offence beyond reasonable doubt.
Orders Made
- Appeal against conviction allowed
- Orders of the magistrate dated 12 September 2014 set aside
- Court Attendance Notice dismissed
Key Takeaways
- A conviction for a seatbelt offence under clause 265(3) of the Australian Road Rules 2008 requires the prosecution to prove beyond reasonable doubt that passengers were unrestrained; a brief and physically limited opportunity to observe does not automatically satisfy that standard.
- Conditions at the time of observation, including low light, tinted windows, an obstructed line of sight, and the absence of contemporaneous notes, can individually or cumulatively undermine the reliability of police evidence to the point that reasonable doubt arises.
- Where a driver's vehicle stops briefly before a breath test, evidence that passengers removed seatbelts during that stop can raise a reasonable possibility inconsistent with guilt, particularly when the prosecution did not put its case on the alternative basis that the offence was still made out.
- Statements from witnesses who are unavailable because they have returned overseas can be admitted and carry weight; the District Court treated the unchallenged statements of the two British passengers as raising a reasonable possibility of innocence that the prosecution could not negate.
- The prosecution's failure to take statements from witnesses who were present and available at the time, and its failure to activate the in-car video system, were factors the court considered relevant when assessing whether the onus of proof had been discharged.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)
- Australian Road Rules 2008, cl 265(3), cl 267
- Evidence Act 1995 (NSW)
Cases:
- Gianoutsas v Glykis [2006] NSWCCA 137
- Charara v R [2006] NSWCCA 244