Ascic v Bedworth
[2013] WASCA 174
•5 AUGUST 2013
ASCIC -v- BEDWORTH [2013] WASCA 174
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 174 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:6/2013 | 19 JUNE 2013 | |
| Coram: | MARTIN CJ BUSS JA MAZZA JA | 5/08/13 | |
| 37 | Judgment Part: | 1 of 1 | |
| Result: | Application made 19 June 2013 for leave to adduce additional evidence dismissed Extension of time to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANA ASCIC PHILIP JOHN BEDWORTH |
Catchwords: | Criminal law Appeal against conviction Single judge dismissed appellant's appeal against her conviction in the Magistrates Court Appellant drove a motor vehicle on a road without due care and attention Application to adduce additional evidence Whether any of the proposed grounds of appeal have a reasonable prospect of success |
Legislation: | Criminal Appeals Act 2004 (WA), s 9, s 16(2), s 18, s 39, s 40 Road Traffic Act 1974 (WA), s 62 |
Case References: | Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Ascic v Bedworth [2013] WASC 4 CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 DPJB v The State of Western Australia [2010] WASCA 12 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439 KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 McMahon v The State of Western Australia [2010] WASCA 143 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 R v Birks (1990) 19 NSWLR 677 R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 Rinaldi v The State of Western Australia [2007] WASCA 53 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ASCIC -v- BEDWORTH [2013] WASCA 174 CORAM : MARTIN CJ
- BUSS JA
MAZZA JA
- Appellant
AND
PHILIP JOHN BEDWORTH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
Citation : ASCIC -v- BEDWORTH [2013] WASC 4
File No : SJA 1038 of 2012
Catchwords:
Criminal law - Appeal against conviction - Single judge dismissed appellant's appeal against her conviction in the Magistrates Court - Appellant drove a motor vehicle on a road without due care and attention - Application to adduce additional evidence - Whether any of the proposed grounds of appeal have a reasonable prospect of success
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 16(2), s 18, s 39, s 40
Road Traffic Act 1974 (WA), s 62
Result:
Application made 19 June 2013 for leave to adduce additional evidence dismissed
Extension of time to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Ascic v Bedworth [2013] WASC 4
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
DPJB v The State of Western Australia [2010] WASCA 12
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McMahon v The State of Western Australia [2010] WASCA 143
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
R v Birks (1990) 19 NSWLR 677
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Rinaldi v The State of Western Australia [2007] WASCA 53
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
1 MARTIN CJ: The application for leave to adduce additional evidence, and for an extension of time within which to apply for leave to appeal should each be dismissed for the reasons given by Buss JA, with which I agree.
2 BUSS JA: On 28 February 2012, the appellant was convicted, after a trial in the Magistrates Court before Magistrate Langdon on 22 February 2012, on one charge in a prosecution notice. The charge alleged that on 14 January 2011, at Albany Highway, the appellant drove a motor vehicle on a road without due care and attention, contrary to s 62 of the Road Traffic Act1974 (WA).
3 The magistrate imposed a fine of $300 and awarded the respondent costs of $250.20.
4 The appellant applied for leave to appeal to the Supreme Court against her conviction. EM Heenan J refused leave and dismissed the appeal. See Ascic v Bedworth [2013] WASC 4.
5 The appellant has now applied for an extension of time to apply for leave to appeal to this court against EM Heenan J's decision.
The application for an extension of time
6 The last date for appealing was 28 December 2012. The appellant did not file her appeal notice until 7 January 2013. The application for an extension of time is supported by her affidavit sworn 4 January 2013. It is convenient to consider the merits of the proposed grounds of appeal before deciding whether an extension of time should be granted.
Overview of the prosecution's case
7 The prosecution's case was that on 14 January 2011, at Albany Highway, Kelmscott, the appellant drove a Ford Falcon motor vehicle through a red traffic control signal at an intersection and collided with a Honda Jazz motor vehicle driven by Barbara Elliott. The appellant was travelling along Albany Highway. At the intersection Ms Elliott was making a right-hand turn from Denny Avenue into Albany Highway.
Overview of the defence case
8 The appellant denied driving through a red traffic control signal. She alleged that the collision was caused by Ms Elliott. The defence case was that Ms Elliott initially went to turn left from the left-hand lane of Denny Avenue into Albany Highway. She changed her mind and veered around a truck that was stationary in the right-hand lane of Denny Avenue. She then turned right, against a red traffic control signal, into Albany Highway and the path of the appellant's vehicle.
The critical issue at the trial
9 The critical issue at the trial, and the only element of the offence in dispute, was whether the appellant drove without due care and attention, immediately before the collision, in that she drove into the intersection against a red traffic control signal.
10 It was not in dispute at the trial that if the traffic control signal facing Albany Highway was red then the traffic control signal facing Denny Avenue would be green, and vice versa.
Overview of the prosecution's evidence
11 At the trial, the prosecution called evidence from Ms Elliott, Bruce Smith, Senior Constable Philip Bedworth and Senior Constable Mark Keeble. An overview of their evidence is as follows.
12 Ms Elliott said in evidence-in-chief:
Have you travelled through that intersection on other occasions?---Yeah … usually daily because that was my route to work.
That was the way you went to work?---Yeah.
…
Just tell her Honour what happened, please?---Okay. I was … heading towards the junction and the lights were green and I was indicating to turn right to go onto Albany Highway.
[B]y the time you got to the intersection do you know what speed you were travelling at … ?---I wasn't going very fast. I would say it was about 40 or 50. I always slow down a bit anyway.
Just tell me again what colour the lights were, please?---Green.
What did you do then? What happened then?---Okay. Well, I pulled out into the junction and the next thing, I just felt shaking. I was sort of being rattled from side to side and there was a bang on the side of the car (ts 4).
13 Ms Elliott had this exchange with defence counsel in cross-examination:
[O]n this morning as you came up to that intersection, that's the intersection of Denny Ave and Albany Highway, and where there's that intersection there is two lanes on Denny Ave, isn't there? You can either turn left onto Albany Highway, or you can turn right onto Albany Highway. Is that correct?---Yeah.
Yes. Do you recall as you came up to the intersection there was a truck stationary in the right-hand lane of Denny Avenue?---No.
In fact isn't it the case that as you came up to that intersection, you had a red light facing you?---No, that's not the case (ts 9).
14 Defence counsel put to Ms Elliott a series of propositions to the effect that after the collision she had admitted to the appellant and the appellant's husband, Marko Ascic (who arrived at the scene shortly after the collision), that she had driven into the intersection against a red traffic control signal and that the accident was her fault. The relevant evidence reads:
Do you recall having a discussion with a tall man, a tall Yugoslav man, on the side of the road?---Yes, the husband of - - -
Yes, the husband of [the appellant] yes. Did he introduce himself to you as Marko or Mark?---He mentioned his name was Marko, yeah.
I want to suggest … that you said:
I hope your wife is okay. I'm sorry for causing the accident. I'm dealing with a lot of problems and when I was in the left lane I realised that I had to go right instead and … I didn't see the red light, or think about what I was doing.
Did you say that to him?---No.
Are you sure about that?---Positive.
And he said to you:
That's a dangerous way of driving. You could have gotten yourself killed, … or killed someone else.
Do you recall him saying that?---The only thing I can remember is him talking about his dog.
He had his dog in his car. Yes?---He had his dog in his arms.
You kept apologising to him, saying that you were glad everyone was okay?---I can't remember.
…
Do you remember … Officer Bedworth saying:
I have decided that because the accident resulted in only minor damage and no serious injury, I do not intend to take any action against either driver?
---No … I didn't hear anything like that.
Mr Ascic said:
But this lady has admitted to me and my wife driving through the red light, making a right turn from the left turn only lane, and as you can see she did that in a very dangerous manner, and should you not do something about that?
Do you remember him saying that?---Definitely that wasn't said.
Did Officer Bedworth reply quite angrily:
I am the investigating officer here and not you, and I decide what has happened and what action should be taken?
---No.
Mr Ascic said, 'I agree, officer, but do your job properly.' Do you remember that?---No.
…
You stayed talking to Mr Ascic saying that you were sorry for causing the accident?---No.
…
When you went over to [the appellant's] car, did you say to her, 'I'm sorry, my mind was somewhere else, I did not see the red light. Are you okay'?---I can't remember what I said, but I don't think I said that.
You don't think you said that?---I can't - I was in shock.
Do you recall [the appellant] saying to you, 'You should be more careful because someone could have been killed here'?---I can't remember anything.
Do you remember how long you stayed at her car for?---No.
…
Mr Smith is there as well?---He came along, yes.
What I suggest to you is that [the appellant] said around that time, 'The lady drove through the red light and past that truck' - pointing to a truck that was still in that right lane - 'and she [sic: I] didn't see you until it was too late.' Do you remember that?---Her saying that? I don't.
He said, 'That's right, I saw it all'?---No, I can't remember him saying that. I can't remember anything that was said, to be honest.
…
You were saying to [the appellant], 'I apologise for going through the red light and causing the accident.' Did you say that to her?---I can't remember saying anything at the time (ts 13 - 15, 18 - 20).
15 Mr Smith witnessed the collision between Ms Elliott's vehicle and the appellant's vehicle. Shortly before the accident, he was driving along Albany Highway, in the same direction of travel as the appellant, and a short distance behind her. He gave evidence that the appellant drove through a red traffic control signal.
16 Mr Smith said in evidence-in-chief:
Do you know what sort of speed you were travelling at?---I don't know the speed, but I believe I was sort of doing the speed limit.
Tell us, then what happened? You saw another car, you say?---There was another car in the left-hand lane … my front bumper was aligned to her rear bumper.
In relation to your vehicle, do you know what her speed was in relation to yours?---Well, … we were probably about doing the same. I couldn't tell you exactly …
What's happened then?---I noticed that the lights started turning from green to amber.
…
As you're travelling towards the traffic lights?---Yes.
…
So you said you saw the lights turn from green to amber. What happened then?---I started slowing down, and I happened to notice that the car on the left-hand side wasn't slowing down, so I looked again at the traffic lights to see what they were doing, and they were turning to red.
In relation to the intersection now, you said they were turning to red, how far is your car from the intersection at this stage?---I don't know how close to the intersection I was, but I was able to stop before going over the line.
…
So this car you've told us about, which was travelling to your left, I think, what did you see that car do in relation to the traffic lights? … ---The car went through the red traffic light.
…
So you've told us it's travelled through the red traffic light?---Yes.
What did you see then?--- … I just heard the screeching of the brakes and the car hitting the other car coming out of the intersection (ts 23- 24).
17 After the collision, Mr Smith alighted from his vehicle with some first aid equipment and approached the appellant's car to 'see if she was all right' (ts 24). He remained near her until an ambulance arrived and 'took her away' (ts 25).
18 Mr Smith rejected suggestions by defence counsel that when the appellant drove into the intersection the traffic control signal facing her was green:
Do you think you're a very observant person?---I was very observant that the light went red.
…
What I put to you, Mr Smith, is that the lady in the dark car [the appellant] went through a green light?---No.
Did you come to a stop at that red light?---Yes (ts 30 - 31).
19 Mr Smith could not recall, in cross-examination, whether the airbags in the appellant's vehicle or Ms Elliott's vehicle had activated (ts 29 - 30).
20 Defence counsel cross-examined Mr Smith in relation to conversations that allegedly occurred after the accident:
When you went to [the appellant] in her car, she said to you, 'The lady drove through the red light and past that truck, and I didn't see her until it was too late.' Do you recall her saying that?---No.
You said to her, 'That's right, I saw it all'?---No.
Did you make the comment that it was only a small accident?---No.
Are you able to estimate what speed you say the black car was doing when you say it went through a red light?---No.
You agree with me this all happened pretty fast?---Yes.
What I want to suggest to you is that the black car actually went through a green light. That's what in fact happened?---No (ts 33).
21 Senior Constable Bedworth and Senior Constable Keeble attended at the scene of the accident shortly after it occurred. Senior Constable Bedworth investigated the accident by completing a crash report, taking witness statements and sketching a diagram of the accident scene. Senior Constable Keeble performed traffic management at the scene because the intersection was blocked.
22 Defence counsel put to Senior Constable Bedworth a number of propositions, including suggestions about conversations he allegedly had with Mr Ascic:
Did you talk to Mr Ascic at all?--- … at the scene?
At the scene?---No, not that I recall anyway.
What I want to suggest to you is that you went over to where Ms Elliott was on the side of the road and she was there with Mr Ascic and you said, 'I've decided that because the accident resulted in only minor damage and no serious injury, I do not intend to take any action against either driver.' Do you remember saying that?---No, I don't, sir.
…
What I want to suggest to you is that you were about to go on leave and you just didn't want to worry about the paperwork so you said, 'Look, I'm not going to do anything. It was a minor accident.' Is that what happened initially?---Not that I remember, sir, no.
What I suggest to you is that Mr Ascic said that, talking about Ms Elliott:
But … this lady has admitted to me and my wife driving through the red light, making a right turn from the left-turn only lane, and as you can see she did that in a very dangerous manner. Should you not do something about that?
Do you remember him saying that?---No.
You replied quite angrily, 'I'm the investigating police officer here, not you, and I decide what has happened and what action should be taken'?---I don't remember that.
He said, 'I agree, officer, but do your job properly'? ---I don't remember, sir.
Did he get offside with you? Did he annoy you?---Not that I remember.
What I suggest is you then went back to your car and you spoke on a mobile telephone. Do you remember doing that?---No.
What I suggest is you have then gone back over to where Ms Elliott is with Mr Ascic and you have taken her by the left arm back over to your police vehicle. Did you do that?---I did take her to the police vehicle.
When you did that, did you have her by the left arm, put your hand on her left - - -?---I can't remember. It's over a year ago now.
Do you remember whether you had any physical contact with her at all?---No.
…
What you said as you were taking her back over to the police car was, 'Don't talk to them. Don't say anything.' Do you remember doing that?---No.
In the police vehicle was it just you and her in there while you spoke to her?---Yes (ts 36 - 38).
23 Later in cross-examination, defence counsel put another series of propositions to Senior Constable Bedworth about conversations he allegedly had with Mr Ascic and the appellant:
What I want to suggest to you is after you had been in your car with Mrs Elliott, and she had made a statement, you got out and went over to Mr Ascic and said, 'I'm going to issue an infringement to your wife for going through the red light.' Do you remember saying that?---No, I don't, sir.
He replied, 'On what evidence are you going to do that?' And you said, 'I have an independent witness that says he saw your wife go through the red light and that's all I need'?---I don't remember.
What I suggest he said to you is, 'Did you get the details of the truck that was in the right turning lane as he would be the perfect witness.' Do you remember him saying that?---No.
You said, 'It's not my job to chase witnesses. I only talk to those who come forward voluntarily'?---I don't remember saying that.
He said, 'Have you tested your evidence with the point of impact and the actual circumstances and position of the accident?' Do you remember him saying that?---No.
You said, 'Don't teach me how to do my job'?---I don't recall that.
He said, 'But what are you going to do about the lady turning right from the left-turn only lane?' And you said, 'Even if she did do that, that does not justify your wife going through a red light'?---Again, sir, I don't recall having that conversation.
He said, 'Can I have contact details of the witnesses?' And you said, 'No, but he's an ambulance driver that was driving immediately behind your wife.' Do you remember saying that?---No.
He replied, 'My wife did not drive through the red light, and we cannot accept this. We'll fight this in court,' and you said, 'Take my advice. Be smart. Don't spend thousands to save [a] $100 fine. You have insurance and they will fix the car'?---I don't remember saying that.
…
Was [the appellant] the only person who was taken away in an ambulance?---Yes, I think [she] was.
Do you remember Mr Ascic saying to you, 'Don't talk to my wife at the hospital until I arrive there'?---No.
You then went to the hospital, didn't you?---I did, sir, yes.
You spoke to [the appellant]?---Yes, we did
Did you ask her to admit that she was colour blind?---No, not that I recall.
Did you ask her to admit she was colour blind and that's why she didn't see the red light and drove through it? ---Not that I recall, no.
And she replied, 'I'm not colour blind'?---No, I don't recall.
You spoke to her at the hospital?---I can't recall who spoke to her because I was with my colleague at the time.
What I suggest to you is that Officer Keeble didn't talk to her at all at the hospital. Do you agree or disagree?---Again, sir, I don't remember which one of us spoke to her.
Do you recall her husband ringing her mobile telephone while you were talking to her at the hospital?---Yes, the mobile telephone did ring.
You shouted at her to turn her phone off?---No, I think it was the hospital staff that actually asked her to switch it off (ts 42 - 44).
24 The following exchange occurred between defence counsel and Senior Constable Keeble in relation to the interaction between Senior Constable Bedworth, on the one hand, and each of Ms Elliott, the appellant and Mr Ascic, on the other:
Did you see Officer Bedworth talking to Mr Ascic?---Not offhand, no. He may well have done, I was busy doing the traffic management at the time.
…
Did you note any interaction between Officer Bedworth and Mrs Elliott, the driver of the other car. Did you see what they did?---Yes. Senior Constable Bedworth took a statement from Mrs Elliott.
Yes, where did he do that?---He took her to the police vehicle that we were using at the time.
Did he have hold of her arm when he took her over to the car, do you remember?---I don't recall seeing that, but she did go over to the police vehicle and sat in the front of the vehicle.
Do you recall how long they were seated in the front of the vehicle for?---As long as it took to take the statement. That's all I could tell you.
How long do you think that was, as you recall?---I couldn't tell you, I was busy at the time, unfortunately.
Do you recall Officer Bedworth getting out of the car after he was talking to Mrs Elliott?---He did come and speak to me after he'd finished taking the statement.
Then did he go over and talk to Mr Ascic? Do you remember him doing that?---I couldn't tell you that. I was busy doing the traffic management.
Just bear with me for a second. When you went to the hospital, did you talk to [the appellant] at all?---No, I didn't.
Do you remember Officer Bedworth talking to her?---Yes, he did. He spoke to her.
Do you remember him asking her if she was colourblind? ---Yes, I believe he did.
Do you recall what he said?---His exact words?
Yes, or the gist of it?---Just in relation to whether she was actually colourblind.
Did she say, 'I'm not colourblind'?---I believe that is the answer, yes.
Do you recall her mobile phone ringing?---Constantly.
Do you recall Officer Bedworth telling her to turn it off?---She was actually told by a number of people to turn it off, hospital staff and Senior Constable Bedworth, yes.
So he was one of the ones who told her to turn it off? ---Yes.
In fact, did he shout at her and tell her to turn it off? ---No.
Did she say that she didn't know how to turn it off?---No, I don't recall her saying that.
Did she ask her husband to hang up? Did you hear her say that?---I believe she was speaking to her husband. What she said, I don't know (ts 60- 61).
Overview of the defence evidence
25 The appellant and her husband, who, as I have mentioned, arrived at the scene of the accident after it occurred, gave evidence at the trial. An overview of their evidence is as follows.
26 The appellant gave this account in her evidence-in-chief of the circumstances of the collision:
Tell us slowly and clearly what happened?---Well, I was going about 40, 45 kilometres, and then two car [sic] was pulling in the garage to put petrol and they slowed down, and after that I went maybe 20 kilometres or 25.
So how fast were you going when you went into the intersection?---Not farther [sic] than 25 kilometres.
What colour was the traffic light facing you?---Green.
After the cars turned into the garage, and you started driving, were you looking ahead, were you looking in front?---Like that.
Were you looking forwards?---Yes, I was looking forward.
You could see the traffic lights?---It was green lights.
…
So [Mr Smith] was behind you, but he was in the next lane across?---Yes.
About how far behind you was he?---Maybe a couple of metres.
A couple of metres? What, so from me to you?---Bit further.
Bit further?---Yes.
Can you say how far?---Mm?
Can you say - like, use the courtroom as an example?---Maybe 7, 8 metres further.
So what would you say, the width of this courtroom or less?---About that size.
About the width?---Yes.
From you to the other side?---Yes.
Did you look in your rear view mirror and see him?---Yes.
…
How fast were you going when you went into the intersection?---About 20, 25.
20 or 25 what?---Kilometres.
Tell us what happened. There was the truck you've talked about?---Well, the truck was turning there, and by the time I just come on the end of the truck, the silver car come up.
Where did it come from?---In front of me, from the left lane.
From the left lane, all right, and what happened then?---And we're just[sic] accident.
Did you hit your brakes, push your brakes at all?---I didn't have no time to put a brake (ts 63 - 65).
27 The appellant said in evidence-in-chief that after the collision Ms Elliott spoke to her and made the following admissions:
Can you tell us what she said to you, when she came to your car?---She said, 'I'm so sorry, my mind was somewhere else. I didn't think where I was going, and just went through the red light,' and she repeated couple times to me.
Did you say anything to her?---Yes, she was standing next to my car.
What did you say to her?---I said, 'You should be more careful.' (ts 66).
28 The appellant asserted that Mr Smith had told her, while he was standing near her vehicle and in the presence of Ms Elliott, that he had seen Ms Elliott go 'through the red light' and that he was surprised to see Ms Elliott 'coming from the left-hand lane [of Denny Avenue and] turning … right' (ts 67 - 68).
29 Defence counsel questioned the appellant in examination-in-chief about the truck that was allegedly stationary in Denny Avenue at the time of the collision and about other admissions allegedly made by Ms Elliott:
You told us about the truck driving off. Tell us about that. Who was involved in that or what happened?---The police.
What did they do?---Well, they told him to go on the left hand to overtake and they took my car and the other girl - driver car, turn left and do U-turn and then he went up south on the Albany Highway.
…
Right, okay. After your husband arrived, do you remember having a conversation or talking to your husband with [Ms Elliott]?---Yeah.
Yes?---[Ms Elliott] come straight away too and he [sic] was apologise to my husband saying, 'I'm sorry that I didn't know what I was doing. My mind was somewhere else. I didn't see the red light and I just drive through the red light.' (ts 69).
30 The appellant gave evidence about a conversation with Senior Constable Bedworth to the effect of the propositions put to the police officer by defence counsel in cross-examination.
31 Mr Ascic gave evidence about a conversation he had with Ms Elliott after the accident including evidence about admissions she allegedly made:
So when you were there at the car checking on your wife and Mrs Elliott came back, did Mrs Elliott say anything to you? ---Yes.
She said, 'I hope your wife is all right. I'm sorry if I caused the accident. I am dealing with a lot of problems,' and … 'as I was in the left lane I realised that I had to turn right instead and I did not see the red light and I did not think about anything' …
What did you say to her?---I said, 'Well, that is a very dangerous way of driving. You could have gotten yourself killed or you could have killed someone else.'
What did she say or how did she appear at that time?---Again apologised for causing the accident and expressing, yeah, sorrow and hope that [the appellant], or my wife, was okay (ts 81 - 82).
32 Mr Ascic also gave evidence about conversations with Senior Constable Bedworth to the effect of the propositions put to the police officer by defence counsel in cross-examination.
The magistrate's reasons
33 As I have mentioned, the trial occurred on 22 February 2012 and the magistrate convicted the appellant of the offence on 28 February 2012.
34 On 28 February 2012, her Honour delivered oral reasons for her decision.
35 The magistrate accepted Ms Elliott's evidence as reliable. She found that:
(a) Ms Elliott was very familiar with the locale where the collision occurred;
(b) Ms Elliott's memory of events leading up to the collision was good, including her recollection that she was in the right-hand lane of Denny Avenue facing a green light and indicating to turn right onto Albany Highway; and
(c) any lack of detail in her evidence could be explained by the fact that she was in a state of shock immediately after the collision and the fact that the accident occurred more than a year before the trial (ts 3 - 4).
36 Her Honour found that Mr Smith had a credible recollection of events. He was consistent in his evidence that the appellant's vehicle went through a red light on Albany Highway. His inability to recall whether the airbag in the appellant's vehicle was activated by the collision did not, in her Honour's view, affect the reliability of his evidence. Whether the airbag was activated was not a relevant fact that Mr Smith would necessarily remember (ts 4- 5).
37 The magistrate found that Senior Constable Bedworth was a reliable witness (ts 6). Her Honour also found that Senior Constable Keeble gave straightforward and reliable evidence (ts 6). The magistrate said Senior Constable Bedworth's inability to recall some facts in cross-examination could be accounted for by the lapse of time since the accident (ts 6).
38 Her Honour made adverse findings in relation to the credit of the appellant and Mr Ascic as witnesses.
39 The magistrate made these observations about the manner in which the appellant gave her evidence:
It was clear from the outset of [the appellant's] testimony that she has a profound hearing impairment. The prosecutor, Sergeant Bailey, who was standing in the courtroom in close proximity to her, had to constantly repeat and paraphrase his questions to her in cross-examination so that she could hear what he was asking her (ts 6).
40 The magistrate then found that the appellant's detailed account of a conversation with Ms Elliott immediately after the collision was 'simply not credible' (ts 6).
41 Her Honour rejected 'as mistaken' the appellant's evidence that Ms Elliott had apologised for going through a red light on Denny Avenue. Her Honour noted that this aspect of the appellant's evidence was not corroborated by Mr Smith. Her Honour rejected 'as fanciful' the appellant's evidence in cross-examination that Mr Smith, in Ms Elliott's presence, told her that he had seen Ms Elliott go through a red light and that he could not believe Ms Elliott drove past the truck (ts 6). Her Honour made further findings in relation to the appellant's evidence, as follows:
I find that Ms Elliott was not present at the point in time Mr Smith treated [the appellant] at her vehicle and Mr Smith's evidence was that he did not pay attention to the right-hand lane on Denny Avenue or whether there was a truck there. I also reject [the appellant's] testimony that the police told the truck to overtake the two crashed vehicles on the intersection and do a U-turn further up Albany Highway. That is not consistent with either of the officers' evidence (ts 7).
42 The magistrate found that Mr Ascic arrived at the scene of the accident 'at least 15 to 20 minutes after the collision happened' and by that time Ms Elliott had given her statement to Senior Constable Bedworth in the police vehicle and an ambulance was in attendance (ts 7).
43 Her Honour rejected 'as implausible' Mr Ascic's evidence that Ms Elliott told him she had caused the accident and she had not seen the red light (ts 7). Her Honour noted that Ms Elliott had just given a completely different version, from the version attributed to her by Mr Ascic, in her statement to Senior Constable Bedworth. Her Honour reiterated that the evidence of the prosecution witnesses was reliable and found that Mr Ascic had 'adopted his wife's mistaken understanding of what [Ms Elliott] said occurred and he [had] pursued that version' (ts 7).
44 The magistrate concluded that, based on the evidence, the appellant had disobeyed a red traffic control signal on Albany Highway and had collided with the front driver's side corner of Ms Elliott's vehicle as Ms Elliott was turning right on Denny Avenue with a green light facing her (ts 7). Her Honour also concluded that, in circumstances where the appellant had the time and distance to stop as the traffic lights facing her turned from green to amber to red, the appellant showed a lack of care and attention that a reasonable and prudent driver would have exercised in those circumstances (ts 7).
The appeal before by EM Heenan J
45 The appellant was not represented by counsel in the appeal before EM Heenan J. She has a serious hearing impediment. His Honour permitted Mr Ascic to make submissions on her behalf.
46 The appellant relied on nine proposed grounds of appeal before his Honour. It is unnecessary to reproduce them. They alleged, in substance, that:
(a) the magistrate made errors of fact in accepting the evidence of Ms Elliott and Mr Smith and in rejecting the evidence of the appellant and, to an extent, that of Mr Ascic;
(b) the verdict of guilty is unreasonable or cannot be supported; and
(c) a miscarriage of justice occurred at the trial.
47 The appellant also made application before EM Heenan J to rely on additional evidence in the appeal. The additional evidence comprised an affidavit sworn 4 May 2012 by William France. Mr France was not a witness at the trial.
48 Mr France deposed in his affidavit that he was a licensed surveyor. At the request of the appellant and Mr Ascic, he had prepared a feature survey of the intersection of Denny Avenue and Albany Highway in Kelmscott. They had supplied him with four photographs depicting the accident. The feature survey showed the identifiable points of the intersection, as visible and recorded on the photographs. He then interpolated the position of the vehicles on the feature survey and matched their orientation as seen in the photographs. Mr France asserted:
11. … I have plotted the most probable position of the two vehicles, at the intersection.
12. The plan clearly shows that it is most probable that the Honda vehicle [driven by Ms Elliott] turned right from the left turn only lane and entered the intersection where it collided with the Ford [driven by the appellant].
13. Due to the minor damage evident, both vehicles would have stopped almost immediately after the collision.
49 EM Heenan J said in his reasons:
In the submissions now which have been advanced on behalf of [the appellant] today much detail has been advanced based on estimates of speed, time elapsed and distances travelled by various vehicles on different scenarios. The substance of these submissions is to suggest that various aspects of the evidence accepted by her Honour at the trial are either improbable or impossible and that the only cogent explanation is that Mrs Elliott drove through a red light.
The problem with detailed mathematical calculations about speed, distance travelled, points of impact and extent of damage is that the calculations are critically dependent upon the accuracy of the assumed information and estimates of speeds of vehicles before accidents by drivers or observers which are notoriously approximate and very often unreliable. I do not consider that these calculations can form any substitute for the eye-witness evidence which was available from three witnesses who gave evidence and whose credibility and reliability was assessed by her Honour.
The evidence of the independent witness, Mr Smith, was quite critical in this regard. Fortunately, this appears to have been a relatively low speed collision and the damage to both vehicles, while significant, was not extreme. In my view, her Honour was justified in reaching the conclusions which she did. They were in accordance with evidence before her. The contrary evidence of [the appellant] was inconsistent with the evidence of Mr Smith. In those circumstances, there is no reason to believe that any error has been made in the magistrate discharging her function of deciding which evidence to accept and reject and whether the evidence which was accepted discharged the requisite burden of proof.
In those circumstances, I do not consider that any of the proposed grounds of appeal has any prospect of success [19] - [22].
50 His Honour refused leave to appeal on each of the proposed grounds of appeal. The appeal was therefore taken to have been dismissed. See s 9 of the Criminal Appeals Act 2004 (WA).
The appellant's proposed grounds of appeal before this court
51 The appellant relies on 11 proposed grounds in her appeal from EM Heenan J's decision.
52 The proposed grounds read:
1. His Honour, Justice Heenan erred in Fact and in Law in accepting that the evidence of Smith was credible and reliable even though it contains inconsistencies and contradictions.
2. His Honour erred in fact in accepting one part of Smith's evidence to be credible but without giving any explanation of his consideration of parts of his evidence that are vague, inconsistent and contradictory.
3. New and fresh evidence has been adduced, obtained and realised from depositions, which proves the following;
a) Contrary to his sworn evidence, Smith did not stop before going over line.
b) Smith did not stop before the line and 'put' his vehicle onto the median island.
c) Smith did not, from that stop position, see Ana drive through the red traffic lights.
d) Smith drove through the green traffic lights at the same time as Ana did.
e) Smith returned several minutes later and parked his vehicle on the median island.
f) It is not reasonably possible for Smith to have stopped his vehicle at the stop line and then to put it onto the median island. Inversely, it is not possible for him to put his vehicle onto the median island and then also stop at the stop line.
g) Elliott entered the Albany Highway intersection from the left turn lane of Denny Avenue and drove against a red traffic control light.
h) Elliott is the driver that drove without due care and caused the accident.
4. The prosecution evidence in this matter, in the whole, is conflicting, inconsistent, contradictory, fabricated and re-fabricated in different versions.
5. The contemporaneous sketch of the accident scene made by Officer Bedworth, in comparison to the sketch he also made in the RECAR report and his description on the 'statement of material facts' document; appear to be particulars of three different accidents instead of the same one.
6. These and other similar notations by Bedworth go to show his intent of exculpating the guilty driver and prosecuting an innocent driver.
7. Officers Bedworth and Keeble conveyed four different versions of Smith's evidence. Two orally, one in signed statement under a declaration dated 27/07/2011 and witnessed by Bedworth and the final version, given by Smith under oath at Armadale Magistrates Court on 22/02/2012.
8. The last two versions of Smith's evidence are in total contradiction to his and Ana's approach to the intersection. We were not provided with any particulars of the latest version, until Smith gave it in his evidence and both versions could not ever be true. (This being surprise evidence.)
9. Unfortunately, at the trial we were represented by Counsel, who did not raise any issues with the contradicting and duplicitous evidence and this failure of duty to the client and to the Court has resulted in a wrongful and unjust conviction.
10. On the whole of the available evidence, this conviction is unsafe, unsatisfactory and has led to a miscarriage of Justice.
11. This is a malicious prosecution which has resulted in a serious misuse and abuse of the Judicial System and Process.
53 This appeal is governed by div 3 of pt 2 of the Criminal Appeals Act. Division 3 comprises s 16 - s 19.
54 By s 16(2), a party to an appeal under div 2 of pt 2 of the Act who is aggrieved by a decision made in the appeal by a single judge that:
(a) refuses leave to appeal; or
(b) dismisses or decides an appeal,
may appeal to the Court of Appeal against the decision.
55 By s 18, read with s 9, of the Act:
(a) the leave of this court is required for each ground of appeal in an appeal under div 3;
(b) after an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding; and
(c) unless this court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
56 It is convenient to examine the proposed grounds of appeal in the following groups. First, grounds 1, 2, 7 and 8. Secondly, ground 3. Thirdly, grounds 5 and 6. Fourthly, ground 9. Fifthly, ground 10. Sixthly, grounds 4 and 11.
The hearing before this court
57 The appellant was not represented by counsel in the appeal before this court. Mr Ascic was permitted to make submissions on the appellant's behalf because, as Mr Ascic put it, she has 'a very bad hearing problem' and 'her English is not very good at all' (appeal ts 2).
58 The appellant's case contains extensive and detailed written submissions.
59 At the hearing, Mr Ascic on behalf of the appellant presented the court with a folder containing his detailed notes of argument and 10 groups of documents. The court accepted the folder subject to ruling later on the admissibility of the 10 groups of documents. They comprise:
(a) Senior Constable Bedworth's witness statement together with extracts from the transcript of his evidence at the trial.
(b) Senior Constable Keeble's witness statement together with extracts from the transcript of his evidence at the trial.
(c) Mr Smith's witness statement together with extracts from the transcript of his evidence at the trial.
(d) A typed unsigned reproduction of a statement given by Ms Elliott to Senior Constable Bedworth after the accident, together with Senior Constable Bedworth's handwritten record of that statement and extracts from the transcript of Ms Elliott's evidence at the trial.
(e) Notes and a sketch made by Senior Constable Bedworth after the accident.
(f) A Western Australian Police Service statement of material facts in relation to the accident.
(g) A record of email communications on 14 January 2011 from Mr Ascic to Senior Constable Bedworth together with handwritten notes made by Mr Ascic.
(h) Photographs taken after the accident of the vehicles that were driven by the appellant and Ms Elliott.
(i) Additional photographs taken after the accident of the vehicles that were driven by the appellant and Ms Elliott.
(j) An invoice from a towing services company together with a 'business card' of the Western Australia Police, email correspondence dated 5 February 2013 between Mr Ascic and John Sky of Main Roads Western Australia, a DVD depicting the timing and sequence of traffic lights at the intersection of Denny Avenue and Albany Highway and handwritten notes prepared by Mr Ascic.
60 Some of these 10 groups of documents (in particular, the extracts from the transcript of the evidence given at the trial) contain highlighting made by Mr Ascic and notes written by him on the reverse of some of the pages.
61 None of the 10 groups of documents, except some of the photographs, were tendered in evidence at the trial. Some parts of the 10 groups of documents are additional evidence and other parts are submissions.
62 At the hearing before this court, Mr Ascic on behalf of the appellant applied for leave to adduce additional evidence in the appeal, the relevant additional evidence being those parts of the 10 groups of documents which constitute evidence as distinct from submissions (appeal ts 8). This court reserved its decision on the application, but permitted Mr Ascic to make submissions by reference to the documents in question (appeal ts 8).
Proposed grounds 1, 2, 7 and 8
63 Proposed grounds 1, 2, 7 and 8 allege in substance that EM Heenan J erred in failing to find that the magistrate made an error in finding that Mr Smith's evidence was credible and reliable.
64 Where there has been a trial before a judge alone or a magistrate, the reasoning of the court which is based on a credibility determination must be distinguished from the reasoning of the court which is based on inferences drawn from facts that were undisputed or found by the court.
65 Normally, the court's credibility-based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. However, as Kirby J observed in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458:
Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences' [21] (footnotes omitted).
66 Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561 (Isaacs J)), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] (Gleeson CJ, Gummow & Kirby JJ). In Dearman, Isaacs J said:
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).
67 In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23] (footnotes omitted).
68 In the present case, the evidence given by Mr Smith which the magistrate accepted as credible and reliable was, relevantly, his sworn evidence in court as to the appellant's vehicle having gone through a red light on Albany Highway.
69 Mr Smith was cross-examined by the appellant's very experienced criminal defence barrister. It was open to defence counsel to attack Mr Smith's credit by reference to any prior inconsistent out of court statements he may have made and by reference to any of his evidence that was vague, inconsistent or contradictory. Defence counsel did not attack Mr Smith's credit on the basis of any alleged prior inconsistent statements, apart from putting to him comments he allegedly made at the scene immediately after the accident. But defence counsel did cross-examine with a view to establishing that Mr Smith had a poor or no recollection of some events (ts 25 - 33).
70 In his closing submissions, defence counsel advanced these arguments in relation to Mr Smith and his evidence:
So we would say there are some real issues with Mr Smith's credibility and his reliability.
Now, here is someone giving evidence about an accident that happened about a year ago, and we would say quite simply that he is mistaken about what he saw with regard to the lights, and that a number of physical factors in relation to this accident simply don't support his evidence; nor do, for example, the evidence of Ms Elliott about whether he was present there at the car or not with [the appellant].
So we would say that when one is looking at the independent evidence, it almost needs to be put aside, because there are so many variables and so many matters where he really was vague on. He just sat there saying, 'I just can't recall. I just can't say.' The only thing he seemed to be crystal clear on is that the light was red, and we would say that's simply some sort of a mantra, or a rehearsed mantra, and he's come to court to say that. Or it might even be something that he's presumed has happened without really realising what did occur (ts 100 - 101).
71 If, as suggested in proposed ground 8, there was late compliance by the prosecutor with the disclosure obligation under s 61 of the Criminal Procedure Act 2004 (WA), defence counsel could have applied for an adjournment of the trial if he considered that his cross-examination of Mr Smith was prejudiced by the late disclosure. No such application was made.
72 I refer to other aspects of Mr Smith's evidence, and her Honour's findings in relation to his evidence, in the course of dealing with proposed grounds 3 and 10.
73 The magistrate had the very considerable advantage of seeing and hearing Mr Smith and the other witnesses give their evidence. She was persuaded that Mr Smith was, in relevant respects, an honest and reliable witness. He was an eye witness to the accident and was independent of the appellant and Ms Elliott. It is not apparent that the magistrate failed to use or palpably misused her advantage; incontrovertible facts or uncontested testimony do not demonstrate that her findings in relation to Mr Smith are erroneous; and the findings in question are not glaringly improbable or contrary to compelling inferences.
74 I am not persuaded that the magistrate made an error in accepting and acting on relevant parts of Mr Smith's evidence. She said that Mr Smith was consistent in his evidence that the appellant went through a red light. Her Honour was not bound to accept or act on the whole of his evidence. There was a basis in the evidence for her Honour's decision to accept and act on relevant parts of his evidence. On my examination of the trial record, I am not persuaded that there is any basis for disturbing the magistrate's findings in relation to Mr Smith's evidence or the consequences which attend or flow from them.
75 None of proposed grounds 1, 2, 7 and 8 has a reasonable prospect of success.
Proposed ground 3
76 Proposed ground 3 alleges in substance that additional evidence has been obtained which proves that relevant evidence from Mr Smith was incredible and unreliable, that Ms Elliott drove through a red light on Denny Avenue and that Ms Elliott was the driver who drove without due care and caused the accident.
77 The evidence in question comprises the affidavit of Mr France sworn 4 May 2012 and the evidence in the 10 groups of documents in the folder. Mr France's affidavit was before EM Heenan J.
78 Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following -
(a) order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b) order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e) admit any other evidence.
79 In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].
80 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).
81 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a fact finding tribunal, acting reasonably, would have acquitted the accused. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 - 302 (Toohey & Gaudron JJ).
82 In my opinion, the appellant could, by the exercise of reasonable diligence, have obtained the additional evidence from Mr France before the trial. It is 'new' as distinct from 'fresh' evidence.
83 Accordingly, it was not open to EM Heenan J to grant leave to appeal and allow the appeal, on the basis of Mr France's evidence, unless his Honour was persuaded that the evidence established the appellant's innocence or raised such a doubt that his Honour was satisfied the appellant should not have been convicted.
84 Mr France's affidavit endeavours to prove that, contrary to Ms Elliott's evidence, her vehicle turned right from the left-hand lane of Denny Avenue. Mr France deposes that he is a licensed surveyor. This qualification may give him the requisite expertise to prepare the feature survey to the extent it shows the identifiable points of the intersection and the position of the vehicles as depicted in the photographs. It does not, however, equip him with the expertise to express an opinion about the likely path of the vehicles immediately before the collision or the manner in which the vehicles moved immediately after the collision. Mr France's affidavit is therefore inadmissible to the extent he expresses views on these matters.
85 Further, Mr France's affidavit does not establish a basis in fact for the views he expresses in pars 12 and 13 beyond his assertion as to what 'the plan clearly shows'. The feature survey shows, relevantly, only the position of the vehicles after the collision. In these circumstances, no weight could be given to the views in pars 12 and 13 even if (contrary to my opinion) Mr France had the requisite expertise to express those views.
86 In any event, Mr France's affidavit merely seeks to question Ms Elliott's credibility. The feature survey does not, of itself, cast doubt upon the evidence of Mr Smith which led to the appellant's conviction, namely that the appellant drove through a red traffic control signal despite having adequate time and distance to stop.
87 It follows that EM Heenan J was correct to hold in effect that Mr France's evidence did not establish the appellant's innocence and did not raise such a doubt that his Honour was satisfied that she should not have been convicted.88 In my opinion, the appellant could, by the exercise of reasonable diligence, have obtained the evidence in the 10 groups of documents in the folder. It is 'new' as distinct from 'fresh' evidence.
89 I refer to relevant aspects of the evidence of Ms Elliott, Mr Smith, the appellant and Mr Ascic, and her Honour's findings in relation to their evidence, in the course of dealing with proposed grounds 1, 2, 5, 6, 7, 8 and 10.
90 I am satisfied on my perusal of the additional evidence in the 10 groups of documents, in the context of the evidence adduced at the trial, that it is not reasonably arguable that the additional evidence establishes the appellant's innocence or raises such a doubt that it is reasonably arguable that the appellant should not have been convicted.
91 Proposed ground 3 does not have a reasonable prospect of success.
Proposed grounds 5 and 6
92 Proposed grounds 5 and 6 allege in substance that sketches of the accident scene drawn by Senior Constable Bedworth, and notations made by him, show that he intended to exculpate Ms Elliott as 'the guilty driver' and prosecute the appellant as 'an innocent driver'.
93 These proposed grounds, and the submissions in support of them, amount in essence to an allegation that Senior Constable Bedworth deliberately sought to pervert the course of justice by endeavouring to incriminate the appellant and exculpate Ms Elliott. I am not persuaded, on my examination of the trial record and the additional evidence, that it is reasonably arguable that Senior Constable Bedworth had the intention which Mr Ascic on behalf of the appellant ascribes to him.
94 In any event, I am satisfied that any actions or omissions by Senior Constable Bedworth (including any discrepancies in the sketches, notations and other documents referred to in proposed grounds 5 and 6) did not cause the trial to miscarry. The critical evidence at the trial comprised the oral evidence of Ms Elliott, Mr Smith, the appellant and Mr Ascic, including their evidence in relation to sketches and photographs of the accident scene. The evidence of Ms Elliott, Mr Smith and the appellant was important because they were eye witnesses to the collision. The evidence of Ms Elliott, Mr Smith, the appellant and Ms Ascic was important because of the appellant's and Mr Ascic's assertions that Ms Elliott had allegedly made admissions after the collision. It is apparent, from the magistrate's reasons, that the appellant was convicted because her Honour accepted the evidence of Ms Elliott and Mr Smith in relevant respects and rejected the evidence of the appellant and Mr Ascic in relevant respects.
95 Proposed grounds 5 and 6 have no reasonable prospect of success.
Proposed ground 9
96 Proposed ground 9 alleges in substance that the appellant was wrongfully convicted at the trial because of the incompetence of defence counsel.
97 An offender who appeals against his or her conviction on the basis of an allegation that defence counsel was incompetent must demonstrate that the conduct of defence counsel caused a miscarriage of justice. It is a heavy burden which is not easily discharged. See TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).
98 This issue was examined in McMahon v The State of Western Australia [2010] WASCA 143. McLure P (Buss JA agreeing & Mazza J relevantly agreeing) said:
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J) [25] - [27].
- See also KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 [47] - [55] (Martin CJ, Le Miere AJA agreeing).
99 The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:
Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).
- See also TKWJ [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).
100 In my opinion, it is not reasonably arguable that the performance of defence counsel at the trial was incompetent.
101 In any event, any deficiencies in defence counsel's approach to the defence case, his cross-examination of the prosecution witnesses or his decision as to what evidence to call or not to call as part of the defence case did not occasion a miscarriage of justice. Defence counsel's conduct of the defence case did not result in a material irregularity at the trial. His forensic performance, including his cross-examination, was adequate. In his closing address he advanced a coherent basis on which the magistrate might fail to be satisfied beyond reasonable doubt that the appellant was guilty of the offence. There is no significant possibility that any deficiencies in defence counsel's performance resulted in an unfair trial or affected the outcome.
102 Proposed ground 9 does not have a reasonable prospect of success.
Proposed ground 10
103 Proposed ground 10 alleges in substance that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
104 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).
- See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450 (Gaudron, McHugh & Gummow JJ).
105 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the [tribunal of fact] to be satisfied of guilt beyond reasonable doubt, which is to say whether the [tribunal of fact] must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the [tribunal of fact] to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the [tribunal of fact] was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the [tribunal of fact] should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
- See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300[41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
106 It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
107 However, this court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].
108 As EM Heenan J noted in his reasons, the submissions advanced on behalf of the appellant in the appeal before his Honour contained 'much detail … based on estimates of speed, time elapsed and distances travelled by various vehicles on different scenarios' and, based on these estimates, it was submitted that 'various aspects of the evidence accepted by her Honour at the trial are either improbable or impossible and that the only cogent explanation is that Mrs Elliott drove through a red light' [19]. Similar submissions were made to this court.
109 I agree with EM Heenan J's reasons in relation to the appellant's estimates and the submissions based on them. As his Honour said, the calculations made by the appellant and submitted on appeal cannot form 'any substitute for the eye-witness evidence which was available from three witnesses who gave evidence and whose credibility and reliability was assessed by her Honour' [20].
110 The magistrate rejected the evidence of the appellant and Mr Ascic as to Ms Elliott's alleged admissions. Her Honour rejected the appellant's evidence, in part, on the basis of her demeanour and conduct in court. Her Honour in effect rejected Mr Ascic's evidence on the basis that he had adopted his wife's version of events. These findings were open to her Honour.
111 Although the magistrate accepted Ms Elliott's evidence as 'reliable' and found that her memory of events leading up to the collision was 'good' (including her recollection that she was in the right-hand lane of Denny Avenue), her Honour did not make a specific finding about the lane in which Ms Elliott's vehicle was travelling before she turned right onto Albany Highway. A specific finding on this issue was unnecessary to prove the charge against the appellant. Her Honour's conclusion as to the appellant's guilt was based on her finding that the appellant drove through a red traffic control signal in circumstances in which she had the time and distance to stop.
112 Even if Ms Elliott's evidence is disregarded, the evidence of the independent witness, Mr Smith, which the magistrate accepted as credible, was that the appellant travelled through a red traffic control signal into the intersection. This evidence, of itself, formed a proper basis for her Honour's ultimate conclusion as to the appellant's guilt.
113 Any discrepancies between the evidence of Ms Elliott, on the one hand, and Mr Smith, on the other, did not preclude the magistrate from accepting relevant parts of the evidence of both of them.
114 Although Mr Smith said in evidence that the appellant drove through a red traffic control signal, he did not give evidence to the effect that the traffic lights changed from green to amber to red as she drove through the intersection. His evidence was that the traffic lights turned from green to amber when his vehicle was 'near the corner of Caltex, where the Caltex service station is', and that he reduced the speed of his vehicle (ts 23 - 24). He noticed at that time that the appellant's vehicle was not reducing speed, even as the traffic signal turned to red, and that he 'was able to stop before going over the line' (ts 23 - 24).
115 As to the colour of the traffic control signal facing her, Ms Elliott said that 'I was going - heading towards the junction and the lights were green and I was indicating to turn right to go onto the Albany Highway' (ts 4). She rejected defence counsel's suggestion that 'as [she] came up to that intersection, [she] had a red light facing [her]' (ts 9). Ms Elliott did not give any clear evidence as to the point at which she was initially faced with a green light.
116 In my opinion, it was open to the magistrate to accept that the lights on Albany Highway changed in the manner described by Mr Smith in his evidence and that Ms Elliott was faced with a green light as she entered the intersection. On analysis, there is no necessary contradiction, in any critical respect, between the evidence of Ms Elliott and the evidence of Mr Smith on the crucial matters in issue at the trial.
117 The magistrate did not make a finding as to the distance between the appellant's vehicle and Mr Smith's vehicle. Mr Smith said in evidence that he saw the appellant's vehicle 'in the left-hand lane which sort of - my front bumper was aligned to her rear bumper', and that as he saw the traffic control signals change from green to amber, he 'started slowing down, and [he] happened to notice that the car on the left-hand side wasn't slowing down' (ts 23 - 24). By contrast, the appellant gave evidence that Mr Smith's vehicle was 'maybe 7, 8 metres' behind her vehicle (ts 64). On the basis of the appellant's evidence, it might be concluded that the lights changed from amber to red while she was in the intersection. However, the magistrate found, and it was open to her to find, that the appellant's vehicle went through a red light. In these circumstances, her Honour must be taken to have rejected the appellant's evidence on this point. See Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178 - 179 (McHugh J, Mason CJ, Deane, Dawson & Gaudron JJ agreeing).
118 Ms Elliott estimated in her evidence that she was travelling at 'about 40 or 50' kilometres an hour as she 'got to the intersection' (ts 4). She qualified this evidence by stating that she was not 'going very fast' and she always '[slowed] down a bit anyway' (ts 4). The magistrate noted that Ms Elliott gave evidence to the effect that she had 'indicated to turn right onto Albany Highway at a speed of approximately 40 to 50 kilometres per hour' (ts 3). Her Honour did not make a specific finding as to whether she accepted this evidence. However, it was unnecessary for the magistrate to make a finding as to the speed at which Ms Elliott entered the intersection or whether it was possible to enter the intersection and commence a right-hand turn from the right-hand lane of Denny Avenue at the speed of about 40 - 50 km an hour. Although defence counsel put to Ms Elliott in cross-examination that she had in fact turned right onto Albany Highway from the left-hand lane of Denny Avenue (ts 10), a proposition she rejected (ts 10), he did not cross-examine her on whether it was possible to enter the intersection and commence a right-hand turn from the right-hand lane of Denny Avenue at a speed of about 40 - 50 km an hour. In any event, the magistrate was not bound to accept the whole of Ms Elliott's evidence, and her evidence about the speed at which she was travelling (being an estimate) did not preclude her Honour from accepting her evidence that she was faced with a green traffic control signal when she entered the intersection.
119 On my examination of the trial record, it was open to the magistrate to reject the appellant's defence and to be satisfied beyond reasonable doubt as to her guilt. A tribunal of fact, acting reasonably, was not precluded by the state of the evidence from being satisfied beyond reasonable doubt that the appellant drove her motor vehicle without due care and attention, as alleged in the prosecution notice. The magistrate had the very significant advantage of seeing and hearing the witnesses. The evidence does not require the conclusion that her Honour must have entertained a doubt about the appellant's guilt. The verdict of guilty was not unreasonable. It is supported by evidence that the magistrate was entitled to accept.
120 Proposed ground 10 does not have a reasonable prospect of success.
Proposed ground 11
121 Proposed ground 11 alleges in substance that the appellant was convicted as a result of a 'malicious prosecution'.
122 Malicious prosecution is a common law tort. It is unnecessary to set out the elements of the cause of action. It is not relevant to this application for an extension of time to apply for leave to appeal.
123 Proposed ground 11 adds nothing of substance to the other proposed grounds of appeal. It does not have a reasonable prospect of success.
Conclusion
124 None of the proposed grounds of appeal has a reasonable prospect of success.
125 The application for an extension of time to apply for leave to appeal against EM Heenan J's decision should therefore be dismissed.
126 Also, I would dismiss the application for leave to adduce the additional evidence in the 10 groups of documents contained in the folder in that the evidence in question does not materially advance the appellant's case.
127 MAZZA JA: I agree with Buss JA.
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