Ascic v Bedworth - [2013] WASC 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ASCIC -v- BEDWORTH [2013] WASC 4

CORAM: EM HEENAN J

HEARD: 7 DECEMBER 2012

DELIVERED : 7 DECEMBER 2012

FILE NO/S: SJA 1038 of 2012

MATTER :Criminal Appeals Act 2004 Pt 2
and
Prosecution Notice Number AR 5533 of 2011 in the Magistrates Court of Western Australia at Armadale

BETWEEN: ANA ASCIC
Appellant
AND
PHIILIP JOHN BEDWORTH
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E K LANGDON
File No  :AR 5533 of 2011

Catchwords:

Application for leave to appeal against conviction - Road Traffic Act 1974 (WA) s 62 - McKenzie Friend - Miscarriage of justice - Errors of fact - Arguable prospects of success

Legislation:

Road Traffic Act 1974 (WA), s 62
Criminal Appeals Act 2004 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
Respondent:     Ms C A Lakewood
McKenzie Friend          :     Mr M Ascic

Solicitors:

Appellant:     In person
Respondent:     State Solicitor for Western Australia
McKenzie Friend          :     In person

Case(s) referred to in judgment(s):

Nil

EM HEENAN J: This is an application for leave to appeal from a conviction of the applicant Mrs Ana Ascic in the Magistrates Court on a charge of careless driving. After a trial that was conducted on 22 February 2012 the learned Magistrate, her Honour Magistrate Langdon, gave detailed reasons for decision on 28 February 2012 explaining her conclusion that the charge had been proved and resulting in the conviction of the applicant. Ms Ascic was fined $300 and ordered to pay costs of $250.20.
The charge of which Mrs Ascic was convicted was that on 14 January 2011, at Kelmscott, she had driven on a road, a motor vehicle, registered number 1DFP‑011, along Albany Highway without due care and attention and that, as a result, she had committed the offence of careless driving contrary to s 62 of the Road Traffic Act 1974 (WA). As I said, the applicant pleaded not guilty to that charge.
The charge and the conviction arise from a motor vehicle accident which occurred on Albany Highway at the intersection of Denny Avenue, Kelmscott on 14 January 2011. The intersection of Denny Avenue and Albany Highway is effectively a T‑junction, where Denny Avenue is the terminating road which meets Albany Highway. It is not exactly a right‑angle intersection, there is a slight angle at which Denny Avenue approaches Albany Highway. At that point Albany Highway is generally aligned north‑south and Denny Avenue is on the western side terminating, as I have already said, in Albany Highway.
The intersection is controlled by traffic lights regulating the traffic approaching both from north and south in Albany Highway and from the west, travelling east in Denny Avenue. There are median traffic islands near the approaches of the intersection from north and south, and from the west. There is a system of traffic control signals which allow traffic to flow north‑south in Albany Highway or to turn right or left from Denny Avenue into Albany Highway as the traffic wishes to proceed.
It is the case, it was established, and the case was conducted on the footing, that while traffic is flowing north south in Albany Highway the traffic signals facing approaching traffic from Denny Avenue are red and when traffic is flowing from Denny Avenue into Albany Highway the traffic signals facing Albany Highway are red.
The circumstances were that on the morning of 14 January Mrs Ascic was driving her Ford sedan north in Albany Highway towards the intersection with Denny Avenue. She was travelling in the kerbside lane, approaching the traffic control lights at the intersection of Denny Avenue. There was a man, a Mr Smith, also travelling north in Albany Highway towards the same intersection, only a slight distance behind Mrs Ascic but in the centre lane. His role in the events will be explained more fully in a moment.
A Mrs Elliott was driving a Holden sedan east in Denny Avenue towards this intersection. She was approaching the traffic lights intending to turn right, that is, south into Albany Highway through the intersection. According to her, as she approached the intersection the traffic lights facing her were green, she continued through the intersection turning right and somewhere in the midst of the intersection there was a collision between her vehicle, the Honda, and the Falcon sedan driven by Mrs Ascic which had continued north through the intersection heading onwards. Mrs Ascic at all times has maintained that when she drove through the traffic lights facing her at the approach to that intersection they were green. It is impossible that the traffic lights facing Mrs Ascic and facing Mrs Elliott were both green. One set must had been red.
It is at this point that the significance of the evidence of Mr Smith becomes apparent. His evidence was that in his position slightly behind and to the side of Mrs Ascic's Ford sedan he was approaching the intersection of Albany Highway and Denny Avenue and saw the lights ahead of him change from green to amber, then to red. He slowed down and stopped at the intersection. The car immediately to his front, now clearly identified as Mrs Ascic's car, however did not slow down or stop and, according to him, it drove through the intersection at a time when the lights facing here were red, continued through the intersection and the collision occurred.
I have already said how Mrs Elliott was approaching from the west intending to turn right. According to her, the lights ahead of her were green, she had slowed, estimating her speed to be 40 or 50 km per hour, entered the intersection and was struck on the right‑hand side in the midst of the intersection. She does not suggest, and there is no other evidence to suggest, that she stopped at the traffic lights at the intersection of Denny Avenue, the reason being that she was facing a green light and drove through it.
So the question for decision for the learned magistrate was whether or not it had been proved to her satisfaction that the defendant on the charge of careless driving, Mrs Ascic, had driven through a red light. There was evidence at the trial from Mrs Elliott, the effect of which I have already summarised. Two police officers who both arrived after the scene but who had taken photographs, prepared plans and made various measurements, explained the aftermath of the accident. Mr Smith, whose evidence was very important, explained her experience as I have already indicated.
For the defendant, Mrs Ascic gave evidence by which, as I have already said, she denied driving through any red light, maintaining that the light was green. Mr Ascic also gave evidence. He was not at the scene at the time of the accident but arrived 10 or 15 minutes later, spoke to police officers and to others at the scene. It included in his evidence was an allegation that, in conversations with Mrs Elliott immediately after the accident, she had apologised to him or to his wife for driving through a red light and causing the accident. That evidence was denied by Mrs Elliott and rejected by the learned magistrate.
From that conviction the appellant now seeks leave to appeal on a series of grounds which are somewhat lengthy, running to nine separate grounds in all. It is sufficient at this point to say that they allege, in various ways, errors of fact by the learned magistrate in accepting the evidence of Mrs Elliott and Mr Smith, rejecting the evidence of Mrs Ascic and, to an extent, that of Mr Ascic, and they contend that there has been a miscarriage of justice.
The precise details of the proposed grounds of appeal are:
1.Her Honour erred in fact and in Law, because; having regard to all of the evidence, the verdict of guilty is unreasonable and cannot be supported.
2.Her Honour erred in fact and in Law in that she determined the matter, without the point‑of‑impact and the trajectory of the vehicles being established; in that she decided that the other vehicles travelled onto Albany Highway from the right turn lane of Denny Avenue, when there is no conclusive evidence of that fact but rather preponderant evidence to the contrary. Photographic and oral evidence point to the point of impact being at the left turn only lane on Denny Avenue.
3Her Honour erred in fact in accepting that the evidence of the two prosecution witnesses is credible, when in fact their evidence contradicts each other to such an extent that their version of the events is not only improbable but impossible.
The independent witness states that he was driving in the right lane of the same road, just to the rear of my right rear bumper bar and saw me drive through the intersection. He states that he just managed to stop at the stop line as the other vehicle entered Albany Highway and the crash occurred.
The other witness and driver states that as she approached Albany Highway at 40 to 50 kilometers per hour, she was in the right lane and had a green light for the length of Denny Avenue; from the Railway crossing onwards.
In the period, leading up to the time of the crash, the lights could not have been green on both Denny Avenue and Albany Highway, at the same time.
4.Her Honour erred in fact, in accepting both of these versions to be credible and if the independent witnesses evidence only is accepted, then the inference is that because I was driving some 5 to 7 meters ahead of him, I must have been on the intersection as the light turned amber and in that event I had the right to proceed through the intersection and any traffic from Denny Avenue would have had a red light.
5.Her Honour erred in fact in accepting that the other driver drove in the right turn lane of Denny Avenue at 40 to 50 kph, intending to turn right at Albany Highway because that is a sharp corner and at that speed she would not have been able to negotiate the corner or turn and would have crashed into the shops opposite the road.
6.Her Honour expressed criticism of my hearing impairment and poor understanding of English, when throughout the trial, other witnesses and persons were asked by her to repeat and to speak louder because of the bad acoustics in the courtroom.
7.Her Honour erred in fact and in Law in that many of the conclusions that she has expressed in her judgment are not supported by evidence and in every instance the benefit of any doubt was given to the prosecution.
8.Fresh evidence has now been obtained, to positively identify the point of impact and this confirms that the other driver could not have entered Albany Highway from the right turn lane of Denny Avenue but rather in a sweeping arc from the left side of the left turn only lane, which infers support for my version of what actually happened.
9.Her Honour erred in fact and in Law in drawing an inference, from the inclusive and conflicting evidence, that I had driven through the red light when it was the other driver that actually did that and caused the accident.
For leave to appeal to be granted in any case it is necessary as a result of authorities binding on me for the applicant to show that she has an arguable prospect of success for each ground of appeal for which leave is sought. In the absence of demonstrating real prospects of success for each of the grounds of appeal, this court is required under the terms of the Criminal Appeals Act 2004 (WA) to refuse leave to appeal.
In this case, the application for leave to appeal came before Hall J on the papers on 23 April 2012 and his Honour granted an extension of time for the institution of the appeal, but directed that the application for leave to appeal should be heard at the same time as the appeal and, accordingly, both have been dealt with simultaneously this morning. Other directions of a procedural kind were made by his Honour on that occasion which need not be mentioned. They have resulted, however, in detailed written submissions being filed on behalf of the applicant, Mrs Ascic, and for the respondent. These are helpful, particularly those of Mrs Ascic, because she has a hearing impediment, which was evident in the Magistrates Court and again this morning, but her husband has been granted leave to present the argument on her behalf and he has referred fully to those written submissions. The written submissions of the respondent address the questions of law and the various authorities which are applicable in a case like this.
I turn now to the learned magistrate's reasons for decision. These comprise pages 2 to 7 inclusive of the transcript of proceedings in the Magistrates Court on 28 February 2012. They set out the charge, the details of the two drivers, the background events, the circumstances of the accident and the intersection at which it occurred. Then her Honour summarises the evidence which was before her at the trial. Her Honour particularly notes (at page 4) the denial by Mrs Elliott that she had apologised to Mr Ascic about the accident shortly afterwards. As to Mr Smith, her Honour said that he had a credible recollection of events on the relevant date, and then proceeded to give details of his version of events which I have already recounted. After further examination of the evidence of the police officers her Honour said, at page 6:
I reject as mistaken Ms Ascic's evidence that Ms Elliott apologised for going through a red light on Denny Avenue. That part of her evidence is also not corroborated by Mr Smith's testimony. I also reject as fanciful Ms Ascic's evidence in cross examination that Mr Smith in Ms Elliott's presence told her he saw Ms Elliott go through the red light and that he couldn't believe Ms Elliott drove past the truck.
Then after referring to other passages, her Honour said at page 7:
There is no other inference reasonably open on the evidence. Based on the evidence before me I find that Ms Ascic disobeyed a red traffic control signal on Albany Highway and that she collided into the front driver's side corner of Ms Elliott's vehicle as Ms Elliott was turning right from a green light on Denny Avenue. In the circumstances where she had time to stop as the traffic lights turned from green to amber to red, in my view she showed a lack of care and attention that a reasonable and prudent driver would exercise in the circumstances.
That was the conclusion which her Honour reached and which meant that the charge of careless driving was proved to her satisfaction.
In the submissions now which have been advanced on behalf of Mrs Ascic 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 Mrs Ascic 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. Accordingly, I refuse leave to appeal and the appeal as a consequence will be deemed to be dismissed.