Bialek v Police - [2011] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BIALEK v POLICE
[2011] SASC 195
Judgment of The Honourable Justice White
8 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
The appellant was convicted of one count of endangering life or creating risk of serious harm, contary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA), and one count of failing to give particulars following a car crash, contrary to r 287(2) of the Australian Road Rules - she appealed against those convictions.
Whether the Magistrate gave appropriate weight to certain discrepancies in the complainant's evidence; whether the Magistrate made an appropriate assessment of the complainant's recognition evidence; whether the conduct of trial counsel led to a miscarriage of justice; whether the appellant had an opportunity to provide particulars following the crash.
Held: appeal dismissed - the Magistrate appropriately considered the evidence at trial - there is no indication that the conduct of trial counsel led to a miscarriage of justice - the appellant had an opportunity to provide particulars following the crash.
Criminal Law Consolidation Act 1935 (SA) s 29; Australian Road Rules r 287, referred to.
Taylor v Hayes (1990) 53 SASR 282; Fox v Percy (2003) 214 CLR 1881; Warren v Coombes (1979) 142 CLR 531; R v King (1975) 12 SASR 404; Craig v The King (1933) 49 CLR 429; Wheeler v Police [2005] SASC 156; R v Bazan [2010] SASCFC 50; Nudd v The Queen (2006) 80 ALJR 614, considered.

BIALEK v POLICE
[2011] SASC 195
Magistrates Appeal

WHITE J. A Magistrate found that on 13 September 2010, Mrs Bialek had deliberately driven her vehicle into the side of another, thereby causing substantial damage.
The Magistrate then convicted Mrs Bialek of a contravention of s 29(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), which makes it an offence for a person, without lawful excuse, to do an act, knowing that the act is likely to cause harm to another and intending to cause such harm or being recklessly indifferent as to whether such harm is caused.
The Magistrate also found Mrs Bialek guilty of a contravention of r 287(2) of the Australian Road Rules because she had not, as soon as practicable after the collision, given her name and address and the registration of her vehicle as required by that Rule.
Mrs Bialek now appeals against those convictions. Although she had legal representation at the trial, she represented herself on the appeal.
Background Circumstances
The victim of the offence was a Mr Bright. Over a period of about six years ending in 2007, he had been in a relationship with Mrs Bialek’s daughter Jessica. Mr Bright and Jessica have had two children together. However, by the middle of 2010, Mr Bright and Jessica were estranged, and their relationship was acrimonious. The incident on 13 September 2010 occurred in the context of that acrimony.
On 1 September 2010 and after a period of some disputes, the Family Court granted custody of the two children to Mr Bright on an interim basis. Jessica was restricted to supervised access on Sunday afternoons. In contravention of that order, Jessica had retained custody of the two children, leading to the Australian Federal Police removing them from her care on 6 September 2010. The children then lived with Mr Bright at his parent’s home in Craigmore. Jessica lived with Mrs Bialek a short distance away in another street in Craigmore.
The evidence suggested that there had been a number of communications of an unpleasant kind between Mr Bright and Jessica.
For approximately six years before September 2010, Mr Bright had worked as a security officer at Felixstow. It was shift work, with the day‑shift commencing at 6.00 am.
In September 2010, and for some years before, Mr Bright had a metallic blue Holden Commodore with a distinctive registration plate. Mrs Bialek knew both the colour and make of Mr Bright’s car, as well as its registration plate.
The prosecution case was that at about 5.00 am on 13 September 2010, Mrs Bialek had waited for Mr Bright to drive along Yorketown Road, Craigmore on his way to work. She was driving a Jeep Cherokee 4WD which had a bullbar fitted. When she saw Mr Bright’s car approaching, she flashed her headlights at him and then performed a U-turn to follow him. Mrs Bialek then overtook Mr Bright, who braked and made a U-turn. Mrs Bialek also made a U-turn and followed Mr Bright. He pulled in to the left‑hand side of Yorketown Road and stopped. The prosecution alleged that Mrs Bialek then deliberately rammed the driver’s side door of Mr Bright’s car with her bullbar, while Mr Bright was still in the driver’s seat. Mrs Bialek then reversed and appeared to be intending to ram Mr Bright’s vehicle again. He then accelerated away at speed, returning to his own home.
The prosecution alleged that Mrs Bialek was motivated by animus towards Mr Bright, which arose from the estranged relationship between Jessica and him, and the decisions of the Family Court. The prosecution relied on evidence of both a direct and circumstantial kind.
The direct evidence was Mr Bright’s evidence that, in addition to seeing that the other vehicle was a black and white four wheel drive, he had recognised Mrs Bialek as its driver. He said that as the 4WD turned towards his vehicle, immediately before the first ramming, he had a very brief (one second) view of the driver. Although it was dark outside, there was sufficient light from streetlights, shopping centre lights and the dashboard lights for him to see that the driver was Mrs Bialek.
Mr Bright was familiar with Mrs Bialek’s appearance, through contact arising from his relationship with Jessica. He said that he had previously met Mrs Bialek on about 12 occasions, and had been to her house about six times.
Bearing in mind the well-recognised risks associated with identification and recognition evidence, and some elements of reconstruction in Mr Bright’s evidence, the Magistrate treated his evidence of recognition with appropriate circumspection. However, there were a number of features of the circumstantial evidence which also implicated Mrs Bialek.
On 13 September 2010 Mrs Bialek did own a 4WD, a white Jeep Cherokee with a bullbar and spotlights. She purchased the Jeep in July 2010 and subsequently had a brand new bullbar fitted to it.
The police attended at Mrs Bialek’s home at about 6.00 am on 13 September 2010. Mrs Bialek answered the door and, at the police request, opened the roller door to her carport. Her Jeep was present. The police noted that the engine was warm, and that that there were scuff marks and blue paint on the passenger side corner of the bullbar. The paint was later analysed and found to match the blue paint on Mr Bright’s car. It was, however, a common form of paint and could also have matched that from a number of other cars.
Mrs Bialek had the two sets of keys to the Jeep in her handbag. There was no evidence of any form of interference to the ignition system which may have supported an inference that it may have been started without use of the keys.
Mrs Bialek has a CCTV security system at her home. That system includes coverage of the driveway leading to the carport. The CCTV system had been activated at 5.12 am on 13 September and did not contain any record of the Jeep being driven after that time. The CCTV footage did however show a Ford Falcon being driven from its parked position near the driveway at 5.16 am. Other evidence indicated that the Falcon was driven by Mrs Bialek’s daughter Kylie, who had slept the night at Mrs Bialek’s home.
Mr Bright also gave evidence that he had, in relation to the child custody dispute, provided Jessica Bialek with a copy of his work rosters, including his roster for September 2010. The inference was that Mrs Bialek thereby had the means of knowing that he was to start work at 6.00 am that day, and therefore likely to be driving on Yorketown Road at, or shortly after, 5.00 am.
Defence case
Mrs Bialek gave evidence denying that she was the driver. She said that on the evening of 12 September she had celebrated her birthday with her daughters, Jessica and Kylie, and had gone to bed at about 10.00 pm. Because of various medications she had taken, she had not drunk any alcohol. Before going to bed she had driven the Jeep into the carport. Mrs Bialek said that she had remained asleep until shortly after 5.00 am when she awoke after hearing the telephone ringing. There was some evidence that Mr Bright may have made that call (as well as other evidence suggesting that from time to time he may have made “nuisance” calls). Mrs Bialek said that her daughter Kylie had left the house at about this time, driving the blue Falcon.
Mrs Bialek gave some evidence concerning the operation of the carport roller door, apparently to support her claim that it had some malfunction which may have permitted an intruder to obtain access to the carport and therefore to the Jeep.
Mrs Bialek said that the bullbar on the Jeep was new and she had not previously noted the marks and paint scrapes on it. She said that her daughter Jessica had driven the Jeep only once, and that Kylie had not driven it at all. She also admitted to a severe dislike of Mr Bright.
Mr Bright’s behest, may have entered the carport, broken into the house, taken the keys from her handbag which was in her bedroom, taken the Jeep, rammed Mr Bright’s car and then returned the vehicle and the keys, as well as closing the roller door, in order to set her up with the crime.
Jessica Bialek gave evidence which was generally supportive of that of her mother.
The Magistrate’s Decision
The Magistrate was satisfied beyond reasonable doubt that it was Mrs Bialek’s Jeep which had rammed Mr Bright’s vehicle. He said:
[31]The description [Mr Bright] gave of the vehicle matched the vehicle located in the defendant’s carport. I accept Mr Bright’s evidence that he did not know [that] the defendant owned the vehicle at the time. Police attended within an hour of the incident. The engine of the vehicle was warm. The CCTV footage shows that the vehicle had not been driven after 5.12 am. The defendant’s home is a short distance from the location of the incident. There was sufficient time to return before 5.12 am. While the paint analysis is not conclusive, it is a strong piece of circumstantial evidence. Occupants of the household, the defendant and Jessica, loathed Mr Bright. It is beyond coincidence that another vehicle could have been involved.
Having found that it was the Jeep owned by Mrs Bialek which had rammed Mr Bright’s car, the Magistrate then considered the evidence concerning the identity of the driver. He rejected as implausible the suggestion in Mrs Bialek’s evidence that some unknown intruder had broken into her house, found the keys in her handbag, taken the Jeep from the carport, used it to ram Mr Bright’s vehicle, and had then returned the Jeep to the carport and the keys to the handbag.
The Magistrate then considered that the driver must have been one of Mrs Bialek, Jessica, or Kylie. Jessica gave evidence that she had been in bed at the relevant times. Kylie did not give evidence. The Magistrate considered the possibility that Mr Bright had mistaken Mrs Bialek for Kylie. He noted that there was some family resemblance between Mrs Bialek and Jessica and noted Jessica’s evidence that there had been times when she had been mistaken for Kylie. Ultimately, the Magistrate resolved to accept Mr Bright’s evidence concerning his recognition of Mrs Bialek. He said:
[36][Mr Bright] knew Jessica very well and I consider it most unlikely that he would confuse Jessica for the defendant. I also infer from his evidence and accept that he could readily tell Kylie and the defendant apart. I also note that the defendant has a distinctive straight hair cut and wears distinctive large square glasses. Even though Mr Bright is incorrect concerning the exact circumstances in which he saw the driver of the vehicle, I am satisfied that at some stage immediately prior to the collision he did look directly at the driver of the white 4WD and recognised the defendant. The fact that the defendant, unbeknown to Mr Bright, was the owner of a vehicle matching the description he provided, strengthens the reliability of his identification. Kylie had never driven the vehicle before and Jessica had only once.
The Magistrate then rejected Mrs Bialek’s evidence that she was not the driver of the vehicle.
The Magistrate found the remaining elements of the offence proven beyond reasonable doubt.
Approach on appeal
On an appeal such as the present, the Court is required to conduct a real review of the evidence. On issues involving an assessment of the quality and reliability of a witness, the Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence given. However, the fact that a magistrate has reached his or her conclusion by an acceptance of the evidence of particular witnesses, and a rejection of that from others, does not prevent the Court from carrying out its statutory function. There may be cases in which incontrovertible facts, uncontested testimony, or the glaring improbability of a Magistrate’s conclusions will, despite a magistrate’s preference for the evidence of a particular witness, warrant this Court’s intervention. Further, if the question is one of inferences to be drawn from facts found or from evidence accepted by a magistrate, this Court can substitute its decision if it comes to a different conclusion as to the appropriate inference to be drawn.[1]
[1] Taylor v Hayes (1990) 53 SASR 282 at 291-2; Fox v Percy [2003] HCA 22 at [25]-[29], (2003) 214 CLR 118 at 126-8; Warren v Coombes (1979) 142 CLR 531 at 551.
Consideration
Mrs Bialek’s first group of submissions were directed to Mr Bright’s evidence concerning the collision itself. She drew attention to the absence of any witnesses, the absence of skid marks or debris on the road of a kind commonly seen after a collision, and to an inconsistency in Mr Bright’s description concerning the way in which the collision had occurred.
In a sketch plan which Mr Bright drew for the police on the day of the collision, he indicated that the 4WD had been at an angle to his car at the time of impact. This angle was such that it was the front passenger side corner of the 4WD which had hit his car first. However, in his evidence he said that it was the other way round, and marked the sketch plan so as to show the front driver’s side corner of the 4WD striking his car. The damage to Mr Bright’s car as shown in the photographs tendered at trial seems more consistent with impact from the front passenger side corner of the 4WD and, as previously noted, the scuff and scrape marks on Mrs Bialek’s Jeep were on its front passenger side corner.
Some of Mrs Bialek’s submissions on this topic seemed directed to whether there had been an incident as described by Mr Bright at all. Other aspects of the submissions seemed to be directed to casting doubt on the truthfulness and reliability of Mr Bright’s evidence more generally.
The Magistrate was alert to the discrepancy in Mr Bright’s evidence concerning the angle of approach of the 4WD. He referred to it twice in his reasons and concluded that Mr Bright’s account in his evidence was a result of reconstruction. The Magistrate considered that it was the front passenger side of the bullbar which had rammed Mr Bright’s car.
The Magistrate did not make any express reference to the absence of witnesses or road debris. The former was however obvious from the nature of the prosecution case. The latter was a material matter. I agree that it is surprising that the police were unable to locate any collision debris. However, in addition to Mr Bright’s evidence, there was other evidence supportive of the conclusion that a collision had occurred. The photographs of Mr Bright’s car showed damage of a kind consistent with impact from a vehicle travelling at angle towards it. Further, Mrs Bialek’s Jeep had marks and paint consistent with having caused such damage.
Mrs Bialek’s next submissions were directed to Mr Bright’s evidence that he had recognised her as the driver. She emphasised the limited opportunity that Mr Bright had had to make observations of the driver as well as the limited ambient lighting. Mrs Bialek suggested that neither her hairstyle nor her glasses were distinctive. She drew attention again to the fact that the discrepancy in Mr Bright’s evidence as to the angle of approach of the 4WD meant that he could not have seen its driver exactly in the manner which he had described.
These points were well made. On his own evidence, Mr Bright saw the driver of the 4WD for only one second. The surrounding darkness, the dazzling effect of the headlights, and the reflection from the vehicles’ windows would have limited his vision of the driver. Many of the difficulties with identification evidence apply as much to recognition evidence.[2]
[2] R v King (1975) 12 SASR 404 at 410; Craig v The King (1933) 49 CLR 429 at 450; Wheeler v Police [2005] SASC 156.
However, as indicated earlier, there was other evidence which linked Mrs Bialek with the 4WD. The Magistrate accepted Mr Bright’s evidence that he had not known prior to 13 September 2010 that Mrs Bialek owned a 4WD. At the trial, Mrs Bialek had challenged Mr Bright’s evidence on that topic, and she repeated her challenge on the appeal. Mrs Bialek submitted that Mr Bright could have known of her ownership of the Jeep from talking to his children and from observations made when he drove past her home (which she asserted he had done several times).
The Magistrate’s acceptance of Mr Bright’s evidence on this topic depended very much upon his assessment of the honesty and reliability of Mr Bright as a witness. His conclusion that Mr Bright had not previously known of Mrs Bialek’s ownership of a 4WD is not glaringly improbable nor inconsistent with other incontrovertible evidence. As at 13 September 2010, Mrs Bialek had owned the Jeep for only two months and, given the relationship between Mr Bright and Jessica, it is entirely plausible that Mr Bright was unaware of its acquisition. There is no basis upon which the Court can interfere with the Magistrate’s finding on this topic.
The Magistrate was accordingly correct in reasoning that the fact that Mr Bright did not know that Mrs Bialek was the owner of a vehicle matching the description which he provided strengthened the reliability of his identification.
Next, the scuff and paint marks on Mrs Bialek’s Jeep, the fact that the police observed that its motor was warm, and that the CCTV footage indicated that the Jeep had not been driven away from the property between 5.12 am and the time of the police arrival all supported the conclusion that it was the vehicle involved in the collision.
The Magistrate referred expressly to the reconstruction involved in Mr Bright’s account of the angle at which the 4WD had approached it. It was not something which he overlooked. The discrepancy resulting from Mr Bright’s reconstruction did not require necessarily the rejection of his evidence altogether.
As one of the submissions concerning Mr Bright’s identification of her as the driver, Mrs Bialek repeated her suggestion about the possible involvement of some malevolent intruder. She submitted that the possibility that some such person was responsible could not be excluded as a reasonable possibility. With all respect to Mrs Bialek, the implausibility of this explanation is obvious.

Mrs Bialek emphasised Mr Bright’s antipathy towards her family. She submitted that he had the motive to wish harm to Jessica and her family and, she submitted, Mr Bright would have well appreciated that the recording of convictions against her may advantage him in the child custody dispute.
Finally, Mrs Bialek denied knowing of Mr Bright’s work roster for 13 September 2010.
I have reviewed the entire evidence at trial with Mrs Bialek’s submissions in mind. In my opinion, this is not a case in which this Court should overturn the Magistrate’s conclusion. He had the advantage of seeing and hearing the witnesses and his conclusion is not improbable or implausible. On the contrary, his conclusions are supported by a considerable amount of evidence which is either of an objective kind or independent of Mr Bright and the Bialeks.
The Magistrate was satisfied beyond reasonable doubt that the prosecution case had been established. This meant that he was also satisfied beyond reasonable doubt that Mrs Bialek’s denial that she was the driver of the 4WD was false.
Other Matters
Mrs Bialek referred in her submissions to a number of communications between Mr Bright and Jessica, and between Mr Bright and her home. Some of those communications were the subject of evidence at trial, but many were not. Mrs Bialek referred to this material as undermining the credibility of Mr Bright.
In assessing this submission, I have had regard only to the matters which were the subject of evidence at trial. There was no basis upon which to receive the further material as fresh evidence.
The Magistrate was very aware of the antipathy between Mr Bright, on the one hand, and the Bialek family, on the other. In many respects, that antipathy was at the heart of the prosecution case.
In his reasons, the Magistrate quite properly focussed on the conduct which was the subject of the charge, rather than allowing the trial or his judgment to be diverted into an examination more generally of the relationship between Mr Bright and the Bialeks, and of the incidents which had occurred in the course of that relationship. There is, however, no reason to suppose that the Magistrate disregarded the evidence concerning Mr Bright’s conduct in the relationship, or that he proceeded on the basis that the antipathy which was central to the prosecution case was of a unilateral kind only.
Mrs Bialek was also critical in some respects of her counsel at trial. She submitted that he had failed to ask Mr Bright all the questions which could have been asked about inconsistencies in his evidence, his background and his own conduct during the course of his relationship with the Bialeks. I have carefully reviewed the transcript of evidence at the trial with these submissions in mind.
It is not sufficient for Mrs Bialek to show simply that further questions could have been asked: it is necessary for her to show that the manner of counsel’s conduct of the trial gave rise to a material risk of a miscarriage of justice.[3] As Gray J observed in R v Bazan[4] there are reasons, both legal and pragmatic, which support giving latitude to counsel appearing in trials. Parties are ordinarily held to the way in which their counsel has presented the case, as the relationship between lawyer and client finds it foundations in the law relating to agency and apparent authority, and trials could not operate effectively without according deference to the decisions necessarily made by a lawyer in the course of conducting a trial. Further, the following observations of Kirby J in Nudd v The Queen are pertinent:
[80]In criminal appeals, courts are alive to the dangers of retrospective wisdom and appellate hindsight applied to instantaneous professional judgments that have to be made, often in fraught circumstances. Moreover, they understand the natural tendency of some who "have been properly and deservedly convicted to attribute the result to the perceived incompetence of their counsel".
[81]Considerations such as these have led appellate courts everywhere to insist that those who complain on the score of suggested incompetence in their legal representation at trial must establish the defect of the resulting verdict or otherwise show a "miscarriage of justice". It is not the function of the appellate court to attempt "to rate counsel's conduct of the case according to some scale of ineptitude".[5]
(Citations omitted)
[3] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
[4] [2010] SASCFC 50 at [31].
[5] [2006] HCA 9 at [80]-[81]; (2006) 80 ALJR 614 at 632.
In my opinion, the matters upon which Mrs Bialek now relies in relation to counsel’s conduct of the trial do not suggest a material risk of a miscarriage of justice, in the sense contemplated by the authorities. In many respects, counsel’s cross-examination of Mr Bright appears to have been thorough and persistent. It is easy, in hindsight, to identify further matters about which counsel could have asked. However, in many instances, the fact that counsel chose not to ask those questions may be attributable to forensic choices and to a proper exercise of professional judgment about the matters which could and should be explored.
In my opinion, the conclusion of the Magistrate has not been shown to be wrong and the appeal against the conviction on Count 1 should be dismissed.
Failure to provide name and address
Mrs Bialek submitted that she should not have been found guilty of a contravention of r 287(2). Her submission was a simple one: as Mr Bright’s vehicle had sped away from the scene immediately after impact, there had been no‑one present to whom she could give her name and address or other particulars.
Rule 287(2) obliges the driver of a vehicle involved in a crash to stop at the scene of the crash and give the requisite particulars “within the required time and, if practical, at the scene of the crash”. The expression “required time” is defined in subrule (4) to mean “as soon as possible but, except in exceptional circumstances, within 24 hours after the crash”.
Thus, it was possible for Mrs Bialek, if she was the driver involved, to have given her particulars to the police when they attended at her house at 6.00 am or at some other time later that day. She did not do so.
Accordingly, the Magistrate was correct in finding that Mrs Bialek had contravened r 287(2) of the Australian Road Rules.
I add, in fairness to Mrs Bialek, that she acknowledged that if her appeal against Count 1 failed, then her appeal against Count 2 would also fail.
Conclusion
For the reasons given above, I dismiss the appeal.