Brooks v Police - [2013] SASC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BROOKS v POLICE
[2013] SASC 81
Judgment of The Honourable Justice White
3 June 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - DRIVING WITHOUT DUE CARE AND ATTENTION
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - GENERALLY
The appellant's motorbike ran off a road and collided with a fence and a tree - he appeals against his conviction on a charge of driving without due care.
The prosecution case was entirely circumstantial, comprising the evidence of one police officer and three photographs - the appellant did not give evidence - he contended that, in these circumstances, the Magistrate could not have been satisfied of his guilt beyond reasonable doubt.
Held (allowing the appeal):
(1) A want of due care by the appellant was a rational inference on the evidence, but it was not the only rational inference - the Magistrate erred by concluding that the prosecution had excluded all reasonable hypotheses consistent with the appellant's innocence (at [28]).
(2) Given that the prosecution did not challenge the appellant's asserted absence of recollection, there is no reason to suppose that there were matters peculiarly within his knowledge on which he could have given evidence - in addition, the relatively slight prosecution case meant that the appellant was entitled to remain silent and point to its deficiencies - Weissensteiner v The Queen (1993) 178 CLR 217 could not assist the prosecution (at [31], [33]-[34]).
Motor Vehicles Act 1959 (SA) s 74; Road Traffic Act 1961 (SA) s 45, referred to.
Aitken v Police [2003] SASC 22, distinguished.
O'Brien v Scotland (1972) 4 SASR 411; Virgo v Elding [1939] SASR 294; Police v Smith [2012] SASC 114; Peacock v The King (1911) 13 CLR 619; Barca v The Queen (1975) 133 CLR 82; Police v Melisi (2010) 106 SASR 105; Lajos v Samuels (1980) 26 SASR 514; Williams v Bache (1982) 31 SASR 25; Sanders v Hill [1964] SASR 327; Waldie v Cook (1988) 91 FLR 413; Langan v White (2006) 166 A Crim R 312; Weissensteiner v The Queen (1993) 178 CLR 217; Collie v Police (2013) 115 SASR 281; Azzopardi v The Queen (2001) 205 CLR 50, considered.

BROOKS v POLICE
[2013] SASC 81
Magistrates Appeal

WHITE J. On the afternoon of Sunday 24 February 2008, the appellant was riding a motorbike down Gorge Road at Paracombe. He lost control of the motorbike with the effect that it crossed on to the incorrect side of the road and then on to the adjacent verge before colliding with a fence and a tree. The appellant suffered significant injuries.
The appellant was charged with two offences: driving a motorbike without the requisite…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brooks v Police

Details

AGLC: Brooks v Police [2013] SASC 81
Case: [2013] SASC 81
Decision Date: 3 June 2013

CaseChat Overview and Summary

Brooks v Police was an appeal against a conviction for driving without due care and attention. The appeal was heard by the Supreme Court of South Australia. The appellant, Brooks, was charged with driving a motorbike without due care and attention after his motorbike ran off the road and he sustained serious injuries. The prosecution relied on evidence from Senior Constable Robertson, who observed tyre marks at the scene, which he believed indicated that the appellant had been travelling in a westerly direction and that the rear wheel of the motorbike had locked up.

The legal issues before the court were whether the Magistrate had erred in concluding that the prosecution had excluded all reasonable hypotheses consistent with the appellant's innocence and whether the appellant was entitled to remain silent. The court found that a want of due care by the appellant was a rational inference on the evidence, but it was not the only rational inference. The court held that the Magistrate had erred by concluding that the prosecution had excluded all reasonable hypotheses consistent with the appellant's innocence. The court also held that given that the prosecution did not challenge the appellant's asserted absence of recollection, there was no reason to suppose that there were matters peculiarly within his knowledge on which he could have given evidence.

The appeal was allowed, and the conviction was quashed. The court held that the Magistrate had erred by concluding that the prosecution had excluded all reasonable hypotheses consistent with the appellant's innocence and that the appellant was entitled to remain silent. The court also held that the prosecution's case was relatively slight, and the appellant was entitled to remain silent and point to its deficiencies. The decision of Perry J in Aitken v Police was distinguished as it was not a circumstantial case such as the present one. The appeal was allowed, and the conviction was quashed.

Orders

Orders of the court

Held (allowing the appeal):

(1) A want of due care by the appellant was a rational inference on the evidence, but it was not the only rational inference - the Magistrate erred by concluding that the prosecution had excluded all reasonable hypotheses consistent with the appellant's innocence (at [28]).

(2) Given that the prosecution did not challenge the appellant's asserted absence of recollection, there is no reason to suppose that there were matters peculiarly within his knowledge on which he could have given evidence - in addition, the relatively slight prosecution case meant that the appellant was entitled to remain silent and point to its deficiencies - Weissensteiner v The Queen (1993) 178 CLR 217 could not assist the prosecution (at [31], [33]-[34]).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On an appeal of the present kind, this Court is to undertake its own independent review of the evidence and to reach its own conclusion. That task is made easier on the present appeal both by the relatively narrow compass of the evidence at trial and because the Magistrate’s conclusion did not rest upon credibility findings.The Prosecution Evidence In 2008, Snr Constable Robertson had some 17 years experience as a police officer, both in this State and in the United Kingdom, and had previously undertaken accident investigation training courses. He described Gorge Road as a bitumen road travelling generally in an east-west direction with one lane for traffic in each direction. It comprises numerous short straight sections with some tight bends, including some hairpin bends. It carries a heavy traffic load, including motorbikes and bicycles. At the place at which the appellant’s motorbike ran off the road, the road was in a good state of repair and there were no foreign objects on the road surface. The applicable speed limit was 80 kph although at various places on Gorge Road, there are advisory speed signs of 60 kph. The tendered photographs showed that the two lanes of traffic were separated by double white lines. When Snr Constable Robertson arrived at the scene, paramedics and CFS personnel were attending to the appellant. It was obvious that the appellant had major injuries, including severe fractures to both legs. His injuries were being treated as life threatening. The appellant’s motorbike was not in the position at which it had come to rest, having been moved by a CFS member. It had extensive front-end damage. Senior Constable Robertson observed tyre marks on the road which he associated with the appellant’s motorbike. Each of these tyre marks was on the incorrect side of the road for the appellant’s (assumed) westbound travel. They ran in a general east-west direction and had the same width as the tyres on the appellant’s motorbike. Senior Constable Robertson did not measure the lengths of the tyre marks, saying that they had no definite commencement or termination point. He considered that they indicated the “trajectory” of the appellant’s motorbike. After taking some evidence on the voir dire, the Magistrate ruled that Snr Constable Robertson lacked the expertise to give an opinion as to the cause of the motorbike running off the road. Despite that ruling, Snr Constable Robertson did later proffer some opinions based, in the main, on his observations of the tyre marks. He said that the marks indicated that the appellant had been travelling in a westerly direction; that the fact that the marks were in a “solid line” indicated that the rear wheel of the motorbike was not turning, having “locked up”; that marks on the rear tyre showed that it had recently been ridden with the rear wheel “locked up”; and that the brakes may have locked up because the appellant had braked too harshly, or because he had put the motorbike “down too many gears and the rear wheel [had locked] up because the slipper clutch could not cope with the change in the engine revs”.

Decision

Reasons for decision

WHITE J

Counsel for the appellant at trial submitted that the prosecution had not excluded an innocent explanation for the appellant having run off the road. He advanced a number of possibilities for the appellant’s loss of control of the motorbike, including that he had been attempting to avoid an animal or that he had been embarrassed and inconvenienced by another vehicle, whether travelling in the same, or the opposite, direction to his own.The Magistrate’s Decision The Magistrate referred to, and appears to have placed significant weight on, the decision of Perry J in Aitken v Police.[3] In that case, the defendant was charged with driving without due care following an incident in which a car he was driving on a country road had, after coming over the crest of a steep hill, run off the road and collided with a tree. The prosecution evidence comprised that of one of the passengers in the defendant’s vehicle and that of a police officer. In addition, the defendant himself gave evidence. He had no recollection of the collision but described his car as having been “in good running order”. The Magistrate accepted that evidence and concluded that the accident could not be attributed to mechanical defect. Perry J said:As to the question of what inferences might properly be drawn from the circumstances of the accident, it seems to me … that there will occasionally be cases where the precise reason why an accident has occurred cannot be fully explained on the evidence, but nonetheless, one would be entitled to draw the inference that it is the sort of accident which would not normally occur without a failure to exercise due care.In my opinion, this is one such case. Although one might speculate as to the precise reason why there was a loss of control, having regard to the circumstances in which the accident occurred, in my view, the appellant's loss of control is clearly indicative of a failure to exercise due care in the manner of driving.[4](Emphasis added)[3] [2003] SASC 22.[4] Ibid at [22]-[23]. Having referred to Aitken, the Magistrate then concluded in the present case:[10]There has been evidence from Mr Robertson with regard to observations he made of tyres etc in the area. … I was not satisfied as to his expertise and, except for taking into account his evidence with regard to [the] observations that he made, I do not consider any other conclusions he has reached to be of any assistance in this matter or indeed permissible.[11]…[H]aving heard the evidence, I do not consider it is for the Court to speculate what else may have occurred. I must exclude any reasonable hypothesis which is consistent with innocence. Having heard the evidence, I am satisfied beyond reasonable doubt [that] the defendant was riding the motorcyle on that occasion and that he ran off the road.[12]In those circumstances, I am satisfied beyond reasonable doubt [that] he was driving without due care. Accordingly, I find the defendant guilty as charged. It can be seen that the Magistrate did not provide any explicit explanation for her rejection of the hypotheses proffered by the appellant’s counsel as being reasonably possible. Given that this was at the heart of the defence submissions, it was desirable for her to have done so.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

In view of the evidence from Snr Constable Robertson on the voir dire about the nature and extent of his training, the Magistrate’s ruling during the course of the evidence that he lacked the necessary expertise to express an opinion about the cause of the appellant having run off the road was unsurprising. It is also unsurprising that the Magistrate repeated in her reasons that she was not satisfied about Snr Constable Robertson’s expertise and declined to take into account his evidence to the extent that it comprised opinions. The Magistrate accepted, however, Snr Constable Robertson’s evidence as to his observations.Consideration In Police v Melisi[5] I summarised the principles applicable to an alleged contravention of s 45 of the RTA as follows:The issue is to be determined objectively. The obligation to drive with due care is the duty to exercise the standard of care which one would expect of a reasonably prudent driver in the like or similar circumstances. In the assessment of whether a particular driver has departed from that standard, it is immaterial that he or she had been unaware of, or did not advert to, the risks which the manner of driving presented to other road users. The reasonably prudent driver is expected to drive with a defensive outlook, that is, a lookout “that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger”.[6](Citations omitted)[5] [2010] SASC 21; (2010) 106 SASR 105.[6] Ibid at [17]; 109. To establish a breach of s 45, the prosecution must usually establish more than “a minor and common error of judgment”.[7] Thus, the kind of momentary inattention to the road ahead resulting from an appropriate checking of a speedometer or of rear vision mirrors, or the position of one’s vehicle on the road, may be insufficient to constitute the offence. This means that there will be cases in which it will be inappropriate to infer a contravention of s 45 from the mere fact that a collision has occurred. Such an occurrence may of course be highly suggestive of a want of due care, and, with at least some other evidence, be sufficient to make out the charge. Ultimately what is required is that the Court be satisfied, beyond reasonable doubt, that the defendant has not met the standard of care expected of a reasonably prudent driver in like or similar circumstances.[7] Lajos v Samuels (1980) 26 SASR 514 at 517; Williams v Bache (1982) 31 SASR 25 at 29. On the appeal, the appellant submitted, and the respondent acknowledged, that the Magistrate’s reliance on the decision of Perry J in Aitken was inappropriate. Principally this was because Aitken was not a circumstantial case such as the present, as there was direct evidence of the way in which the collision had occurred. Counsel were agreed that Aitken should have been distinguished. Further, and in any event, the italicised passage in the reasons from Perry J quoted earlier indicates that Aitken turned on its own facts. At best, Aitken shows that there may be circumstances in which, although the precise cause for a collision is not known, a court may nevertheless infer a breach of s 45.