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

1. 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.

2. The appellant was charged with two offences: driving a motorbike without the requisite authorisation, contrary to s 74(2) of the Motor Vehicles Act 1959 (SA); and driving without due care, contrary to s 45 of the Road Traffic Act 1961 (SA) (RTA).

3. The appellant pleaded guilty to the first charge and was convicted by a magistrate of the second.  He appeals against that conviction.[1]

   [1]    In O’Brien v Scotland (1972) 4 SASR 411 at 416 Hogarth J held that s 45 establishes two separate offences: driving without due care or attention, and driving without reasonable consideration for other road users. See also Virgo v Elding [1939] SASR 294 at 295-6 and Police v Smith [2012] SASC 114 at [26]-[27]. The complaint in the present case seemed to charge the former of these two offences.

4. The oral evidence at the trial was that of Snr Constable Robertson, the police officer who attended at the scene after the collision.  In addition, the prosecution tendered three photographs.  The appellant did not give evidence.

5. Senior Constable Robertson interviewed the appellant on 10 April 2008, just on seven weeks after the incident.  The appellant told him that he “couldn’t remember much about how the accident occurred”.  Senior Constable Robertson said that he regarded that as normal for persons who have suffered severe injuries. 

6. The prosecution case was accordingly entirely circumstantial.  This meant that the appellant was to be convicted only if the Magistrate was satisfied not only that his guilt was a rational inference on the evidence, but also the only rational inference that could be drawn.[2]

   [2]    Peacock v The King (1911) 13 CLR 619 at 634; Barca v The Queen (1975) 133 CLR 82 at 104.

7. The appellant contended that the Magistrate could not, on the evidence, validly have reached that conclusion. 

8. 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

9. 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.

10. 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. 

11. 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.

12. 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.

13. 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”. 

14. Senior Constable Robertson also said that there was no evidence on the motorbike of it having struck an animal before the collision; that there were no marks on the road which he associated with a collision with an animal; and there were no dead or injured animals in the vicinity which may have been struck by the appellant’s motorbike.

15. Athough Snr Constable Robertson arranged for the appellant’s motorbike to be transported to the Police Compound at Ottoway for mechanical examination, the prosecution did not lead any evidence at the trial as to its age or state of repair.  It seems that this was because the mechanic who carried out the investigation is now working in Western Australia.  This meant that the prosecution did not lead any evidence which excluded the appellant’s loss of control being attributable to some mechanical defect in the motorbike.

16. 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

17. 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].

18. 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.

19. 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.

20. 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

21. 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.

22. 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.

23. 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.

24. The prosecution evidence in this case was relatively slight.  It did not really extend beyond establishing that the appellant’s motorbike had been travelling in a westerly direction; that it had run off the road; that it had probably left some tyre marks on the road before doing so; that there was nothing apparent about the condition of the road surface which might have contributed to it running off the road; and that it was unlikely that the bike had collided with an animal. 

25. It would have been reasonable for the Magistrate to infer that the police had not received any report of another driver driving or riding in an untoward manner which may have unexpectedly inconvenienced the appellant causing him to lose control.  However, that did not exclude the possibility that there had been another vehicle or bike on this relatively windy road which had cut across the centre white lines or travelled very close to them, disconcerting the appellant and causing him to take some evasive action which led to his loss of control.  Further, while Snr Constable Robertson’s evidence provided a sufficient basis for exclusion of the possibility that the appellant had struck an animal or foreign object on the road, it did not exclude the possibility that a small animal crossing the road, or even a bird flying across the appellant’s path, had had the effect of disconcerting him.  Nor could the prosecution exclude the possibility that the loss of control was due to some mechanical defect in the bike or to some minor error by the appellant falling short of a want of due care.

26. Perhaps some of these possibilities can be regarded as so remote as to be rejected as not being reasonably possible.  For example, the possibility that some small animal had been crossing the busy Gorge Road in daylight hours does, on one view, appear remote.  On the other hand, the tendered photographs show reasonably thick bushland on the northern side of Gorge Road, giving rise to the possibility that some animals may have been in the vicinity.  Further, it is commonplace for birds on country roads to be struck by cars and for birds on or near such roads to take evasive action only at the last moment before the arrival of a fast travelling vehicle.  This can be disconcerting for some drivers and riders.  It is unfortunately even more commonplace for vehicles travelling too fast on a winding road to cross the centre line or, at the very least, to travel very close to it, thereby causing oncoming traffic to take some evasive action.  Explanations of this kind in the present case cannot, in my opinion, be characterised as “fancy or improbable”.[8]

    [8]    Sanders v Hill [1964] SASR 327 at 330.

27. There are several cases in which drivers have been acquitted on a charge of driving without due care when, despite a collision having occurred, there was no, or little, explanation for its occurrence.  These include Sanders v Hill;[9] Waldie v Cook[10] and Langan v White,[11] although in the latter case there was one independent witness.  Sanders v Hill is a striking example as the appellant’s vehicle in that case had run into the rear of a vehicle parked in an appropriate way in a suburban street.

    [9] Ibid.

    [10] (1988) 91 FLR 413.

    [11] [2006] TASSC 83; (2006) 166 A Crim R 312.

28. I consider that a want of due care by the appellant was a rational inference on the evidence but that it was not the only rational inference.  Accordingly I consider that the Magistrate erred by concluding that the prosecution had excluded any reasonable hypothesis consistent with the appellant’s innocence and therefore that the prosecution case had been established beyond reasonable doubt.  The fact that the Magistrate did not give any reasons for rejecting the hypotheses suggested by the appellant’s counsel allows this conclusion to be drawn more confidently.

29. Perhaps anticipating such a conclusion, counsel for the respondent referred to Weissensteiner v The Queen.[12]  In that case, the High Court held that there may be some circumstances in which an unexplained failure by an accused to give evidence concerning facts peculiarly within his or her knowledge may allow any doubt about the inferences to be drawn from the prosecution evidence to be more readily discounted.  However, as Nicholson J observed in Collie v Police,[13] the circumstances in which a Weissensteiner inference will be justified are likely to be rare and exceptional.[14]

    [12] (1993) 178 CLR 217.

    [13] [2013] SASC 15; (2013) 115 SASR 281.

    [14] Ibid at [41]; 294.

1. It is appropriate for judges and magistrates to exercise considerable care before making any use of the failure of an accused person to give evidence at his or her trial.  See the discussion by the plurality in Azzopardi v The Queen.[15]

   [15] [2001] HCA 25 at [45]-[52]; (2001) 205 CLR 50 at 68-70.

2. Weissensteiner depends upon there being facts which, if they exist, are peculiarly within the accused’s own knowledge.[16]  As Chamberlain J noted in Sanders v Hill,[17] no inference can be drawn from the omission of an accused to give evidence once it is shown that he or she has no knowledge of the matters in question.  In the present case, there is no basis on which it could be concluded that there are matters known by the appellant upon which he could have given evidence.  Senior Constable Robertson said that the appellant had told him some seven weeks after the accident that he could not remember much about how it had occurred.  Not only did the prosecution not challenge the appellant’s assertion of an absence, Snr Constable Robertson volunteered that it was “standard” for those who have suffered serious injuries in an accident to have such an absence.  Accordingly, there is no reason to suppose that the appellant could have given evidence of any relevant matter explaining the accident.

   [16] Ibid at [64]; 74.

   [17] [1964] SASR 327 at 329.

3. Further, it is appropriate to keep in mind the observation of Mason CJ, Deane and Dawson JJ in Weissensteiner itself:

   Not every case calls for explanation or contradiction in the form of evidence from the accused.  There may be no facts peculiarly within the accused’s knowledge.  Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution.  Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.[18]

   [18]   Weissensteiner v The Queen (1993) 178 CLR 217 at 228.

4. I have already referred to the relatively slight nature of the prosecution case.  That meant, in my opinion, that the accused was entitled to remain silent and to point to the deficiencies in the prosecution case. 

5. For these reasons, I do not consider that resort to Weissensteiner assists the respondent presently.  This was not a case in which the prosecution case could be strengthened by the omission of evidence from the appellant.

   Conclusion

6. For these reasons, I am satisfied that the charge of driving without due care was not established beyond reasonable doubt.  Accordingly, I allow the appeal and set aside the conviction and sentence on Count 2.  In their place, I enter a verdict of acquittal.  I will hear the parties as to any consequential orders.