Carley v Sheppard
[2004] WASCA 80
•23 APRIL 2004
CARLEY -v- SHEPPARD [2004] WASCA 80
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 80 | |
| Case No: | SJA:1110/2002 | 5 AUGUST 2003 | |
| Coram: | JOHNSON J | 23/04/04 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| C | |||
| PDF Version |
| Parties: | BENJAMIN JAMES CARLEY ROYSTON JON SHEPPARD |
Catchwords: | Expert evidence Intervention by Magistrate |
Legislation: | Road Traffic Act 1974, s 61(1) |
Case References: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Anderson v The Queen (1992) 60 SASR 90 Bennett v Queen (1998) 144 FLR 311 Clark v Ryan (1960) 103 CLR 486 Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 Cooper v Bech (1975) 12 SASR 151 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 197 ALR 201 Harper v Police (1990) 13 MVR 163 Jago v District Court of NSW (1989) 168 CLR 23 Leary v The Queen [1975] WAR 133 Mraz v The Queen (1955) 93 CLR 493 Price v The Queen; Stamford v The Queen [1981] Tas R 306 R v Ireland (1970) 126 CLR 321 Rosenberg v Percival (2001) 205 CLR 434 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) 160 ALR 588 Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193 Weal v Bottom (1966) 40 ALJR 436 Dietrich v The Queen (1992) 177 CLR 292 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ROYSTON JON SHEPPARD
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : McINTYRE SM
File Number : AR 2445 of 2002
Catchwords:
Expert evidence - Intervention by Magistrate
Legislation:
Road Traffic Act 1974, s 61(1)
(Page 2)
Result:
Appeal allowed
Category: C
Representation:
Counsel:
Appellant : Mr I Weldon
Respondent : Mr M A G Jenkin
Solicitors:
Appellant : Gary Massey & Associates
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Anderson v The Queen (1992) 60 SASR 90
Bennett v Queen (1998) 144 FLR 311
Clark v Ryan (1960) 103 CLR 486
Commissioner for Government Transport v Adamcik (1961) 106 CLR 292
Cooper v Bech (1975) 12 SASR 151
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 197 ALR 201
Harper v Police (1990) 13 MVR 163
Jago v District Court of NSW (1989) 168 CLR 23
Leary v The Queen [1975] WAR 133
Mraz v The Queen (1955) 93 CLR 493
Price v The Queen; Stamford v The Queen [1981] Tas R 306
R v Ireland (1970) 126 CLR 321
Rosenberg v Percival (2001) 205 CLR 434
State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) 160 ALR 588
Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193
Weal v Bottom (1966) 40 ALJR 436
(Page 3)
Case(s) also cited:
Dietrich v The Queen (1992) 177 CLR 292
(Page 4)
1 JOHNSON J: The appellant was convicted after trial on a charge of dangerous driving, contrary to s 61(1) of the Road Traffic Act 1974. He was fined the sum of $200 and ordered to pay costs. He appeals against his conviction on the following grounds:
"The Learned Magistrate erred in fact and in law in convicting the applicant of one count of dangerous driving because:
(i) The complainant, upon whose evidence the prosecution relied, gave evidence which was materially different to that which he had given to the police in his deposition.
(ii) The Learned Magistrate elected to rely upon the evidence of the complainant, despite stating that he had some reservations about the accuracy of the complainant's evidence and despite some evidence contradicting the complainant from a police officer.
(iii) In the circumstances the prosecution evidence ought not to have been capable of satisfying the Learned Magistrate to the requisite standard that the defendant drove dangerously.
(iv) The Learned Magistrate allowed evidence, from a police officer who visited the scene of the accident, Senior Constable Sheppard, to the effect that in his opinion the length of the skid mark and impact damage done to both vehicles was indicative of the defendant travelling at speed without establishing the competence or otherwise of the police officer to give that evidence.
(v) After allowing the evidence referred to in the immediate proceeding [sic] paragraph, the Learned Magistrate refused to allow evidence sought to be adduced in rebuttal of a retired police officer with many years experience in the Major Accidents Division of the Police Force on the basis that the witness Mr Blee was not an expert.
(vi) The Learned Magistrate found that the applicant was driving dangerously in all the circumstances, because his speed was excessive. The Learned Magistrate held that 30 kilometres per hour was the posted speed limit for that area of road but was the maximum speed limit. The
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- Learned Magistrate held that the defendant should have adjusted his speed to 5 to 10 kilometres per hour and that not to do so was dangerous in all the circumstances when travelling on a narrow road with significant 'blind turns', despite the fact that all of the evidence indicated that the driving occurred on a clear, fine, dry day with no extra impediment to visibility other than those which the normal road circumstances allowed."
2 The following is a summary of the evidence adduced at trial. The appellant was riding his motorbike on Pruden Road, Jarrahdale when it was involved in a collision with a Toyota Hilux motor vehicle being driven by a Mr Williams. Pruden Road is a narrow road which leads to a farm from which trespassers are prohibited. The road itself is fairly short in length, 3.5 metres in width, with a bitumen surface. There was evidence that the road contained "blind turns" where it was extremely difficult for a driver and/or riders to have an uninterrupted view of the road ahead. The evidence was that it was extremely difficult to see around the bend at which the accident occurred.
3 Mr Williams gave evidence that on 23 December 2001 he was returning along Pruden Road to his farm from his roadside stall at the intersection of the road with the South West Highway. Pruden Road is sealed; the conditions were dry; there was shade from the trees but it was otherwise sunny. The width of Pruden Road at the relevant point was such that two cars could not pass, but a car and a motorbike could pass comfortably. When Mr Williams came to the corner, the next thing he saw was a motorbike coming the other way at a fairly high speed. He saw it approaching from approximately 30 to 50 metres away. He immediately pulled over as far as he could, touching the bank, and stopped. Mr Williams said he just sat there and watched the motorbike come straight at him and hit the front of his car on the driver's side front fender. The rider came up over the bonnet and past the door and landed on the road. Mr Williams saw the appellant's bike go down on its side and skid 30 metres down the road before colliding with his car.
4 In cross-examination, Mr Williams stated that he travelled the road at least once every day and that there could be anything up to a dozen cars a day using the road. He said that there is a speed limit of 30 kilometres on the road and he made a point of never going over that speed because the owner was very strict about it. Mr Williams found it hard to estimate how rapidly he came to a halt when he saw the motorbike, but suggested he was within about three metres of the motorbike. Mr Williams denied that
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- his car was still moving when the collision occurred. He maintained that he had stopped and had a good view of the motorbike coming towards him. He said that he was at the point where the road started to curve to the right when he first saw the appellant. He had a clear view along the road for at least 50 metres. Mr Williams also denied that he was too far over onto the wrong side of the road. Mr Williams stated that the appellant was travelling at about 70 kilometres per hour, when first seen, and that he was still well above the recommended speed limit at the point of impact. From his evidence, it is apparent that Mr Williams based this assessment on the length of the skid mark in the road which he estimated as being in excess of 30 metres by stepping it out.
5 Mr Williams conceded under cross-examination that he had signed a police statement which described the accident in the following terms:
"I was travelling at about 20-30 kilometres an hour when all of a sudden a trail bike rider appeared out of nowhere around the corner and collided into the driver's side front end of my vehicle."
6 He denied that there was any inconsistency between the statement and his evidence at trial. In his evidence, Mr Williams maintained that he had told the police at the time he was interviewed that he was stopped at the point of impact.
7 Another witness for the prosecution, Gary Miller, stated in his evidence that he had been travelling along Pruden Road on his 125 cc motorbike with the appellant when they came to a sign which said they were not able to proceed any further. They both turned around, but Mr Miller stalled his motorbike as the appellant proceeded on. Mr Miller kick-started his bike and took off after the appellant. They were riding down the road with the appellant about 40 metres in front. Mr Miller said that he was not gaining ground on the appellant. They started going around what Mr Miller described as a "real sharp bend which is a blind turn". He saw the appellant's brake lights come on and his bike slide out sideways. Mr Miller applied his brakes. He saw Mr Williams' car from approximately 15 metres away and then saw the appellant's motorbike hit the left-hand side of the car. He estimated that the appellant's motorbike had travelled approximately five metres from when he laid the bike down to the point of impact. Mr Miller managed to stop about four metres from the vehicle. He was unable to give direct evidence of speed because his speedometer was broken. At one point in his evidence he estimated that the appellant was travelling at about 40 kilometres an hour. At another,
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- he stated that he and the appellant had been travelling at "normal speed". In cross-examination Mr Miller stated that the speed at which he was travelling was approximately the same as that of the appellant's.
8 The police officer that attended the scene of the accident, Senior Constable Sheppard, was also called to give evidence. He stated that on his arrival he observed Mr Williams' car with the appellant's motorbike wedged under the front. The right front tyre of Mr Williams' car was flat and the bull-bar was bent and buckled. The motorbike was also badly damaged. The engine casings had cracked, there was leaking oil on the roadway and the rear swinging arm of the motorbike, which is a very rigid part of a motorbike, was snapped, rendering the bike inoperable. Senior Constable Sheppard confirmed that Mr Williams' vehicle was right up against the left-hand side of the road. However, he differed from Mr Williams in relation to the field of vision when coming around the curve. He put the visibility at 10 to 20 metres. There was, therefore, a discrepancy between this measurement and the evidence of Mr Williams that the appellant had skidded for 30 metres.
9 Senior Constable Sheppard measured the length of the skid mark leading to the location of the motorbike at 17 metres. He described the skid mark as being consistent with a motorbike being progressively laid down sideways until it went under the front wheel of the vehicle. Senior Constable Sheppard gave evidence, over objection, that, in his opinion, the length of the skid mark and the collision damage was indicative of the appellant travelling at speed.
10 The appellant stated in evidence that he had been riding on Pruden Road at 30 kilometres per hour on a 400 cc motorbike. He said that it was not safe to do any more than 40 kilometres. He and Mr Miller turned around at the sign and he could hear that Mr Miller's bike had stalled. He came to the corner, which he could not see around, and just as he was about to enter the corner he saw the car coming around the corner. He stated that there was very little time to brake and try to get to the left-hand side of the car. He remembers applying the rear brake and trying to get as far to the left-hand side of the road as he could. He said that he froze with fear. He cannot remember anything after that. He collided with Mr Williams' vehicle at a bend in the road. According to the appellant, Mr Williams had been travelling in the middle of the road and not to the left, as he had stated in his evidence.
11 In cross-examination, the appellant denied that he had been travelling in excess of 30 kilometres per hour. He stated that he had looked at his
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- speedometer at one point after turning around at the sign. However, he admitted that he did not know for sure the speed at which he was travelling when he approached the bend. He admitted that he could not see around the corner. The appellant was also asked how he accounted for the 17-metre skid mark if he was only going 30 kilometres per hour, the other vehicle was stationary and if he had seen the vehicle beforehand. The appellant explained that the road was very slippery, that there were loose rocks everywhere and that he had only hit his back brake. He said that he did not apply the front brake because of the fear of the other vehicle hitting him. He could not say whether Mr Williams' car was stationary because he cannot recall the collision. However, he stated that when he first saw the car, it was moving towards him. He denied that it was travelling very slowly, estimating the car’s speed at 30 to 40 kilometres. When asked why he did not reduce his speed to 10 kilometres per hour at the corner, the appellant stated that he did not think he had to go that slow around the corner. He did not think it was necessary for him to go any slower than 30 kilometres per hour around the corner.
12 The Magistrate convicted the appellant of dangerous driving on the evidence summarised above. No complaint is made of the test applied by the Magistrate to sustain a charge of dangerous driving. In relation to the evidence of Mr Williams, the Magistrate observed the need to take into account various factors, including the limited time available for observation, when a person makes an estimation of speed. It is in this context that the Magistrate concluded that he did not accept the accuracy of Mr Williams' estimate that the motorbike was travelling at 70 kilometres per hour when he first observed it. The Magistrate noted the evidence of Mr Miller and commented that he was inclined to accept his evidence that he was doing about 40 kilometres and was not gaining ground on the appellant. After referring again to the fact that Mr Williams' vehicle was stationary, a finding of fact which the Magistrate considered to be of major significance, he said:
"It is said that this road is subject to a 30-kilometre per hour limit, but I would make the point, as I have already done, that 30 is the maximum, and your speed, of course, needs to be adjusted according to the circumstances that prevail at any particular part of it.
And that's why this test of what constitutes dangerous driving is an objective test. It doesn't rely upon the assessment of the rider. It's as though you're observing it from afar. And so, if
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- you're coming towards a bend where you've got limited vision, then common sense and experience, and the law, require you to adjust your speed to the circumstances."
13 The Magistrate found that the speed at which the appellant was travelling needed to be adjusted to the circumstances of the road condition. He held that the speed at which the appellant was travelling was excessive, in all the circumstances, and that, therefore, he was satisfied that the appellant's driving was dangerous. The Magistrate made it clear that he would have reached the same decision even if the appellant were in fact travelling at 30 kilometre per hour. The Magistrate considered that, in order to avoid a collision with an oncoming vehicle in circumstances of very limited forward vision, a proper adjustment of speed would have been down to five or ten kilometres per hour. As the appellant had not adjusted his speed to the conditions, his driving was, therefore, found to be dangerous.
14 Before turning to consider each ground of appeal separately, it is necessary to note the submission on behalf of the appellant that this case is one where there has been "an aggregation of faults" which properly leads to the conclusion that a trial, as a whole, has miscarried. It is said that even if the appellant fails to establish that any individual ground might lead to such a conclusion, taken together, the matters relied upon lead to the conclusion that the appellant has not had in all respects the fair trial to which he is entitled by law: Leary v The Queen [1975] WAR 133, per Jackson CJ at 137, Lavan J at 141 and Jones J at 141, citing R v Ireland (1970) 126 CLR 321. In support of the proposition that the appellant was denied a fair trial, counsel emphasised the general conduct of the Magistrate during the course of the trial, in particular the level of his intervention in the trial process. It was submitted that, as a consequence of the conduct of the Magistrate, the appellant might legitimately have felt that he was deprived of the opportunity to adequately and properly present his case to the Magistrate. Whilst there is no ground of appeal specifically relating to the Magistrate's conduct, I propose to deal with the issue of the level of interference in the trial process both generally and in the context of each specific ground of appeal.
Ground (i)
15 It is alleged in this ground that the Magistrate erred in convicting the appellant in circumstances where the prosecution's principal witness gave evidence which was materially different to that which he had given to the
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- police in his deposition. It was also submitted on behalf of the appellant that, because of the Magistrate's intervention, counsel for the appellant did not have an adequate opportunity to explore the alleged conflict. It is the case that there was some intervention early in counsel's attempt to cross-examine on the alleged inconsistency between the witness's evidence and his statement. The alleged inconsistency arose from Mr Williams' evidence that he was stationary at the time of the collision. In cross-examination, the following exchange took place:
"You gave a statement to the police with respect to this matter?
---Yes.
And you gave that statement - - -
HIS WORSHIP: Yes, show it to Mr Williams if you will?
MR MASSEY: I'll show it to him.
WITNESS: I've got a copy of it here.
HIS WORSHIP: Have you. Hang on. No, leave that one there for a minute. The prosecution can show you one.
MR MASSEY: You gave that statement on the 10th of May?
HIS WORSHIP: Yes, have a look at that. Do you recognise that as your statement? Does it have your signature on it?
---Yeah.
MR MASSEY: Right.
HIS WORSHIP: All right. Well, what's your point, Mr Massey?
MR MASSEY: Well, the point is, in that statement, you said, and this is in paragraph 3:
'I was travelling about 20 to 30 kilometres an hour when all of a sudden a trail bike rider appeared out of nowhere around the corner and collided into the driver's side front end of my vehicle.'
WITNESS: That’s right.
HIS WORSHIP: Yes.
(Page 11)
- MR MASSEY: Well, what I'm suggesting to you, it's not consistent with what you're saying today. You didn't put in that statement - - -
HIS WORSHIP: What's inconsistent?
MR MASSEY: Well, you didn't put in that statement, for instance, that you pulled over to the right - over to the left-hand side of the road. Correct?---I think it is there somewhere."
16 The witness went on to explain that he had told the police at the time that he was stopped at the point of impact and denied that there was any inconsistency between the statement and his evidence at trial.
17 I consider that the first intervention by the Magistrate during the cross-examination of this witness was for the entirely proper purpose of ensuring that the witness was shown the statement and that he identified it as his own. The second intervention in which the Magistrate inquires as to the point of the cross-examination and requires counsel to identify the inconsistency on which he is cross-examining was, in my view, unnecessary and inappropriate. However, the fact remains that counsel did, indeed, put the alleged inconsistency to the witness and the witness provided an explanation which counsel elected not to pursue further, either with the witness or with the investigating police officer. In my view, the nature and the extent of the intervention at this point of the hearing could not reasonably have deterred counsel from further pursuing this line of cross-examination, if he had so chosen.
18 The respondent submits that there was, in any event, nothing inherently contradictory about the two versions and the absence of the reference to being stationary was adequately explained. It is apparent from the failure to refer to this issue in his reasons for decision that the Magistrate either did not consider it to be of significance or that he considered it to be adequately explained. In my view, neither conclusion manifests error.
Ground (ii)
19 In this ground it is alleged that the Magistrate erred in relying on the Mr Williams' evidence. The error is said to arise from the Magistrate's stated reservations about the accuracy of Mr Williams' evidence as to the speed of the appellant's vehicle and also because of contradictory evidence on this issue from the investigating police officer. Mr Williams made estimations of both speed and distance. He estimated the appellant's
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- speed at 70 kilometres per hour. He estimated that he first saw the appellant's vehicle approaching from approximately 30 to 50 metres away. He said that he had a clear view along the road for at least 50 metres. Mr Williams also estimated that the appellant had skidded for 30 metres. It is the case that there was some conflict between this evidence and that of Senior Constable Sheppard. Senior Constable Sheppard differed from Mr Williams in relation to the field of vision when coming around the curve. He put the visibility at 10 to 20 metres. Further, Senor Constable Sheppard measured the length of the skid mark leading to the location of the motorbike at 17 metres which was in conflict with the evidence of Mr Williams that the appellant had skidded for 30 metres.
20 In his reasons for decision the Magistrate did not address each inconsistency. Counsel for the appellant conceded that it was not necessary for him to do so. However, it was submitted that the issues of speed and distance were such crucial factors that the balance of the witness's evidence should not have been relied upon. The Magistrate did express some reservations about the accuracy of Mr Williams' evidence. He did not accept the accuracy of Mr Williams' estimate that the motorbike was travelling at 70 kilometres per hour. However, in relation to evidence of speed, the Magistrate expressly commented on the need to take into account various factors when assessing evidence of speed, including the limited time available for observation. In my opinion, the reservation expressed by the Magistrate simply equated to a conclusion that Mr Williams' assessment of the motorbike's speed when first seen was flawed because of such a factor. Further, the Magistrate found it unnecessary to make a finding on the distance between Mr Williams' car and the motorbike when he first saw it. This was because he was satisfied that Mr Williams' car was stationary at the point of impact and, therefore, he had sufficient time to bring his vehicle to a halt once he saw the appellant's motorbike.
21 In my view, it is apparent from the whole of the reasons that the Magistrate considered Mr Williams to be a truthful witness in all aspects of his evidence and an accurate witness in all areas other than his assessment of speed and distance. This was a finding that the Magistrate was best placed to make: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Fox v Percy (2003) 197 ALR 201 at 207.
22 It is well established that a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly
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- against – that finding of fact. If the trial Judge's finding depends to any substantial degree on the credibility of a witness, the finding must stand unless it can be shown that he has failed to use or palpably misused his advantage or has acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence, or which was glaringly improbable, or that the conclusion is shown to stem from some error law or fact: Devries v Australian National Railways Commission (supra) at 479; Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193 at 199; see also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178; Rosenberg v Percival (2001) 205 CLR 434 at 447 - 448, per McHugh J.
23 Counsel for the appellant conceded the difficulty facing an appellant in seeking to disturb a finding of fact based on observation, credibility and demeanour, notwithstanding "the beginning of a movement away from the mantra in Abalos and De Vries" in subsequent authorities.
24 The subsequent authorities to which counsel refers include State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) 160 ALR 588 and Fox v Percy (supra) in which reference is made to the danger of attaching too much significance to the words of restraint expressed in the line of authority and allowing those words to deflect the appellate Court from its duty: see, for example, Kirby J in Earthline at 608. However, it is apparent from a review of the examples given by Kirby J of situations where credibility findings ought not bar an appeal that the circumstances of this case are not of that type and the application of the general principle is appropriate: see Kirby J at 620 - 622.
25 It was also submitted on behalf of the appellant that there was an inconsistency in the evidence of Mr Williams as to when he first saw the appellant which could have formed the basis for a significant exploration of his credibility or reliability. However, when defence counsel began to explore that issue, he was met with an immediate interruption from the Magistrate. For the reasons which I have already given I consider this point, and the ground to which it relates, to lack substance.
Ground (iii)
26 This ground asserts that the prosecution evidence was not capable of establishing beyond reasonable doubt the charge of dangerous driving. The evidence relevant to the issue of whether the appellant's driving was dangerous was summarised by the respondent as follows:
(a) The road in question was a narrow bitumen road;
(Page 14)
- (b) The appellant was travelling at least at 30 km/hr;
(c) The road had a bend with a slight uphill gradient;
(d) The appellant had not ridden on the road before;
(e) The appellant did not contemplate slowing down as he approached the bend despite the fact that, on his own evidence, he was coming up to a very sharp left-hand corner around which he was unable to see.
27 The Magistrate observed, rightly in my view, that in the circumstances that prevailed it was necessary for the appellant to reduce his speed. The Magistrate concluded that the appellant's failure to reduce his speed in such circumstances constituted dangerous driving. The evidence, when considered as a whole, was capable of establishing that the appellant's driving was dangerous and the Magistrate was entitled to be satisfied that the offence had been proven to the relevant standard. I consider this ground to be without merit.
Ground (iv)
28 In this ground, objection is taken to the admission of opinion evidence from Senior Constable Sheppard that the appellant's vehicle was travelling at speed.
29 In his evidence Senior Constable Sheppard stated:
"I noticed, or I recorded that there were skid marks from the rear of the motorcycle to a point 17 metres' distance where the skid mark had started. That was consistent with the motorcycle initially being upright, entering a corner, and then being progressively laid down sideways until it had gone under the front of the vehicle. The damage to both vehicles was consistent for a vehicle travelling at speed."
30 At no stage prior to giving this evidence had the prosecution sought to qualify Senior Constable Sheppard as an expert witness. Counsel for the appellant objected to Senior Constable Sheppard's conclusion that the damage to both vehicles was consistent with a vehicle travelling at speed. The Magistrate's only response to the objection was the following comment: "Well ask a question then to him in cross-examination, if you wish to do so."
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31 The Magistrate's response to an objection by counsel on admissibility of evidence was entirely inappropriate. It was for the Magistrate to consider the objection and rule on the admissibility of the evidence, not to invite counsel at a later time to deal in cross-examination with evidence which may or may not be admissible. The approach taken by the Magistrate amounted to a de facto ruling that the evidence was admissible without hearing the basis of counsel's objection or considering the merits of the objection. The only option given to counsel by the Magistrate, cross-examination on the issue, carried with it the risk that the witness would repeat, reinforce and amplify the evidence considered by counsel to be inadmissible.
32 It is apparent from the transcript of the proceedings that, when the appellant's counsel came to cross-examine Senior Constable Sheppard, he misstated the opinion evidence previously given. He put to Senior Constable Sheppard that it was his opinion that the length of the skid mark was consistent with speed. Senior Constable Sheppard agreed with that proposition, although, in explaining the basis of his opinion, he made reference to both the length of the skid mark and the damage to the motorbike, in particular the fact that the rear swinging arm had snapped.
33 At this point the Magistrate again intervened and asked Senior Constable Sheppard of his experience in traffic investigation. Senior Constable Sheppard stated that he had been a traffic officer for 10 years of his 12-year career and was at the time of giving evidence the Traffic Crash Investigating Officer at Mundijong. He said that he had been to numerous crash scenes, "from fatals down to minor crashes", and had been conducting inquiries into traffic crashes continuously for the past two years. The questions directed by the Magistrate to Constable Sheppard's experience in traffic investigation could have no other purpose than to identify a basis for him to give expert opinion evidence. However, the Magistrate made no ruling on his expertise. Nor did trial counsel further raise the issue of the admissibility of the opinion evidence.
34 Notwithstanding the Magistrate's statement that the appellant's counsel could cross-examine on this aspect of Senior Constable Sheppard's evidence, the Magistrate was dismissive of any attempt to explore the basis of Senior Constable Sheppard's conclusion. He said:
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- "Look, let's not get off and on to trivia. Okay? This witness says it's consistent with speed; would you like to suggest he's wrong or not?"
35 Ultimately, however, counsel did cross-examine on variables affecting the length of skid marks in accident situations. There was a further interjection by the Magistrate with the stated purpose of trying to confine the scope of the cross-examination. The Magistrate then put to Senior Constable Sheppard that the better way to express his opinion was that the damage was consistent with substantial impact rather than the damage being consistent with speed. Senior Constable Sheppard agreed.
36 It is a well-established principle that an expert opinion is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance: Clark v Ryan (1960) 103 CLR 486 at 491, per Dixon CJ. Opinion evidence to account for a happening that is described to a witness is admissible only when the happening can be explained by reference to an organised branch of knowledge in which the witness is an expert: Clark v Ryan at 501 - 502, per Menzies J. The test as to admissibility, therefore, is whether the witness's experience or study in the field under discussion is such that his opinion has more weight than that of an ordinary person: Commissioner for Government Transport v Adamcik (1961) 106 CLR 292; Price v The Queen; Stamford v The Queen [1981] Tas R 306 at 311.
37 When a court is determining whether a witness is qualified to give opinion evidence, the crucial issue is whether the witness in fact possesses the requisite knowledge or skill, not how or in what capacity he acquired it. The determination of that issue is a condition precedent to the admissibility of the opinion evidence: Price v The Queen; Stamford v The Queen (supra) at 312. A witness may give opinion evidence notwithstanding the absence of scientific training or formal qualifications provided it has been established that the witness has adequate practical experience to give his or her opinion greater weight than that of an ordinary person: Weal v Bottom (1966) 40 ALJR 436 at 438 - 439; Anderson v The Queen (1992) 60 SASR 90 at 103, per Olsson J; Bennett v Queen (1998) 144 FLR 311 at 316, per Owen J, with whom Scott and Kennedy JJ agreed.
38 It can be seen that the admissibility of opinion evidence with respect to issues pertaining to motor vehicle accidents depends on whether the relevant issues can be explained by reference to an organised branch of
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- knowledge in which the witness has sufficient experience and/or training. Counsel for the appellant conceded that estimates of speed based on the length of vehicle skid marks is a recognised area of expertise, but requires careful analysis of the road surface and tyre type. However, it was submitted that estimates of speed based on damage to vehicles is not a recognised area of expertise entitling a witness to give opinion evidence. Counsel relied on the decision of Bray CJ in Cooper v Bech (1975) 12 SASR 151 where his Honour stated (at 153):
"I have accepted him in earlier cases, as an expert in the investigation of some aspects of traffic accidents, but I am not prepared to accept him as an expert in deducing form the condition of the damaged parts of a vehicle involved in a collision the speed at which another vehicle collided with it. Nor, on the evidence before me, am I prepared to accept that there is 'an organised branch of knowledge' (Clark v Ryan (1960) 103 CLR 486 per Menzies J at p 501) which enables such deductions to be made."
40 Counsel for the respondent concedes that there should have been a ruling on admissibility, but submits that ultimately the Magistrate simply concluded that the evidence of damage was consistent with substantial impact and, because Mr Williams' vehicle was stationary, it must have occurred because of the speed at which the motorbike was travelling. On that basis, it is said that the Magistrate has not relied on the opinion evidence and, therefore, no miscarriage of justice has resulted.
41 In his reasons for decision, the Magistrate dealt with this area of the evidence in the following way:
"Reference was made to the evidence of Constable Sheppard. He is not an expert either, he is a police officer with experience in investigating motor vehicle crashes. And he gave evidence based upon his observations on the day, again, with respect to issues such as the nature of the impact and the conclusions that
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- ought to be drawn from that. He is not an expert. But the courts have to apply to the whole of the evidence, common sense and experience when dealing with issues of this kind."
42 One interpretation of this passage is that the Magistrate reached the conclusion that the damage was caused by a substantial impact by applying his commonsense and experience to Senior Constable Sheppard's evidence of the nature of the damage. However, there is a degree of conflict in the passage. At one point Senior Constable Sheppard is said not to be an expert and, yet, reference is made to his evidence on the nature of the impact and the conclusions "that ought to be drawn from that". Further, it is the case that the expression of opinion as to the severity of the impact was elicited from Senior Constable Sheppard by a question from the Magistrate. If the proposition that the damage was caused by substantial impact was no more than a logical conclusion open on the primary evidence, there was no need to put it to Senior Constable Sheppard for his opinion on the issue.
43 It was also submitted on behalf of the respondent that, notwithstanding the reference to the substantial impact, the decision of the Magistrate was ultimately based solely on the evidence of Mr Miller's estimation of the appellant's speed. Further, the Magistrate stated that he would have made the same finding of dangerous driving even if he accepted the appellant's own evidence as to speed. The evidence having been given and referred to at some length in the reasons for decision, it is difficult to determine the influence, if any, on the Magistrate's ultimate decision. In my view, the Magistrate's conclusions are so intermingled with references to the opinion evidence of Senior Constable Sheppard that it is difficult to accept that he remained uninfluenced by that evidence. In such circumstances, I am unable to conclude that there has been no miscarriage of justice. I would allow the appeal on this ground.
44 Despite my finding that the Magistrate erred in allowing Senior Constable Sheppard to give opinion evidence without determining whether such evidence was properly admissible, it does not follow that at a subsequent hearing Senior Constable Sheppard will be precluded from giving evidence of an expert nature. It is for the Court to determine on the information then available, including the nature of the evidence sought to be adduced, whether the criteria in the authorities to which I have referred have been met.
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Ground (v)
45 This ground alleges that the Magistrate erred in refusing to allow the appellant to adduce expert evidence from a Mr Blee, a retired police officer with experience in motor vehicle accident investigation. It was submitted that, by depriving the appellant of the opportunity to call Mr Blee, the Magistrate deprived the appellant of an opportunity of acquittal fairly open to him: Mraz v The Queen (1955) 93 CLR 493; Jago v District Court of NSW (1989) 168 CLR 23.
46 The trial transcript reveals that Mr Blee was to be called to comment on "whether the length of the skid mark was indicative of anything". The following exchange then takes place:
"HIS WORSHIP: Well, what's his expertise to do that?
MR MASSEY: Well, probably more than the police officer who gave that evidence in the - - -
HIS WORSHIP: But he doesn't purport to be an expert. Mr - well, Constable Sheppard is the investigating officer - - -
MR MASSEY: Yes, I understand that.
HIS WORSHIP: - - - who gave an estimate. You purport to call an expert witness.
MR MASSEY: No, I don't. I don't purport to call an expert witness just as - - -
HIS WORSHIP: Well, if he's not an expert, then he's not entitled to give evidence.
MR MASSEY: Well, just as the - well, he's been there, he's seen the skid marks.
HIS WORSHIP: No, sorry. The only reason you could be calling this witness is because he has particular expertise. In other words, he can come along and say, 'I've looked at these skid marks and because of my unquestioned expertise, I can give you certain information based upon my opinion.' Now, he's not an expert.
MR MASSEY: Well, your Worship let the evidence in police officer about this being consistent speed.
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- HIS WORSHIP: Yes, because, as I explained to you a moment ago, that's an entirely different issue. He is the investigating officer who went there. He was asked a series of questions which you were able to cross-examine upon - - -
MR MASSEY: Yes.
HIS WORSHIP: - - - based upon his experience. Now - which you did.
MR MASSEY: Yes.
HIS WORSHIP: And it then allows me to assess whether or not I accept that a police officer has some level of expertise. But you are now seeking to call an expert witness; there's a major difference between the two. And if Mr Blee's expertise is his experience as a police officer, then he's not an expert and I would not allow his evidence to be given.
MR MASSEY: Well, if - well, then I make the same submission about the police officer who gave evidence to that extent.
HIS WORSHIP: Yes, that's a different issue.
MR MASSEY: All right."
47 In his reasons for decision, the learned Magistrate attempted to explain why opinion evidence from the investigating officer is "a different issue" to opinion evidence from another police officer called on behalf of the appellant. In the course of that explanation he stated:
"Whilst I'm touching upon this issue of estimates, Mr Blee was sought to be called by the defence in circumstances where, as I will repeat, in my view, he was clearly going to be called as an expert witness. And he simply is not qualified for that purpose."
48 It is difficult to see how the Magistrate could have reached such a conclusion when counsel was not given the opportunity to flesh out the basis on which he was calling the witness or to establish the witness's expertise. It is the case that trial counsel stated that Mr Blee was not being called as an expert witness. However, it was disputed on behalf of the appellant that trial counsel was making a clear concession that Mr Blee had no expertise in relation to any relevant issue. The statement was not made in the course of a full and uninterrupted submission on the
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- admissibility of Mr Blee's evidence. If that were the case, I would have no hesitation in concluding that there is no substance in this ground of appeal.
49 However, in the context of the level of intervention in the trial as a whole, and of the particular exchange quoted above, I consider the submission that trial counsel was not conceding that Mr Blee had no expertise on any relevant issue to have some substance. The issue is complicated by the approach taken by trial counsel of linking the admissibility of the evidence of Mr Blee with that of Senior Constable Sheppard. However, it must be kept in mind that at the time it was sought to adduce the evidence of Mr Blee, there was no way of knowing the use to which the evidence of Senior Constable Sheppard would be put as there had been no ruling made on the issue. Neither was there any way of knowing which other evidentiary issues might influence the Magistrate's decision. As I have indicated, there are some aspects of motor vehicle accidents, including estimates of speed based on the length of vehicle skid marks, upon which police officers with the requisite knowledge, training and/or experience can give expert evidence. Counsel for the appellant should have been given the opportunity to properly qualify his witness and to develop his argument on the admissibility of the evidence sought to be adduced from that witness. Because of the level of intervention on the part of the Magistrate, counsel for the appellant was, in my view, effectively prevented from putting the appellant's position on this issue. As a result, the Magistrate fell into error in refusing the application to call Mr Blee without first giving counsel an opportunity to be heard fully on the issue.
50 On behalf of the respondent, it was submitted that the learned Magistrate's refusal to admit the evidence of Mr Blee is not material because at the end of the day the learned Magistrate did not accept Senior Constable Sheppard as an expert and accepted the appellant's evidence with respect to speed. Counsel for the respondent made the following submission:
"Presumably had Mr Blee given evidence, he would not have purported to put the appellant's speed at less than 30 km/hr. Therefore the failure on the part of the Magistrate to admit evidence from Blee on this point was not material."
51 The flaw in this submission lies in the assumptions that must be made about the nature and extent of Mr Blee's evidence because counsel was not allowed to elaborate on the purpose of his evidence and because
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- Mr Blee was not allowed to give evidence. The fact is that at the time the ruling was made, there could be no way of knowing which issues would become of significance to the Magistrate's decision. The same flaw is to be found in the respondent's further submission that even if the Magistrate fell into error in failing to admit the evidence of Mr Blee, the appeal should be dismissed pursuant to s 199(1)(b) of the Justices Act 1902 on the basis that no substantial miscarriage of justice had occurred. Because of the approach taken to the attempt to call Mr Blee, this Court is simply not in a position to know the potential impact of his evidence on the outcome of the trial. For these reasons, I would allow the appeal on this ground.
52 Again, it does not follow that on a retrial Mr Blee will be permitted to give expert evidence. That decision will be for the presiding Magistrate based on the material presented to the Court at that time.
Ground (vi)
53 This ground challenges the Magistrate's finding that the appellant's driving was dangerous because his speed was excessive in the circumstances. I have already concluded in relation to ground (iii) that the prosecution evidence was capable of establishing guilt to the requisite standard. The only further submission made in relation to this ground was that the Magistrate's conclusion that the appellant was driving inherently dangerously because of his speed was fundamentally flawed because of the unchallenged evidence that Mr Miller, who was driving at the same speed, was able to bring his motorbike to a safe stop. I consider this submission to be without substance. The submission involves an erroneous assumption that the same set of circumstances applied to both riders. However, while the road and weather conditions were the same, Mr Miller was riding a different type of motorbike to the appellant and was travelling behind him, giving Mr Miller greater time and distance to deal with the situation which arose. There was no evidence on the riders' respective riding experience or abilities and it cannot be assumed that they were equally capable of controlling a motorbike in an emergency situation requiring braking at speed. Further, the appellant himself said that he had panicked. There was no indication that Mr Miller did so. In my view, Mr Miller's reaction to the circumstances confronting him does not assist in determining the charge against the appellant.
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Intervention by the Magistrate
54 I turn finally to the issue of the level of intervention in the proceedings by the Magistrate. Some of the instances of intervention by the Magistrate were quite justified in the circumstances. Other interventions are of greater concern. I have already averted to examples of the Magistrate's intervention which led to error. Counsel for the appellant submits that another instance of intervention also manifests error.
55 The issue of the speed of the appellant's motorbike was a crucial issue, but when trial counsel attempted to question Mr Miller on this issue, there was an almost immediate intervention. The question put to Mr Miller was this:
"I would suggest to you that Mr Carley's speed was somewhat less than yours was, and you were in effect catching him up?
---I could have been, yes."
56 The Magistrate immediately interjected:
"What do you mean, you could have been? A minute ago, you said you weren't; you said you were maintaining the same speed … So just bear in mind you're on oath at the moment, Mr Miller."
57 Mr Miller was a friend of the appellant's and it appears that he was giving a very co-operative answer to quite a general question. However, that does not justify an intervention of this type. The question asked by the Magistrate was, in effect, one which the appellant's counsel would not wish to ask, and the prosecution would not be entitled to ask.
58 On behalf of the appellant it was submitted that the reminder about the oath was tantamount to a suggestion that he ought not to depart from his earlier evidence and constituted an implied threat. The intervention also had the effect of bringing to an end a line of cross-examination on behalf of the appellant.
59 Counsel for the appellant conceded that the Magistrate's conduct was not as serious as that criticised by the Supreme Court in Harper v Police (1990) 13 MVR 163. In that case, the warning given by the Magistrate to the appellant was to the effect that, if the witness made any statement which she found to be false or misleading, she would send the matter to the Crown Solicitor's Office for the witness to be indicted for perjury. No
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- similar warning had been given to any prosecution witness. On appeal, Walsh J (at 168) concluded that the warning given to the appellant before he was sworn to give evidence was such as to give rise to a reasonable apprehension of bias in the mind of a reasonable person. I consider the facts in Harper v Police to be distinguishable from the facts of this case. The nature of the intervention in this case does not, in my view, create a reasonable apprehension of bias. It is not suggestive of guilt, nor does it indicate that the prosecution is being favoured, which were the concerns founding the conclusion of an apprehension of bias in Harper v Police (at 167). Essentially, counsel for the appellant conceded this to be the case. However, the Magistrate's warning is relied upon as another example of inappropriate interference in the trial process, depriving the appellant of a fair trial. It is submitted that consideration should be given to the cumulative effect of the various instances of intervention in the trial process which too often occurred when counsel had begun to develop a defence argument or line of questioning. In my view, there is some substance in the proposition that repeated interference in the trial process can have a cumulatively adverse effect. Counsel for the appellant relied on the statement of principle in Leary v The Queen (supra) which is in the following terms (137):
"It was submitted for the Crown that notwithstanding any defects and irregularities in the trial which we might consider had occurred, the verdict should stand as there has been no substantial miscarriage of justice. I cannot agree with this. It is probably true that not each matter raised in the grounds of appeal would call for the convictions to be set aside; but taken together they lead to the conclusion, in my opinion, that the applicants have not had in all respects the fair trial to which the law entitles them. An 'aggregate of faults' may properly lead to a conclusion that a trial, as a whole, has miscarried: R v Ireland (1970) 126 CLR 321 at 331; [1970] ALR 727."
61 Intervention, of itself, does not equate to error or unfairness. Judicial officers are entitled, indeed obliged, to intervene to ensure that the trial is
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- being held according to law. Judicial officers are also entitled to intervene where the approach taken by counsel is likely to lead to unnecessary delay, although considerable caution should be exercised when intervening on this basis to ensure that a party is not deprived of the opportunity to present its case in what is considered to be the most appropriate way and to develop all relevant issues. Further, it matters not if the intervention occurs only in relation to the conduct of one party, if the intervention is justified.
62 It is apparent from the trial transcript that counsel for the appellant at trial was not conducting himself in a way which was inappropriate or time wasting. There does not appear to be any reason justifying the quite regular intervention by the Magistrate in relation to the way in which counsel was representing the defendant's interests.
63 The respondent concedes that it would have been preferable for the Magistrate to be a little less of an interventionist, but submits it did not prevent counsel from pursuing any relevant issue. However, the way in which the Magistrate dealt with the attempt to call Mr Blee is at least one example of counsel being prevented from pursuing an issue. I consider that there was a disquieting and unnecessary level of intervention in this hearing which impacted more particularly on the defendant's case. Ultimately, I am left with a real concern that counsel's ability to develop all issues relevant to the accused's defence was significantly curtailed by the regular intervention on the part of the Magistrate.
64 I would allow the appeal, quash the conviction and remit the case for rehearing before a differently constituted court.
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