Carlin v Police No. Scciv-02-207

CARLIN v POLICE
[2001] SASC 81
Magistrates Appeal

WICKS J (ex tempore) This is an appeal against conviction and penalty.
That conviction and penalty relate to an accident which occurred at the intersection of Bower Road and Bartley Terrace, Semaphore Park on 16 October at approximately 5 pm to 5.30 pm.
The appellant was driving a Ford sedan in a westerly direction along Bower Road. A Holden station wagon had entered the intersection from the easterly direction along Bower Road and was waiting to execute a right-hand turn into Bartley Terrace. The Holden station sedan, proceeded to execute a right-hand turn and collided with the Ford sedan, which had proceeded through the intersection.
The appellant was charged by complaint on 18 April 2001. He was charged with entering an intersection against a red traffic light and driving without due care.
The learned Magistrate found that there would be a conviction in relation to both counts with one penalty, that being a fine of $500. The appellant is self-represented on this appeal.
His notice of appeal states:
"As I had to represent myself my,[sic] obvious inexperience didnt[sic] not help in my cross examining; therefore, many important points, were, I believe overlooked and [I] have read the courts[sic] notes and would very much want to appeal."
The appellant appeared in the Port Adelaide Magistrates Court in relation to this matter on 8 June 2001. He was unrepresented and the matter was, therefore, adjourned to enable him to seek legal advice.
On 5 November 2001, the appellant appeared unrepresented before the Port Adelaide Magistrates Court and he pleaded not guilty to both charges. It was on this occasion that he was convicted and sentenced.
In Cooling v Steel (1971) 2 SASR at 259, Wells J said at p 251:
" In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding."
This is not a case where the appellant was not informed of his rights and his duties. The learned Magistrate did not make an error in the manner in which he dealt with an unrepresented litigant. Instead, the appellant was granted an adjournment for the purpose of obtaining legal advice and it was his decision not to obtain such advice.
For this reason, I find that an appealable error was not made by the learned Magistrate. Furthermore, based on the evidence given at the trial, I cannot find any ground upon which the learned Magistrate’s decision was incorrect.
I appreciate that so far as road accidents and collisions at intersections are concerned, there are very often strongly-held views amongst those involved in relation to what actually occurred. That is a problem which the Courts have to encounter regularly.
It is for the learned Magistrate to consider the matter carefully in coming to his decision and to form as accurate a view of what happened as is possible after all of the evidence has been put before him.
Evidence was given before the learned Magistrate in this matter by Mr Woolett, a police officer who attended the scene of the accident, and also by the driver of the Holden station wagon.
The learned Magistrate also had the benefit of evidence of an independent witness, Mr Davies. At the time of the accident, Mr Davies was waiting at the traffic lights controlling the flow of traffic on Bartley Terrace in a northerly direction, presumably on a red signal. He could see the Holden station wagon waiting to execute a right-hand turn into Bartley Terrace. The Bartley Terrace lights then turned green, indicating that Mr Davies could continue through the intersection. However, he stated that because the driver of the Holden station wagon had not finished completing his right-hand turn, he waited for the intersection to clear. While he was waiting, the Ford sedan driven by the appellant proceeded through the intersection and collided with the Holden station wagon driven by the appellant.
Mr Davies gave evidence that the Bartley Terrace lights were green for approximately three to five seconds while he was waiting for the driver of the Holden to complete his turn. He also stated that at the time the lights turned green for him and the Ford sedan had not yet entered the intersection.
The learned Magistrate accepted this evidence and concluded:
"The defendant had not entered the intersection hence the lights to him would have been red at the time he did enter the intersection."
The appellant’s own evidence before the learned Magistrate was that he observed the lights change to amber for his direction of travel for at least 20 to 25 metres. Before this Court the appellant suggested that 20 metres would be more accurate than 25 metres.
The appellant gave evidence that he did not slow down when approaching the intersection, but maintained a speed of 60 kilometres an hour. He also admitted that, having seen the amber light at a distance of 20 to 25 metres from the intersection, he did not look at the traffic lights again prior to entering the intersection.
The circumstances surrounding the accident were corroborated by the independent witness, Mr Davies.
I have not had the benefit of hearing the evidence of this witness. It would, therefore, be inappropriate to disturb the findings of the learned Magistrate in this respect as he has heard the evidence of all witnesses, had an opportunity to watch their demeanour and observe them give evidence from the witness box. It is, of course, inappropriate for a Judge on appeal, except in exceptional circumstances, to make a finding in these circumstances contrary to that of the Magistrate who heard the case as the Magistrate observed the witnesses.
In addition, it is clear that the learned Magistrate allowed the appellant an adjournment to enable him to seek legal advice. The appellant did not do so. Therefore, he cannot complain to this Court that his own performance before the learned Magistrate was inadequate.
For those reasons, I would dismiss the appeal. I so order.

[2002] SASC 81

6 March 2002