Cater v Police - [2012] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CATER v POLICE
[2012] SASC 120
Judgment of The Honourable Justice Gray
20 July 2012
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS - DRIVING WITHOUT DUE CARE AND ATTENTION
TRAFFIC LAW - OFFENCES - EVIDENCE - OTHER MATTERS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - PROOF AND EVIDENCE - BURDEN OF PROOF
Appeal against conviction - appellant convicted by Magistrate of driving without due care contrary to section 45 Road Traffic Act 1961 (SA) - appellant and other motorist travelling in opposite directions - both approached a bend on an unsealed country road with limited visibility due to the bend's gradient and surrounding vegetation - corrugations and loose gravel on surface of the appellant’s side of the road - collision occurred between the motor vehicles when the appellant’s vehicle was on the incorrect side of the road - whether it was open on the evidence for the Magistrate to conclude that the appellant was guilty beyond reasonable doubt - whether the Magistrate simply preferred the version of events given by the other motorist to that given by the appellant.
Held: Appeal dismissed - this was not a case of oath against oath with the Magistrate simply having a preference of one person’s evidence against that of another - it was open on the evidence for the Magistrate to conclude that the appellant was guilty beyond reasonable doubt.
Road Traffic Act 1961 (SA) s 45, referred to.
The Queen v Calides (1983) 34 SASR 355; R v Loader (2004) 89 SASR 204, considered.

CATER v POLICE
[2012] SASC 120
Magistrates Appeal
GRAY J:

This is an appeal against conviction.
The defendant and appellant, Neisha Tamara Cater, was charged on complaint with the offence of driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA). The offence was alleged to have occurred on 13 June 2010 on Sunnyville Road near Napperby in rural South Australia.
On 22 February 2012, the defendant was convicted following a trial before a Magistrate. The Magistrate published reasons, concluding:
I am satisfied beyond reasonable doubt that the defendant was on the wrong side of the road and that her driving involves a departure from the standard of care required sufficient to prove the charge of driving without due care.
Sunnyville Road is an unsealed country road. A collision occurred near a bend between two motor vehicles, a Commodore driven by the defendant, and a Toyota driven by Stephen Cowdery. The defendant was travelling in a westerly direction and was traversing a right-hand bend for her direction of travel. The southern curve had greater elevation. The road had corrugations and loose material on its southern side. Mr Cowdery was travelling in an easterly direction toward the bend, a left-hand bend for his direction of travel.
The defendant travelled through the bend and the collision occurred immediately to the west of the bend. Trees and vegetation obscured each driver’s view of the other. Both vehicles were travelling at about 45 to 50 kilometres per hour. They were involved in a head on collision. Following the collision, the Toyota was angled across its correct side of the road with the rear near side wheel at the extreme left of the road.
The Trial
The prosecution led evidence from Mr Cowdery and from investigating police officers. Mr Cowdery gave evidence that he was travelling at about 45 to 50 kilometres per hour as he approached the bend. The Toyota was as close as practicable to the left-hand verge. His view of approaching traffic was obstructed by trees and vegetation. As Mr Cowdery was about to enter the bend, the Commodore approached on its incorrect side of the road. Mr Cowdery first saw the Commodore when it was seven to eight metres away and he had no time to react or to avoid the collision. It was his evidence that at all times he was travelling on, and remained on, his correct side of the road.
Photographs from the scene were received into evidence. A video recording taken at the time of the police attendance was also tendered. This evidence depicted the extensive damage to the front of both vehicles. The general terrain is shown, as well as the road surface. The Commodore was positioned toward the centre of the road.
The defendant’s police record of interview formed part of the prosecution case. In the course of the interview the defendant said that she was travelling at about 45 to 50 kilometres per hour and that she avoided travelling in loose gravel on the left-hand side of the road. In answer to the question “[s]o it all would’ve happened pretty quickly”, the defendant responded:
Yeah like I recon as I was coming around the corner I glanced down to look at my speedo to make sure that you know I was going slow enough for the corner and I looked up and that was it, all I saw was him and then I remember my bonet being in my windscreen.
The defendant was the only witness in the defence case. The defendant, aged 19 years, lived in the area and was familiar with Sunnyville Road. She frequently travelled on the road and was aware of the bend and of the restricted visibility. She was also aware of corrugations and loose gravel on the left-hand side of the road for her direction of travel. The defendant confirmed that she was travelling at a speed of between 45 and 50 kilometres per hour. She said that the right-hand tyres of the Commodore were on the edge of the centre line of the road as she entered the bend. The defendant stated that when she first saw the Toyota it was on its correct side of the road. The distance between the vehicles was less than ten metres. She asserted that the other driver panicked and swerved into her. She claimed to have braked heavily and recalled that her breaks locked up. At or about the time the defendant traversed the bend, she looked down at her speedometer.
In considered reasons, the Magistrate made the following findings:
On the 13^th June 2010 at about 3.00pm, Stephen Cowdery was driving his Toyota Prado vehicle along Sunnyville Road near Napperby in an easterly direction.
At or about the same time, the defendant was driving her Holden Commodore vehicle on the same road in a westerly direction.
Both vehicles were being driven at a speed between 45 and 50k/hour.
Mr Cowdery had never travelled on that road before and he was heading towards higher ground to take photographs towards Port Pirie.
The defendant lived at a location close by and was familiar with the road. She had travelled the same road in an easterly direction approximately 30 minutes previously.
That the road surface was dirt with loose gravel.
As he approached a slight bend in the road at a position which is marked on exhibit D.1, Cowdery had his vehicle positioned as far to the left of the road as possible.
That in the location of the bend the surface on the opposite side of the road to Cowdery’s direction of travel is elevated and comprises a section of corrugation and loose gravel.
That the defendant was familiar with the road in that location and was aware that the surface on her left hand side of the road was corrugated and had loose gravel.
That as the defendant approached the bend her vision ahead was obstructed by vegetation growing close to the side of the road on both sides of the road.
That as she entered the bend the defendant glanced down at her speedo.
That as she entered the bend the defendant’s vehicle was not as far to the left of the road as possible and was on the incorrect side of the road.
The Magistrate then concluded:
In my opinion, the evidence of Mr Cowdery and the evidence of the defendant herself points to the conclusion that the defendant was not on the correct side of the road. I accept that she was trying to avoid a bad section of road and that there may have been safety issues associated with driving over the corrugations. However, there is no evidence to suggest that this was not possible at the appropriate speed and the photographs and video certainly do not show a road surface that was so poor that it was impossible to regard it as part of the road. Even if Cowdery took evasive action to avoid the collision by turning to his right, I am satisfied that this reaction was occasioned by the fact that the defendant was on the incorrect side of the road.
Having formed this opinion, the Magistrate reached his ultimate conclusion that the charge had been proved beyond reasonable doubt.
The Appeal
Counsel for the defendant pointed out that when assessing the evidence of the witnesses, the Magistrate had concluded that he preferred the version of events given by Mr Cowdery to that given by the defendant. In reaching this conclusion the Magistrate observed:
I formed the impression that Mr Cowdery was doing his best to recall the events. He was honest about the fact that he had no time to brake and that he simply “hung on” waiting for the collision. He was adamant that the other vehicle was on his side of the road and that he was as far to the left as he could be. He obviously had only seconds to assess the situation and the fact that he had little recall of the actual scene is not surprising given that he had never been on the road before.
Ms Cater gave me the impression that she had formed a very definite view about how the collision occurred. I gained the impression that she believes that the cause of the collision was the road surface and the action of Mr Cowdery in effectively running into her. Having watched and heard from both witnesses I prefer the version of events given by Mr Cowdery.
Counsel for the defendant submitted that a review of the evidence gave rise to a reasonable doubt concerning the defendant’s guilt. As a consequence, it was said that the appeal should be allowed and the complaint dismissed. It was pointed out that little could be drawn from the police investigations and that the Magistrate’s preference for the evidence of Mr Cowdery over that of the defendant led to the unavoidable conclusion that a reasonable doubt arose as to the defendant’s guilt.
Counsel further submitted that simply preferring the evidence of one witness to that of the other did not allow the conclusion that the charge had been proved beyond reasonable doubt. Attention was drawn to the decision of the Full Court in Calides where Wells J observed:[1]
The onus of proof and the standard of proof must be correctly applied. It is not just for the jury to decide where the truth lies if that means, and it could well mean to a jury, that it is for them to say whether there is some material which could give them an inclination of opinion in favour of one side or the other. It would be even worse if the jury were left with the impression that it was their task to decide, and to find, whether there is some material for providing a basis for an inclination of opinion one way or the other.
[1] The Queen v Calides (1983) 34 SASR 355, 358.
The same question arises from time to time following jury verdicts. In Loader, Duggan J discussed the issue in the following terms:[2]
[2] R v Loader (2004) 89 SASR 204 at [58]-[60].
Reliance was placed on a number of authorities concerned with conflicting evidence which caution against instructions to the jury suggesting that the guilt of the accused is to be determined by making a choice between the prosecution and defence evidence. In Liberato v The Queen (1985) 159 CLR 507 at 515, a case involving the conflicting versions of the accused and the complainant in a rape case, Brennan J said:
"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt that the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."
The appellant also relied on the following passage from the judgment of Jacobs J in Selig v Hayes (1989) 52 SASR 169 at 171:
"There is not the slightest doubt that the fact that the appellant lied to the police when they first approached him had a profound influence on the learned special magistrate's decision. The risk of error in treating credibility as the only real issue was aptly stated by von Doussa J in Harris v Mill (1988) (unreported, Supreme Court, SA, von Doussa J, 7 April 1988)) in a passage which I gratefully adopt:
In a sense the key issue in many trials is credibility, but to pose the question as "who to believe" is apt to be misleading and to cause a tribunal in a criminal trial to fall into error of the kind exposed in R v Calides (1983) 34 SASR 355. There is a very real risk that the inquiry will become: "Which of the parties giving the competing stories is to be preferred?" The preference of the victim's evidence to that of the defendant, even where the defendant's evidence is in consequence rejected, leaves unanswered the essential question whether the tribunal is satisfied that every element of the charge is proved beyond reasonable doubt. Generally speaking, the rejection of the defendant's evidence does not provide positive proof of guilt. The preference of the victim's evidence does not lead inevitably to a conclusion that his or her evidence should be accepted as proof beyond reasonable doubt. Even a finding that the victim was a truthful witness does not mean that the victim's evidence is necessarily reliable. The victim might be patently honest yet mistaken, or through faulty memory unreliable in respects which leave open a reasonable doubt about the defendant's guilt.”
In my view, there was no danger of the jury in the present case reasoning in the impermissible way referred to in these authorities. I have said that the case against the appellant was based mainly on circumstantial evidence. It is true that there were differences between the evidence of the prosecution witnesses and the evidence of the appellant in respect of some issues. However, the cases relied upon by the appellant are distinguishable from the present case in that they are concerned with the approach to be taken by the jury in relation to competing versions on the fundamental issue or issues in the case. In the present case, the jury were given adequate directions on the application of the burden of proof in a circumstantial case. In accordance with those directions, they were entitled to take into account the post-offence conduct, including lies, as items of circumstantial evidence. However, the problem of "making a choice" between competing versions in the context of the cases referred to above did not arise. The directions now argued for by the appellant were not required.
Counsel for the police submitted that it was an inevitable conclusion that the defendant travelled on the incorrect side of the road. This conclusion was based on the defendant’s concession that when she first saw the Toyota, it was on its correct side of the road. It was also based on the evidence that the vehicles were travelling at a closing speed of between 90 and 100 kilometres per hour. These circumstances alone justified the findings of the Magistrate. This was not a case, as it was said, of oath against oath with the Magistrate simply having a preference of one person’s evidence against that of another.
Earlier in these reasons I have set out the Magistrate’s primary findings. It is important to recognise, as earlier mentioned, that the closing speed of the two vehicles was between 90 and 100 kilometres per hour. In other words, the vehicles were closing at between 25.00 and 27.77 metres per second. On the defendant’s case, she first saw the Toyota when it was less than 10 metres away. It follows that the collision occurred well before the defendant could have braked. On Mr Cowdery’s evidence, he saw the Commodore when it was seven to eight metres from his Toyota. Again the closing speed of between 90 and 100 kilometres per hour allowed no time for him to react. The defendant was clear in her evidence that when she first saw the Toyota, it was travelling on its correct side of the road. When regard is had to the above analysis of the closing speed and the range of reaction times of drivers, it is highly improbable, if not fanciful, to suggest that either driver had any time to take any form of evasive action, whether by braking or by changing the direction of their vehicles. The circumstantial evidence was overwhelming. To my mind, the Magistrate’s findings lead to the conclusion that the defendant was guilty as charged.
The Magistrate’s careful findings demonstrate that he had regard to important circumstantial evidence, including the relevant admissions of the defendant when reaching his decision. Importantly, before reaching his final conclusion, the Magistrate noted the defendant’s evidence that the Toyota was on the correct side of the road when she first saw it. I do not consider that this was a case of a simple preference of the evidence of one witness against another.
The above circumstances, particularly that the defendant was driving on the wrong side of the road around a bend with restricted visibility, were sufficient to establish beyond reasonable doubt that the defendant drove “a vehicle without due care or attention”.[3]
[3] Road Traffic Act 1961 (SA) section 45(1).
For these reasons, I dismiss this appeal.