Chaplin v Lane - [2016] TASFC 8

[2016] TASFC 8

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Chaplin v Lane [2016] TASFC 8

PARTIES:  CHAPLIN, Bradley John
  v
  LANE, Richard (Sergeant)

FILE NO: 592/2015
JUDGMENT

APPEALED FROM: Chaplin v Lane (No 2) [2015] TASSC 21

DELIVERED ON:  28 September 2016
DELIVERED AT:  Hobart
HEARING DATE:  6 October 2015
JUDGMENT OF:  Tennent, Wood and Estcourt JJ

CATCHWORDS:

Traffic Law – Offences – Particular offences – Negligent driving – Other matters – Charge of causing death by negligent driving – Assertion on appeal of failure to find magistrate determined charge on basis not advanced by prosecutor at hearing and failing to warn counsel of intention to do so – Lack of procedural fairness.

Aust Dig Traffic Law [1105]

Evidence – Proof – Judicial notice – Matters of common knowledge – Other miscellaneous matters - Appellant convicted of causing death by negligent driving – Magistrate made observations about walking speed of people in course of dealing with expert evidence – Assertion on appeal of arrogation of role of expert witness - Characterisation of statements.

Aust Dig Evidence [1228]

Evidence – Proof – Judicial notice – Matters of common knowledge – Other miscellaneous matters - Appellant convicted of causing death by negligent driving – Magistrate made observations about walking speed of people in course of dealing with expert evidence – Characterisation of statements - Application of Evidence Act 2001 (Tas), s 144.

Evidence Act2001 (Tas), s 144.
Aust Dig Evidence [1228]

REPRESENTATION:

Counsel:
             Appellant:  C Gunson
             Respondent:  D G Coates SC, S Nicholson
Solicitors:
             Appellant:  Fitzgerald and Browne Lawyers
             Respondent:  Director of Public Prosecutions
Judgment Number:  [2016] TASFC 8
Number of paragraphs:  119

Serial No 8/2016
File No 592/2015

BRADLEY JOHN CHAPLIN v SERGEANT RICHARD LANE

REASONS FOR JUDGMENT FULL COURT

TENNENT J
WOOD J
ESTCOURT J (Dissenting)
28 September 2016

Order of the Court

Appeal dismissed.

Serial No 8/2016
File No 592/2015

BRADLEY JOHN CHAPLIN v SERGEANT RICHARD LANE

REASONS FOR JUDGMENT  FULL COURT
  TENNENT J
  28 September 2016

This is the second appeal to the Full Court in this matter. Bradley Chaplin (the appellant) was convicted by a magistrate in 2013 in relation to the death of a 13-year-old girl, Ashley Edmonds (Ashley), which he caused when he collided with her after she alighted from a school bus. He successfully sought a review of that decision by a single judge of this Court and his conviction was quashed. That review was dealt with by Blow CJ. His Honour dealt with only one of the grounds of review because it was not thought necessary at the time, having regard to the outcome of his consideration of the ground dealt with, for his Honour to deal with the other grounds.
However, the State appealed his Honour's decision successfully. That left outstanding the remaining grounds of review. In the circumstances, the order made by the Full Court could only be one quashing the order of Blow CJ. The matter was then remitted to his Honour to deal with the remaining grounds of review. The remaining grounds of review with which his Honour had to deal were as follows:
"2The learned magistrate erred in law by impermissibly arrogating to herself the role of accident reconstruction expert.
3The trial miscarried in that the learned magistrate:
a determined the charge of negligent driving causing death on a basis not advanced by the prosecutor at trial, namely that had the applicant been driving at 40 kilometres per hour from 50 metres before the school bus the deceased would have safely crossed the road
b denied the applicant procedural fairness by failing to inform the applicant that she was considering determining the charge of negligent driving causing death on a basis other than that advanced by the prosecutor at trial."
On 26 May 2015, Blow CJ determined that neither of the remaining grounds of review was made out, and dismissed the motion to review. The practical effect of that judgment was that the conviction of the appellant by the magistrate stood. The appellant now appeals the May 2015 decision of the Chief Justice. The grounds of appeal are in the following terms:
"1The learned Chief Justice erred in law by ruling that the learned magistrate did not impermissibly use personal knowledge or expertise that she possessed in determining the issues between the appellant and the respondent thereby arrogating to herself the role of accident reconstruction expert.
2In the alternative to ground 2, if the learned magistrate was entitled to take judicial notice of the speed at which people walk the learned Chief Justice erred by in law by:
a failing to rule that such knowledge did not fall within the scope of s144(1) of the Evidence Act 2000; and
b if it did that the learned magistrate had failed to comply with the requirements of s144(4) of the Evidence Act and thus the appellant has been denied procedural fairness and been unfairly prejudiced.
3The learned Chief Justice erred in law by failing to rule that the trial before the learned magistrate miscarried in that the learned magistrate:
a    determined the charge of negligent driving causing death on a basis not advanced by the prosecutor at trial, namely that had the appellant been driving at 40 kilometres per hour from 50 metres before the school bus the deceased would have safely crossed the road;
b    denied the appellant procedural fairness by failing to inform the appellant that she was considering determining the charge of negligent driving causing death on a basis other than that advanced by the prosecutor at trial.
4The learned Chief Justice erred in law by failing to provide adequate reasons in finding that the 'learned magistrate gave the parties a fair hearing' and that the parties' 'rival cases were well presented' in light of:
a    the fact that the prosecutor did not seek to rely on the reasoning ultimately adopted by the learned magistrate;
b    the fact that the prosecutor did not adduce evidence or otherwise conduct the case to support a case consistent with the reasoning ultimately adopted by the learned magistrate;
c    the facts, as disclosed in the affidavit of Roland Alexander Browne sworn 14^th April 2014, that:
i     prior to the trial before the learned magistrate the prosecution case included an allegation that had the appellant slowed to 40 kilometres per hour 50 metres before the school bus the deceased would have safely crossed the road; and
ii     before trial the prosecutor abandoned a case based upon that reasoning;
d    the fact that the prosecutor did not adduce any evidence in support of a case that had the appellant slowed to 40 kilometres per hour 50 metres before the school bus the deceased would have safely crossed the road;
e    the fact that as a consequence of the conduct of the prosecution case the appellant did not adduce any evidence to meet an allegation that had the appellant slowed to 40 kilometres per hour 50 metres before the school bus the deceased would have safely crossed the road; and
f     the fact that the prosecutor objected to the tender by the appellant of an expert accident reconstruction report prepared by Mr John Ruller to the extent that such report addressed matters relevant to an allegation that had the appellant slowed to 40 kilometres per hour 50 metres before the school bus the deceased would have safely crossed the road."

Grounds of appeal generally

When he commenced his oral submissions, counsel for the appellant indicated that ground 1 in the notice of appeal was not pressed with any seriousness. He submitted that it morphed into ground 3, that relating to procedural fairness, which he indicated was the appellant's strongest ground. He also submitted that ground 2 fell effectively within ground 3, although Estcourt J pointed out in the course of argument that that may not necessarily be so because of the mandatory nature of s 144. Ground 4 was neither seriously pressed nor abandoned. Counsel effectively addressed his submissions to grounds 1 and 3.
Before dealing with the grounds of appeal, counsel for the appellant pointed out that a report by expert Mr Ruller, while in its entirety in the appeal book, was not tendered in that form. Paragraphs 14, 15, 16, 18, 20 and 21 were not admitted into evidence.
The complaints raised by grounds 1, 2 and 3 have their genesis in the process undertaken by Magistrate McTaggart at [109] to [125] of her reasons. Her Honour said under the heading "Conclusion as to Causation":
"109 Mr Allen submitted that it would be perverse to find that the only cause of the collision was Ashley failing to give the defendant sufficient time to react in view of the circumstances of this case and the well-known reasons drivers are required to exercise extra caution in areas known to contain children. I agree with this submission.
110 In my view the defendant's negligence in travelling at approximately 80km/h within 50 metres of the bus is a substantial and operative cause of the collision and thus Ashley's death.
111 From at least 500 metres away, probably farther, Mr Itchens waved on two occasions to signal the defendant to slow down. As discussed, the waving could only have been intended as a warning that schoolchildren were still alighting from the bus. If the children had already alighted and had crossed the road and the bus was pulling out to leave, there would be no need for hand signals.
112 The rationale for the speed limit of 40km/h near a school bus displaying a warning sign and warning light signifies to approaching drivers that special caution is needed as school children are likely to be in the vicinity. It is well known that the movements of children near roads may be unpredictable and that they may emerge quickly onto the road without proper lookout for vehicles.
113 For a period of time and within a certain area, when a school bus is stopped on a road with lights activated and children alighting, a potential hazard exists. That hazard involves the possibility of passing vehicles striking children entering or alighting from the bus. Parliament has seen fit to address this potentially hazardous situation by requiring a maximum speed of 40km/h within 50 metres of a school bus displaying lights and a warning sign. Within this 50 metre zone a vehicle travelling at 40km/h has a greater capacity to stop if necessary in the event of a child's presence on the road. In some cases, such as the present, approaching this hazard zone at the prescribed speed will allow the hazard to safely pass.
114 On the facts of this case, the defendant either saw or ought to have seen the driver of the bus using a clear arm signal and the stationary school bus with its lights flashing. He should have decelerated from the speed limit of 100km/h to ensure that he was travelling no more than 40km/h within 50 metres of the bus. He had ample time to see the school bus. He was familiar with the fact that the bus would be dropping children off. He knew the area and the fact that Karanja Court was the place where the children would live. There were no houses on the side on which the school bus was parked and there was an obvious likelihood in those circumstances that children would cross the road. There was some evidence about the extent to which a driver in the defendant's position may have perceived that this school bus was moving off. Mr Itchens said he was only just starting to move off. I find that any movement of the bus at that point was imperceptible. In any event, Mr Itchens' hand signals had only ceased shortly before he sat back down in the bus. There was nothing else to distract the defendant apart from the school bus. An ordinary prudent driver would have focused on the bus from a distance of several hundred metres away where it was visible on the straight and then have kept a close eye on it whilst reducing speed.
115 That reduction in speed in this case should have occurred from the time when Mr Itchens' hand signal was first visible. If the defendant had been driving as an ordinary prudent driver, driving the only vehicle in the vicinity of a school bus with flashing warning lights where children are expected to cross the road to go to their house, his driving actions from the first time the bus was visible should have been focused towards exercising the caution necessary in these circumstances. Instead the only action taken was to decrease his speed apparently from a speed around the speed limit of 100 to 80km/h. The purpose of slowing in this case was for safety and to allow the hazard period to elapse. By entering the area at a speed twice the speed prescribed by law, he put himself into the area and time zone of the potential hazard. In doing so, the hazard that both Mr Itchens and the regulations were contemplating materialised.
116 As discussed, if the defendant had been driving as the ordinary prudent driver, instead of travelling at speed into that zone, the hazard of Ashley crossing the road suddenly would have been allowed to pass - this was clearly the intention of Mr Itchens in waving from a long distance. As noted, it may have taken Ashley only a little more than half a second to a second, bouncing quickly, to reach a point just over the centreline of the road. She was travelling at a fast pace. It can reasonably be conservatively assumed that a completed road crossing whereby she would need to travel somewhere under 3 metres across most of the eastbound lane, would have taken another 2 seconds or so.
117 If the defendant had exercised caution by decreasing his speed when overwhelmingly the circumstances signalled the need to ensure at least that he decelerated to enter the 50 metre area at a speed of 40km/h, there is no question that the collision would not have occurred.
118 The defendant's actions in driving negligently are therefore directly causative of Ashley's death. Ashley's failure to look out for vehicles travelling in the direction of the defendant's vehicle was also most significantly causative of her death.
119 In my view the defendant's driving actions when approached in this way can clearly be seen to be a direct cause of Ashley's death, and a substantial contributing cause notwithstanding Ashley's own contribution in running onto the road closely in front of the defendant's vehicle. Such an approach to causation is a common sense approach to the facts as found, whilst firmly bearing in mind that the Court is attributing responsibility in a criminal matter.
120 In my view this approach does not contain any error of simply looking backward to identify what would have avoided the accident. See Mobbs v Kain (supra) per Giles J at para 5. In that case both Giles JA and McColl JA both cautioned against the approach of reasoning using the "but for" test of causation. At paragraph 20 Giles JA stated:
'20 D being at the spot at the time was not in law a cause of the accident. Even if the second appellant had been driving more slowly, the respondent would have collided with the side of his motor vehicle. Driving at 40 kilometres per hour was a "but for" cause, whereby the second appellant's motor vehicle was where it was. But any negligence in driving at an excessive speed "cannot be assigned as a cause of the accident".
21 One may postulate that the second appellant had driven at an unsafe speed fifteen minutes earlier, or had driven contrary to a red light at an intersection a few kilometres before coming up to the bus, and that his motor vehicle would not have been where it was but for the failure to drive reasonably. I do not think it could be suggested that there would be causation in law. Indeed, the second appellant's motor vehicle would not have been where it was had he sped past the bus at 100 kilometres per hour: cf Draxton v Katzmarck (1938) 280 NW 288 (Minn), cited in Hart and Honoré, Causation in the Law, 2^nd ed. (1985) at 122 in considering the American courts' rejection of causation where the accident would not have happened but for earlier speeding. So in the present case, the fact that the second appellant's motor vehicle would not have been where it was at the time the respondent ran out, had he slowed to below 40 kilometres per hour before reaching and while passing the bus did not, in the present case, make out causation in law.'
121 However, the facts of the present case can be clearly distinguished. The defendant was travelling at double the prescribed speed for the zone, not the prescribed speed; and the negligent driving of the defendant was through the very portion of road where Mr Itchens was trying to slow the defendant's approach to allow time and maximise safety of the alighting children. The defendant's act of negligent driving is not part of the history of events but an integral part of causation.
122 Ashley's act in running out onto the road in very close proximity to the defendant's approaching vehicle made it impossible for the defendant to stop but did not break the chain of causation. Simply put, had the defendant reacted in his approach by slowing as the prudent driver would have, Ashley would have had time to safely cross the road.
123 The defendant was at least required to be travelling at 40km/h for a distance of 60 metres before the collision, being the prescribed 50 metre distance together with the length of the bus. At 40km/h instead of 80km/h, in this zone alone he would have allowed Ashley a further 2.7 seconds to cross the road. Added to this period of time would be, at the very minimum, the additional time for deceleration from 80km/h to 40km/h before reaching the prescribed zone. Clearly this would have been another several seconds. As stated the prudent driver would have, in any event, slowed well before the legal requirement to do so.
124 Thus Ashley would have safely crossed the road, had the defendant not deprived her of that opportunity by his speed that was twice the prescribed limit at the time of the collision. I am satisfied beyond reasonable doubt that the defendant's negligent driving caused Ashley's death.
125 I add that my conclusion on causation is not affected by whether the parking of the bus near a crest in the westbound lane was also "a cause" of Ashley's death. Mr Ruller stated that the position of the bus was dangerous, and gave reasons for his opinion. Mr Itchens gave detailed evidence about why he parked the bus in that position and the processes leading to his decision. The fact remains that the bus was visible to an approaching driver for a lengthy distance. It was not parked illegally. Drivers often encounter situations that are not ideal, and must respond appropriately. I doubt that in the context of the authorities discussed it could be said that the parking of the bus could be a cause of Ashley's death, as opposed to a fact that was simply part of the circumstances that a driver was required to meet. Even if it was a cause of the death, the defendant's driving remained a substantial cause for the reasons given."
The reasoning set out above was the subject of the first successful appeal by the State in that Blow CJ found that the decision in Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179, referred to in [120] above, was authority for a certain proposition, was binding on the learned magistrate and she had impermissibly reasoned by reference to that decision. The Full Court disagreed, and overturned his Honour's decision in that regard. While the grounds pursued in this appeal relate to the same reasoning, the nature of the complaint is, to an extent, different.
Her Honour’s remarks in the paragraphs identified above should not be considered in isolation. In the paragraphs which preceded those, her Honour, under the heading "Causation", said the following:
"84 A major focus of the evidence was whether the defendant, if travelling at 40km/h and keeping a proper lookout, could have avoided the collision.
85 Two facts are particularly important in determining this question: the time taken by Ashley to emerge from the back of the bus to the collision point; and, related to this, the position of the utility when Ashley was first able to be seen.
86 The Court is unable to make any precise findings of fact on either matter.
87 The prosecution submission is that it would have taken at least one second from the time she emerged from behind the back of the bus to the point where she was struck. However, it is by no means clear that this is the case. The portion of the bus occupying the road was 1.59 metres, leaving about 1.51 metres between the extreme right hand side of the bus and the centreline of the road. There needs to be added to that distance the very small distance that Ashley travelled over the centreline of the road before she was hit. That cannot be exactly determined on the evidence available. It may be as little as 20 or 30 centimetres, or possibly even less. This very small distance added to the distance of 1.51 metres then represents the distance over which Ashley would have been visible to the defendant.
88 I am able to find that Ashley was moving very quickly. The evidence ranged from descriptions of Ashley bouncing along, to running, to a very fast walk. I find that when Ashley stepped into the defendant's field of vision from behind the bus she did not look to her left for vehicles approaching in the direction of the defendant's vehicle. She did not stop but maintained a fast line. The evidence suggests that she had already built up momentum before emerging from behind the bus.
89 Travelling at a fast pace, to cover such a very short distance must have taken only the briefest of moments. The evidence from Ms Bricknell and witnesses generally, including the statement made by the defendant, was that it was a 'split-second' between Ashley stepping on to the roadway and the occurrence of the collision.
90 On the evidence, I am not able to determine the exact point on the vehicle that first struck Ashley. However, for the reasons that follow, this case is not in the category of cases that are referred to in the authorities where such a contact point is of crucial importance. Some eye witness evidence was to the effect that the impact to Ashley was at the front corner of the utility. There were also arguments presented by Sergeant Carrick that the first point of impact was the front corner of the vehicle. He formed such opinion because an examination of the vehicle revealed that there were markings on the wheel arch, and also that the height of the wound to the side of Ashley's leg coincided with the bumper height of the utility. Further, Sergeant Carrick stated that he had not been to a pedestrian collision where a side impact had resulted in a broken bone. Although the latter opinion may have some weight, I accept that it encroaches into the specialised area of bio- mechanics in which Sergeant Carrick does not have specialist qualifications.
91 The defendant told Mr Wellings that Ashley was struck by his side mirror. The evidence given by Ms Bricknell was also to this effect. I accept that in the short period of time that the witnesses had for viewing, the evidence as to the exact impact point on the vehicle may not be reliable. This is particularly the case where the distance between the front corner of the utility and the side mirror is a small one. Whilst prosecution and defence argued for front impact and side impact respectively, neither party provided reasons why such a finding would significantly assist their case.
92 Neither point of impact in my view is determinative of speed, lookout or causation. For this reason a finding as to the point of impact on the utility is not necessary or able to be made in this case. I note that Mr Ruller formed the view that, as there were no traces of skin around the front corner of the utility, the first contact point was likely to be the area of the side mirror. Sergeant Carrick's opinion is also persuasive. I am not able in light of the differing expert views and eye witness accounts to find where Ashley initially impacted with the utility.
93 Ashley was hit by the vehicle whilst the defendant was still travelling within his own lane. However as demonstrated by the point of the glass shatter pattern and the evidence of the witnesses she had not moved a long way over the centreline at the point of being hit. No more precise finding can be made as to the point of impact.
94 I am also not able to find the exact position of the defendant's vehicle at the point Ashley first became visible as she emerged from the rear of the bus.
95 The evidence of both experts dealt with minimum stopping distances and perception reaction times in respect of a vehicle travelling at the speed of 80km/h and 40km/h respectively. Both experts indicated a range of perception reaction times from .75 seconds, 1.6 seconds and 2.5 seconds, depending upon whether the hazard was 'foreseen' or 'unforeseen'.
96 I will assume, as an example and for the purposes of possible calculations that Ashley, if she was travelling at say a brisk walking pace of 6.5km/h, could have traversed the distance between the corner of the bus on the point of impact (using for example a distance of 1.8 metres) in one second. It is very clear that a vehicle travelling at 80km/h, having only one second to react to the presence of Ashley on the road, would not be able to avoid the collision. This is because the perception reaction time, if it exceeds one second, has not elapsed for the purpose of evasive action being taken. The utility would have been 22 metres away from the collision point when Ashley came into vision. The expert evidence is that the minimum stopping distance is 63.5 or 44.9 metres, using 1.6 seconds and 0.75 seconds respectively as perception reaction times.
97 Similarly, a vehicle travelling at 40km/h, that is, travelling 11.11 m/s, would require 24.9 metres as the total minimum stopping distance.
98 At 40km/h, even using the perception reaction time of 0 .75 seconds, the minimum stopping distance was 15.4 metres.
99 I would determine that, on the basis of the circumstances and the evidence of both experts that 1.6 seconds would be a reasonable reaction time to apply in this case. This is a criminal case. I am mindful that even though it could be said that the presence of children should be a foreseen hazard in these circumstances, the reality is that there was no child in sight at all that a driver could see and anticipate. Mr Itchens had stopped waving and was seated in the bus. Individual driver circumstances also must be taken into account. It reasonable to accept 1.6 seconds as appropriate as the perception reaction time to apply when calculating stopping distances.
100 At 20km/h the stopping distance upon my own calculations (because they were not given in evidence) would appear to be 10.65 metres using a perception reaction time of 1.6 seconds. Using a perception reaction time of .75 seconds the minimum stopping distance would be 5.93 metres. I have calculated these distances on the basis that the two experts told the court that the effect of doubling the speed of the vehicle causes the corresponding minimum stopping distance of that vehicle to quadruple.
101 Whether the defendant could have stopped his vehicle in time to avoid the collision depends of course upon how fast he was travelling and exactly where the utility was at the point that Ashley first became visible as she emerged from behind the back of the bus.
102 For this evidence the court must assess the evidence of the witnesses. Mr Itchens was looking in his side mirror as he was preparing to pull the bus out when he saw the defendant's vehicle go past. He then saw Ashley run, seeing her legs; and then within a split second there was a collision with a loud thudding noise.
103 On the evidence of Mr Itchens the utility had travelled past Mr Itchens' position in the bus just before or at approximately the same time that Ashley ran out from behind the bus. It is very difficult to say that Mr Itchens' evidence could be the basis for an exact finding as to the position of the utility at the point when Ashley became visible to the defendant. Ms Bricknell was in a better position to assess the position of the utility. She stated that the utility was at the front of the school bus when Ashley stepped onto the roadway. Mr Banks-Smith, the passenger, stated that the utility was at the back of the bus when Ashley stepped out from behind it. Mr Banks-Smith I find had a tendency, understandably, to minimise the culpability of the defendant, including the defendant's speed at the time of the collision. However I accept that all witnesses have given evidence that the utility was close to the school bus when Ashley ran out.
104 The witnesses were asked to recount a traumatic event and it is quite understandable that they may not be able to give an accurate distance or answer to this question. If, for example, the defendant was travelling at 80km/h and it took Ashley one second to emerge from the bus to the point of the collision, the utility would have been 22 metres from the collision point when Ashley became visible. This is approximately double the distance of the bus, but from the point of view of witnesses it may well have looked as they described.
105 Equally if Ashley had been moving faster than a brisk walk, at say 10km/h then Ashley would have taken only 0.67 seconds to move from being visible to the point of collision. A vehicle travelling 80km/h would have been 14.88 metres away from the collision point when Ashley became visible. These types of figures were quite properly not the subject of evidence, and I am using them as guidance only to form the conclusion that the witnesses generally were correct in perceiving that Ashley stepped out quickly when the utility was in close proximity to the bus.
106 If the defendant had been travelling at 40km/h, and assuming again that Ashley took 0.67 seconds to move from being visible to the point of collision, the utility would have been 7.44 metres away when Ashley was first visible. Using the 1.6 second perception reaction time, the stopping distance required is 24.9 metres.
107 As submitted by defence counsel the prosecution case is not that had the defendant been driving at a lower speed, (even though the defendant could not avoid the accident), Ashley would not have died. He submits that the evidence would not permit such a finding in any event. Mr Ruller's evidence was that a collision at 40km/h would most probably have resulted in Ashley's death. Sergeant Carrick was less certain. Overall, I accept that the evidence in this regard is equivocal and the court cannot be satisfied that Ashley would not have died had the defendant been driving at approximately 40km/h.
108 Ultimately, the prosecution case does not establish that if the defendant was travelling at a speed of 40km/h when Ashley appeared from behind the bus, that Ashley would not have died."

Ground 2

It may be useful to deal with this ground first, even though it is said in effect to be an alternative ground. This ground raised a complaint by reference to the Evidence Act 2001, s 144(1). That section provides:
"144     Matters of common knowledge
(1)   Proof is not required about knowledge that is not reasonably open to question and is —
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2)   The judge may acquire knowledge referred to in subsection (1) in any way the judge thinks fit.
(3)   The court, including the jury if there is a jury, is to take knowledge referred to in subsection (1) into account.
(4)   The judge is to give a party any opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced."
The ground asserted that what the learned magistrate did was take judicial notice of the speed at which people walk, and that Blow CJ failed to rule such knowledge did not fall within the scope of s 144 and, if it did, failed to determine that the magistrate had not complied with s 144(4) and thereby denied the appellant procedural fairness.
Section 144 does not use language which includes the term "judicial notice". It talks of matters of common knowledge. If a particular piece of knowledge complies with the requirements set out in s 144(1), then proof is not required of it. If a judicial officer intends to rely on such knowledge, he or she is required to give a party to proceedings an opportunity to make submissions in accordance with s 144(4).
It must follow from the wording of the section that, if a judicial officer draws a conclusion or conclusions from evidence before him or her, the section has no application. The application of the section is predicated upon there being knowledge about which there was no formal proof.
At [4]–[14] of his reasons, Blow CJ dealt with the ground of review numbered 2 set out in [2] of these reasons. That ground had nothing to do with any complaint arising from the application of, or failure to apply, s 144. His Honour was dealing with what is effectively now ground 1 in the appeal against his decision. His Honour said at [11]: "At [88] of her reasons, the learned magistrate made a finding that the girl was 'moving very quickly'. That finding was supported by evidence and has not been challenged in these proceedings."
Then at [12], his Honour set out [123] and [124] of the learned magistrate's reasons (set out at [6] of these reasons). His Honour then said at [13]:
"13 It is implicit in this reasoning that the learned magistrate took judicial notice of the sort of pace at which an individual travels when 'moving very quickly'. There is nothing to suggest that, at this point in her reasons, she assumed any particular speed on the girl's part. Earlier in her reasons, in the passage that led to the finding favourable to the applicant, she assumed, at [96], for the purpose of a calculation, that the girl was 'travelling at say a brisk walking pace of 6.5km/h'. Later in that part of her reasons, at [105], she assumed for the purpose of another calculation that the girl 'had been moving faster than a brisk walk, at say 10km/h'. However there is no reason to infer that she assumed that the girl was travelling at any particular speed for the purpose of the finding made at [124]."
It is perhaps unfortunate that his Honour used the term "judicial notice" at all because it raised the spectre of s 144. Counsel for the appellant submitted that:
"In this case Blow CJ found at [13] (AB 627) that it was implicit in the reasoning that the learned magistrate took judicial notice of the sorts of pace at which an individual travels when 'moving very quickly'. Such speeds were not the subject of evidence, but would have been, and would have been controversial had the prosecution case been in conformity with the reasoning of the learned magistrate. As such the evidence of such speeds was the type of evidence that the Full Court of the Family Court has identified as falling outside the scope of s144. In any event, it is submitted that the paces at which people move cannot be said to be 'knowledge that is not reasonably open to question' and does not otherwise fall within s144(1)(a) or (b)." (Footnotes omitted.)
The decision of the Full Court of the Family Court to which counsel referred was that of McGregor v McGregor (2012) 47 Fam LR 498. In that case the judge at first instance relied on a number of articles about the issue of alienation of children by one parent from another. None was in evidence before the court and neither party had any opportunity to make submissions about their impact. The court gave a number of examples of situations where matters could not be the subject of common knowledge and then said at [71]:
"A more recent example is in Mains & Redden [2011] FamCAFC 184 which involved consideration of whether administering a number of conventional and almost universally administered vaccinations of children against a variety of conditions was in the child's best interest. The conflict of expert opinion evidence in relation to the benefits and risks of immunisation precluded any prospect of the Court taking ‘judicial notice’ under s 144 of the Evidence Act. If an issue in proceedings is controversial, it is almost inevitable that there will be differing credible expert opinions in relation to it and demonstrably it would not fall within the operation of s 144."
Counsel for the appellant concentrated in his submissions upon the last sentence in that paragraph and not the context in which the comment was made. It was made in the context of a summary of cases where there was conflicting expert evidence about a particular issue. In the present case, that was not the situation. The complaint here is that there was no expert evidence at all about a particular issue.
Counsel for the appellant then made further submissions about the obligations of trial judges to give parties an opportunity to make submissions. He referred to Director of Public Prosecutions v Gramelis [2012] NSWSC 787 and a passage from the decision of Price J at [51] where it was said:
"51 The requirements of s 144(4) are directed at ensuring that the parties are accorded procedural fairness where matters of common knowledge are to be acquired or taken into account. A judicial officer is obliged to give a party such opportunity to make submissions and to refer to relevant information as is necessary to ensure that the party is not unfairly prejudiced. Her Honour was required to raise with the prosecutor her intention to take judicial notice. Should she have done so, the prosecutor might have submitted that it would be inappropriate to take 'judicial notice' of the speed of 'average cars' travelling in second gear on the question of whether the defendant's Isuzu truck was able to reach a speed in excess of 40 km/h on The Northern Road Luddenham under the prevailing conditions. The prosecutor might also have sought an adjournment to enable consideration to be given to calling expert evidence."
That was a review of a magistrate's decision where the magistrate said judicial notice was being taken of a particular fact. I do not cavil with the statements made in the above passage as to the impact of s 144. However, the facts of that case were very different from those here.
All of counsel's submissions were predicated upon an acceptance that the learned magistrate did take judicial notice of the speed at which a person might walk quickly, relying on Blow CJ's characterisation of what her Honour did. With respect, I do not agree with that characterisation, and what is needed is firstly to determine whether her Honour did take judicial notice of anything absent evidence about it, or whether she drew a conclusion from the evidence before her. If it were the latter, s 144 does not apply.
At [95]–[100] of her reasons, the learned magistrate dealt with evidence of the experts at the hearing about perception times and stopping distances. At [96], her Honour said, in the course of dealing with that evidence:
"I will assume, as an example, and for the purpose of possible calculations that Ashley, if she was travelling at say a brisk walking pace of 6.5km/h, could have traversed the distance … ."
Her Honour then said at [105]:
"105 Equally if Ashley had been moving faster than a brisk walk, at say 10km/h then Ashley would have taken only 0.67 seconds to move from being visible to the point of collision. A vehicle travelling 80km/h would have been 14.88 metres away from the collision point when Ashley became visible. These types of figures were quite properly not the subject of evidence, and I am using them as guidance only to form the conclusion that the witnesses generally were correct in perceiving that Ashley stepped out quickly when the utility was in close proximity to the bus."
Her Honour then later moved to her conclusions in [123] and [124].
Her Honour's conclusions in those later paragraphs relate to the reaction and stopping times and not to the speed at which Ashley was walking. Her Honour did not conclude for the purpose of those paragraphs that Ashley was walking at any particular speed. I do not accept in the circumstances the characterisation of the Chief Justice that her Honour implicitly took judicial notice of the sorts of paces at which an individual travels very quickly. The only finding her Honour made about speed of walking was at [88] which the Chief Justice noted was open to her on the evidence and was not challenged. Otherwise, her Honour specifically indicated that:
"These types of figures were quite properly not the subject of evidence, and I am using them as guidance only to form the conclusion that the witnesses generally were correct in perceiving that Ashley stepped out quickly when the utility was in close proximity to the bus."
I am not persuaded in the circumstances of this case that her Honour took judicial notice of the speed at which people walk (in the context of s 144), and that Blow CJ was required to rule on anything arising under that section.
This ground should in my view fail.

Grounds 1 and 3

The submissions by counsel for the appellant as to these grounds were intertwined. In relation to the material in [109]–[125], counsel for the appellant submitted that what the learned magistrate did in those paragraphs was embark on what was effectively a time and motion reconstruction of the accident, with an ultimate finding that, had the appellant slowed to 40km/h 50 metres before his vehicle reached the bus, Ashley would have safely crossed the road. Counsel submitted that was not the subject of expert evidence at the hearing, and that reasoning process could only have been adopted by reference to expert evidence.
Counsel further submitted that her Honour determined the guilt of the appellant on a basis not advanced by the prosecutor at trial and denied the appellant procedural fairness by, in effect, doing that without warning the appellant.
As to ground 1 on this appeal, there is no dispute that, as Blow CJ said at [7] in his reasons:
"It is well established that a judicial officer may not use expert knowledge that he or she happens to possess for the purposes of determining a matter in dispute."
His Honour noted the principle was discussed by Wells J in Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 and extracted the relevant passage in the same paragraph of his reasons. His Honour also noted that the passage was cited with approval in Blackley Investments Pty Ltd v Burnie City Council (No 3) [2013] TASFC 12, 198 LGERA 80.
Counsel for the appellant, relying on the above authorities, submitted that, by adopting the methodology she did, the learned magistrate did more than merely adjust the evidence of expert witnesses, she impermissibly arrogated to herself the role of expert witness.
With respect, I disagree and adopt the reasoning of the Chief Justice at [9]–[14] (save and except his Honour's characterisation of what the learned magistrate did in the first sentence of [13]) of his decision. Ground 1 should in my view fail.

Ground 3

The Chief Justice dealt with the issue, the subject of this ground, at [15]–[23] of his reasons. He said:
"15Ground 3 reads as follows:
'3 The trial miscarried in that the learned magistrate:
adetermined the charge of negligent driving causing death on a basis not advanced by the prosecutor at trial, namely that had the applicant been driving at 40 kilometres per hour from 50 metres before the school bus the deceased would have safely crossed the road;
bdenied the applicant procedural fairness by failing to inform the applicant that she was considering determining the charge of negligent driving causing death on a basis other than that advanced by the prosecutor at trial.'
16    At the hearing before the learned magistrate, the prosecution decided not to rely on the reasoning that the learned magistrate subsequently used as the basis for her finding that the charge was proven. Sgt Carrick had written a report that included a comment to the effect that, in the 5.5 seconds that it would have taken the applicant to travel 61.1 metres at 40Km/h, the girl would have run 2.5 metres and would have been well across the road, so that the crash would not have occurred. However that passage was deleted from his proof, and he did not give evidence to that effect.
17    In an opening speech, the prosecutor, Mr Allen, told the learned magistrate:
'I don't intend to rely on an analysis that suggests that the outcome would have been different if things had been done differently or that type of evidence.'
18    The applicant contends that it was impermissible for the learned magistrate to find the charge proven on the basis of reasoning that, if he had been travelling at 40Km/h from a point 50 metres away from the bus, there would have been no accident, because that reasoning was not relied upon by the prosecutor. In the alternative, the applicant contends that, if such reasoning was permissible (which is not conceded), then the learned magistrate's duty of procedural fairness obliged her to invite submissions about that reasoning before relying upon it.
19    There is no general rule prohibiting a tribunal of fact from adopting a line of reasoning that has not been urged upon it by any party.
20    There are many reported cases about criminal jury trials that have miscarried as a result of a trial judge suggesting a new basis for conviction after the closing speeches of counsel to the jury. Some of those cases have involved the introduction of a completely different basis of criminal liability. For example, in R v Pureau (1990) 19 NSWLR 372, the trial judge introduced the possibility of the jury finding the accused guilty of attempting to commit the crime charged, when that possibility had not been mentioned in counsel's closing speeches and the trial judge had given them no warning that that alternative would be left to the jury. Other cases have involved the presentation of new arguments in circumstances where unfairness has resulted. See Carr v The Queen (2000) 117 A Crim R 272 at [43]-[48].
21    This is not a case in which the finding of guilt was based on a source of criminal liability that was not relied upon by the Crown. As the Full Court has held, it was open to the learned magistrate on the evidence to reason as she did. It follows that, unless it was unfair for the learned magistrate not to invite counsel to address her in relation to the reasoning that she was thinking of adopting, her reliance on that reasoning is unimpeachable.
22    The law as to procedural fairness in this situation is as stated in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369, where Lord Diplock said:
'Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by the parties, the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.'
23    The learned magistrate gave the parties a fair hearing. Their rival cases were well presented. Her Honour was not obliged to disclose what she was minded to decide in order to give the parties a further opportunity of criticising her mental processes before she reached a final decision. The reasoning that she adopted was open to her, as the Full Court has held. Courts of summary jurisdiction would cease to function if the rules of procedural fairness were held to require magistrates to discuss every possible line of reasoning in a case before making a decision. In my view it has not been demonstrated that the learned magistrate failed to discharge her duty of procedural fairness. Ground 3 must therefore fail."
His Honour did not explicitly determine whether the learned magistrate's approach to causation was inconsistent with the prosecution case. It can perhaps be inferred from his remarks at [16] and [17] of his reasons that he did. Nevertheless, he proceeded on the basis that it was inconsistent, because he then dealt with the question of whether the appellant had been denied procedural fairness.
Before this Court, counsel for the appellant submitted that the learned magistrate's approach to causation formed no part of the prosecution case, and no evidence was adduced to support it. He submitted that he specifically cautioned the learned magistrate against adopting such a line of reasoning and the prosecutor did not cavil with his submission. Counsel's "caution" to the learned magistrate appeared at page 454 of the transcript of the relevant proceedings. Counsel said the following:
"MR GUNSON: Yep. Yep. But that's their case. And I just do observe Your Honour that it's not the prosecution case, and I caution against this kind of reasoning, it's not the prosecution case of saying oh well if you move the ute further out away from the bus and slow him down then there would have been a greater time for the perception reaction time to apply and therefore he could have avoided the accident. What you've got to deal with is the accident as it occurred and not do some form of backwards reconstruction to try and move players around to avoid an accident to find negligence."
These remarks followed an exchange between counsel and the learned magistrate when counsel was making submissions about the evidence of Sergeant Carrick as to reaction times and the position of the appellant's utility in relation to the bus.
The remarks of counsel, with respect, appear to be a reference to the issue of "hindsight" reasoning which was the subject of the first appeal before this Court. The Court specifically concluded that her Honour did not engage in such reasoning and that her Honour's reasoning was unimpeachable.
Counsel for the State, on the other hand, submitted that the learned magistrate's findings as to causation were not contrary to how the prosecution put its case. He said it was the defence who wished to limit the causation issue to just before the point of impact. Counsel set out, in his written submissions, the submissions made by the prosecutor at the close of the evidence before the learned magistrate as to causation. They were as follows:
"31 Prosecution must establish that the negligent driving of the defendant was a substantial cause of the death of the deceased. Defence has argued in this case, that other factors are in fact the cause of the accident, such as:
i)The apparent failure of Ashley to take care for her own safety when crossing the road;
ii)The failure of the bus driver to park the bus in another, arguably safer, location;
iii)That because the defendant did not have sufficient time to react, the collision was beyond his control; and
iv)That the outcome for Ashley would most likely have been the same even if the speed of the defendant's vehicle had been 40km/h.
32It is submitted that the defence arguments must be rejected for the following reasons:
i)It is because the defendant was driving in the manner he was, that Ashley died. In the defence case, Mr Ruller's approach was to focus on how 'the child has failed to give the driver time to react'. But this manifestly fails to deal with the obligations of a driver in this situation. It needs to be recognised that by driving past this bus at excessive speed in the circumstances, it was very clearly the defendant who gave himself insufficient opportunity to observe any children who he knew may be present but could not see, and insufficient time to respond to the perceived risk of one or more of those children suddenly entering the road. It is submitted that it would be perverse to find that the only cause of the collision was Ashley failing to give the defendant sufficient time to react in view of the circumstances of this case and the well-known reasons drivers are required to exercise extra caution in areas known to contain children.
ii)The location of the bus in determining the negligence charge on this complaint is an irrelevant consideration. It was legally stopped on a public road with its warning lights flashing. This required a response from passing motorists; that being that they firstly slow to a legislated maximum of 40km/h and then drive in a manner to enable them to avoid causing injury to others who may be using the road. The defendant was required to respond to the situation he was presented with, and so it is submitted he cannot rely on an argument that the bus could or should have been somewhere else.
iii)It is conceded that the defendant did not have time to react to Ashley's presence on the road. But this does not lead to a conclusion that he did not cause the collision. The obligation on the defendant, knowing what he did in the circumstances that he faced, was to drive at a speed to allow him to observe any children in the area and to take evasive action if one suddenly entered the road way. The evidence is that he did neither of those things.
iv)It cannot be either properly or accurately submitted that at 40km/h the outcome would have been the same for Ashley and consequently, that the driving is not a substantial cause of her death. Firstly, as the Court noted in Derrick v Cheung (2001) 181 ALR 301,13:
'Even if the inference which the trial judge drew, that if the appellant's speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care.'
Firstly, consistent with the type of observation made by the trial judge in Derrick and Cheung, Mr Ruller conceded that in general terms and depending on many factors the outcome of a collision at 40km/h might not have been fatal. This is strongly supported by the expert evidence that indicates at a speed of 40km/h, there are very substantial reductions in both minimum stopping distances as compared with a speed of 80km/h, and in the distance covered by a vehicle during any perception-reaction time. Add to that the obvious reduction in force that would be applied to the pedestrian that results from halving the speed of the vehicle. But regardless, the focus in this case should remain on whether the defendant has driven in accordance with the standard of the reasonable and prudent driver.
What it is submitted should be accepted about a speed of 40km/h, is that this represents a maximum legal speed for vehicles to travel at through the relevant area. It does not change the obligation on the reasonable and prudent driver to adopt a speed appropriate to the circumstances he or she is confronted with. As accepted by Mr Ruller, in some circumstances this may involve driving at a speed that is less than the maximum permitted by law.
Moreover, the evidence in this case is that at a speed of 80km/h, even with what Sergeant Carrick regarded as the best perception-reaction time of 0.75 seconds, the defendant needed at least 16 metres before he could even commence any response to the presence of Ashley on the road. With a more generous perception-reaction time of 2.5 seconds he required over 55 metres. By driving at a speed of 22 metres per second the defendant has in fact ensured that he was incapable of providing any response to the materialisation of the perceived risk.
33Ashley Edmonds did not die because she moved out onto the road; she died because when she attempted to cross the road something else happened. She was hit by a passing utility. A utility that was plainly being driven too fast in all the circumstances to avoid hitting her and inflicting fatal injuries. It is submitted that as a matter of common sense, this clearly establishes the driving of the defendant to have been a substantial cause of the collision, and consequently a substantial cause of Ashley's death.
34For the reasons stated, it is submitted that the Court can find beyond reasonable doubt that the defendant did, as alleged, cause the death of Ashley Samantha Edmonds by negligent driving and further, that he did exceed 40km/h within 50 metres of a school bus stopped on a road."
The prosecutor's submissions clearly addressed the basis for negligence found by the learned magistrate at [110] of her reasons where her Honour said:
"In my view the defendant's negligence in travelling at approximately 80km/h within 50 metres of the bus is a substantial and operative cause of the collision and thus Ashley's death."

The ground of appeal does not however focus on that finding, but asserts that her Honour determined the charge of negligent driving on the basis that, had the appellant been driving at 40km/h from 50 metres before the school bus, Ashley would have safely crossed the road. This flows from the learned magistrate's comments at [123] and [124].
Counsel for the appellant submitted that it was essential in this case that, when the parties had conducted the case on a particular basis, the learned magistrate should have given notice of the line of reasoning she intended to adopt which was completely different. He submitted that a judicial officer cannot create a case. To do so undermines the adversarial system under which the case was run and potentially displays a partiality for one side over the other. Counsel referred to some remarks of Dawson J in Whitehorn v The Queen (1983) 152 CLR 657 where his Honour said at 675:
"As Barwick CJ pointed out in Ratten v The Queen (1974) 131 CLR 510, at p 517:
'It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not.'
The means by which a trial judge may ensure the propriety and fairness of a trial do not, however, extend to the assumption of responsibilities which are properly those of the parties. The decision whether to call or not to call witnesses in a criminal trial is a decision for the parties. If the Crown fails to call a witness whom the trial judge considers ought to be called, no doubt he may invite the Crown to reconsider whether the witness ought to be called and if the invitation is declined, and the judge remains of the same view, he may comment upon the failure of the Crown to call the witness. But if the trial judge were to do more, he would place himself in danger of usurping the function of the prosecutor."
That case involved a situation where an accused went to trial on charges of a sexual nature in respect of a young child. The accused confessed in an interview and the prosecution only called the child's mother and the police officer to whom the confession was made as witnesses. There was no explanation for the failure to call the child. The accused resiled from the confession at trial. He was nevertheless convicted, and appealed. The appeal was allowed. One of the issues raised was whether the trial judge should have intervened and told the Crown to call the child or done so himself. That was the context in which the above remarks were made. The issue was not however determinative on the appeal.
Counsel also referred to Robinson v The Queen (2006) 162 A Crim R 88. The appellant in that matter was convicted of murdering a fellow jail inmate. On appeal it was asserted that the trial judge had left a matter to the jury which had not been relied upon by the Crown, that certain directions were inadequate and that the verdict was unreasonable. The appeal was allowed in relation to the first issue. At (3) and (4) of the headnote, the court held:
"(3) The Crown's opening is not merely to outline the facts relied on but also to indicate the basis of the case. Any change to the case after the opening must be clearly identified in the absence of the jury prior to addresses. Deviation from the opening may lead to a miscarriage of justice.
Tran v The Queen(2000) 105 FCR 182; 118 A Crim R 218; R v Tangye (1997) 92 A Crim R 545, discussed.
(4) A trial judge is obliged to leave defences which are reasonably open even if not raised by defence counsel as part of a duty to ensure a fair trial. There is no corresponding obligation in relation to matters tending towards conviction. The fairness or unfairness of going beyond the grounds relied on by the Crown must be evaluated by the judge but it must include considerations of fairness and tactical disadvantage created for the accused. The better course is to raise matters with counsel prior to final addresses and decide directions based on counsels' decisions and submissions. Unfairness leading to miscarriage may arise where the judge advances a basis for conviction for the first time in directions. It has the added difficulty that it comes from the judge, not the Crown. A miscarriage of justice occurred.
R v Solomon [1980] 1 NSWLR 321; 1 A Crim R 247; R v Pureau (1990) 19 NSWLR 372; 47 A Crim R 230; R v RTB [2002] NSWCCA 104; R v Heuston (1995) 81 A Crim R 387, referred to.”
Counsel also referred to Carr v The Queen (2000) 117 A Crim R 272. He then submitted:
"27The learned magistrate should not have convicted the appellant on a basis not advanced by the prosecution at trial, and which was not the subject of evidence, and which was not notified to the appellant. To have done so was prejudicial to the appellant in numerous respects and undermined the impartiality of the learned magistrate. It also fundamentally undermined the appellant's right to a fair trial. Importantly, the appellant lost the right to:
a    cross-examine SGT Carrick in relation to the alternate theory of causation;
b    adduce evidence from Mr Ruller or other witnesses in relation to the alternate theory of causation; and
c    make submissions to the learned magistrate in relation to it."
Counsel then submitted that the creation by the learned magistrate of the alternative theory of causation, not being one advanced by the prosecution, constituted a serious miscarriage of justice and the appeal should be allowed. Additionally, the failure by the learned magistrate to warn the parties prior to determining the matter as she did breached the requirements of procedural fairness.
Not unsurprisingly, counsel for the Crown did not accept that the learned magistrate determined the matter on a basis not put forward by the prosecutor. He submitted that the learned magistrate invited and received comprehensive submissions from both parties as to their respective cases, the learned magistrate had before her a breadth of expert evidence dealing with critical causation issues, and decided the matter on a basis determined as appropriate by the Full Court in an earlier appeal. Counsel for the respondent also submitted that the learned magistrate postulated a theory as to what would have happened had the appellant been driving at the legal limit, but that theory was not determinative as was clear in her words at [124] of her decision.
It must be accepted that a judicial officer should, if he or she intends to introduce to a jury a basis for criminal liability completely different from that advanced by the prosecutor, raise the matter with counsel prior to doing so, and give the parties an opportunity to make submissions, or if necessary lead further evidence.
I am not satisfied that her Honour did raise a basis for criminal liability completely different from that which the prosecutor pursued. She clearly found that the appellant's negligence was travelling at 80km/h within 50 metres of the bus. Her focus in that finding, and in her reasons, was that the appellant was legally obliged to have been travelling at 40km/h 50 metres before the bus. She determined that a reasonably prudent driver would have, as she said in [123] of her reasons, "in any event, slowed well before the legal requirement to do so". That conclusion was not the subject of challenge on this appeal. Her Honour determined that, by failing to reduce his speed as required, the appellant in all the circumstances drove negligently, and that negligence deprived Ashley of an opportunity to safely cross the road.
In those circumstances, there was no obligation in my view for the learned magistrate to foreshadow her finding before making it and give the parties further opportunity to make submissions. As a consequence, I am not satisfied that the Chief Justice made an error in finding as he did.
Ground 3 should fail.

Ground 4

This ground was addressed in the written submissions by reference to various statements by members of the court in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24. The particular principles referred to are not in dispute. The ground was not separately addressed orally, save for counsel's opening comments.
Insofar as it is necessary to deal with it, the Chief Justice, in the paragraphs of his reasons, to which I have already referred, identified the matters he took into account in reaching the conclusion he did. In my view the reasons for his reaching his conclusion were exposed.
This ground should fail.

Outcome

Since all grounds of appeal in my view should fail, I would dismiss the appeal.

File No 592/2015

BRADLEY JOHN CHAPLIN v SERGEANT RICHARD LANE

REASONS FOR JUDGMENT  FULL COURT
  WOOD J
  28 September 2016

I agree with Tennent J's conclusion that the appeal ought to be dismissed and, to a large extent, with her reasons. I wish to make some remarks about the two main grounds of appeal, grounds 2 and 3.
Ground 2 rests on an assertion of error at two levels: at first instance by the learned magistrate, and then at appeal level in the way that that error was dealt with by the Chief Justice. While it is the Chief Justice's error which is the subject of appeal to this Court, if there was no error by the learned magistrate in the first place, there was no error by the Chief Justice, and the ground of appeal falls away. The learned magistrate is said to have taken judicial notice of the speed at which people walk. That is said to be an error because, if permitted to take such knowledge into account pursuant to s 144 of the Evidence Act 2001 (the Act), she was required, by s 144(4), to give the parties notice of her intention to do so and to allow an opportunity for submissions. The notice and opportunity for submissions are said to have been necessary in this case to ensure that the parties were not unfairly prejudiced as stipulated in the subsection. However, before it could be said that the learned magistrate failed to comply with the requirements of s 144(4), the learned magistrate must have proceeded in the way contemplated by the section by "taking into account" matters of "knowledge". The appellant's submissions assume that that was what occurred, and rely on the Chief Justice's reasons as identifying that she did proceed in that way. I wish to say something about the Chief Justice's reasons and the context of the remarks he made. In essence, I reach the conclusion that they do not convey that the learned magistrate took the step contemplated by s 144 of "taking into account" matters of "knowledge". Furthermore, an examination of the learned magistrate's reasons reveals that she did not take into account knowledge of walking speeds. As she did not reason in this way, the notice requirement in s 144(4) did not arise and there could not be any unfair prejudice.
It is convenient to begin with a reference to the Chief Justice's reasons:
"9     However I think it is quite clear that the learned magistrate did not take on the role of an accident reconstruction expert. She considered the evidence before her as to speeds and distances, took judicial notice of the speeds at which people walk, and performed some elementary calculations.
10     Both sides called accident reconstruction experts to give evidence before the learned magistrate. The prosecution's expert, Sgt Carrick, produced a plan of the accident scene that had been produced with the aid of a laser and a computer program. He gave evidence that each half of the road was 3.1 metres wide, and that the bus was 11.1 metres long. The evidence established that the bus had been partly on and partly off the sealed carriageway on its left hand side of the road when the applicant approached, travelling in the opposite direction, on the other side of the road. The point of impact was therefore on the applicant's side of the road. It was therefore appropriate for the learned magistrate to consider whether, if the applicant had travelled at 40Km/h instead of 80Km/h for a distance of about 61.1 metres (the 50 metres referred to in r 374(1) plus the length of the bus), the girl would have travelled a further distance, no greater than 3.1 metres, to safety.
11     At [88] of her reasons, the learned magistrate made a finding that the girl was 'moving very quickly'. That finding was supported by evidence and has not been challenged in these proceedings.
12     The impugned reasoning of the learned magistrate is at [123] and [124] of her reasons. Those paragraphs read as follows:
'The defendant was at least required to be travelling at 40km/h for a distance of 60 metres before the collision, being the prescribed 50 metre distance together with the length of the bus. At 40km/h instead of 80km/h, in this zone alone he would have allowed Ashley a further 2.7 seconds to cross the road. Added to this period of time would be, at the very minimum, the additional time for deceleration from 80km/h to 40km/h before reaching the prescribed zone. Clearly this would have been another several seconds. As stated the prudent driver would have, in any event, slowed well before the legal requirement to do so.
Thus Ashley would have safely crossed the road, had the defendant not deprived her of that opportunity by his speed that was twice the prescribed limit at the time of the collision. I am satisfied beyond reasonable doubt that the defendant's negligent driving caused Ashley's death.'
13 It is implicit in this reasoning that the learned magistrate took judicial notice of the sort of pace at which an individual travels when 'moving very quickly'. There is nothing to suggest that, at this point in her reasons, she assumed any particular speed on the girl's part. Earlier in her reasons, in the passage that led to the finding favourable to the applicant, she assumed, at [96], for the purpose of a calculation, that the girl was 'travelling at say a brisk walking pace of 6.5km/h'. Later in that part of her reasons, at [105], she assumed for the purpose of another calculation that the girl 'had been moving faster than a brisk walk, at say 10km/h'. However there is no reason to infer that she assumed that the girl was travelling at any particular speed for the purpose of the finding made at [124].
14     There is nothing in the learned magistrate's reasons to indicate that her finding that the charge was proven was based to any extent on the use of personal knowledge or expertise in relation to accident reconstruction. Ground 2 must therefore fail."
It can be seen that his Honour referred to the learned magistrate's reasons at [123] and [124] in taking "judicial notice of the speeds at which people walk", and further noted, "It is implicit in this reasoning that the learned magistrate took judicial notice of the sort of pace at which an individual travels when 'moving very quickly'." His Honour also referred to earlier parts of the learned magistrate's reasons where an assumption was made about a walking speed of 6.5 km/h and subsequently, 10 km/h.
While his Honour referred to the learned magistrate taking "judicial notice" of the sort of pace at which an individual travels when "moving very quickly", that is not necessarily to suggest "judicial notice" in the specific sense of an approach falling within the scope of s 144. The context of his Honour's reference to "judicial notice" is important. He was dealing with an assertion of error that the learned magistrate had arrogated to herself the role of accident reconstruction expert. There was no ground before his Honour raising error in taking judicial notice of any facts, or error in failing to comply with s 144(4).
Furthermore, the content of the Chief Justice's reasons at [13] would suggest that "judicial notice" was meant in a loose sense and his Honour was not identifying an approach falling within s 144. In particular, his Honour noted, "There is nothing to suggest that, at this point in her reasons, she assumed any particular speed on the girl's part […] there is no reason to infer that she assumed that the girl was travelling at any particular speed for the purpose of the finding made at [124]." If the learned magistrate merely made reference to a range of assumptions about walking speed for an illustrative purpose, she did not treat them as facts for the purpose of her determination as contemplated by s 144. Section 144 is concerned with taking into account matters of common knowledge and relying on them for the purpose of a determination. It is self-evident that an approach which does not assume any particular speed cannot amount to taking into account knowledge of walking speed.
The learned magistrate's reasons fully expose the approach she took. The relevant passages of her Honour's reasons are set out in Tennent J's judgment. It is necessary to refer to them in a comprehensive fashion because of the argument that the learned magistrate took "judicial notice" of walking speeds in various parts of her reasons and drew on these unproven facts later in the impugned passages at [123] and [124]. The first reference by the magistrate to walking speeds is at [96], but it is useful to note her Honour's earlier remarks. At [85] she identified that there were two facts important in determining the causation question: the time taken by Ashley to emerge from the back of the bus to the collision point and, related to this, the position of the utility when Ashley was first able to be seen. The learned magistrate went on to state at [86] that, "The Court is unable to make precise findings of fact on either matter." At [88] the finding about walking speed was set out:
"I am able to find that Ashley was moving very quickly. The evidence ranged from descriptions of Ashley bouncing along, to running, to a very fast walk."
At [89] the learned magistrate stated, "Travelling at a very fast pace, to cover such a very short distance must have taken only the briefest of moments." Her Honour went on to consider the second question, and at [94] stated that she was also not able to find the exact position of the appellant's vehicle at the point that Ashley first became visible as she emerged from the rear of the bus.
The learned magistrate then considered the evidence of the experts regarding minimum stopping distances and perception reaction times. As I noted, it was at this stage that her Honour first referred to possible walking speeds. The learned magistrate used possible walking speeds as a way of testing the prosecution case to see whether there would have been sufficient time for evasive action to be taken at the time Ashley first became visible. The walking speed of 6.5 km/h was assumed as an example and for the purpose of possible calculations.
The learned magistrate considered the possibility that the utility may have been further away than suggested by the witnesses. She used an example of the appellant travelling at 80 km/h, allowing a walking speed of 6.5 km/h, and one second for Ashley to traverse the distance to the point of collision. The example demonstrated that the utility would have been 22 metres from the collision point when Ashley became visible. Then, at [105], her Honour considered an alternative hypothetical scenario involving a faster walking speed of 10 km/h and a driving speed of 80 km/h.
These two scenarios were compared with scenarios substituting a driving speed of 40 km/h. In each case the required stopping distance exceeded the calculated distance between the utility at the point when Ashley became visible and the point of collision. Her Honour concluded that whether the speed of the utility was 80 km/h or 40 km/h at the time that Ashley became visible, the collision could not have been avoided. In relation to the role of possible walking speeds in her Honour's reasons before the impugned causation reasoning at [123] and [124], I make these observations:
·     The learned magistrate accepted the evidence of the witnesses that "Ashley stepped out quickly when the utility was in close proximity to the bus."
·     Alternative possible scenarios were considered to test the eye witnesses' accounts. A walking speed was assumed at 6.5 km/h and 10 km/h to enable calculations to be performed to test whether the driver had time to avoid the collision.
·     Her Honour concluded in favour of the appellant that if the appellant had been travelling at the legal speed of 40 km/h at the time that Ashley was first visible, the collision could not have been avoided.
·     Her Honour expressly disavowed the use of any particular walking speed as evidence.

As for the last of these observations, the learned magistrate stated at [105], "These types of figures were quite properly not the subject of evidence, and I am using them as guidance only to form the conclusion that the witnesses generally were correct in perceiving that Ashley stepped out quickly when the utility was in close proximity to the bus."
The conclusions drawn about the causation issue did not rest on any particular walking speed. At [116] her Honour stated:
"116 As discussed, if the defendant had been driving as the ordinary prudent driver, instead of travelling at speed into that zone, the hazard of Ashley crossing the road suddenly would have been allowed to pass – this was clearly the intention of Mr Itchens in waving from a long distance. As noted, it may have taken Ashley only a little more than half a second to a second, bouncing quickly, to reach a point just over the centreline of the road. She was travelling at a fast pace. It can reasonably be conservatively assumed that a completed road crossing whereby she would need to travel somewhere under 3 metres across most of the eastbound lane, would have taken another 2 seconds or so."
Her Honour considered the time period from when Ashley was first visible to when she reached the point of collision. There was no finding about a particular speed, other than that she was "bouncing quickly" and "travelling at a fast pace". There was reference to a possible time range to reach the point of collision that "may" have been the case: "little more than half a second to a second". That time period was uncontroversial and reflected the evidence. At [89] her Honour referred to the evidence:
"The evidence from Ms Bricknell and witnesses generally, including the statement made by the defendant, was that it was a 'split-second' between Ashley stepping on to the roadway and the occurrence of the collision."
The evidence was that the distance from the point Ashley became visible to the centreline of the road was 1.51 metres.
The time it would have taken to complete the crossing was conservatively assumed by the learned magistrate to be "another two seconds or so", to cover a distance of somewhere under three metres. This broad time range is non-specific and follows from the evidence I have mentioned. If it took a "split-second" to traverse 1.51 metres, it would take approximately two seconds to traverse three metres if Ashley continued at the same pace.
The timeframe of "another two seconds or so" gave significant latitude to the estimates given by witnesses. More significantly, it did not draw on the assumptions or hypothetical facts about walking speeds. It is not the case that a specific piece of knowledge about walking speeds was taken into account and evidently, it did not need to be.
According to the evidence I have mentioned, it is clear that Ashley would have had plenty of time to complete the crossing if the appellant had been travelling at 40 km/h from the commencement of the prescribed zone. The conclusions at [123] and [124] rested exclusively on the evidence. I am unpersuaded that, as the Chief Justice stated, it is implicit in the learned magistrate's reasoning that she took judicial notice of the sort of pace at which an individual travels when "moving very quickly". Knowledge of walking speeds was clearly superfluous to her Honour's reasoning.
In summary, I cannot see that the assumptions about possible walking speeds previously referred to, which allowed calculations to be performed, were taken into account in reaching the conclusion about causation; her Honour's findings about the evidence regarding the child's movements supported the determination about causation and accounted for it in its entirety; her Honour's earlier remarks made it clear that possible walking speeds were not taken into account as evidence and also that her Honour was conscious of the lack of evidence of walking speeds.
The learned magistrate did not take "judicial notice" in the sense of taking into account knowledge or known facts regarding walking speeds. Her approach regarding causation was evidence-based. As mentioned, earlier in her reasons she had had regard to some hypothetical facts merely as part of her scrutiny of sworn evidence and in a context which led to a conclusion in the appellant's favour.
As a consequence, s 144 is not enlivened and the requirement in s 144(4) to give the parties an opportunity to make submissions does not arise. It has not been shown that the learned Chief Justice erred in failing to identify error in that the learned magistrate needed to comply with s 144(4) when she did not. This ground must fail.
In relation to ground 3, I agree with Tennent J that it has not been shown by the appellant that the learned magistrate determined the charge on a basis for criminal liability that was not relied upon by the prosecution. I wish to add some brief remarks about the reasoning adopted by the learned magistrate, referred to in par (a) of this ground. It is convenient to set out the ground of appeal in full:
"The learned Chief Justice erred in law by failing to rule that the trial before the learned magistrate miscarried in that the learned magistrate:
adetermined the charge of negligent driving causing death on a basis not advanced by the prosecutor at trial, namely that had the appellant been driving at 40 kilometres per hour from 50 metres before the school bus the deceased would have safely crossed the road;
bdenied the appellant procedural fairness by failing to inform the appellant that she was considering determining the charge of negligent driving causing death on a basis other than that advanced by the prosecutor at trial."
The gravamen of the ground in (a) is part of the learned magistrate's reasoning regarding causation involving the application of the "but for" test. It is useful to compare the reasoning path adopted by the learned magistrate with the path that was evidently anticipated by the appellant at the hearing. In essence, the approach of the appellant was to focus on the consequences of his breach of duty at the moment Ashley first became visible, and to pose the "but for" test at that time. The advantage for the appellant of such an approach is evident from the finding made by the magistrate that even if the appellant had been travelling at only 40 km/h when Ashley stepped into view, a collision would have been inevitable, and the evidence did not establish that she would have survived a collision at such a speed.
By contrast, the approach of the learned magistrate was to focus on the consequences of the appellant's breach of duty from the time that he entered the 50 metre prescribed zone. Her Honour reasoned: if the appellant had "exercised caution by decreasing his speed when overwhelmingly the circumstances signalled the need to ensure at least that he decelerated to enter the 50 metre area at a speed of 40 km/h, there is no question that the collision would not have occurred." Further, had the appellant "reacted in his approach by slowing as the prudent driver would have, Ashley would have had time to safely cross the road." The appellant had caused Ashley's death by his negligence in driving at a speed exceeding 40 km/h from a point 50 metres from the bus.
The learned magistrate's reasoning was considered by the Full Court on appeal and held to be unimpeachable: Lane v Chaplin [2015] TASFC 4 at [61], [87], [104]. The approach taken by the learned magistrate to the causation issue was in accordance with well-established principle. The issue was answered by applying ordinary common sense to the facts as found, the legitimate inquiry of the "but for" test, and not ignoring considerations of policy and value judgments: March v E & MH Stramere Pty Ltd (1991) 171 CLR 506.
Evidently, her Honour's approach to the causation issue was, in part, not the reasoning path expected by the appellant. In particular, the appellant did not anticipate that the "but for" test may be applied to the time when his vehicle was 50 metres from the bus. I cannot see that there was any entitlement to confine the learned magistrate's consideration and the application of the "but for" test to a time when Ashley first became visible. There was also no reason in logic or principle to do so. It may be noted that the learned magistrate's approach of having regard to the entirety of the driving which amounted to the breach of duty, not just part of it, in considering the question of causation, was in accordance with principle: Lane v Chaplin at [50], [86], [87], [91].
The learned magistrate's approach was described as an "alternate theory of causation". I am not convinced that that description is accurate or valid; rather, a "different focus" would be more apt. The question at hand was whether the appellant's driving was a direct and substantial contributing cause of the collision and Ashley's death. It can be seen from the reasoning referred to in summary above that her Honour did not engage in any theorising but had regard to the evidence of events in deciding a question of objective fact. Her approach was alternate to the appellant's approach, but only in that she focussed on the entirety of the negligent driving, that is from the time of entering the prescribed 50 metre zone of the bus. That approach flowed naturally from her identification of that driving as amounting to a breach of duty. It was a common sense approach. As a matter of common sense it was open on the evidence for her Honour to identify the cause of the collision as travelling at a speed that was twice the legal speed limit from the beginning of the 50 metre prescribed zone.
The approach taken by the learned magistrate was not a new case on liability. Common sense considerations and value judgments were always on the table, and the court was required, as a matter of law, to take them into account. There can be no legitimate complaint that the approach was not foreshadowed with counsel. A party cannot complain that they were ambushed by common sense. Furthermore, when the court is engaged in making judgments about matters such as the demands of common sense, competing policy considerations or value judgments, the court is not constrained in its reasoning by the parties' submissions regarding the making of such a judgment. The learned magistrate saw the events in a different light to that of the appellant but that does not give rise to a valid grievance. In light of these remarks and the reasons of Tennent J, ground 3 must also fail.

File No 592/2015

BRADLEY JOHN CHAPLIN v RICHARD LANE

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
28 September 2016

The background to the appeal

The appellant appeals against a decision of Blow CJ dismissing a motion to review the appellant's conviction by a magistrate for the offence of causing death by negligent driving. The appellant had sought the review of the order made by a magistrate, Mrs O McTaggart, on 11 December 2013, convicting him of the offence contrary to s 32(2A) of the Traffic Act 1925.
On the afternoon of 29 February 2012 the appellant was driving in an easterly direction along Gordon River Road at Karanja, heading towards Glenora, when a 13 year old schoolgirl, Ashley Edmonds, walked quickly onto the road from behind a bus. Tragically, Ashley died as a result of being struck by the appellant's vehicle.
The decision of Blow CJ was his Honour's second in relation to this motion for review.
The first hearing of the motion took place on 20 May 2014. On 18 June 2014 Blow CJ made orders allowing the motion, setting aside the orders of the learned magistrate, and dismissing the charge in question: Chaplin v Lane [2014] TASSC 32. From that decision there was a successful appeal to the Full Court: Lane v Chaplin [2015] TASFC 4. However, because there were grounds of review that his Honour had not determined, the matter was remitted to him so that he could make a determination in relation to the grounds that he had previously seen no need to address.
Those grounds of appeal were:
"2The learned magistrate erred in law by impermissibly arrogating to herself the role of accident reconstruction expert.
3 The trial miscarried in that the learned magistrate:
adetermined the charge of negligent driving causing death on a basis not advanced by the prosecutor at trial, namely that had the applicant been driving at 40 kilometres per hour from 50 metres before the school bus the deceased would have safely crossed the road;
bdenied the applicant procedural fairness by failing to inform the applicant that she was considering determining the charge of negligent driving causing death on a basis other than that advanced by the prosecutor at trial."
As to ground 2, Blow CJ held that there was nothing in the learned magistrate's reasons to indicate that her finding that the charge was proven was based to any extent on the use of personal knowledge or expertise in relation to accident reconstruction, and that the ground therefore failed.
As to ground 3, his Honour held that it had not been demonstrated that the learned magistrate failed to discharge her duty of procedural fairness, and that the ground therefore failed.

The notice of appeal

The appellant appeals on four grounds. They are as follows:
"1Blow CJ erred in law by ruling that the learned magistrate did not impermissibly use personal knowledge or expertise that she possessed in determining the issues between the appellant and the respondent thereby arrogating to herself the role of accident reconstruction expert.
2In the alternative to ground 2, if the learned magistrate was entitled to take judicial notice of the speed at which people walk Blow CJ erred by in law by:
a failing to rule that such knowledge did not fall within the scope of s144(1) of the Evidence Act 2000; and
b if it did that the learned magistrate had failed to comply with the requirements of s144(4) of the Evidence Act and thus the appellant has been denied procedural fairness and been unfairly prejudiced.
3Blow CJ erred in law by failing to rule that the trial before the learned magistrate miscarried in that the learned magistrate:
a       determined the charge of negligent driving causing death on a basis not advanced by the prosecutor at trial, namely that had the appellant been driving at 40 kilometres per hour from 50 metres before the school bus the deceased would have safely crossed the road;
b       denied the appellant procedural fairness by failing to inform the appellant that she was considering determining the charge of negligent driving causing death on a basis other than that advanced by the prosecutor at trial.
4Blow CJ erred in law by failing to provide adequate reasons in finding that the 'learned magistrate gave the parties a fair hearing' and that the parties' 'rival cases were well presented' in light of:
a       the fact that the prosecutor did not seek to rely on the reasoning ultimately adopted by the learned magistrate;
b       the fact that the prosecutor did not adduce evidence or otherwise conduct the case to support a case consistent with the reasoning ultimately adopted by the learned magistrate;
c       the facts, as disclosed in the affidavit of Roland Alexander Browne sworn 14th April 2014, that:
iprior to the trial before the learned magistrate the prosecution case included an allegation that had the appellant slowed to 40 kilometres per hour 50 metres before the school bus the deceased would have safely crossed the road; and
iibefore trial the prosecutor abandoned a case based upon that reasoning;
d       the fact that the prosecutor did not adduce any evidence in support of a case that had the appellant slowed to 40 kilometres per hour 50 metres before the school bus the deceased would have safely crossed the road;
e       the fact that as a consequence of the conduct of the prosecution case the appellant did not adduce any evidence to meet an allegation that had the appellant slowed to 40 kilometres per hour 50 metres before the school bus the deceased would have safely crossed the road; and
f       the fact that the prosecutor objected to the tender by the appellant of an expert accident reconstruction report prepared by Mr John Ruller to the extent that such report addressed matters relevant to an allegation that had the appellant slowed to 40 kilometres per hour 50 metres before the school bus the deceased would have safely crossed the road."

Grounds 1 and 2

In my view it cannot be said that the learned magistrate arrogated to herself the role of an expert in the manner discussed by Wells J in Brewarrana Pty Ltd v Commissioner of Highways(No 2) (1973) 6 SASR 541 at 544-545, and as found to have been the case in Blackley Investments Pty Ltd v Burnie City Council(No 3) (2013) 198 LGERA 80 at [85].
On the contrary what her Honour did, as was found by Blow CJ to be implicit in her Honour's reasoning, was to take "judicial notice" of the speed at which people walk, or of the sort of pace at which an individual travels when "moving very quickly". She then, as his Honour pointed out, made some calculations which led her to conclude that, if the appellant had driven at 40km/h from a point 50m away from the bus, Ashley would have finished crossing the road before he arrived at the point of impact, and she would not have been killed.
I have no difficulty in accepting that the learned magistrate was entitled to take "judicial notice" of the speed at which people walk, or of the sort of pace at which an individual travels when "moving very quickly". It is knowledge that is "not reasonably open to question", in my view, and it is common knowledge "generally", within the meaning of the Evidence Act 2000 (the Act), s 144(1).
Such knowledge does not necessarily amount to knowledge that is "reasonably open to question" for the purposes of s 144(1), simply because expert evidence may be given about it.
The appellant relies upon the observation of the Full Court of the Family Court in McGregor v McGregor (2012) 47 Fam LR 498 at [71] where it was held:
"If an issue in proceedings is controversial, it is almost inevitable that there will be differing credible expert opinion in relation to it and demonstrably it would not fall within the operation of s144."
However, to say that if an issue is controversial it is inevitable that there will be differing expert views about it, is not, to my mind, the same thing as saying that, per se, knowledge which is general knowledge, commonly held, must necessarily be open to question because expert evidence could be called about it.
If I am in error in so holding, it makes no practical difference to the outcome of the motion to review, given, as will be seen, the view I have taken in relation to s 144(4) of the Act.
The present case is not at all like that relied upon by the appellant in Director of Public Prosecutions (NSW) v Gramelis [2010] NSWSC 787 at [47], where Price J considered the equivalent legislative provision in respect of a magistrate having taken judicial notice of the average speed of motor vehicles travelling in second gear, and expressed the view that such knowledge did not fall within the scope of the section.
The section requires that a judge taking, in effect, "judicial notice" of a fact is to give a party an opportunity to make submissions, and to refer to relevant information relating to the acquiring or taking into account of the relevant knowledge, so as to ensure that the party is not unfairly prejudiced; (Prentice v Cummins (No 5) (2002) 124 FCR 67 at [85]). Therein lies the problem. Her Honour did not do that in the present case.
The learned magistrate had in the course of the hearing before her, upheld, without opposition it must be said, an objection by the prosecutor to the tender by the appellant of an expert accident reconstruction report prepared by a Mr John Ruller to the extent that it addressed, in six otherwise relevant paragraphs, questions of the velocity of a female child running and walking, and matters relevant to the suggestion, abandoned by the prosecutor at the hearing, that had the appellant slowed to 40km/h 50m before the school bus, Ashley would have safely crossed the road.

It is the gravamen of ground 2 of the notice of appeal that the appellant was unfairly prejudiced by the learned magistrate's procedural error in failing to give him an opportunity to refer her Honour to that previously excluded evidence and to make submissions as to the proposed taking into account, as common knowledge, the speed at which Ashley would have walked. In my view, the issue raised by that ground should be decided in favour of the appellant.
Ground 1 however, to which ground 2 is an alternative contention, must fail by reason of the very fact that her Honour did take such "judicial notice" as she did. She thus did not impermissibly adjust the expert evidence before her, and did not purport to use personal knowledge or expertise in relation to accident reconstruction in determining the issues between parties.

Ground 3

I do not accept the appellant's contention that Blow CJ erred in law by failing to rule that the trial before the learned magistrate miscarried in that the learned magistrate denied the appellant procedural fairness by determining the charge of negligent driving causing death on a basis not advanced by the prosecutor at trial, namely that had the appellant been driving at 40km/h from 50m before the school bus, Ashley would have safely crossed the road.
It is true that the prosecutor did not adduce any evidence in support of such a case and that as a consequence of the conduct of the prosecution case, the appellant was unable to adduce expert evidence to meet any such allegation. He thus lost the opportunity to rely on relevant sections of the report of Mr Ruller. However, I respectfully agree with Blow CJ in holding, in reliance upon F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369, that the magistrate was not obliged to disclose what she was minded to decide in order to give the parties a further opportunity of criticising her mental processes before she reached a final decision. The reasoning that her Honour adopted was open to her, as the Full Court held in Lane v Chaplin [2015] TASFC 4. It should be noted however, that in that appeal there was not before the court the contention currently agitated before this Court based upon the failure by her Honour to observe the requirements of s 144 of the Act in reaching her final decision.
I do not accept the appellant's submission based on Whitehorn v The Queen (1983) 152 CLR 657 at 675 and 682 per Dawson J, and Robinson v The Queen (2006) 162 A Crim R 88 at [137]-[140], that the magistrate was guilty of "donning the mantle of prosecution counsel", or of "usurping the function of the prosecutor". In my view, it is not even completely accurate to describe what her Honour did as basing her judgment on an "alternative theory of causation" as the appellant puts it. As I have already noted, her Honour's approach to causation was open to her, and was so open upon the evidence that was actually led on the hearing plus knowledge of which she was entitled, subject to the relevant legislative requirements, to take "judicial notice".
It is simply a regrettable fact that the way in which the prosecution ultimately proceeded in this case limited the expert evidence that the appellant might otherwise have adduced. Fortunately, despite the most unusual course this case took, s 144(4) of the Act prevents a miscarriage of justice from arising. That section protects and preserves those requirements of procedural fairness as an element of the rules of natural justice that were the subject of discussion in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, in the passages relied upon by the appellant at 590-592.
In my view, it is s 144(4) and the lack of compliance by the magistrate with its terms that are central to any miscarriage of justice in this case. It is not the asserted arrogation by her Honour of the role of an expert, or the suggested donning by her of "the mantle of the prosecutor", and not any unfair basing of her decision on an "alternative theory of causation" not aired on the hearing.
While there is some overlapping of grounds 2 and 3 of the notice of appeal, the relevant unfairness and the dispositive error, in my view, was the learned magistrate's failure to give the appellant the opportunity to make submissions and/or to call evidence about her intention to take "judicial notice" of the speed at which people walk. The affording of such an opportunity was mandated by the Act, s 144(4); (Director of Public Prosecutions (NSW) v Gramelis (above) at [51]). Accordingly I am unable to accept the submission made on behalf of the respondent by Mr Coates SC that the magistrate was not in breach of s 144.
The almost Boolean overlay with grounds 2 and 3 is that, whilst as a matter of general law the magistrate was not obliged to disclose what she was minded to decide in order to give the parties a further opportunity of criticising her mental processes before she reached a final decision, s 144(4) specifically required her Honour to give the appellant, and for that matter, the respondent, an opportunity to make submissions, and to refer to relevant information, relating to the acquiring of or the taking into account of the relevant knowledge, in order to ensure that there was no unfair prejudice to any party in the proceeding.
In these circumstances, while ground 2 should be decided in the appellant's favour, ground 3 fails in my opinion.

Ground 4

As I understood Mr Gunson, this ground was not pressed but was not formally abandoned. I do not accept that the learned Chief Justice erred in law by failing to provide adequate reasons for his observations that the "learned magistrate gave the parties a fair hearing" and that the parties' "rival cases were well presented".
At [23] his Honour stated:
"The learned magistrate gave the parties a fair hearing. Their rival cases were well presented. Her Honour was not obliged to disclose what she was minded to decide in order to give the parties a further opportunity of criticising her mental processes before she reached a final decision. The reasoning that she adopted was open to her, as the Full Court has held. Courts of summary jurisdiction would cease to function if the rules of procedural fairness were held to require magistrates to discuss every possible line of reasoning in a case before making a decision. In my view it has not been demonstrated that the learned magistrate failed to discharge her duty of procedural fairness. Ground 3 must therefore fail."
In my view, the first two sentences of that paragraph, namely, "The learned magistrate gave the parties a fair hearing" and "Their rival cases were well presented" were simply an introduction to the substance of the paragraph itself and were thus mere surplusage.
The actual issue raised by the appeal ground that his Honour was considering in [23], and in the preceding four paragraphs of his reasons, was not whether the hearing itself had been fair in some abstract sense or whether the rival cases were well presented or not. The specific issue was whether the appellant had been denied procedural fairness by the learned magistrate in failing to inform the appellant that she was considering determining the charge of negligent driving causing death on a basis other than that advanced by the prosecutor at trial. As to the resolution of that issue, Blow CJ, in my view, gave plainly adequate reasons in the body of [23] of his decision set out above, prefaced as they were by [19]-[21], and relying as he did on the authority of F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry (above) in the passage from that decision which his Honour set out at [22].
The prefaratory sentences to [23], "The learned magistrate gave the parties a fair hearing" and "Their rival cases were well presented" were, with respect, unnecessary and formed no part of his Honour's dispositive reasoning. Ground 4 must fail in my view.

The proviso

Notwithstanding that the issue raised by ground 2 of the notice of appeal should be decided in favour of the appellant, with the result that, in my opinion, Blow CJ erred in dismissing the motion to review, I am of the view that the question as to the possible application of the proviso contained in the Justices Act 1959, s 110(1)(ab), remains unconsidered. That section provides that in a case "where the court considers that no substantial miscarriage of justice has occurred" it may dismiss the motion to review even though the issue raised by the motion might be decided in favour of the applicant. For my part, I apprehend that it is appropriate and necessary for this Court to deal with that question.
Whether or not a substantial miscarriage of justice has occurred may be answered in accordance with the formulation of Brennan J (as he then was) and Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365 where his Honour said at 371–372:
"Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524; Reg v Storey (supra); Gallagher v The Queen (1986) [1986] HCA 26; 160 CLR 392 at 412-413."
In the present case an affidavit had originally been prepared by the respondent's accident reconstruction expert, Sergeant Rodney Carrick, which canvassed issues relating to the running and walking speeds of children and made comment about that. At the outset of the hearing before the magistrate, the police prosecutor told her Honour that he did not intend to rely upon evidence from Sergeant Carrick to establish "that if other factors had of [sic] occurred the outcome would have been different". Sergeant Carrick gave his evidence without reference to the running and walking speeds of children. Indeed an amended affidavit of Sergeant Carrick was served, which deleted all references to an approach based on a "time and motion accident reconstruction model".
During Sergeant Carrick's evidence-in-chief the appellant's counsel explained this situation in clear terms to the magistrate. He told her Honour that in his report Sergeant Carrick had looked at issues relating to the running and walking speeds of children, and made comment in relation to that, but while that material covered a significant part of his report, the prosecution had not led that evidence and would not be leading it. That was because the prosecution no longer intended to conduct the case in the way that was initially planned, as the prosecutor had indicated at the outset of the case.
The consequence of that prosecution evidence not being led was that the sections of the expert report prepared on behalf of the appellant by Mr Ruller, addressing Sergeant Carrick's originally proposed evidence about the walking and running speeds of children, were no longer relevant. The prosecutor objected to the tender of Mr Ruller's report, and the objection was resolved by the appellant's counsel informing the magistrate that the six, then irrelevant, paragraphs should be deleted by her from the report.
There is a somewhat bizarre conundrum in this case. The course taken by the prosecution which resulted in the confining on both sides of the expert evidence was of no actual consequence to the case presented at the hearing by either the appellant or the respondent because of the limited case theory on which the prosecution chose to rely. Equally, the absence of the data and the expert opinions as to the walking and running speeds of children did not, of itself, prevent the magistrate from taking the alternative path to conviction that she took without informing the parties as to her views as to causation, or her intention in that regard. However, once her Honour embarked upon reliance on common knowledge by way of "judicial notice" of the speed at which persons, including Ashley, walked when walking quickly, she was obliged by the Act, s 144(4), to give the parties an opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of the kind she proposed to act on. The reason for that is made clear by the section. It is so as to ensure that there was no unfair prejudice to any party in the proceeding. Not being able to rely on Mr Ruller's evidence and make submissions had the effect that there was unfair prejudice to the appellant.
Her Honour's failure to give the appellant that opportunity was therefore a departure from the requirements of a properly conducted trial. I cannot say that had there been no such blemish in the trial, "an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused".
I do not know what Sergeant Carrick's opinion would have been in evidence-in-chief and in cross–examination if evidence from him as to a "time and motion accident reconstruction model" had been led and tested, and I do not know what might have been the effect of submissions made by the prosecutor on the basis of that evidence, presumably urging upon the learned magistrate the conclusion that she actually ultimately reached absent that evidence.
I am wholly unable to say what the learned magistrate may have concluded had she, in response to the statutory invitation mandated by s 144(4), been presented with Mr Ruller's evidence which questioned the relevance of Sergeant Carrick's data and the reliability of his assumptions, or more importantly, such other evidence as may have been given by Mr Ruller relevant to her Honour's proposed reasoning as to time and motion. The effect of such evidence and submissions based on it, or indeed other submissions as to how her Honour should proceed in relation to the time it would have taken Ashley to cross the road and the point prior to the 50m speed zone at which the appellant could or should be taken to have slowed to 40km/h, cannot, in my view, be appropriately or safely divined by this Court. In my view however, it can be said that the appellant has "lost a chance which was fairly open to him of being acquitted".
I do not accept the submissions of Mr Coates SC to the contrary. I am unable to accept the premise underlying Mr Coates' submission, which essentially is that the magistrate's taking of "judicial notice" of the speed at which people walk, or of the sort of pace at which an individual travels when "moving very quickly", and the making of calculations which led her to conclude that if the appellant had driven at 40km/h from a point 50m away from the bus, Ashley would have had sufficient time to cross the road before the appellant arrived at the point of impact, were not "critical to her ultimate conclusion". Mr Coates submits that her Honour's ultimate conclusion was that "the appellant was travelling at twice the legal speed limit on a straight stretch of road approaching a school bus from which children could have reasonably been expected to have been alighting". To my mind, that finding was inextricably bound up with her Honour's taking of "judicial notice" and the consequent making of calculations in the manner in which she did at [105] and [116]–[124] of her reasons for decision.
It follows that I would not regard this as having been an appropriate case for the application of the "proviso".

Disposition

Ground 2 having succeeded, I would uphold the appeal and I would order that the order of Blow CJ dismissing the motion to review be set aside and that in lieu thereof there be orders that the appellant's conviction on charge 1 of complaint 7220/12 be quashed.
I would hear submissions from counsel as to whether that charge should be retried by another magistrate or whether, in view of the obvious circularity inherent in the respondent having deliberately abandoned expert evidence at the hearing of the charge, thus rendering irrelevant and inadmissible, evidence of a fact of which the learned magistrate subsequently took "judicial notice", without affording the appellant an opportunity to call his expert evidence and make submissions, results in the interests of justice requiring that the appellant be acquitted; (Spies v The Queen (2000) 201 CLR 603 at [104]).