Chaplin v Lane (No 2) - [2015] TASSC 21

[2015] TASSC 21

COURT: SUPREME COURT OF TASMANIA

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

PARTIES:  CHAPLIN, Bradley John
  v
  LANE, Richard

FILE NO:  163/2014
DELIVERED ON:  26 May 2015
DELIVERED AT:  Hobart
HEARING DATE:  20 May 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Hearing – Conduct of magistrates – Duty not to act on private knowledge – Traffic offence – Whether magistrate impermissibly took on role of expert.

Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541; Blackley Investments Pty Ltd v Burnie City Council (No 3) (2013) 198 LGERA 80, referred to.
Aust Dig Magistrates [1118]

Magistrates – Hearing – Procedural fairness and natural justice – Finding of guilt based on reasoning not relied on by prosecution – Whether duty to indicate contemplated reasoning and invite further submissions.

F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, referred to.
Aust Dig Magistrates [1122]

REPRESENTATION:

Counsel:
             Applicant:  C J Gunson, M Goldberg
             Respondent:  S Nicholson, M J Allen
Solicitors:
             Applicant:  FitzGerald & Browne
             Respondent:  Director of Public Prosecutions

Judgment Number: [2015] TASSC 21
Number of paragraphs: 24

Serial No 21/2015
File No 163/2014

BRADLEY JOHN CHAPLIN v SERGEANT RICHARD LANE ( NO 2)

REASONS FOR JUDGMENT BLOW CJ

26 May 2015

This is my second judgment in relation to this motion for review. The applicant has sought the review of an order made by a magistrate, Mrs O McTaggart, convicting him on a charge of causing death by negligent driving, contrary to s 32(2A) of the Traffic Act 1925. On the afternoon of 29 February 2012 he was driving in an easterly direction along Gordon River Road at Karanja, heading towards Glenora, when a 13 year old schoolgirl named Ashley Edmunds hurried onto the road from behind a bus. She died as a result of a collision between her and the applicant's vehicle.
The hearing of the motion to review took place on 20 May 2014. On 18 June 2014 I made orders allowing the motion to review, setting aside the orders of the learned magistrate, and dismissing the charge in question: Chaplin v Lane [2014] TASSC 32. There was a successful appeal from my decision. The Full Court held that I had erred in allowing the motion to review and set aside my orders: Lane v Chaplin [2015] TASFC 4. Because there were grounds of review that I had not determined, the matter was remitted to me so that I could make a determination in relation to the grounds that I had previously seen no need to address.
The notice to review contained four grounds. Ground 1 has been rejected by the Full Court. Ground 4 was abandoned. I therefore need to address only grounds 2 and 3.

Arrogation of the role of an accident reconstruction expert?

Ground 2 reads as follows:
"2The learned magistrate erred in law by impermissibly arrogating to herself the role of accident reconstruction expert."
The learned magistrate published detailed written reasons for her decision: Lane v Chaplin [2013] TASMC 46. In those reasons, she undertook a number of calculations relating to speeds, distances, reaction times, and so forth, in two contexts. First, she undertook calculations that resulted in a finding that the prosecution had not established that, if the applicant had been travelling at 40Km/h when the girl appeared from behind the bus, the girl would not have died. There was a regulation that required the applicant not to drive at a speed exceeding 40Km/h within 50 metres of a bus that was displaying a warning light: Road Rules 2009, r 374(1). The evidence established that the bus was displaying warning lights, and that the applicant travelled at 80Km/h from a point 50 metres away from the bus until the point of impact. The calculations that the learned magistrate undertook in relation to this first issue resulted in a finding favourable to the applicant.
The learned magistrate undertook further calculations which led her to conclude that, if the applicant had driven at 40Km/h from a point 50 metres away from the bus, the girl would have finished crossing the road before he arrived at the point of impact, and she would not have been killed. It was on the basis of that finding that her Honour found the charge proven. The applicant contends that, in arriving at that finding, her Honour impermissibly took on the role of an accident reconstruction expert. I disagree.
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. That principle was discussed by Wells J in Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541. That was a case about the valuation of land. At 544-545 his Honour said:
"I have always taken the view, and shall continue to do so unless directed by a superior Court to do otherwise, that the creation of a special Division in a Court to deal with a particular class of case is not intended to turn the presiding judge into an independent expert in the very field in which testimony will be tendered to him that he will be called on to evaluate. It would never occur to a trial judge who, for example, had heard many cases in which expert medical evidence had been tendered, to choose between the conflicting testimony of two medical witnesses by applying to it his own medical knowledge. That knowledge would, no doubt, have been of inestimable value in understanding the testimony; in suggesting questions; in comparing one set of opinions with another. But it would be quite contrary to principle, I apprehend, for the judge to bring a third set of opinions into the arena, and to supplement or condemn testimony properly adduced before him in reliance on his own theoretical grasp of principles and precepts of medicine. The judge may have proper and rational grounds for preferring one expert to another; such grounds are well-known and accepted. He may, by a consideration of the whole of the evidence, expert and non-expert, be able to conclude that one opinion is more likely to be sound than another or others, even though both or all opinions are given by men of integrity, learning and skill, and are supported, within self-ordained limits, by impeccable reasoning. He may, because he has been persuaded by the evidence of one expert, find that there is a fatal flaw in the reasoning of another. It may appear that, having regard to the whole of the evidence, certain factual assumptions, and hence the opinions based on those assumptions, are not well founded. But the judge cannot arrogate to himself the role of an expert who is, in any respect, primus inter pares."
That passage was cited with approval by Estcourt J, with whom the other members of the Full Court agreed, in Blackley Investments Pty Ltd v Burnie City Council (No 3) (2013) 198 LGERA 80 at [85].
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.
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.
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.
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."
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].
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.

Reasoning not relied on by prosecution

Ground 3 reads as follows:
"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."
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.
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."
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.
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.
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].
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.
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."
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.

Conclusion

The motion to review must be dismissed.