Constantinos ATSIKBASIS v Michael Laurence Hayes No. 3999 Judgment No. SCGRG 93/373 Number of Pages 6 Appeal and New Trial

[1993] SASC 3999

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN J

CWDS
Appeal and new trial - Appeal against convictions for speeding and refusing alcotest - prosecution case based on observations of police officers as to identity of driver of vehicle - no error in magistrate's reasoning - no necessity to refer to alternatives discussed in R v Calides 34 SASR 355 - evidence reviewed in accordance with Laurie v Nixon (unreported 12th November, 1991) - appeal dismissed.

HRNG ADELAIDE, 21 April 1993 #DATE 7:9:1993
Counsel for appellant:     Mrs M Shaw
Solicitors for appellant:    Adams Kandelaars
Counsel for respondent:     Ms D de Palmer
Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed

JUDGE1 DUGGAN J The appellant was convicted after a trial in the Adelaide Magistrates Court of offences of speeding and refusing to submit to an alcotest. His defence was that he was a passenger in the vehicle stopped by the police and not the driver. The incident which led to the charges being laid took place at Torrens Park on 20th December, 1991. At approximately 2.40 am two uniformed police officers, Constables Murgatroyd and Gordge, who were patrolling in a police vehicle driven by Murgatroyd observed a blue Mercedes vehicle travelling at a fast rate of speed in a northerly direction along Belair Road, Hawthorn. They followed the car along various roads and streets until it stopped in Eli Street, Torrens Park. The police officers said they pulled up behind the car and that there were two people in it. They said the driver alighted through the driver's door and the passenger from the front passenger's seat. They saw no-one else alight from the car. They identified the appellant as the driver and Murgatroyd said that the appellant had the keys of the vehicle in his hand. It is not in dispute that the person who occupied the front passenger seat is the appellant's brother. 2. The appellant gave evidence that he was a passenger in the vehicle at the relevant time and not the driver. He said he was sitting in the rear of the vehicle behind the driver. The driver was a friend, Mr Carnelengo. The defendant's brother was in the front passenger seat. The appellant said that the vehicle had only two doors and that when it was brought to a halt in Eli Street the driver got out quickly through the door on the driver's side and went towards the driveway of No. 1 Eli Street. The defendant then pushed the driver's seat forward and alighted through the same door. He denied that he was carrying the car keys. He said he refused the alcotest because he was not the driver of the vehicle at the time. Mr Carnelengo, who was called by the defence, claimed that he was the driver on the relevant occasion and that he fled from the vehicle and the area because he understood he had no licence by reason of a loss of demerit points. Other witnesses to whom I shall refer were called to give evidence, but the preceding narrative is sufficient for the purpose of identifying the principal issue at the summary trial. In broad terms the learned magistrate accepted the evidence of the two police officers and rejected the evidence of the defendant and Mr Carnelengo. The magistrate found that the two charges had been proved beyond reasonable doubt. 3. The first ground of appeal which was argued arises out of a criticism of the learned magistrate for failing to consider certain evidence given by an expert witness, Mr Sullivan, when assessing the evidence of the two police officers. Mr Sullivan's evidence was led so as to call into question the reliability of certain observations of the police officers. In order to further understand its relevance it is necessary to relate in more detail the evidence of those officers. 4. Constable Murgatroyd said that the police car was travelling in the opposite direction to the Mercedes when he first saw it. He did a u-turn and followed the vehicle, timing it as he went. He estimated that the vehicle was travelling at approximately 110 kilometres per hour as it drove along Belair Road between Barrelder Road and Blythewood Road. While the vehicle was being timed the police vehicle was approximately 40 metres behind it. It was dark and the streets lights along Belair Road were on. It was not raining. After the vehicle had been timed the siren and flashing roof lights of the police vehicle were turned on. The Mercedes did not stop. It continued along Belair Road and into Brook Street which is a continuation of Belair Road. According to Murgatroyd's evidence it slowed down at this stage and the police vehicle was about ten metres behind it. The vehicle then turned right into Eli Street and stopped outside No. 3. Murgatroyd pulled up into a position approximately five metres behind it. At this point the headlights and flashing lights of the police vehicle were still on. The headlights were directed at the other vehicle. Murgatroyd said that before he got out there were two people in the other vehicle, the driver and a passenger seated in the front seat. He said he had first observed two people in the vehicle during the timing phase. At no stage did he lose sight of the vehicle after commencing to follow it. He agreed in cross-examination that the Mercedes stopped at a point approximately 40 metres into Eli Street from the corner. The witness was adamant in his assertion that there were only two people in the vehicle and that the first person to get out of it was the appellant. 5. Constable Gordge also gave evidence of the first sighting of the vehicle and the police action in following it. He said that at the time the flashing lights and siren were turned on the vehicle was about 40 metres ahead of the police car. By the time the vehicle turned into Eli Street the gap had been closed to about 10 metres. The other vehicle travelled about 50 metres down Eli Street before it stopped. The police vehicle stopped two or three metres behind the Mercedes. Gordge said in cross-examination it would have been no more than five metres behind. He said he did not lose sight of the vehicle from the time they commenced to follow it. As they were travelling along the witness could see only two persons and they were the driver and the front seat passenger. He said these were the only two occupants of the vehicle when it stopped. He saw the appellant alight through the driver's side door. He denied that anyone else got out of the car before the appellant alighted from it. 6. Mr Sullivan, the expert called by the defence, is a former member of the police force who served for approximately 20 years in the traffic division. He gave evidence of various observations and measurements of distances. He attempted in certain respects to re-enact some aspects of the incident by following in a car while the appellant drove the Mercedes along various streets relevant to this matter. He also took photographs, particularly of the rear of the appellant's vehicle from various locations. The re-enactment took place at night-time. According to Mr Sullivan's evidence the distance from the entrance to Eli Street to the point where the appellant indicated he parked his car was 43 metres. He stated that when turning right from Brook Street into Eli Street his vehicle's headlights dipped into the road surface over a distance of 13.1 metres because of the gradient of the road at that point. According to the witness he could not distinguish any form inside the Mercedes when viewing it from 10 metres to the rear in Brook Street. He took photographs to show the position of the headrests and provided measurements relevant to their position. He also took photographs from various distances behind the Mercedes. The learned magistrate commented on Mr Sullivan's evidence as follows:
    "Mr Sullivan was the last witness for the defence. I accept that
    he is an experienced and competent investigator of Road Traffic
    matters. I accept his evidence as accurate as far as it goes.
    His evidence is of assistance in determining some distances and
    the sight distances and visibility for vehicles driving out of
    Brook Street into Eli Street. In particular his evidence
    establishes the distance, 42 metres from the western alignment of
    Brook Street to a point adjacent to the fire post where on the
    evidence of all parties present the Mercedes Benz came to a halt.
    But it became clear in Sullivan's evidence that his
    investigations had proceeded on the assumption that there had
    been a greater distance than 10 metres between the vehicles in
    the vicinity of the intersection of Brook and Eli Streets. His
    tests were done without the assistance of flashing blue and red
    lights adding extra illumination to the scene under night
    conditions. Some of the tests he undertook were done in a
    vehicle other than a Holden Commodore. I think that much of his
    evidence is of limited weight and is on peripheral matters only.
    It has been of limited assistance to me in resolving the issues
in this matter." 7. I disagree with the contention that the learned magistrate misunderstood parts of Mr Sullivan's evidence. Mrs Shaw criticised the magistrate for saying that some of the tests were done in a vehicle other than a Holden Commodore. But that is the fact of the matter. Mr Sullivan agreed that the evidence relating to the effect of the gradient on the car lights was noted while he was travelling in a Volvo sedan. Then it was said that his Honour was wrong in saying that Mr Sullivan's investigations had proceeded on the assumption that there had been a greater distance than 10 metres between the vehicles in the vicinity of the intersection of Brook and Eli Streets. The evidence of Murgatroyd was that as they were turning the corner they were closer than 10 metres from the appellant's vehicle. He said they were "a couple of metres closer" and ended up five metres away. Mr Sullivan's photograph in Brook Street was taken 10 metres away from the Mercedes. That may have caused the learned magistrate to make the remark which he did, but in any event I cannot see that very much turns on the remark. A re-enactment of this nature is of limited use. For one thing Mr Sullivan had to concede that he did not have the advantage of the police flashing lights which he agreed would provide "a lot of extra light". Whether it was impossible to see anyone in the front seats or the rear seat of the vehicle at the relevant stages of the pursuit is difficult to determine on the evidence and I cannot agree, for example, that the evidence of Mr Sullivan casts any doubt on the veracity of the two police witnesses as opposed to the accuracy of their recalled observations. In my view the evidence of the police officers' observations as to how many were in the vehicle during the pursuit is not nearly as crucial as their observations after the vehicle came to a halt. As one of the police officers said, if during the pursuit someone had been in the rear of the vehicle lying down he would not have seen him. The unequivocal observations of both officers after the cars had stopped is of far more relevance. 8. The next point concerns the description of the Mercedes as given by the police officers. In cross-examination of Murgatroyd Mrs Shaw asked him if he locked the back door of the Mercedes. He said that he did and after saying he was certain, he was then advised that the vehicle was a coupe with only two doors, a fact which was later proved in evidence. Constable Gordge said in his evidence that it was a four door sedan. Two matters of relevance arise from this evidence: the extent to which the credibility of the officers was affected and the importance of considering their evidence as to the appellant being the driver arising from an assumption that he alighted through the driver's side door. According to the appellant's evidence he pushed the front seat forward from where he was sitting in the rear of the car and then alighted through the driver's side door. 9. These arguments relating to the misdescription of the vehicle and its possible effects on the credibility and reliability of the officers' evidence were before the learned magistrate and he has commented on the emphasis which was placed on the argument. He considered that the mistake was understandable. Clearly he did not think it affected the credibility of the officers. The point was also made in cross-examination (and I assume in the defence address) that the police officers may have wrongly assumed the appellant was the driver because he came out through the driver's door. There is no reason to think his Honour did not give that point adequate consideration. 10. Mrs Shaw has argued that the learned magistrate over-compartmentalised the evidence of the witnesses and did not consider sufficiently the evidence of each witness within the framework of the case as a whole. She also complained that the learned magistrate placed too much emphasis on the credibility of the witnesses and failed to give adequate consideration to the possibility that they may have been mistaken. In my view the reasons to do not demonstrate that this was the learned magistrate's approach. The form of his reasons was such that he dealt with the witnesses' seriatim but that is not an uncommon approach and does not lead to the conclusion that he did not test each witnesses evidence against the case as a whole. And although he made specific findings on credibility, I am unable to conclude that he neglected an inquiry into the accuracy of what the witnesses had to say, assuming that they were truthful witnesses. He made particular reference to the criticisms of their estimates as to speed and distance. 11. A further complaint relates to the fact that the appellant at first gave a false name to the police when questioned by them at the scene. The appellant said he told the lie because he was scared and he panicked. The learned magistrate rejected that explanation as unconvincing. The finding was open to the magistrate and in my view no criticism can be properly levelled at him for making it. 12. Mrs Shaw referred to the magistrate's approach to witnesses who had seen the appellant get into the rear of the vehicle at the Feathers Hotel. Estimates of the time when this took place appear to vary but there was evidence which the magistrate was entitled to accept which put the time when the car left the hotel at about 2.15 am. The learned magistrate accepted the witnesses as being honest but regarded the time lapse between 2.15 am and the time of the apprehension of the appellant as being relevant; presumably because Mr Carnelengo may have left the vehicle and the appellant taken over the driving. These findings and deductions were open on the evidence. 13. The magistrate found that the appellant was an untruthful witness and he did not accept Carnelengo's evidence that he was the driver and that he had left the car and escaped. In my view there is no indication that his Honour's assessment was flawed or that he in some way reversed the onus of proof as Mrs Shaw suggested. 14. Finally Mrs Shaw argued that the photograph P9 should not have been allowed into evidence during the course of the cross-examination of the witness Carnelengo. It was not as though the witness was asked any relevant questions about this topic and if the prosecution wished to tender the photograph I think application should have been made as part of rebuttal evidence. Whether it would have been admissible at that stage would have depended upon the application of the test appropriate to rebuttal evidence. Nevertheless I think the effect of tendering the photograph was negligible and nothing should turn on it. 15. It was argued that the learned magistrate failed to direct himself in accordance with R v Calides (1983) 34 SASR 355. Whereas it is important in some cases for a jury to be instructed on the three alternatives referred to in Calides case I do not think that it is necessary for a magistrate to make specific reference to these alternatives in his reasons for decision. It is sufficient if he makes a specific finding that a particular charge has been proved beyond reasonable doubt. It is not enough for an appellate court on an appeal of this nature to reach the conclusion that it was open on the evidence of the court below to have made specific findings. The appellate court is required to make an independent assessment of the evidence in order to determine the propriety of the verdict (Laurie v Nixon unreported decision Full Court 12th November, 1991.) I have performed that task, therefore, and in doing so I have considered the various defence arguments to which I have already referred along with other criticisms made by Mrs Shaw such as the discrepancies in the evidence of the police officers, the fact that eventually the appellant gave the name and address of Mr Carnelengo as the driver of the vehicle while still as the scene and the motive which Mr Carnelengo may have had for making his escape. But in the end I have reached the conclusion that the convictions were justified by the evidence. In my view a crucial factor is the assertion by both police officers that they did not see Carnelengo get out of the vehicle and run from the scene. 16. The appeal will be dismissed.