Devir v Taylor - [1999] WASCA 13

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DEVIR -v- TAYLOR [1999] WASCA 13

CORAM: SCOTT J

HEARD: 4 MAY 1999

DELIVERED : 4 MAY 1999

PUBLISHED : 7 MAY 1999

FILE NO/S: SJA 1008 of 1999

BETWEEN: STEPHEN PAUL DEVIR
Appellant
AND
TERRY CHARLES TAYLOR
Respondent

Catchwords:

Criminal law and procedure - Appeal - Appeal against fine in Court of Petty Sessions - Whether Magistrate erred in accepting evidence - Turns on own facts.

Legislation:

Road Traffic Code 1975 Reg 402(8)

Result:Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Ms C V M Barton

Solicitors:

Appellant: In person
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Devries & Anor v Australian National Railways Commission & Anor (1992-1993) 177 CLR 472

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Brunskill v Sovereign Marine and General Insurance Company Ltd (1985) 59 ALJR 842
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Harling (1997) 94 A Crim R 437
Mann v Mann (1957) 97 CLR 433

SCOTT J: The appellant was granted leave to appeal by Justice Steytler on 11 March 1999.
The appellant was convicted after trial in the Court of Petty Sessions at Perth of the offence of failing to stop at a stop sign contrary to reg 402(8) of the Road Traffic Code 1975.
The grounds of appeal as contained in the order granting leave to appeal, attack the learned Magistrate's findings of fact in the manner particularised in those grounds. Essentially the appellant contends that the learned Magistrate erred in accepting the evidence of the two police officers who gave evidence against him in preference to his own evidence.
The essential facts of the matter are that the appellant was driving home in a northerly direction along Beaufort Street, North Perth, and turned right into Brisbane Street and then left into Stirling Street. The prosecution's case was that the appellant failed to stop at the stop sign on the junction of Brisbane and Stirling Streets. The prosecution case was that the police car in which the two witnesses were travelling was about 20 to 30 metres behind the appellant's car when it failed to stop at the stop sign at the intersection of Brisbane and Stirling Streets. The prosecution evidence was that the police followed the vehicle to the intersection of Bulwer and Stirling Streets, where the vehicle did stop at a stop sign. The police followed the vehicle across that intersection and then stopped the vehicle half way along the next block as it approached the Stirling Street and Lincoln Street intersection.
The appellant's case was that he stopped his vehicle at the stop sign in question and was aware of the police vehicle proceeding behind him, on his evidence, approximately 100 to 120 metres to the rear. He says that because he was aware of the police vehicle behind him he made a point of stopping at the Brisbane Street and Stirling Street stop sign. He says that he was aware of the police car following him into Stirling Street and that he stopped again at the Stirling Street and Bulwer Street stop sign. That last fact is common ground. The appellant says that the police then pulled him up further down Stirling Street.
The appellant argues that his evidence should have been preferred to that of the two police officers and that the Magistrate made an error in law in convicting him.
In dealing with the evidence, his Worship said:
"Even if I disbelieve the defender or I have some doubts about the defendant, it's nevertheless necessary for the prosecution witnesses to satisfy the court beyond a reasonable doubt that they have told the true in their evidence and that I have an accurate picture of the - - of what happened. Now there was nothing in my observations of Constable Vesperman that led me to believe that he otherwise had a clear view of the incident. He maintained that he was only 20 to - - or 20 to 30 metres behind the subject vehicle and had a clear view of it, determined to stop it, did so and got an explanation about an accelerator sticking.
Similarly to my observations of Andrew James Kirk (sic Kerr) there was nothing in his evidence that led me to believe or to disbelieve anything that he might have been saying. As far as the defendant was concerned, there was nothing on the - - in his demeanour or in the way he gave his evidence that led me to think on the face of it that he also was someone who could be automatically disbelieved.
However when I listened to his evidence I had a lot of difficulty in rationalising how it could be the case that he would be looking in his rear view mirror as he approached the Stop sign, particularly given the - - what's been identified as the locality where the street involves not a - - not so much a T-junction but almost a sort of V-junction. It struck me as not being particularly believable that he should be looking in his rear view mirror as he approached the Stop sign only to see the police car way off in the distance, presumably meaning that the police officers then wouldn't be able to see him stopping at the Stop sign.
The other thing that I had difficulty with accepting was that Mr Devir's explanation of how this all came to be was that the police officers had determined to stop a car that was old and that was going through the back streets with a view to hopefully picking up a drunken driver and yet being sadly disappointed with that and settled for a fall-back position of an entirely fabricated charge of stopping at a Stop sign."
In that paragraph, in my opinion, his Worship not only clearly indicated that he accepted the evidence called by the prosecution in preference to that called by the appellant, but he gave the essential reasons why he came to that conclusion.
The two police constables concerned (Vesperman and Kerr) also testified that when the appellant was stopped, he was asked whether there was any lawful reason why he did not stop at the stop sign and the constables testified that he responded "the accelerator gets stuck sometimes". His Worship also referred to that explanation and said:
"When stopped he gave the explanation that the accelerator gets stuck sometimes, which was in my view his way of rationalising not the fact that he had not stopped at the stop sign but the reason as to why he didn't".
The appeal therefore challenges the factual findings of the learned Magistrate. That being the case, the test to be applied is that set out in Devries & Anor v Australian National Railways Commission & Anor (1992-1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479:
"More than once in recent years, this Court has pointed that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against – that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has filed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."
Applying that test in this case, it is clear that in this instance the Magistrate had the distinct advantage of seeing the witnesses, both when giving evidence and when being cross‑examined and had the opportunity of making his own assessment as to the value to be placed upon the evidence of the witnesses. An appellate court does not have that advantage.
Contrary to the submissions of the appellant, there was, in my opinion, no necessity for the Magistrate to draw any inferences from the facts which were established. The contest in the case was simple enough. The prosecution alleged that the appellant had failed to stop at the stop sign and the appellant's evidence was that he did in fact stop. The appellant argued that the prosecution witnesses must have been mistaken because, on his evidence, they were not in a position to have seen whether his vehicle stopped or not at the relevant stop sign.
The appellant has failed to demonstrate any error in the reasons of the learned Magistrate which would justify setting aside the conclusion which he reached.
For these reasons, on 4 May 1999, the appeal was dismissed and consequential orders were made.