Director of Public Prosecutions v Hall
[2024] VSC 791
•19 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 01213
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| MITCHELL HALL | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 November 2024 |
DATE OF JUDGMENT: | 19 December 2024 |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Hall |
MEDIUM NEUTRAL CITATION: | [2024] VSC 791 |
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ADMINISTRATIVE LAW — Judicial review — First defendant charged with offences under Road Safety Act 1986 (Vic) — First defendant claimed not to have been driver of vehicle — Magistrate dismissed charges — Magistrate’s reasons included reference to an understanding about the operation of airbags that had not been the subject of evidence — Whether magistrate’s airbags understanding was a finding material to his ultimate conclusion — Whether magistrate erred in rejecting evidence from an eyewitness that plaintiff asserted was plausible and uncontradicted — Held no error established — Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Buchhorn | Abbey Hogan, Solicitor for Public Prosecutions |
| For the First Defendant | Mr S Gillespie-Jones | Joseph Burke Law |
| For the Second Defendant | No appearance |
HER HONOUR:
In the early hours of 6 August 2021, Mitchell Hall was involved in a vehicle accident on the Hume Freeway at Epping, on the Cooper Street overpass. The 2011 Ford Falcon in which he was travelling struck another vehicle at speed from behind. Two police officers attended soon after the collision and spoke with Mr Hall, who told them that someone else had been driving the Falcon. However, Mr Hall was the only person with the Falcon, which was registered to his mother, and the police formed the view that he was the driver. They required him to take a preliminary breath test, which he failed. The result of the blood sample taken about two hours later was that Mr Hall’s blood alcohol content was 0.221 per cent.
On 15 March 2022, Mr Hall was charged with careless driving[1] and two drink driving offences.[2] He pleaded not guilty to the charges, on the basis that he was not driving the Falcon at the time of the collision.
[1]Contrary to the Road Safety Act 1986 (Vic), s 65.
[2]Contrary to the Road Safety Act, s 49(1)(b), (g).
On 17 January 2024, the charges were heard in the Magistrates’ Court of Victoria at Heidelberg. The prosecution called Claire Relouw, who saw the accident and its immediate aftermath, as well as the nurse who took the blood sample, and the two police officers who attended the scene of the accident. Mr Hall gave evidence in his own defence, and called no other witnesses. At the conclusion of the hearing, the magistrate dismissed all three charges because he was not satisfied beyond reasonable doubt that Mr Hall was the driver of the Falcon. The magistrate’s reasons included reference to his understanding about the operation of airbags (the airbags understanding), which had not been the subject of evidence.[3]
[3]See [12] and [15]–[19] below for an explanation of the ‘airbags understanding’.
In this proceeding, the Director of Public Prosecutions seeks judicial review of the magistrate’s orders dismissing the charges. The Director contends that the orders involved jurisdictional error or error of law on the face of the record because:
(a) The magistrate found that the passenger side airbags in the Falcon would not deploy in the absence of a passenger based on no probative evidence and on a misapplication of s 144 of the Evidence Act 2008 (Vic); and
(b) The magistrate rejected Ms Relouw’s evidence that she never saw the driver’s side door of the Falcon open, despite that evidence being plausible and uncontradicted.
The Director seeks to have the orders of the Magistrates’ Court set aside, and for the proceeding to be remitted to the Magistrates’ Court for hearing and determination according to law.
The proceeding is defended by Mr Hall, who contends that the magistrate’s decision involved no error. The Magistrates’ Court took no active role in the proceeding.[4]
[4]In accordance with the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–6.
The issues for determination in the proceeding are:
(a) Was the magistrate’s airbags understanding a finding that was material to his ultimate conclusion? If so, did that involve error — either jurisdictional error or error of law on the face of the record?
(b) Was Ms Relouw’s evidence about the driver’s side door of the Falcon plausible and uncontradicted? If so, was it legally unreasonable for the magistrate to find that there was a hypothesis consistent with innocence — that the Falcon may have been driven by a third party?
(c) Should any relief be granted?
In summary, my conclusions in relation to those issues are:
(a) The magistrate did not make a finding that a passenger side airbag does not inflate unless there is a passenger, and did not rely on his understanding to that effect in reaching his decision. The magistrate’s path of reasoning was complete without any reference to the airbags understanding, and his comments about airbags did not demonstrate any error.
(b) Ms Relouw’s evidence was not plausible or uncontradicted, and the magistrate was not obliged to accept it as conclusive of the question whether Mr Hall was the driver of the Falcon.
(c) No error has been established, and so no relief can be granted.
My reasons for those conclusions follow.
The magistrate’s reasons
The magistrate gave oral reasons for decision, which were later transcribed as follows:[5]
[5]Transcript of Proceedings, The Police v Mitchell Hall (Magistrates’ Court of Victoria at Heidelberg, N10869103, Magistrate O’Callaghan, 17 January 2024) 99:13–102:17 (Magistrates’ Court transcript).
I find the blood sample was taken in accordance with the procedures laid down by the legislation and I find no faults in the blood sample or the three-hours issue. There was some confusion about that and we discussed the recharge and the like but essentially I find that the nurse’s evidence is accepted as is the informant’s evidence in relation to the chain of continuity, et cetera, regarding that.
In relation to the informant’s evidence generally I found the informant to be a truthful witness who I find no fault in the investigation that she carried out. Likewise, with the sergeant’s evidence. I’ve already made a comment about the way he handled the investigation. I thought it was very professional. He spoke to the accused person and the accused person raised at the scene a scenario B, Mr X as I’ve called it, as to whether there was a Mr X involved.
Now, the real issue in this case is that Mr X or Dan — at first blush it seems an unlikely scenario. This bloke turns up at a party where they’re drinking, the accused doesn’t know him. It doesn’t sound like anybody else really knows him, but nevertheless he gets involved at this function at Jordan’s house. The accused get progressively more intoxicated drinking what appeared a [combination of] rum, beer and possibly whisky.
He doesn’t know his blood alcohol reading. It’s later shown to be .221 and so it’s not surprising that his recollection of events was somewhat hazy and also it’s not surprising that after the accident he wasn’t exceptionally on the ball in terms of telling the officer what happened. What he did say was that he wasn’t driving and that Dan was.
He got out of the passenger side of the seat he says. That would be the natural thing to do if he was a passenger in a car. That evidence was not believed by the police at the time because they had, they said, witnesses and CCTV footage which contradicted that. I think that was the honest belief of the sergeant at the time. I don’t think he manufactured that evidence to support his contention that he was the driver.
But the evidence of the witness Ms Relouw was critical in two respects — critical to the police case in two respects. Number 1 that she saw both cars involved in the accident, the Camry Toyota, vehicle B, and the Ford vehicle A. Nobody got out of the driver’s side but the accused got out of the passenger side. She said that happened because the driver’s-side door couldn’t be opened.
I’m using the word “mangled” because that’s my word but there was such damage to the driver’s-side door that it rendered the door unopenable. That evidence wasn’t correct. I make no criticism of Ms Relouw’s evidence. But she’s come across a scene where, like, she was terrified. She thought that — well, she saw the vehicle go past her, she thought 150 kilometres per hour, then smash into the back of a car.
There was a pin ball effect as I described it where it went from one side of the road to the other. She clearly had great sympathy for the victim who she comforted and took to the ambulance. I saw her at the scene. She was clearly concerned about the victim, as in fact was the sergeant. But because of the shock of what she had seen, the late hour and the concern that she had for the victim meant that her forensic evidence has to be taken at a lower acceptability than for instance a forensic expert such as a police officer or a forensic scientist.
That evidence is incorrect. The other critical evidence was that — which I didn’t really understand but basically was to the effect that anybody who left the vehicle would have had to have left in a forward position and to do so they’d have to jump over a rail and possibly kill themselves. That wasn’t the situation of the road at the time.
In fact it’s clearly a road going by. If you jumped over the barrier provided you ensured you weren’t run over, you could have escaped. If you had been drinking, or in any event speeding, or in any event driving carelessly, you may wish to avoid the police. We have no evidence about whether the mysterious Dan had been drinking or how much he had been drinking. But at least that’s the hypothesis and consistent with innocence that he may have been in the car.
Against that the police say, well, the vehicle was detected speeding shortly prior to this and there is camera evidence of that. The camera evidence, photographic evidence doesn’t determine the issue conclusively and in fact you can’t tell of anybody being in the car because of the darkness of night when the photograph was taken.
The evidence that did trouble me was the owner of the car, the accused’s mother, received a penalty notice which she then nominated her son as the driver. Now, one would think if the accused was not the driver he would have objected to the nomination of himself or once having been nominated would have opposed the charge of speeding for which I note he has already done six months loss of licence. I take it, counsel, that was never challenged?
Mr Hall’s counsel confirmed that the nomination had not been challenged. The magistrate continued:[6]
That’s evident because of the notice that he — so he’s lost his licence for six months as a result of that. Whilst we as lawyers and police officers understand the effect of a nomination in form the effect of a penalty notice, taking a licence off you for six months, Mr Hall said that he felt that was all part of the police process arising from this accident, so it’s at least explicable to that extent.
So my view there is, whilst there is a strong circumstantial case against the accused person there is also an hypothesis consistent with innocence that the vehicle may have been driven by the third party, by Dan.
[6]Magistrates’ Court transcript, 102:19–30.
His Honour then turned to the airbags issue:[7]
Aligned with that is my understanding that airbags in the passengers don’t go off unless there is a passenger.
My understanding of that is that arises inter alia because it has been known that children have been in the front-passenger side of a car in an accident that the airbag — which is a dangerous piece of equipment by the way — can injure or kill them. So that is my clear understanding. It’s not an understanding that has been rebutted by the prosecution and in my view it actually makes sense.
[7]Magistrates’ Court transcript, 102:31–103:9.
In conclusion, the magistrate said:[8]
In the circumstances whilst I consider that the informant and the sergeant were right in bringing these proceedings it’s an unusual, is no case that I say with any confidence that the accused was not the driver. You can even argue that it is quite possible that he was the driver. You could even argue it’s probable he was the driver. But that’s not the test that I’m bound to adhere to.
I’m bound to adhere to a test of whether the case can be proven in all its elements beyond reasonable doubt. I’m not so satisfied. Accordingly I find the accused not guilty.
[8]Magistrates’ Court transcript, 103:10–21.
The magistrate then dealt with Mr Hall’s request for a costs order in his favour. While Mr Hall sought $10,000 for his legal costs, the magistrate ordered the prosecution to pay $3,000, with a stay of three months. His Honour’s reasons for ordering a lower amount included that Mr Hall was not blameless, the bar for the prosecution to meet was high, and there would be an outcry if police did not prosecute such a serious case.[9]
[9]Magistrates’ Court transcript, 104:6–18.
The airbags understanding
The airbags issue referred to at [12] above was a matter raised by the magistrate with the prosecutor at the conclusion of the defence case, as follows:[10]
HIS HONOUR: I’m going to take an unusual course. I need permission to do so. I’d like to recall the sergeant to give evidence. The point is, my understanding, and I know that magistrates can’t rely on their own understanding of things. But my understanding is that passenger airbags don’t go off unless there’s a passenger in the car. There’s a reason for that. That’s to prevent children from being killed by airbags.
When you’ve got a child a certain weight or the mechanism detects a certain weight, mainly a child, through an idiot who has got the child in the front seat and not in a child seat, that airbag won’t go off because it could kill a child. So the system of airbags, and it’s a fairly consistent system as I understand — we all remember the Takata or taco — it’s known as Takata bag problem a few years ago.
It was about it not being effective, that’s because they all use the same (indistinct) the same system. But the system as I understand is designed so if there is no passenger the airbag won’t go off. I’m looking at Photograph 9 which shows the airbags go off. I would like to have some evidence about this matter, because otherwise — you don’t know me but have a view that I like to tell people what I’m thinking rather than later on they say, “Jeez, I wish I know what he was thinking.”
My experience and understanding is that airbags don’t go off on a passenger side unless there was a passenger in the car. I’d like to speak to the sergeant. He may wish to agree with that, disagree with that or say he doesn’t know. At least he’s the most experienced car person around here who can give evidence.
[10]Magistrates’ Court transcript, 96:8–97:7.
The prosecutor replied that the sergeant did not know, who then confirmed ‘I don’t know whatsoever’.[11] The exchange continued:[12]
HIS HONOUR: Well, I have to tell you that’s my understanding. It makes sense, doesn’t it, Senior?
MS UNTHANK: I can’t comment on that, Your Honour. I’m not a car expert.
HIS HONOUR: No, it makes sense in terms of child safety.
MS UNTHANK: Again, I can’t comment on that, Your Honour.
HIS HONOUR: Well, you wouldn’t want to have an airbag going off if a child is – it all goes on weight so that the — plus they’re very expensive things to replace. So if you have an accident where the airbag goes off to protect the driver, if there’s nobody there it’s designed not to go off in the driver’s face. It makes absolute sense. Senior?
MS UNTHANK: Yes, Your Honour, again, I can’t comment on that. I don’t know the specifications of the vehicle that he was driving or — I’d have to have a look into that.
[11]Magistrates’ Court transcript, 97:8–10.
[12]Magistrates’ Court transcript, 97:11–26.
The magistrate then took another tack:[13]
HIS HONOUR: I understand that there are — there is presumption of regularity if you (indistinct) you’d be aware of that but in the absence of any evidence to the contrary there is a presumption that things are done regularly, and it’s one of the reasons why I allowed that evidence in relation to the speeding fine that has been photographed, against the interest of defence.
I know they objected to it but I heed to the presumption of regularity should take its course and in the normal course of s.69 business records it ought to be allowed because it’s not taken by the informant. It’s taken by a (indistinct) machine which it sees a car go past a camera and it takes a photograph in the normal course of events.
So adopting that principle, the principle of regularity, it ought to mean the specifications of motor vehicles, in this case airbags, ought to be followed by manufacturers. Your sergeant may have discovered something by the magic of Dr Google.
[13]Magistrates’ Court transcript, 97:27–98:14.
While the sergeant had found a Ford manual, he had nothing to add. The magistrate then asked defence counsel if he had investigated the matter. Counsel indicated that the defence did not oppose reopening the case to address it:[14]
HIS HONOUR: Because it suits you, but you haven’t taken that matter up yourself? You never thought of that opening?
MR BURKE: No, Your Honour, that is news to me. That’s technical knowledge – – –
HIS HONOUR: It was only when he gave evidence that the airbag blew up in his face which woke him up, that made me thinking on my understanding is that if there is no passenger the airbag doesn’t go off. Any submissions, Senior?
MS UNTHANK: Your Honour, ultimately – – –
HIS HONOUR: Just generally.
[14]Magistrates’ Court transcript, 98:20–28.
The prosecutor did not accept the implicit invitation to apply to reopen the prosecution case to adduce evidence about the airbags issue, and proceeded to make a brief final submission. The magistrate gave his reasons immediately afterwards.
Was the airbags understanding a material finding?
The Director’s starting point was that there was no evidence on which the magistrate could have found that airbags on the passenger side of the vehicle do not go off unless there is a passenger. For that reason, he said that it was legally unreasonable and procedurally unfair for the magistrate to make that finding. The Director further contended that the magistrate had fundamentally misapplied s 144 of the Evidence Act, including by not giving the prosecution an opportunity to address the airbags understanding so as to ensure that it was not unfairly prejudiced.[15]
[15]As required by the Evidence Act 2008 (Vic), s 144(4).
Mr Hall accepted that there was no evidence about airbags, and that it would have been wrong for the magistrate to make any finding about their operation.[16] His contention was that the magistrate did not make any such finding, and that his comments about airbags either did not form part of his reasons, or were not a finding that was material to his conclusion that the prosecution had not proved its case beyond reasonable doubt.
[16]Transcript of Proceedings, Director of Public Prosecutions v Mitchell Hall & Ors (Supreme Court of Victoria, S ECI 2024 01213, Richards J, 15 November 2024) 64:11–31.
I do not agree that the magistrate’s reference to airbags can be excised from the rest of his reasons, as Mr Hall suggested it could. A fair reading of the transcript does not permit that conclusion. The magistrate moved straight from expressing his view that there was a hypothesis consistent with innocence — that the third party ‘Dan’ may have been the driver of the vehicle — to saying that his view aligned with his understanding that airbags on the passenger side do not go off unless there is a passenger. There is not even a paragraph break at that point in the transcript. After explaining his airbags understanding, the magistrate returned to the criminal standard of proof before expressing his final conclusion — ‘I find the accused not guilty’.
That leaves the questions whether the magistrate made any finding about the operation of the airbags, and if so, whether the finding was material to his decision.
Submissions
Mr Hall said that when the magistrate raised the airbags issue with the prosecutor, his Honour was properly giving the prosecution an opportunity to reopen its case to address an issue that had occurred to him after hearing Mr Hall’s evidence. He submitted that the magistrate appreciated that he could only recall a prosecution witness with the agreement of both parties.[17] The magistrate was plainly seeking evidence about a factual matter and was inviting the prosecution to obtain that evidence to help him decide the case, consistent with the approach approved by the High Court in Johnson v Johnson.[18] However, the prosecutor did not take up the invitation, and there was no evidence about the airbags issue.
[17]Referring to Shaw v The Queen (1952) 85 CLR 365, 379–80 (Dixon, McTiernan, Webb, and Kitto JJ), 383–4 (Fullagar J); Obian v The King (2024) 98 ALJR 771, [1], [12].
[18]Referring to Johnson v Johnson (2000) 201 CLR 488, [13] (Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ).
Mr Hall pointed out that the magistrate did not use the word ‘finding’ when making his comments about the airbags issue. Nor did he refer to the presumption of regularity, which he had mentioned in argument, or say anything about s 144 of the Evidence Act or judicial notice. He said that it was clear from the earlier discussion that the magistrate understood that he could not rely on his own understanding, which was why he had invited the prosecution to put forward some evidence on the airbags issue.
Further, Mr Hall said that the magistrate had not relied on his airbags understanding to reach his finding that there was a hypothesis consistent with innocence — that the vehicle may have been driven by Dan. One needed no other finding to resolve the case. The magistrate’s understanding about the operation of airbags ‘aligned’ with the conclusion he had already reached on the evidence.
The Director rejected the proposition that the magistrate made no factual findings about his airbags understanding and did not rely on it. He said that it did not matter that the magistrate had not used the words ‘find’ or ‘rely’ in relation to the airbags issue, when it was necessarily implicit in his reasons that he had made a finding and given weight to it. The observation that the prosecution had not rebutted his understanding would otherwise have been superfluous. The Director also pointed out that the magistrate had not used the words ‘find’ or ‘rely’ in relation to whether Dan might have been driving the Falcon. He added that the ‘circumstances’ referred to in the magistrate’s concluding remarks must have included his airbags understanding.
Consideration
In undertaking this judicial review, I am conscious of the need to read the magistrate’s reasons fairly and as a whole, and not ‘with an eye keenly attuned to the perception of error’.[19] His Honour’s reasons were given orally, immediately after hearing the evidence, and the words he used to explain his decision should not be subjected to overzealous parsing.
[19]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh, and Gummow JJ), citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287; see also Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263, [41].
Taking that approach, I do not consider that the magistrate made a finding that a passenger side airbag does not inflate unless there is a passenger, or relied on his understanding to that effect in reaching his decision. Rather, he raised with the prosecutor an issue about which the prosecution might have wished to call further evidence. In doing so, he made clear that he knew he could only take the matter into account if there was some evidence about it, and that the prosecution could only present that evidence with the agreement of both parties. The prosecutor did not take up the invitation.
The magistrate made the invitation in circumstances where there was a photograph in evidence showing that both airbags had inflated, and Mr Hall’s evidence was that he was probably half asleep and did not remember much of the trip, and the next thing he remembered was the lights and the airbags going off.[20] This evidence on its own was consistent with Mr Hall having been a passenger, although it was not determinative of that issue. The prosecution case might have been improved by evidence about the circumstances in which airbags fitted to that model Ford Falcon are designed to inflate — in particular if there was evidence that both airbags should inflate on impact whether or not there is a person in the front passenger seat.
[20]Magistrates’ Court transcript, 88:13–16.
The magistrate’s path of reasoning is commendably clear from his oral reasons. He identified the real issue as being whether ‘Mr X or Dan’ was involved, and acknowledged that at first it seemed an unlikely scenario. He noted Mr Hall’s initial response at the scene was that he was not driving, although he otherwise ‘wasn’t exceptionally on the ball’. He then referred to Ms Relouw’s evidence that she saw Mr Hall get out of the passenger side door, but did not see anyone get out of the driver’s side door. The magistrate then explained why that evidence did not persuade him that there was no one else in the car. He noted that the speed camera evidence did not determine that issue, and explained why he accepted Mr Hall’s explanation for not disputing his mother’s nomination of him as the driver for the purposes of the penalty notice. The magistrate then reached the decision point, finding that there was a hypothesis consistent with innocence — that the vehicle may have been driven by Dan.
The magistrate’s next comments about airbags were, in my view, unnecessary to his ultimate conclusion that Mr Hall was not guilty. That conclusion followed from the finding that there was a hypothesis consistent with innocence. The path of reasoning was complete without any reference to the airbags understanding. However, having just raised it with the parties, the magistrate included a brief comment about it in his reasons — observing that his understanding aligned with the view he had already reached, and noting that the prosecution had not called evidence to rebut it. Critically, he did not say that the absence of evidence to rebut the airbags understanding informed or contributed to his finding of a hypothesis consistent with innocence.
Even if the magistrate’s comments about airbags had involved error, the Court would only intervene on judicial review if the error was material — that is, if there was a realistic possibility that the decision could have been different had the error not occurred.[21] Here, I am not satisfied that there was such a possibility. Airbags aside, there was a solid foundation on the evidence for the magistrate to have a reasonable doubt that Mr Hall was the driver of the Falcon. Mr Hall was seen getting out of the passenger side door, when the driver’s side door was not badly damaged and could have been opened. Ms Relouw conceded that it was possible that someone could have got out of the driver’s side door.[22] Mr Hall gave evidence that he was not the driver, and his evidence was consistent with what he said to police immediately after the accident. The airbags understanding did not change the fact that there was no conclusive evidence that there was only one person in the car, and some evidence that there were two.
[21]In relation to jurisdictional error, see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610, [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ). In relation to error of law on the face of the record, see also Melton City Council v Minister for Planning [2022] VSCA 144, [60]–[64].
[22]I consider at [52]–[58] below the Director’s second ground concerning Ms Relouw’s evidence.
The Director’s first ground of review therefore fails.
Ms Relouw’s evidence
The Director’s second ground of review concerns the magistrate’s rejection of Ms Relouw’s evidence that she never saw the driver’s side door of the Falcon open. The Director contends that the evidence was plausible and uncontradicted, and that the magistrate was therefore bound to accept it. Before considering that contention, it is necessary to set out Ms Relouw’s evidence in some detail.
Unfortunately, the audio recording of Ms Relouw’s evidence was poor. The transcript of her evidence reflects that many parts of what she said were indistinct. I have listened to the audio recording, and am unable to make out any more than was transcribed.
Ms Relouw gave evidence that at about 12:40am on 6 August 2021, she was driving on the Hume Freeway towards Mernda, on the overpass to Cooper Street. She was driving in the left hand lane, with her cruise control set to 100 kilometres per hour, and ‘out of nowhere’ a car came flying past her in the right hand lane (Car A).[23] She then saw Car A collide with another car (Car B). Car B hit a railing on the right hand side of the road, shot over to the left again, and then came to rest on the right shoulder. Car A came to rest in the middle of the right hand lane, still on the road.
[23]Magistrates’ Court transcript, 11:18–20.
Ms Relouw said she then put on her hazard lights and pulled over to the left hand side of the overpass, and called triple zero. After the recording of the triple zero call was played, Ms Relouw continued her evidence in chief:[24]
[24]Magistrates’ Court transcript, 15:4–16:28.
SENIOR CONSTABLE UNTHANK: So you’ve heard that triple zero call, Claire. Whilst you were on the phone to emergency services were there any obstructions to your view?---No.
I was basically like (indistinct) to my right (indistinct)
HIS HONOUR: How was the lighting?---Like, it was dark but it had (indistinct)
Was there street lighting?---I can’t recall if there was street lighting (indistinct) in that area but there is a petrol station and (indistinct)
Sorry, there’s a what?---A petrol station (indistinct) very dark, in the middle of nowhere area (indistinct)
Did you have your lights on the vehicles?---Yeah.
As in your car lights were on, just your hazards were on?---Yeah.
Did you turn the car off?---No, my car was still running.
SENIOR CONSTABLE UNTHANK: So you’ve described to the triple zero call taker that you saw someone out of the car?---Yes.
Who did you see out of the car?--- I seen (indistinct) and a male (indistinct)
So which car did the male - - -?---The male came out of car A.
Car A?---Yeah, and the female came out of car B.
So A would be the car that flew past?---Yeah.
HIS HONOUR: Sorry, I’ll just stop you there. Did you see the male come out of car B or did you see the male beside car B?---I seen the male come out Car A, Your Honour.
Sorry, a male came out of — you actually saw the male - - -?---I seen him come out of - - -
- - - come out - - -?---passenger side ‘cause the driver’s side of the - - -
So I’ll just make a note of this?---Yes.
Male came out by the passenger side of car A and a female come out of car B or - - -?---Yeah, she come out of the car as well.
The driver’s side?---Yeah.
Was that done at the same time of — pretty much the same time as each other or - - -?---Yeah. She got out after him. He was approaching her vehicle and she was getting out.
Thank you, Senior.
SENIOR CONSTABLE UNTHANK: So as you’ve said the male has come out of car A and you said passenger-side door?---Correct.
And what’s happened after you’ve — so you’ve gotten off the phone to triple zero. Did you stay in your car?---No, I was — I was standing out of my car.
You were standing out of your car?---I was standing at my vehicle.
Yeah?---A truck had come past and almost had collided with car A as I was still in the - - -
HIS HONOUR: Sorry, a truck - - - ?---A truck, yeah.
- - - collided with?---No, it nearly collided ‘cause we’re - - -
Nearly collided?--- ‘Cause I explained to the — the overpass (indistinct) it’s a slight rise, so if you’re coming up you wouldn’t see the accident or the bridge because of the right side so (indistinct)
In answer to questions from the magistrate, Ms Relouw clarified that it was a rigid truck rather than a semi-trailer. She also identified Car A as a Ford and Car B as a Toyota. Her evidence in chief continued:[25]
[25]Magistrates’ Court transcript, 17:12–19:19.
Thank you. So you‘re standing outside of your car - - - ?---Yes.
- - - as the truck has come past?---Yes.
What’s happened next?---I was — but when I (indistinct) to the driver I was talking to the driver in car B. She was distraught. He was anxious and - - -
HIS HONOUR: He was what?---He looked like anxious, agitated state.
Agitated?---Yeah.
Did you say anxious?---And — yeah, he was very panicked.
SENIOR CONSTABLE UNTHANK: When you say he was panicked why do you say that?---The way his body language was (indistinct) don’t panic. He was, like, “fuck, fuck, fuck. I’m so sorry. Is she okay? Is she okay? Is she okay?” Like, that’s - - -
HIS HONOUR: “Is she okay”?---That’s what driver of car A was saying to the driver of car B.
So he was talking to you?---No, he was talking the driver of (indistinct)
But he was saying to her?---Yeah.
- - - “is she okay?”--- “Is she okay? Is she okay?”
Was he saying, “Are you okay”?---No, “Is she okay” is what he was saying — “Is she okay?”
So - - -
SENIOR CONSTABLE UNTHANK: Was he saying that to — sorry. Was he saying, “Is she okay” to you or to the other driver?---No, to the other driver.
Okay.
HIS HONOUR: It’d be the oddest thing to do when speaking to somebody to say, “Is she okay?” It sounds like he’s talking about somebody else. Do you follow?---Yeah, yeah, I understand.
So he was talking to the female driver - - - ?---He might have been saying it to me because I was going up to her but (indistinct)
Do you specifically remember him saying, “Is she okay”?---Yeah.
Not, “Are you okay”?---Yeah, no. It’s, like, “Is she okay?”
And he said it a number of times?---Yeah, yeah.
And “Oh, fuck, oh, fuck”?---Yeah. And then another truck has come and nearly collided (indistinct) you can’t see the accident. You couldn’t even see my hazard lights.
These cars didn’t stop. They just - - -?---They just went past. There was like two — two trucks that went past in the time period before police or anyone else arrived.
The only vehicles that went past in the time that you were there were two trucks?---Yeah.
SENIOR CONSTABLE UNTHANK: So whilst you are — are you next both drivers at this point?---Yeah. I’m over on their side of the road.
In relation to both vehicles where are you standing?---Sort of (indistinct) he’s — the driver of car A ‘cause once I (indistinct) has gone up to — gone up to car A and pushed it off the road ‘cause it’s, like, a hazard.
HIS HONOUR: So the driver of car A pushed car A off the road?---He pushed it off the road, yeah.
SENIOR CONSTABLE UNTHANK: Did he push the car off the road with anybody else’s assistance?---No.
So at the scene how many people in total did you see at the scene?---Three. Including myself?
Including myself?---Yeah, three.
HIS HONOUR: So there were three including yourself. So you saw two other people?---I seen two other people.
The male driver of car A and the female driver of car B?---Correct.
How long were you there for?---The whole - - -
From the time the accident happened - - - ?---So it was kind of like - - -
- - - and you put your hazard lights on until you left, how long was that?---I left (indistinct)
So you were there for over an hour?---Yeah.
Ms Relouw went on to describe the arrival of an ambulance, quickly followed by the police and fire service. The prosecutor asked her to reclarify what took place after she called triple zero:[26]
[26]Magistrates’ Court transcript, 21:14–22:13.
So you’ve called — just to reclarify, you’ve called triple zero. You’ve then crossed the road. Whilst you were talking with both drivers of vehicles which direction were you facing?---I was to the (indistinct) I guess facing the road (indistinct) I’m not sure if it was near the cars (indistinct)
When you said you made sure what do you mean by that?---I (indistinct) like, ’cause you could see the damage done to car A. There was no way that he could get out of the driver’s side of the car and - - -
HIS HONOUR: So he couldn’t get out of the driver’s side of the car?---No, the car (indistinct)
Well, tell me why he couldn’t get out of the driver’s side?---Because of the significant damage done to the driver’s-side door.
You saw that damage?---Yes.
Was it just squashed in such a way that — or squashed out?---I would assume that that is (indistinct) so the impact (indistinct) right-hand side of the car but the door to the (indistinct) of the car.
But you could actually tell from where you were - - -?---Yeah.
- - - that he couldn’t get out it?---Yeah, you could see that the way — yeah. Even when he’d gone to move his car he didn’t open the door. He just put his hand through the window and - - -
So steered through the - - -?---Just steered through the window.
Passenger side?---No, through the driver’s side window he steered through, but he didn’t open the door of the driver’s side (indistinct)
At the end of Ms Relouw’s evidence in chief she clarified that she spoke to police when they arrived at the scene, at which time she was in the back of the ambulance with the driver of Car B. Ms Relouw was then cross-examined by counsel for Mr Hall:[27]
[27]Magistrates’ Court transcript, 23:2–26.
Ms Relouw, I’ve just got a couple of questions for you. After you witnessed the crash when you were starting that phone call was that after you had stopped your car?---Yes.
And you at that stage would have had a pretty good view of the passenger door of the [Falcon]?---Yep, yep.
And from where you were you couldn’t actually see the driver door could you?---No, I could see — I can see. The car was sort of like on a slight angle in the middle of the road so I could see the driver’s side.
So you could see the driver’s side and you could see the passenger side?---Yeah, from where I stopped. I could — I was sort of faced directly behind his car so I could see (indistinct)
You’re saying that the driver’s side was not obscured at all - - - ?---No.
- - - by the passenger’s side?---No, no. I could see both sides.
You saw Mr Hall exit through the passenger door?---Yeah, I seen him.
And you’ve said that it wasn’t possible for him to exit through the driver’s door?---Correct.
I’ve got an image I just want to show you. I’ve actually got two. So one is labelled 8 and one is labelled 9. If I could show these.
Ms Relouw pointed out Car A (the Falcon) and Car B in photographs 8 and 9, which were taken by one of the police officers at the scene. In relation to photograph 9, counsel asked:[28]
[28]Magistrates’ Court transcript, 25:2–18.
Now, can you describe to me what that photo is?---Just of the driver’s side of the door and his (indistinct)
HIS HONOUR: Sorry, is that driver’s side of car A?---A I’d assume.
MR BURKE: You accept that the door is open?---Yes.
So there’s no impediment in opening that door is there?---Well, that photo I’m assuming there is no - - -
HIS HONOUR: Did you say no impediment in opening the door?
MR BURKE: Yes, there’s no impediment to opening the door.
HIS HONOUR: Impediment. Are you going to exhibit that?
MR BURKE: Yes.
#EXHIBIT C — Photo 9.
HIS HONOUR: How does that gel with what you said earlier that it was impossible to open the door?---Well, that — without — I only spoke of what I assumed, but it was damaged to the left-hand side and the door wasn’t open at the time.
Ms Relouw was then questioned about where she was located relative to Car A and Car B when she made the triple zero call:[29]
[29]Magistrates’ Court transcript, 27:12–28:14.
MR BURKE: Car A would have been the furthest car away from you?---Yes. I was (indistinct) where those two cars were was where I stopped.
Would you have been able to see the bonnet of car A?---Not the bonnet.
That’s all right, so - - -?---It just be the (indistinct) cars.
So in front of car A, right, your vision would have been obscured by car A so you can’t see what’s behind car A?---Yeah, well, directly in front of car A I think (indistinct)
So if there’s an occupant that’s fled the scene walking in the direction behind car A you wouldn’t have been able to see?---Yeah, but there’s also like a — like, a little barrier at the top of the (indistinct) it appears to be (indistinct)
Yes, but from where — while you were having that conversation — you had that conversation with triple zero for about three minutes, like, you’re standing there and, you know, you’re having a look at the scene, right? There is a portion of your vision which is obscured by car A, right?
So what I’m putting to you is that you would not have been able to see the person that was behind car A?---In front of car - - -
From your perspective in front of car A?---Yep, yep.
HIS HONOUR: So what’s being suggested just, so I’m clear where this is going, that if there was another person in car A who got out of Car A and fled the scene in a forward direction — obviously if it went back you’d seen a person — in a forward direction, your vision of that person may have been obscured?---Yeah.
That’s the question?
MR BURKE: Yes, that’s the question.
HIS HONOUR: Do you agree that that is possible?---That is possible.
The Magistrate paused to make a note of that answer, and defence counsel continued:[30]
[30]Magistrates’ Court transcript, 28:18–29:12.
MR BURKE: So it’s possible that Mr Hall exited through the passenger door because someone else exited through the driver’s side?---I never seen the driver’s side get opened.
I’m just saying it’s possible?---It’s possible.
HIS HONOUR: Possible that someone could have exited through the driver’s door?
MR BURKE: That’s correct.
HIS HONOUR: Do you agree that’s possible?---It’s possible.
Because originally you said that the door was in such a way that you could not get the door - - -?---Well, I didn’t see it open at all.
Your understanding is that the - - -?---Yeah, I understand.
- - - vehicle’s front-driver’s door could not be opened. You now accept that in fact it may have been opened?---Yeah, I would. From what I can recall from that one, yeah, I did see it open.
No, I understand that?--- Yeah.
But your original evidence was it couldn’t be opened?---Yeah.
Now, you say — well, that photographs suggests that it may have been. I didn’t see anybody get out of the driver’s - - -?--- I didn’t — yeah.
Thank you.
MR BURKE: But it was possible someone could have got out of the driver’s side?---I think so.
So do - - -?---Yes.
The prosecutor re-examined Ms Relouw, relevantly:[31]
So just to clarify did you at any point whilst on the phone to triple zero [take] your eyes off the scene?---No.
As you said before you never saw the driver’s side door open. What do you mean in relation to that?---I never saw the driver’s side door open (indistinct)
In what time frame period are you talking about you never saw it?---From when I seen the accident happen to calling triple 0 to (indistinct)
Was Ms Relouw’s evidence about the driver’s side door plausible and uncontradicted?
[31]Magistrates’ Court transcript, 29:16–23.
Submissions
The Director challenged the magistrate’s treatment of Ms Relouw’s evidence that she never saw the driver’s side door of the Falcon open when it came to rest on the freeway immediately after the collision. He submitted that the treatment was wrong in two related ways:
(a) There was no evidence on which the magistrate could rely to find that Ms Relouw’s observations that the driver’s door had not opened — as opposed to whether it could open — were mistaken; and
(b) The treatment of Ms Relouw’s evidence was otherwise illogical, irrational, or unreasonable.
As to the first, the Director argued that while Ms Relouw accepted that the driver’s side door of the Falcon may have been openable, contrary to her earlier evidence, she emphatically and repeatedly maintained that she never saw the door open ‘at the time’. The Director said that ‘the time’ was when the car was resting on the road immediately after the collision and before it was pushed off the road by Mr Hall. He submitted that there was no evidence that enabled the magistrate to reject that evidence as incorrect, and he was obliged to accept it. Elaborating on that point, the Director submitted:
(a) First, the magistrate conflated the evidence about whether the driver’s door of the Falcon was openable with the evidence about whether it in fact opened. Hence, even if she was mistaken in her belief that it could not open, that did not mean that her evidence that she never saw it open was wrong.
(b) Second, photograph 9 was taken after the Falcon had been pushed off the road, and did not undermine Ms Relouw’s evidence about her observations before that time.
(c) Third, there was no basis for the magistrate’s finding that Ms Relouw’s evidence had ‘lower acceptability’. In particular, there was no evidence to suggest that she was terrified, tired, shocked, or distracted by the welfare of the driver of Car B. No questions to that effect were put to her. She was a credible, independent witness who gave a measured account of events, and there was no reason not to accept her evidence.
According to the Director, in the absence of any evidence to the contrary, the magistrate was bound to accept Ms Relouw’s evidence that she never saw the driver’s side door open. The Director made that submission in reliance on a passage from Swinburne v David Syme & Co,[32] to the effect that where inherently probable evidence that is conclusive of a matter is given on one side, and is not contradicted by evidence on the other side, the tribunal is bound to accept the evidence.
[32][1909] VLR 550, 565–7 (Madden CJ) (David Syme). The Director also referred to Hardy v Gillette [1976] VR 392, 396–7.
Further, the Director submitted that it was legally unreasonable for the magistrate to find that Ms Relouw was mistaken about seeing the driver’s side door open and to reject her evidence as unreliable. He added that it was not reasonable to rely on photograph 9 to question the veracity of Ms Relouw’s account, because other evidence indicated that the photograph was taken after the car had been moved off the road and was being attended to by firefighters.
Mr Hall responded that the real question for the magistrate was whether another person was driving the Falcon, not whether the driver’s side door had opened. He said that Ms Relouw’s evidence was not plausible, uncontradicted, or conclusive of that question, and the magistrate was not obliged to accept her evidence. He relied on the following matters:
(a) The magistrate correctly found that Ms Relouw mistakenly assumed that the driver’s door was damaged and could not be opened. Her evidence in chief was that there was ‘no way’ the driver could get out of the driver’s side of the car. She later conceded that was wrong, when shown photograph 9 in cross-examination.
(b) Ms Relouw repeatedly conceded that it was possible that someone left the car from the driver’s side door.
(c) There was also evidence that it was possible that Ms Relouw’s vision was obscured.
(d) Ms Relouw’s evidence was contested by Mr Hall, whose evidence was that Dan was driving the Falcon.
Mr Hall further submitted that the magistrate would not have been obliged to accept Ms Relouw’s evidence if it had been plausible. That would have the effect of reversing the onus of proof, in a criminal proceeding where the prosecution had to prove each element of the offence beyond reasonable doubt.[33]
[33]Referring to He Kaw Teh v The Queen (1985) 157 CLR 523, 534–5 (Gibbs CJ, Mason J agreeing), 593 (Dawson J); Woolmington v DPP [1935] AC 462.
Consideration
It is useful to begin with the full passage from the judgment of the Chief Justice in David Syme that was relied on by the Director:[34]
It is said that the Judge had no right to reject sworn evidence when there was no evidence to contradict it. Certain decisions by myself sitting in the Practice Court were cited. There were two. These cases laid down the principle to which I most stoutly adhere, that where evidence is given on one side which is conclusive of the matter, which is in itself inherently probable, and not unreasonable or improbable, and where it is not contradicted by evidence on the other side, the tribunal which hears it is bound to accept it. Because if it were otherwise the decision would be a matter of caprice, a mere matter of prejudice, so that some Judge might say — “I do not like this person or this kind of thing.” But in all cases where the evidence is probable and is sworn to, and is not contradicted, it ought to be accepted. But it is an equally certain proposition that no Judge and no tribunal is bound to accept evidence which is in itself inherently improbable and unreasonable, which is hesitating, doubting, shuffling, inconclusive, and unconvincing. That is no proof at all. The Judge is entitled to waive it aside, whether it is contradicted or not contradicted.
[34]David Syme, 565–6 (Madden CJ).
Whether this principle has application in a particular case obviously depends on the question for decision, the evidence that is said to be conclusive, and any other evidence that is relevant to the question.
As Mr Hall submitted, the real question for the magistrate in this case was whether the prosecution had proved the elements of the three offences charged beyond reasonable doubt. In relation to each charge, Mr Hall had presented a positive case that he was not the driver of the Falcon. He gave sworn evidence to that effect, in addition to Ms Relouw’s evidence that she saw him get out of the passenger side door. The prosecution therefore had to prove beyond reasonable doubt that Mr Hall was the driver. That did not necessitate any specific finding as to when the driver’s side door was first opened or how the mysterious Dan got out of the Falcon and left the scene.
I do not accept the Director’s characterisation of Ms Relouw’s evidence as plausible or uncontradicted. While there was no question about her honesty, her evidence was shown to be unreliable on a critical matter. Her initial evidence was that no one had got out of the driver’s side door because it was so badly damaged that it could not be opened. Photographs of the Falcon taken shortly after the collision showed that the door had been opened and did not appear to be damaged. When she was shown those photographs, Ms Relouw changed her evidence on that critical matter. She said that she had assumed that the door could not be opened, an assumption that was clearly wrong. She went on to agree that it was possible that someone had exited the Falcon through the driver’s side door, although she never saw the driver’s side door open. In light of those concessions, the magistrate was not obliged to accept Ms Relouw’s evidence; indeed, there was good reason to treat the balance of her evidence with caution.
Further, Ms Relouw’s evidence was not conclusive of the question whether Mr Hall was driving the Falcon. The part of her evidence relied on by the Director was her insistence that she did not see the driver’s side door open. However, as far as I can tell from the imperfect recording and transcript of her evidence, Ms Relouw did not say that she was observing the Falcon at all relevant times, so that it was not possible that another person ever got out of the car. I note the following:
(a) Ms Relouw pulled over to the left hand side of the road, after Car A and Car B came to rest in the right hand lane. She said that while she was standing by her vehicle, a truck drove past and nearly collided with Car A (the Falcon).[35] This may have interrupted her view of the Falcon momentarily.
[35]Magistrates’ Court transcript, 16:15–17:14.
(b) She described speaking with the driver of Car B, who was ‘distraught’.[36] She added later in her evidence that when she walked up to the driver of Car B ‘she ran to me and hugged me and was just terrified’.[37] She also described Mr Hall as being ‘panicked’ and in an ‘agitated state’.[38] Ms Relouw’s evidence indicated that her attention was focused at that time on the driver of Car B and Mr Hall.
(c) She said that a second truck then went past and nearly collided with them, before Mr Hall pushed the Falcon off the road.
(d) In re-examination, the prosecutor tried to clarify the time during which Ms Relouw had her eyes on the Falcon. Unfortunately, some of her answers to those questions were indistinct and the time frame is just not clear.[39]
[36]Magistrates’ Court transcript, 17:16–17.
[37]Magistrates’ Court transcript, 22:28–29.
[38]Magistrates’ Court transcript, 17:18–21.
[39]See [45] above.
I do not accept the Director’s criticism of the magistrate’s reasons for giving lower weight to Ms Relouw’s evidence. Her mistaken assumption about the state of the driver’s side door of the Falcon was sufficient reason to treat all of her evidence with caution. In addition, there was evidence from which the magistrate could conclude that Ms Relouw was terrified, shocked, tired, and distracted by her concern for the welfare of the driver of Car B. The events described by Ms Relouw in her evidence, the late hour at which the collision took place, the fact that she was on her way home, the tone of her call to triple zero, and her appearance near the start of the body camera footage all formed part of the evidence from which the magistrate could reasonably reach those conclusions.
The Director’s second ground of review is not made out.
Disposition
The Director has not demonstrated that the magistrate’s order was affected by error, and so the proceeding must be dismissed.
I should add that there are two discretionary matters that would have weighed against granting relief, had error been shown.
First, I could not see any real prospect that the outcome would be different if the matter were to be remitted for rehearing. The Director did not say before me what, if any, additional evidence might be called in relation to the operation of the airbags in the Falcon. I was not persuaded that evidence from the prosecution about the airbags issue could have resulted in a different outcome. As Mr Hall submitted, that evidence would either prove there was a second person in the car or nothing at all, given the photograph showing both air bags had inflated.
Second, and less important, was the fact that the Director sought judicial review, instead of exercising his statutory right of appeal on a question of law under s 272 of the Criminal Procedure Act 2009 (Vic). No explanation was given for this choice. Ordinarily, the proper course is for the Director to take the statutory avenue of appeal.[40] The absence of an explanation for a choice to bring a judicial review proceeding instead can be a discretionary consideration against granting relief.[41]
[40]Kuek v Victoria Legal Aid (2001) 3 VR 289, 293–4 (Phillips JA, Winneke P and Buchanan JA agreeing) (Kuek).
[41]See JV v Children’s Court of Victoria [2023] VSC 656, [85]–[99], citing Kuek, 292–4 (Phillips JA, Winneke P and Buchanan JA agreeing), Perkins v Victorian Bar Inc [2007] VSCA 107, [11], [14] (Chernov JA, Buchanan JA agreeing), Garde-Wilson v Legal Services Board (2008) 19 VR 398, [99]–[100] (Dodds-Streeton JA, Buchanan and Nettle JJA agreeing).
I will make an order dismissing the proceeding, and hear the parties on the question of costs.
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