Flint D.C. v Lowe A.J

[1995] FCA 488

CATCHWORDS

Vehicles and traffic - offences relating to intersections and junctions - driving vehicle through red lights - whether convictions unsafe and unsatisfactory - findings by Magistrate that portions of complainant's evidence were not made out - findings by Magistrate of complainant's credibility - whether reasonable doubt - Motor Traffic Act 1936 (ACT) s112A

M v R (1994) 126 ALR 325

DENISE CHARLENE FLINT v ANDREW JAMES LOWE
NO ACT G 77 of 1994
NO ACT G 78 of 1994

von Doussa, Higgins and R D Nicholson JJ.
Canberra
23 June 1995

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY     )
DISTRICT REGISTRY                )     NO. ACT G 77 of 1994
GENERAL DIVISION                 )     NO. ACT G 78 of 1994

B E T W E E N:  DENISE CHARLENE FLINT

Appellant

and

ANDREW JAMES LOWE

Respondent

MINUTE OF ORDER

CORAM:von Doussa, Higgins and R D Nicholson JJ.

DATE OF ORDER:     23 June 1995

WHERE MADE:       CANBERRA

THE COURT ORDERS THAT:

(1)The appeal be dismissed.

(2)The appellant pay the respondent's costs to be taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )     NO. ACT G 77 of 1994
  )     NO. ACT G 78 of 1994
DISTRICT REGISTRY                )
  )
GENERAL DIVISION                 )

BETWEEN:

DENISE CHARLENE FLINT

Appellant

AND:

ANDREW JAMES LOWE

Respondent

Coram: von Doussa, Higgins and R D Nicholson JJ.
Place: Canberra
Date:  23 June 1995

REASONS FOR JUDGMENT

von Doussa J.  In my opinion this appeal should be dismissed for the reasons given by R D Nicholson J.

I certify that this is a true copy of the Reasons for Judgment of Justice von Doussa

Associate:

Date:

IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY     )

DISTRICT REGISTRY                )     NO. ACT G 77 of 1994

GENERAL DIVISION                 )     NO. ACT G 78 of 1994

B E T W E E N  DENISE CHARLENE FLINT

Appellant

and

ANDREW JAMES LOWE

Respondent

CORAM:von Doussa, Higgins and R D Nicholson JJ.

DATE:23 June 1995

PLACE:Canberra

REASONS FOR JUDGMENT

R D NICHOLSON J:

The appellant appeals from the dismissal of her appeal against conviction in the Magistrates Court at Canberra of two offences of driving through a red light contrary to s112A of the Motor Traffic Act 1936 (ACT).

When the appeal was heard before the Supreme Court, the Court said that the Magistrate had accepted the evidence of the only witness for the prosecution to the effect that the appellant did in fact go through the two red lights at the inter‑sections in question.  The judge rejected the submission for the appellant that, the Magistrate having not been satisfied beyond reasonable doubt about the state of the evidence of that witness in all respects, he should have entirely discarded the evidence of the witness.  He then said:

"On a question of credibility this court should generally defer to decisions of fact found by the Magistrates Court, the magistrate having seen and heard the witnesses.  This court is not entitled to reverse the finding in the Magistrates Court unless it is seen clearly to be wrong on grounds which do
not depend merely on credibility.  For example, on the ground that the evidence which was accepted was inconsistent with established facts or [was] so improbable that no reasonable person could accept it or that the judgment of the Magistrates Court disclosed that its conclusion was affected by some error of law or fact.  And the authorities are: Urinertz v Hale (1980) 30 ALR 193 per Gibbs CJ. at 196-199; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472, particularly the joint judgment of Deane and Dawson JJ at pp479‑480.

The Judge concluded that there was no basis within these principles for interfering with the decision of the Magistrate. 

This appeal, from the decision of the Supreme Court dismissing the appeal against the convictions, is brought on a number of grounds which, as pressed in argument, are encapsulated in the ground that his Honour erred in failing to come to the conclusion that the conviction of the appellant was unsafe and unsatisfactory.  That ground is supported by reference to the manner in which the Magistrate dealt with the evidence of the principal witness for the prosecution.  He was not satisfied beyond a reasonable doubt by some portions of it, so that it is said that what remained was tainted or otherwise lacked probative force with the consequence that the convictions should have been found to be unsafe and unsatisfactory.

The principal witness and complainant was Mr Deans, a public servant parking inspector.  He testified that he was driving a vehicle  north along Northbourne Avenue at 8.25 am on Saturday 20th March 1993.  He had entered Northbourne Avenue from Barry Drive and had then noticed in his rear vision mirror a vehicle proceeding up the left hand lane of the carriageway travelling in the same direction as himself.  He had noticed it more so at the intersection of Northbourne Avenue with Girrawheen Street where he observed it was closing on his vehicle rather rapidly.  He had moved to the right hand lane of the carriageway and then approached the east/west intersection of Northbourne Avenue with Condamine and Ipima Streets.  This was a fairly large intersection on which there was one set of lights to control east/west traffic and another set of lights to control the north/south bound traffic.  He approached the intersection and stopped at a red light behind the white line.  His evidence continued:

"...and I did notice in the rear mirror that the vehicle did not appear to be slowing down in any way - fashion at all - and come to that intersection.  At the time the intersection - the lights were - well, I didn't see the lights but there was traffic flowing from left to right, from Condamine to Ipima direction."

At the time there were cars coming from Condamine Street heading in an easterly direction toward Ipima Street.  He then testified:

"...I was stopped in the right-hand lane.  Like I said, I'd noticed this vehicle in the rear-vision mirror didn't appear to be slowing down.  A number of vehicles had moved off from the Condamine side of the lights and were proceeding to - two vehicles were already through the intersection, to turn right into Northbourne Avenue, which is the side that heads towards Civic, and there was a red station wagon, early Japanese type station wagon - the year model, I would not know - was coming to the intersection, had to brake - what it appeared to be, was starting to come into that left lane which was proceeding north, to cross the intersection, had to stop suddenly.  With that I noticed this - the Mercedes.  It had to swerve to the right through the - just before that intersection where I was stopped, into the middle lane.  I noticed that my car started to move in a reasonably side-to-side motion through wind effect, I don't know what you call it - proceed - nearly collected the front of this vehicle, then proceeded through the intersection and back into the left-hand lane and continue up Northbourne Avenue."

His evidence was that at the time the Mercedes went through the intersection the colour of the lights which were facing him was red. 

In relation to the red Japanese station wagon, he said that it would have come in half of the left-hand lane and that caused the Mercedes to have to swerve to avoid a collision.

In relation to the speed of the Mercedes, he testified:

"... that vehicle was well in excess of speed limits in that area.  I'd estimate the - speed of the vehicle would be good double the legal limit for that location because of the way it made my car rock with the wind effect from the back of the vehicle as it went - had to swerve into the middle lane."

On the issue of the identification of the vehicle, the complainant testified that he looked at its registration as it proceeded a short distance in the middle lane and saw it was DF111.  The vehicle then continued through the intersection and a short distance after the intersection it proceeded back into the left-hand lane and continued up Northbourne Avenue.

The complainant said that he sat at the intersection until the lights turned green and he then proceeded north along Northbourne Avenue.  On arriving at the next intersection, which was with Macarthur Avenue, the light was red so he pulled his vehicle up as the first vehicle in the right-hand lane.  On approaching the intersection he noticed that the Mercedes had stopped in the left lane.  He got out of his vehicle with the objective of speaking to the driver of the Mercedes about what he considered to be the dangerous driving which had occurred at the previous intersection.  He stated that as he moved between the two vehicles the driver of the Mercedes turned in his direction, had a look and then accelerated through the red light. 

The complainant said he observed the driver was female, was wearing a multi-coloured top and had dark hair to her collar or below. 

After returning to his vehicle the light turned green and, on his account, he proceeded in the right-hand lane north along Northbourne Avenue.  He said that as he came over the top of a rise he noted the Mercedes was a long way down the road with its left-hand indicator on, appearing to be ready to turn left (into a street subsequently identified as Mouat Street). 

He said that these events had occurred in traffic which was light compared to a working day.  The weather was fine.  He reported the matter to the police around 9am on the day of its occurrence after writing down the registration number.

In response to a question from the Magistrate, the complainant confirmed that in his opinion the Mercedes was travelling at approximately 120 kph at the Ipima Street intersection.

In cross-examination the complainant testified that from the time he turned into Northbourne Avenue until he came to the rise after the Macarthur Street intersection the speed limit was 60 kph.  He said he had obeyed that limit.

He also testified that when he had first seen the Mercedes it was about 200 metres away.  At that time he could not say with certainty whether it was travelling at the speed limit or more or less than it. The Mercedes had appeared to be building up speed.  As that vehicle had approached the Ipima Street intersection it had been doing a constant speed which he estimated to be 120 kph but not more.

In relation to his evidence concerning the Japanese station wagon, the complainant agreed there was no mention of it in his statement to the police.  He was unable to say at what point in time the Mercedes changed out of the left hand lane at the Ipima Street intersection.  There had not been any apparent braking by it and it appeared to be accelerating again as it left the intersection to some speed higher than 120 kph.

He could not agree or disagree with the proposition put to him that it had taken him eighty one seconds to travel from the Ipima Street to the Macarthur Avenue intersection on the basis that he had taken five seconds to accelerate and two seconds to de‑accelerate.  He could not accept the further proposition that the Mercedes had covered that distance in thirty two or thirty three seconds if it continued to travel at 120 kph
because he did not know at what speed that vehicle had travelled between the two intersections.  He rejected an additional proposition concerning the speed at which the Mercedes was travelling from the time he first saw it because when that occurred he had not been able to tell what speed it was doing.

The complainant accepted that he had not mentioned in his statement to the police that the driver of the Mercedes had been wearing a multi-coloured light flowery top.  He said he would not be able to recognize the person again; he had not seen the face of the driver.  He had told the police and it was his recollection that the driver was a female with long, dark hair.  He had not seen someone with red hair.

When he had seen the Mercedes from the crest just north of the Macarthur Avenue intersection it had its left hand indicator on but he could not recall whether it had turned into the street it was approaching.  He accepted that when he had said in his statement that he had seen it turn into the street he had been in error because the distance from the crest to the point of the turn was not such that he could have seen it.

The other witness in the prosecution case was Constable Lowe who testified that the owner of Mercedes DF111 was the appellant.   When he had contacted her she admitted to being the driver of the vehicle along Northbourne Avenue on that morning at approximately 8.30am.  She had denied going through the red lights.

The first witness called in the appellant's case was an aeronautical engineer, Kiril Bolonkin.  He testified that, on the assumptions that the Mercedes was travelling at 120 kph and passed a stationary 1973 Torana sedan (the complainant's vehicle) with a distance of approximately 3.5m between the vehicles, it was extremely improbable that the Mercedes would have caused the Torana to rock.  Asked to then assume that the Mercedes had swerved to the right, the witness testified that
it was most improbable that such occurrence would change his opinion.

In cross-examination Mr Bolonkin said that the closer the Mercedes was to the Torana the more likely it was that the Torana would be rocked.

The appellant gave evidence in which she denied she drove her vehicle at speeds up to 120 kph or that she went through any red lights.  She said she was travelling at the speed limit.  She had traversed the same route on a working day and it had taken her seven minutes to travel as she did on the date to which the charge relates.  It took her five minutes to do so on a Saturday.  She further testified that she had always had red hair.  It was not put to her that her hair was short.  In cross-examination she accepted that the registration number of the Mercedes was distinctive and comprised her initials.  It was not put to her that she had been doing twice the speed limit, that she had swerved to avoid the Japanese car or that she had accelerated away.

The appellant's father, a civil engineer who had studied traffic engineering, was called to give evidence on the condition of the road surface in response to questions concerning vibrations arising from that source put to Mr Bolonkin.  It is not necessary to consider this evidence which played no part in the appellant's convictions.

Finally Mr J Matruglio, a self-employed investigator, gave evidence that the distance between Girrawheen Street and Ipima Street was 460 m; the distance between Ipima Street and Macarthur Avenue was 1.1 kms; and the distance between Macarthur Avenue and Mouat Street was 1.35 kms.

In his reasons for judgment the Magistrate recounted in outline the prosecution case as it appeared from the evidence of the sole eye witness, the complainant.  He made a number of findings relating to aspects of the prosecution case which he
said were not established beyond reasonable doubt, namely that:

(1) the appellant was travelling at 120 kph or anything like it.  He found that the complainant was mistaken about that.

(2) the appellant had driven dangerously "at either intersection or taking her driving at both intersections or in between together", because there was no reliable evidence of the speed with which she had crossed Ipima Street and she had crossed Macarthur Street from a stationary position.  Although he expressed the opinion that what the appellant did was probably dangerous, that was not sufficient for a conviction.  The appellant was accordingly acquitted of a charge of dangerous driving.

(3) the appellant had swerved to avoid another vehicle from Ipima Street or that there was another vehicle there.  In the submission of the appellant, which must be accepted, if there was no swerving of her vehicle, the evidence of the rocking of the complainant's vehicle is mistaken.       

On the following matters the Magistrate was satisfied beyond a reasonable doubt, namely that:

(A) "Mr Deans did observe a vehicle travelling past his stationary vehicle at the Ipima Street intersection, as he said and that the vehicle disobeyed the red light, as he said."

The Magistrate continued:

"He could hardly be mistaken about that.  Put this way: he is either lying or mistaken about it, and I
am not satisfied - well, I am satisfied he is not lying.

"Whilst he was in no particular hurry, there was no point in his vehicle being stationary at that intersection unless in obedience to a direction from a red traffic light.  If, whilst he was stationary that traffic light and another vehicle passed his vehicle travelling in the same direction, that vehicle must have gone through the intersection in disobedience to those lights.  While Mr Deans was mistaken in certain parts of his evidence he was, in my opinion, an honest citizen doing his best to report the incident and gave evidence about that incident to the best of his ability.  I am sure he did not make it up and there are certain objective things which corroborate features of his evidence, perhaps peripheral features only.  The most significant of these is that he was indeed correct in his report to the police that a silver coloured Mercedes Benz number DF 111 was present at that time and at that place."

(B) Mr Deans did approach the vehicle at the Macarthur Avenue intersection and that the vehicle took off against the red light at that intersection.

(C) The vehicle which Mr Deans saw was the vehicle driven by the appellant.  It had a personalised number plate and she admitted to driving north along that road at about that time.  On this present appeal no issue is raised in relation to this finding or that the appellant was the driver of the vehicle at the time in question.  No argument is therefore here addressed to the identification evidence previously referred to.

As has already appeared, the Judge from whom this appeal lies based his reasoning on the Magistrate's findings of credibility.  However, the question which arises on this appeal is whether those findings of credibility are sufficient to support the convictions given the findings of the Magistrate against the complainant's evidence on other issues.

The law to be applied to this question has recently been considered by the High Court in M v R (1994) 126 ALR 325. Like the present appeal, that was a case in which the appellant denied the offences both in an interview with the police and in evidence given on oath at trial. The evidence of the complainant was there uncorroborated. At 328-330 the majority of the Court said:

"Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory..."

"The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand"..."

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations..."

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays
inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."

Although these words are formulated with respect to juries there is no reason and nor was it argued that they should not have application where the conviction has resulted from the findings of a judicial officer, in this case the Magistrate.

The present is a case in which portions of the evidence of the complainant upon which the prosecution case was based were found by the Magistrate not to satisfy him beyond reasonable doubt for reasons not explained by the manner in which the evidence was given.  The question is therefore whether the Magistrate's findings in those respects are such as to give rise to a reasonable doubt so that there is a significant possibility that an innocent person has been convicted.  In short, the question is whether the Magistrate's doubt of portions of the complainant's evidence creates a reasonable doubt that the complainant's remaining evidence could have been mistaken and should not have been relied upon.

In my opinion, that is not the case here.  It is always the case that the jury or judicial officer charged with the duty of finding whether a charge is established beyond a reasonable doubt may accept whole or part or none of the evidence of any witness.  The Magistrate was entitled to find, and did so find, that a case was not made out in respect of the factors (1), (2) and (3) previously listed.  The Magistrate then found a case made out in respect of factors (A), (B) and (C) previously listed.  There was nothing in the former which disentitled him to find the latter.  Once the Magistrate accepted the complainant's credibility and made the findings in respect of factors (A), (B) and (C), there was an appropriate factual foundation to sustain convictions beyond reasonable doubt.  The evidence rejected did not create any discrepancy with these latter findings.  There is no inadequacy in the evidence supporting the finding that the appellant went through the red lights nor does it lack probative force.  Once the complainant's credibility on that issue was accepted, the evidence would not be tainted by the rejection of other evidence.  It was for the Magistrate to decide whether, as a consequence of his finding that factors (1), (2) and (3) were not established to the requisite standard, he should not then find the complainant's remaining evidence credible.  He started from a finding that the complainant was honest and giving evidence to the best of his ability.  He found that the complainant could hardly have been mistaken about the question whether the vehicle disobeyed the red light because he accepted the complainant's evidence that his vehicle was stationary at the Ipima Street intersection in obedience to a red light so that the passing of it by the appellant's vehicle must necessarily have been in disobedience to the same red light.  Similar reasoning was applied by him to the evidence of the events at the Macarthur Street intersection.  The issue of the identification of the vehicle and the driver not being in dispute, there is no reasonable doubt which can arise.  The applicant's evidence that "I didn't see the lights" read in its context is patently a reference to the lights facing traffic moving from Condamine to Ipima Street, that is, the other set of lights at that intersection and not the set of lights which the appellant was said to have contravened.  It is not the case that the Magistrate has reconstructed the complainant's evidence after not accepting portions of it.  Rather, he has acted upon evidence lying outside the portion which he found did not
attain the requisite standard of proof and from which no inherent unreliability of other evidence emerges.

For these reasons I conclude that this is not a case where there is a significant possibility that an innocent person has been convicted.  I consider the appellant fails to establish that the verdicts were unsafe and unsatisfactory and I would dismiss the appeals.

I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment of the Court.

Associate:

Date:

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )    No. ACT G77 of 1994
DISTRICT REGISTRY                )    No. ACT G78 of 1994
  )
GENERAL DIVISION                 )

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:     DENISE CHARLENE FLINT

Appellant

AND:         ANDREW JAMES LOWE

Respondent

CORAM:    von Doussa, Higgins and Nicholson JJ

DATE:     23 June 1995

PLACE:    Canberra

REASONS FOR JUDGMENT

HIGGINS J:

I have had the advantage of perusing the reasons for judgment of Nicholson J.  That judgment sets out the facts and the history of the matter.  It is unnecessary to repeat them.  The eye witness who gave evidence for the prosecution, Mr Deans, is referred to therein as "the complainant".  I have also referred to Mr Deans in that way.

Before the learned Magistrate, the appellant's evidence on oath was consistent only with her innocence of the offences charged. To convict her, it was necessary both to accept the essential elements of the complainant's account and to reject the essential parts of the appellant's evidence.  If there was any reasonable
doubt as to either conclusion, the appellant should have been acquitted.

If the facts were to be such that the complainant could not be mistaken as to the state of the red lights in question, it would be surprising if the appellant had been mistaken.  This is particularly so as the complainant had his attention diverted by the approach and conduct of the appellant's vehicle while the appellant would have had no such distraction.  It would be unreasonable to conclude that the appellant's evidence could have been dismissed without satisfaction that it had been contrived or, that, for some other cogent reason, it should be rejected.  His Worship did not advert to that issue. 

It was possible to conclude that, due to concern at the approach from behind him of the appellant's Mercedes and its passage through the intersection, the complainant failed to notice that the traffic lights had changed.  It is also possible that, having gained the impression that the appellant's vehicle had behaved inappropriately, he failed to notice that the second set of lights changed after he had alighted from his vehicle and approached her vehicle.

That would have required a significant degree of error which, if the witness was honestly recounting what he saw, would usually seem unlikely.
However, the complainant did not satisfy the learned Magistrate as to the happening of certain other facts to which he deposed.  Some of those, such as the speed of the appellant's vehicle, could well be explained as exaggeration occasioned by the fact that the Mercedes was, initially, approaching, apparently quickly, from his rear.  An error of that nature in those circumstances would be understandable.  However, it is difficult to see how the complainant could have been mistaken about the intrusion into the intersection of another vehicle which the appellant had to swerve to avoid.

The intrusion of that other vehicle was not merely peripheral to the complainant's evidence.  He stated that when the Mercedes entered the intersection:

It had to swerve to the right through the  - just before that intersection where I was stopped, into the middle lane.  I noticed that my car started to move in a reasonably side-to-side motion through wind effect, I don't know what you call it - proceed - nearly collected the front of this vehicle [that is, a red Japanese station wagon], then proceeded through the intersection and back into the left hand lane and continue up Northbourne Avenue.

If it was not possible to reject the hypothesis that the complainant was mistaken about that event having happened, then I cannot understand how it could rationally be accepted that he was not equally liable to error in relation to the state of the lights.

It was necessary for there to be a rational explanation as to how the red Japanese station sedan could have been introduced
mistakenly into the complainant's evidence.  If the learned Magistrate had a view as to why the complainant was possibly mistaken as to the presence of that other vehicle but not as to the state of the traffic lights, it is not revealed in his reasons for decision.

In those circumstances, with the additional circumstance that the learned Magistrate was of the view that the complainant had possibly exaggerated the speed of the Mercedes by a factor of two, it seems to me impossible to have accepted his other challenged evidence beyond reasonable doubt.

Added to the demonstrated risk of relevant error is that the appellant's evidence had to have been rejected as untrue in order to convict her.  That had to be done despite the fact that the appellant was not challenged as to significant aspects of her evidence.  The aspects on which she was not challenged were those as to which the learned Magistrate declared that he was not satisfied.  Those matters related to the speed of her vehicle and the presence of the red Japanese station wagon. 

However, that does not provide a reason for the rejection of the appellant's evidence as to the state of the lights when she went through them.  If the reason for that rejection was the persuasive demeanour of the complainant, then it is difficult to understand why his evidence as to the presence of the red Japanese station wagon was rejected.  It does not explain why the appellant's evidence was rejected.  No unsatisfactory aspect of the appellant's demeanour was referred to as providing such an explanation.

There is no doubt that an appellate court should approach the question raised on an appeal of this kind as directed by the High Court in M v R (1994) 126 ALR 325. That approach applies with equal force to the decision of a judge or magistrate as to the decision of a jury. I bear in mind that a jury has no duty or opportunity to explain its decision. A judicial officer does have such a duty. It follows that the absence of sufficient explanation for a decision by a judicial officer may engender doubt not apparent in the case of the decision of a jury.

In this case, I cannot avoid wondering what it was concerning the appellant's evidence that enabled the learned Magistrate so confidently to disregard it.

It seems to me that the acceptance of the complainant's evidence as to the state of the lights was inconsistent with the doubt which prevented the acceptance of his evidence concerning the red Japanese station wagon. 

In any event, after allowing for such advantage as the learned Magistrate had in seeing and hearing the witnesses and accepting his Worship's view that the complainant was an honest witness, I am left with the impression that there is a significant possibility that the witness was mistaken.  It follows that his
Honour should have upheld the appeals before him.  That was not done.  This Court should now do so.

I would uphold the appeals and set aside the convictions and penalties imposed.

I certify that this and the 5 preceding pages are a true copy of the Reasons for Judgment of his Honour Justice Higgins.

Associate

Dated:23 June 1995

APPEARANCES

Counsel

for the Appellant:     Mr A Sweeney QC & Mr J Pappas

Solicitors
for the Appellant:     Pappas, J., Attorneys

Counsel

for the Respondent:     Mr A Doig

Solicitors

for the Respondent:     Director of Public Prosecutions (ACT)

Date of Hearing:       3 April 1995

Date of Judgment:      23 June 1995