Graham v Police

[2001] SASC 93

GRAHAM v THE POLICE
[2001] SASC 93

Magistrates Appeal
Criminal

1................ Gray J:  This is an appeal against conviction.

Background

2      The appellant, Ms Graham was charged with offences against the Road Traffic Act 1961 (SA). The complaint was in the following terms:

“On the 6th day of February, 2000 at Adelaide in the said State drove a vehicle namely a motor vehicle on a road namely Grenfell Street in a manner which was dangerous to the public.
Section 46 of the Road Traffic Act, 1961.

On the 6th day of February, 2000 at Adelaide in the said State drove a vehicle namely a motor vehicle on a road namely Grenfell Street without due care.
Section 45 of the Road Traffic Act, 1961."

3      Ms Graham pleaded guilty to the charge of driving without due care. The trial for driving in a manner dangerous to the public proceeded before the learned magistrate, Mr Harris SM (“the magistrate”). Ms Graham was convicted. The magistrate disqualified her from driving for six months and fined her $400.00.[1]

[1] Additionally the magistrate ordered Ms Graham to pay court fees of $80, levy of $28, prosecution    costs of $220 and witness fees of $200.

4      Ms Graham appeals on the following grounds:

“-...... The finding of guilt was contrary to the evidence and contrary to the weight of evidence.

- .... The learned magistrate erred in that the evidence of the appellant and the prosecution witness Gutschke was consistent with innocence and consistent with aspects of the evidence of the prosecution witness Bowden.

-..... The learned magistrate erred in accepting the evidence of the prosecution witness Bowden given the nature and quality of her evidence, material inconsistencies therein and her demeanour.

-..... The learned magistrate erred in determining that the prosecution witness Gutschke and the appellant must have collaborated when:

- ..... there was not suggestion of the same at any stage of the trial;

-      the prosecution witness Gutschke was presented as a

witness of truth and reliability.

-....... The learned magistrate erred in the assessment of the appellant’s evidence in the light of her good character.”

Dangerous Driving

5 S. 46 of the Road Traffic Act 1961 (SA) provides as follows:

“Reckless and dangerous driving

46.       (1) A person must not drive a vehicle recklessly or at a speed

or in a manner which is dangerous to the public.

...

(2) In considering whether an offence has been committed under this section, the court must have regard to —

(a).... the nature, condition and use of the road on which the offence is alleged to have been committed; and

(b)the amount of traffic on the road at the time of the  offence;

and

(c).... the amount of traffic which might reasonably be    expected to enter the road from other roads and places; and

. (d)           all other relevant circumstances, whether of the    same  nature as those mentioned or not.”

An Objective Assessment

6      The conduct of Ms Graham is to be assessed according to an objective standard.  In The King  v Coventry[2] Latham CJ, Rich, Dixon and McTiernan JJ said at (638):

“The standard is impersonal [and universal] in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles…  But, speaking generally, the expression ‘driving at a speed, or in a manner, which is dangerous to the public’ describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence.”

[2] (1937-38) 59 CLR 633

7      In McBride v The Queen[3] Barwick CJ said at (49-50):

“This section[4] speaks of a speed or manner which is dangerous to the public.  This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.  It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public…  A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.”

His Honour continued:

“This concept [dangerous driving] is in sharp contrast to the concept of negligence.  The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others.  This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is cause thereby.”

[3] (1965-66) 115 CLR 44

[4] S. 52A of the Crimes Act 1900 (NSW) is worded as follows “at a speed or in a manner which is dangerous to the public”

8      The meaning of ‘dangerous to the public’ was also discussed by Wells J in Pope v Hall[5] at (79-80):

“... in all the circumstances, the impeached driving passed beyond the point where it represented a mere departure - and nothing more serious - from the rules of the ordinary highway code, and became so serious a departure from those rules that the manner of the driving ... created a wholly unreasonable and unwarranted danger to the life, or limb, or both, of other road users … If one were directing a jury one would say: Ask yourselves how likely it was, in the circumstances, that an accident of some sort would occur, and, at the same time, assuming that an accident did occur, how serious it would be; it will be by weighing both these factors together that you will be able to determine the degree of risk created by the situation - in other words, how dangerous the defendant’s driving was.”

[5] (1982) 30 SASR 78

9        The term “public” is not defined by the Road Traffic Act.  However, the remarks of Burbury CJ when dealing with a comparable section[6] in R v Smith[7] are apposite:

“The ‘public’ endangered by the speed or manner of his driving and therefore protected by the statute is therefore not to be regarded as a number of particular individuals endangered but as an innominate class.  It is the section of the community as an aggregate shown to be actually or potentially within the ambit of danger created by the speed or manner of driving.  The section is not concerned with breach of duty to drive carefully vis-a-vis a particular person.”

[6] The Traffic Act 1925 (Tas) s. 32(1). "A person who drives a motor vehicle on a public street recklessly, or at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the public street and the amount of traffic that actually is at the time or that might reasonably be expected to be on the public street, is guilty of an offence against this Act."

[7] [1969] Tas SR 159 at 163

The Magistrate’s Findings

10     The magistrate made the following factual findings:

"-...... the defendant is now 19 years of age.  At the time of the incident on the 6 February, this year, she was 18;

-....... in about mid-January, 2000, the defendant became the holder of a probationary licence;

-....... as at February, 2000 Phillip Gutsche[8], aged 20 years, was the owner of a red 1987 Holden Commodore sedan VMZ-177.  It was an automatic vehicle with eight cylinders and power steering;

[8]      Note: "Gutschke" on appeal but "Gutsche" in magistrate's reasons.

-       the defendant, who is a friend of Phillip Gutsche, had driven the Holden Commodore a few times prior to the 6 February, 2000;

-       on Sunday, 6 February, 2000, the defendant drove the Holden Commodore from Glenelg into Adelaide.  She travelled south along King William Street toward the intersection of Grenfell Street;

-       at that intersection, she turned left from King William Street, to travel east along Grenfell Street;

-       that section of Grenfell Street had a raised median strip separating the two carriageways.  The carriageway for eastbound vehicles was divided by a broken white line into two lanes;

-....... on the northerly side of Grenfell Street there was a bus stop.  A bus shelter was located on the northerly footpath;

-....... on the northerly footpath, west of the bus stop, there was a verandah over the footpath.  The posts supporting the verandah were close to the kerb on the northerly side of the road;

-....... on the northerly side of Grenfell Street between the eastern-most verandah post and the bus shelter, were business premises and two travel agents;

-....... at about 5.20 pm on the 6 February, 2000, the bus shelter was full of people.  There were also people standing on the northerly footpath at, and in the vicinity of, the bus stop;

-....... Christina Katinka Bowden and her daughter, Jamie, and son Jarrad, were standing on the northerly footpath in the vicinity of the bus stop waiting to catch a bus to Modbury;

-       weather conditions were fine at the time and the road was dry;

-....... when the Holden Commodore sedan turned from King William Street to travel east along Grenfell Street it did not travel in a straight course.  It veered to the left, then to the right and then to the left again, before heading in the direction of the northerly footpath;

-....... the defendant applied the brakes of the vehicle fairly hard.  The defendant was aware that the vehicle skidded and heard the squeal of tyres;

-....... the vehicle came to a halt at an angle across the northerly lane facing in the direction of the northern footpath.  The front of the vehicle was in the vicinity of the northerly kerb;

-....... the passenger, Phillip Gutsche, called out: ‘Good show, wasn’t it?’;

-....... as a result of her observations, Christina Bowden rang the police on her mobile phone.  She also wrote the registration number of the vehicle on her arm;

-....... the defendant reversed the Holden Commodore and drove off in an easterly direction along Grenfell Street;

-       Christina Bowden observed tyre marks on the surface of       Grenfell Street;

-Senior Constable Newman attended at the scene;

-....... Senior Constable Newman spoke to Christina Bowden and made observations of tyre marks on the northerly carriageway of Grenfell Street;

-       Christina Bowden caught the bus home with her children;

-....... Senior Constable Newman caused her sergeant to take photographs of the tyre marks under her direction;

-....... Exhibits P1 and P2 depict the tyre marks which Christina Bowden and Senior Constable Newman saw on that occasion;

-....... at about 3.00 pm on the 13 February, 2000, Senior Constable Newman obtained a statement from Christina Bowden over the telephone;

-....... at about 7.30 pm on the 6 February, 2000, at the Sturt Police Station FCC Binka interviewed the defendant about the circumstances of the incident on the 6 February, 2000.  Exhibit P4 is an accurate record of that interview;

-....... in the interview, the defendant admitted that after she turned left from King William Street into Grenfell Street the car was swaying from side to side, that it swerved from the left lane into the right lane and that she lost control of the vehicle and that, when the vehicle stopped, the front of the vehicle may have been over the northerly kerb."

11     The Magistrate came to the following conclusions:

"I am satisfied beyond reasonable doubt, and I find, that the tyre marks depicted in Exhibits P1 and P2 were made by the vehicle that the defendant was driving on the occasion in question.

On the basis of the evidence of Christina Bowden and the evidence of those tyre marks, I am satisfied that the vehicle which the defendant was driving approached the northerly kerb of Grenfell Street at the place where those tyre marks were.  Having regard to those tyre marks, I am also satisfied beyond reasonable doubt, and I find, that when the vehicle came to a halt the front of the vehicle protruded, in part, over the northerly footpath of Grenfell Street .

…

On the basis of the evidence of Christina Bowden, I am satisfied beyond reasonable doubt, and I find, that her nine year old daughter, Jamie, was on the northerly footpath on Grenfell Street in the vicinity of where the front of the vehicle driven by the defendant came to rest.  I am satisfied beyond reasonable doubt, and I find, that the child was endangered by the presence of that vehicle.  Applying the test suggested by Wells J in Pope v Hall I am satisfied beyond reasonable doubt, and I find, that the defendant did drive on Grenfell Street on the occasion in question in a manner which was dangerous to the public.”

The Crown Case

12     Four witnesses were called by the Crown - Ms Bowden, Mr Gutschke and two police officers.  Documentary evidence including photographs of tyre marks on the northern carriageway of Grenfell Street were also tendered. Ms Graham's record of interview was tendered by consent.  The statement included the following:

"Were you driving south on King William Street before turning left into Grenfell Street?	We had come from Hindley Street and were in the left lane to go left into Grenfell Street.  We were stopped at the traffic lights.  We had to wait.
What was the weather like on that Sunday?	It was a sunny day.  A little bit windy though.
Was the road dry?	Yes.
What had you been doing prior to this alleged incident?	Just been driving around.  We had been at Glenelg and decided to go for a drive around.
Have you driven this Commodore before?	Yes. I have.
Is it manual or automatic?	Automatic.
Is it a V6 or V8 Commodore?	V8
How long have you had your driver's licence?	I got my licence on the 15th of January this year.
Was there much traffic on the road at the time of the alleged incident?	No.  There was not.
Why did you have to stop before turning left into Grenfell Street?	Because the traffic light was red.
How many cars back from the stop line were you?	Three.
Which lane did you turn into when you entered Grenfell Street?	Straight into the left lane but because I over steered a bit it swerved into the other lane.
You said the car over steered a bit.   Did you take any corrective action?	After it all happened yeah I did.  I had to control it first.  After I controlled it I did.  After I stopped I took off normally.
Do you remember the car swaying from side to side?	Yes, I do clearly.  I remember it facing the median strip and then the gutter.
What caused the car to slide from side to side?	Because I over steered and gave it too much acceleration.  I was terrified I was going to crash.
Do you think you lost control of the car?	Yes I do.
You said previously that you stopped.  Do you remember that?	Yeah.  I was facing the gutter.  I was shaking.  I asked Phil what I should do.  He said to reverse and I took off normally.  I remember people being at that bus stop but I don't remember heading towards anyone.
How far over the kerb did the car stop?	I don't know.  It could have been how the lady said.  [over the gutter, on the footpath].  She had a better view.  All I know is that I didn't hit it."

The Defence Case

13     Ms Graham gave evidence that she was stoped at the traffic lights at the intersection of King William and Grenfell Streets.  She was in the left lane behind two other vehicles.  When the lights changed, she turned left to travel east along Grenfell Street.  As she turned, she oversteered to the left and she reacted by overcorrecting to the right and then steering back to the left again.  The vehicle then travelled towards the northern footpath.  She braked and the vehicle came to a halt with its front at the kerb, in front of some verandah posts.  She said that there were no pedestrians on the footpath in the vicinity, although there were pedestrians by a bus stop approximately 20 metres to the east.  Ms Graham was petrified.  She asked her companion to take over driving but he declined.  With his encouragement, she reversed the vehicle slowly and continued to travel east. 

14     Any erratic driving on her part was unintentional.  It was due to her inexperience as a driver and her inexperience in driving that vehicle.  Ms Graham denied that she had caused any actual or potential danger to any pedestrians.  She gave evidence but did not call any other witnesses.

Credibility and Reliability

The Approach of the Appellate Court

15     The differing accounts of the incident given by Ms Bowden and Ms Graham meant that an assessment of their credibility and reliability was critical.  In the circumstances, it was also necessary to consider the credibility and reliability of Mr Gutschke.

16     The role of an appellate court in reviewing a trial judge’s findings on credibility has promoted much judicial discussion.  As Brennan, Gaudron and McHugh JJ said in Devries v Australian National Railways Commission[9]:

“More than once in recent years, this Court has pointed out 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 failed to use of 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'.”

These principles were recently discussed in State Rail Authority of New South Wales v Earthline Constructions Pty. Ltd (In Liq)[10].  Kirby J said at (323):

“Appellate judges must necessarily perform their statutory function.  They must rehear the matter and form their own conclusions on the evidence recorded at the trial.  Rising to their duty, they must condescend to a re-examination of the facts, if their statutory charter so requires or permits.  Yet that re-examination obliges appellate judges to take into account, and give full weight to, the advantages which the trial judge had and which, in the nature of their different functions and purpose, they may not have.”

[9] (1992-93) 177 CLR 472 at 479

[10] (1999) 73 ALJR 306

17     Kirby J acknowledged the technological and social advances that have increased an appellate court’s ability to assess a witness’s credibility.  He continued at (330):

“None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge.  Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing.”

The Magistrate’s findings - Ms Bowden

18     The magistrate made the following observations about the credibility and reliability of Ms Bowden:

“After listening to the evidence of Ms Bowden, I have no doubt that something happened on the occasion in question and that whatever happened made a profound impression on her and caused her to be genuinely fearful for the safety of her older child, Jamie.  That is indicated by her behaviour in writing down the registration number of the vehicle and immediately phoning the police.  Ms Bowden made a statement to the police about the incident over the telephone later that evening.  She gave evidence about the incident more than seven and a half months later.  When she gave evidence she was obviously stressed, distressed and emotional.  She said that prior to giving evidence she had not seen her statement to the police and had no means of refreshing her memory about the events in question.  There were some indications that, at the time of giving evidence, her memory of those events may not have been reliable in some respects; for example, she was adamant that the driver of the vehicle was a male.  There were some inconsistencies between her oral evidence and her statement to the police.  It was also clear that she was emotionally involved in what happened and that, during the incident, she was engaged in doing other things.  She said that while the events were unfolding, she moved forward and grabbed her daughter, Jamie, and shortly afterwards, made a phone call on her mobile phone.  It is conceivable that she may not have had an opportunity to have taken in everything that happened and that her perception of events may have been coloured by her emotional involvement.  I also have to consider the possibility that her evidence may have been based, in part at least, on her reconstruction of events rather than on her accurate recollection of what actually happened.  In my assessment, Ms Bowden was an honest witness who was endeavouring to give a truthful account of events within her knowledge to the best of her recollection and ability. …"

19     On appeal, counsel criticised the magistrate's acceptance of Ms Bowden.  Attention was drawn to:

-       her insistence that the driver was male;

-       her insistence that the car had left the scene with squealing tyres;

-....... suggested inconsistencies with her earlier police statement concerning the resting position of the car;

-....... her poor demeanour and poor conduct in the witness box;

-....... suggested inconsistencies between her evidence and that of Ms Graham and Mr Gutschke.

-....... her distressed and emotional state at the time of the incident.

20     The magistrate considered that independent support existed for Ms Bowden's critical observations.  Such support came from Ms Graham's police statement, including her admission of erratic driving, her emotional response in fearing for her life and her statement that she thought she was "going to die".

21     Ms Graham's admission about heavy braking, the squealing of tyres and the observations of tyre marks at the scene were directly supportive of Ms Bowden's evidence and observations.

22     Having found Ms Bowden to be a credible witness, it did not necessarily follow that she would be regarded by the magistrate as a totally reliable witness.    She was unreliable as to identity.  She was clearly mistaken about the gender of the driver. 

23     Having reviewed all of the evidence, I find that the submissions of Ms Graham’s counsel are without substance.   The magistrate carefully addressed Ms Bowden's evidence and the criticisms made of that evidence.  Having considered the suggested weaknesses in her evidence, he nonetheless accepted her evidence on critical matters. 

24     Whilst there are inconsistencies in the evidence of Ms Graham, Mr Gutschke and Ms Bowden, the magistrate’s findings were open on the evidence. His findings were not inconsistent with other facts incontrovertibly established by the evidence.  They were not glaringly improbable.

The Magistrates Findings - Ms Graham and Mr Gutschke

25     The magistrate's rejection of Ms Graham's evidence and that of Mr Gutschke was also criticised.  The magistrate said:

"I  have compared the evidence of the defendant and Phillip Gutsche.  The comparison reveals that their evidence matches in considerable detail, so much so that it is suggestive of collaboration between the two.

...

As a result of my assessment of the evidence in relation to that issue, my confidence in the evidence of the defendant and Phillip Gutsche was so seriously undermined that I reject their evidence where it conflicts with the evidence of Christina Bowden.”

26     It was submitted that the magistrate should have been more explicit in terms of his assessment of the reliability and credibility of the principal crown witness, Mr Gutschke.  It was said that his evidence was not assessed in the same manner as Ms Bowden’s evidence.  The reasons lacked detail about the nature and quality of his evidence and how it was presented. The magistrate failed to describe the corroborative features of Mr Gutschke’s evidence.  Whilst he correctly directed himself about his responsibilities when dealing with competing versions, he failed to apply this direction. 

27     These criticisms are without substance.  The magistrate clearly expressed his preference for Ms Bowden's evidence.  He gave cogent and compelling reasons for that decision.  His reasoning concerning Ms Bowden's evidence necessarily involved a rejection of the evidence of Mr Gutschke and Ms Graham.  Having reviewed his reasons, I am left in no doubt as to the basis of his rejection.  In my view, these findings were open.

Collaboration

28     Counsel for Ms Graham accepted that the ground of appeal which challenged the magistrate's conclusion about collaboration was too widely framed.  It suggested that a finding of collaboration had been made. The magistrate stopped short of such a finding.  Having compared the evidence of Ms Graham and Mr Gutschke, he considered that the coincidence "was suggestive of collaboration."

29     It was submitted that the magistrate could not have come to such a conclusion without having afforded Ms Graham and Mr Gutschke the opportunity to directly answer the allegation of collaboration.  This criticism is misconceived.  The magistrate heard and reviewed the evidence.  He observed how it matched and then noted that there was a suggestion of collaboration.  This did not amount to error.

Good Character

30     Counsel for Ms Graham criticised the magistrate for failing to give adequate weight to Ms Graham's previous good character.  Evidence was led to this effect. The magistrate made the following remarks about that evidence:

"She also put her good character in issue.  I direct myself that it is necessary to consider her previous good character in assessing the credibility of her explanation and her credibility as a witness.  Her previous good character is also a factor to be taken into account in considering whether she was likely to have committed the offence charged in count 1.  On the same topic, I remind myself that people do commit offences for the first time and that evidence of previous good character cannot prevail over evidence of guilt which I find to be convincing, notwithstanding the defendant's previous good character: R v Trimboli (1971) 21 SASR 577 at 578."

31     No error has been demonstrated.  The magistrate has correctly identified the relevant legal principles.  There is no basis for suggesting that he has misapplied those principles.

Inconsistent Witnesses

32     Evidence given by Ms Bowden and Mr Gutschke was inconsistent.  Counsel for Ms Graham submitted that the Crown was bound to accept Mr Gutschke as a witness of truth and accuracy.  It was said that the Crown had elected to call him as part of  its case on the basis that he was credible and accurate.  The Crown could not later submit otherwise.  Counsel cited no authority to support this proposition. 

33     Some support for this submission can be found in Sumner &  Lievesley v John Brown and Co[11].  Hamilton J said at (745):

"When two equally credible witnesses called by the same side flatly contradict each other it was not competent for the persons calling them to pick and choose between them.  They could not discredit one and accredit the other."

[11] (1909) 25 TLR 745

This statement would appear to provide some support for the submission.

34     The issue was addressed in the early 19th Century.  In Ewer v Ambrose[12]Holroyd J said:

"... if a witness proves a case against the party calling him, the latter may shew the truth by other witnesses.  But it is undoubtedly true, that if a party calls a witness to prove a fact, he cannot, when he finds the witness proves the contrary, give general evidence to shew that the witness is not to be believed on his oath, but he may shew by other evidence that he is mistaken as to the fact which he is called to prove."

In Bradley v Ricardo[13] Bosanquet J said:

"The general rule is, 'that a party who calls a witness into the box is not permitted to prove generally that he is unworthy of credit, and may contradict him as to particular facts.'"

[12] (1825) 3 B & C 746; 107 ER 910 (KB) at 911-912

[13] (1831) 8 Bing 57; 131 ER 321 at 332

Similar remarks can be found in Friedlander v London Assurance Co.[14]

[14] (1832) 4 B & Ad 193; 110 ER 428

35      This approach has been confirmed by other later civil cases.

36     Sheppard JA in Cariboo Observer Ltd v Carson TruckLines[15] disapproved of the remarks in Sumner.  In doing so, he preferred the opinion of Bosanquet J and also the remarks made in the earlier Canadian case of The King v Hutchinson[16].  Hunter CJ said at (494-5):

"The distinction is clear.  You may not introduce general evidence to impeach the character of your own witness, but you may go on with the roof of the issue, although the consequence of so doing may be to discredit the witness in whole or in part.  If it were otherwise the tribunal would in many cases be deciding on false and perhaps perjured evidence, instead of on credible and proper evidence."

[15] (1962) 32 DLR (2d) 36

[16] (1904) 8 C.C.C. 486

37     In Wells v South Australian Railways Commissioner [17] Bray CJ took the same view.  He said at (85):

"With respect I disagree with the dictum [referring to Sumner].  A party cannot, except within narrow and well-known limits, seek to discredit a witness called by him on a ground that he is unworthy of credence on his oath, but if he calls two witnesses whose evidence differs he is at liberty to ask the Court to accept one and reject the other."

[17] (1973) 5 SASR 74

Bray CJ specifically approved of the remarks of Sheppard JA in Cariboo Observer Ltd.

38     In the criminal jurisdiction, Sumner has been disapproved.  In R v Brent[18] the English Court of Appeal (Criminal Division) addressed Sumner.  The note of the case is as follows:

"Court of Appeal (Criminal Division): Stephenson L.J., O'Connor and Shaw JJ.: December 19, 1972.

B was convicted of taking a conveyance.  The prosecution case was based on evidence of identification.  The defence was an alibi which was supported by two witnesses called by the prosecution.  B applied for leave to appeal on the ground, inter alia, that because of the conflict between the prosecution witnesses the judge should have stopped the trial at the end of the prosecution case: relying on Sumner & Lievesley v. John Brown & Co (1909) 25 TLR 745.

Held, refusing the application, the case relied on did not apply to criminal trials.  The prosecution had a duty to place the evidence before the court fairly, and could either call witnesses or tender their statements to the defence.  The judge properly left the whole of the evidence to the jury."

[18]     [1973] Crim LR 295

39     The High Court of Australia discussed the Crown's duty to place evidence before the court fairly.  Decisions recognise that the duty may extend to the presentation of a witness thought to be unreliable.

40     In Richardsonv The Queen,[19] Barwick CJ, McTiernan and Mason JJ said at (119):

“Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution.  He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced.  He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused.  In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few. 

What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused.”

[19] (1974-75) 131 CLR 116

41     R v Apostilides[20] provides further assistance:

“A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person.  A refusal to call the witness will be justified only by reference to the overriding interests of justice.  Such occasions are likely to be rare.  The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence.”

[20] (1983-84) 154 CLR 563 at 576

42              The same approach was adopted by the Court of Criminal Appeal in  The Queen v Welden[21].  Bray CJ said at (427):

"A party who calls a witness cannot, with irrelevant exceptions, call other evidence to show that the witness is a person unworthy of credit, but he can call other evidence to show that he has made a mistake.  I discussed this question fully in Wells v. South Australian Railways Commissioner when I refused to follow what was apparently an authority to the contrary, and I refer to that case for a discussion of the point."

Bright J took a similar view.  He said at (435):

"It is clear that a party, having called a witness as to a fact, is not entitled to call another witness to discredit the first witness.  But that rule does not prevent a party from calling two witnesses who give inconsistent accounts of a series of events or even of a fact.  Nor does it prevent that party from submitting that the Court should prefer the account of one witness to that of the other.  I respectfully follow Bray C.J. in Wells v. South Australian Railways Commissioner ((1973) 5 S.A.S.R. 74, at p. 85). The second witness may be called even if, incidentally, his evidence tends to diminish the credit of the first witness: Litton v. Thornton ((1881) 7 V.L.R. (L) 4.)"

[21] (1977) 16 SASR 421

Zelling J at (442) was of the same opinion.

43     In Gonclaves[22] the Western Australian Court of Criminal Appeal approved R v Welden.   Wheeler J (with whom Malcolm CJ and Heenan J agreed) said at (216):

"Concerning the complaint that the Crown in effect 'impeached' the evidence of Mrs Jeffery, there is no rule which prevents a party from calling witnesses who give inconsistent accounts of a series of events.  Nor is it the case that a party is prohibited from submitting that the court should prefer the account of one of its witnesses to the account given by another: Welden Examination of the Crown case does not, in my view, demonstrate that Mrs Jeffery was impeached in the true sense by the calling of evidence to suggest that she should not be believed upon her oath."

[22] (1997-98) 99 A Crim R 193

44     It is now settled that in the criminal court the Crown may call witnesses who give inconsistent accounts of a series of events. The Crown may submit that the court should prefer the account of one witness to that of another.  The court can draw conclusions as to credit. The analysis of the above authorities disposes of this ground of appeal.

Conclusion

45     I consider that there is no basis for overturning the magistrate’s findings. The magistrate’s assessment of credibility is supported by careful and thorough reasons.  His findings were open on the evidence before him.

46     On Ms Graham's own admission, she drove erratically on a major city road at 5.30 pm on a Sunday.  Other motorists were using the road.  There was a "big group" of people on the footpath in the vicinity of the bus stop.  Her loss of control caused her to swerve from lane to lane.  The vehicle finally came to rest across the line of traffic with its front at the footpath.  Ms Graham feared for her life.

47     Having reviewed the evidence and in particular, Ms Graham's police statement, I am in no doubt that her driving was in a manner dangerous to the public.  Ms Graham exposed pedestrians in the general area to a real danger.  Not only was she at risk, so too was her passenger.

48     The appeal is dismissed.

LIST OF JUDGMENT CITATIONS AS THEY APPEAR IN THE JUDGMENT

1Additionally the magistrate ordered Ms Graham to pay court fees of $80, levy of $28, prosecution  costs of $220 and witness fees of $200.

2 (1937-38) 59 CLR 633

3 (1965-66) 115 CLR 44

4S. 52A of the Crimes Act 1900 (NSW) is worded as follows “at a speed or in a manner which is dangerous to the public”

5 (1982) 30 SASR 78

6The Traffic Act 1925 (Tas) s. 32(1). "A person who drives a motor vehicle on a public street recklessly, or at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the public street and the amount of traffic that actually is at the time or that might reasonably be expected to be on the public street, is guilty of an offence against this Act."

7 [1969] Tas SR 159 at 163

8      Note: "Gutschke" on appeal but "Gutsche" in magistrate's reasons.

9 (1992-93) 177 CLR 472 at 479

10 (1999) 73 ALJR 306

11 (1909) 25 TLR 745

12 (1825) 3 B & C 746, 107 ER 910 (KB)

13 (1831) 8 Bing 57, 131 ER 321

14 (1832) 4 B & Ad 193 110 ER 428

15 (1962) 32 DLR (2d) 36

16 (1904) 8 C.C.C. 486

17 (1973) 5 SASR 74

18     [1973] Crim LR 295

19 (1974-75) 131 CLR 116

20 (1983-84) 154 CLR 563 at 576

21 (1977) 16 SASR 421
22 (1997-98) 99 A Crim R 193