Hihimanis v Police - [2006] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HIHIMANIS v POLICE
Judgment of The Honourable Justice Gray
18 January 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Appeal against conviction for driving without due care – consideration of whether the magistrate erred in not ordering a stay of proceedings – whether the magistrate should have excluded the prosecution’s evidence on the ground of unfairness – whether the magistrate erred in concluding that the prosecution had excluded latent mechanical defect being the cause of the incident as a reasonable hypothesis consistent with innocence beyond reasonable doubt – whether findings of magistrate open on the evidence – appeal dismissed.
Road Traffic Act 1961 (SA) s 45, referred to.
Whelan v Police [2005] SASC 205; Holmden v Bitar (1987) 47 SASR, considered.

HIHIMANIS v POLICE
[2006] SASC 2
Magistrates Appeal
GRAY J

This is an appeal against conviction for the offence of driving without due care.
Background
On 19 November 2001, the appellant, the defendant at trial, then aged 71 years, parked his 1983, automatic transmission BMW at the Norwood Shopping Mall. Guiseppe Laudato and his elderly mother Angela Laudato had also parked at the Mall. Having unloaded their groceries, they were talking by the side of Mr Laudato’s Mitsubishi Colt.
At the same time the appellant had returned to his motor vehicle and was beginning to reverse out of the parking bay. After the BMW cleared the parking bay it did not stop; rather, with the engine revving loudly, it continued to travel backwards. The BMW struck Ms Laudato and the Mitsubishi Colt and then continued to travel backwards until it collided with a tree on the south side of the car park. Ms Laudato was seriously injured and died at the scene.
The police attended. Constable Christopher Graham, a qualified motor mechanic who was part of the Major Crash Investigation Unit of SA Police, examined the BMW at the scene to determine whether the appellant’s BMW had a mechanical fault that may have caused or contributed to the accident. Following this examination, Constable Graham formed the opinion that there was no mechanical fault that would have contributed to or caused the accident.
The BMW was then towed to Triple A Crash Repairs at Kent Town. A police tow truck did not tow the vehicle.
The appellant’s son, Michael Hihimanis, was notified of the incident and immediately attended the scene to be with the appellant who was quite shaken. Mr Hihimanis, after talking to police, believed the BMW would be taken to the police compound at Ottoway. The appellant and Mr Hihimanis were taken to the Norwood Police Station where the appellant underwent a breath analysis. At the police station the appellant and Mr Hihimanis were informed that there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] SASC 2
Decision Date: 18 January 2006

CaseChat Overview and Summary

The appeal in Hihimanis v Police was brought against a conviction for driving without due care and attention, following a collision that resulted in the death of Ms Angela Laudato. The appellant, Mr Hihimanis, had reversed his BMW from a parking space and it continued to travel backwards, striking Ms Laudato and another vehicle before colliding with a tree. The appellant was charged with driving without due care and attention contrary to s 61(1) of the Road Traffic Act 1961 (SA). The trial magistrate found the appellant guilty of the offence and he appealed the conviction to the South Australian Court of Appeal. The appeal raised several issues, including whether the magistrate erred in not ordering a stay of proceedings, whether the magistrate should have excluded the prosecution’s evidence on the ground of unfairness, and whether the magistrate erred in concluding that the prosecution had excluded latent mechanical defect being the cause of the incident as a reasonable hypothesis consistent with innocence beyond reasonable doubt.

The Court of Appeal found that the magistrate did not err in deciding that the proceedings should not be stayed. The Court held that the magistrate's decision to reject the application for a stay of proceedings was open on the evidence before him. The Court also found that the magistrate did not err in concluding that the prosecution had excluded latent mechanical defect being the cause of the incident as a reasonable hypothesis consistent with innocence beyond reasonable doubt. The Court held that the magistrate’s findings on this issue were open on the evidence, as the appellant had not established that there was a reasonable hypothesis consistent with innocence that the incident was caused by a latent mechanical defect. The Court further held that the magistrate was not required to exclude the evidence of Constable Graham, who had examined the vehicle at the scene, on the ground of unfairness. The Court found that the magistrate's decision to admit the evidence of Constable Graham was open on the evidence before him.

The Court of Appeal dismissed the appeal against conviction, finding that the magistrate’s decision was supported by the evidence and that there was no error in law. The appeal was dismissed, and the conviction stood. The Court did not make any further orders in relation to the appeal.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against conviction for the offence of driving without due care.Background On 19 November 2001, the appellant, the defendant at trial, then aged 71 years, parked his 1983, automatic transmission BMW at the Norwood Shopping Mall. Guiseppe Laudato and his elderly mother Angela Laudato had also parked at the Mall. Having unloaded their groceries, they were talking by the side of Mr Laudato’s Mitsubishi Colt. At the same time the appellant had returned to his motor vehicle and was beginning to reverse out of the parking bay. After the BMW cleared the parking bay it did not stop; rather, with the engine revving loudly, it continued to travel backwards. The BMW struck Ms Laudato and the Mitsubishi Colt and then continued to travel backwards until it collided with a tree on the south side of the car park. Ms Laudato was seriously injured and died at the scene. The police attended. Constable Christopher Graham, a qualified motor mechanic who was part of the Major Crash Investigation Unit of SA Police, examined the BMW at the scene to determine whether the appellant’s BMW had a mechanical fault that may have caused or contributed to the accident. Following this examination, Constable Graham formed the opinion that there was no mechanical fault that would have contributed to or caused the accident. The BMW was then towed to Triple A Crash Repairs at Kent Town. A police tow truck did not tow the vehicle. The appellant’s son, Michael Hihimanis, was notified of the incident and immediately attended the scene to be with the appellant who was quite shaken. Mr Hihimanis, after talking to police, believed the BMW would be taken to the police compound at Ottoway. The appellant and Mr Hihimanis were taken to the Norwood Police Station where the appellant underwent a breath analysis. At the police station the appellant and Mr Hihimanis were informed that there could be further police inquiries and that Major Crash Investigation were involved. After leaving the police station, the appellant and Mr Hihimanis drove to the Ottoway compound. On arrival, they were informed that the BMW was not there but had been taken to Triple A Crash Repairs. The appellant and Mr Hihimanis travelled to Triple A Crash Repairs to locate the vehicle. Mr Hihimanis notified the appellant’s insurer, SGIC, of the accident. That evening, the appellant and Mr Hihimanis, while watching the news, learnt that the collision had caused the death of Ms Laudato. On the following day, the appellant and Mr Hihimanis returned to Triple A Crash Repairs for the purpose of assessing the extent of damage to the BMW. Mr Hihimanis made enquiries as to the possibility of an independent examination being made of the vehicle, as he was anxious to determine what had caused the incident. However, no independent examination was conducted. Mr Hihimanis claimed this was due to two reasons. First, an employee of the crash repairer advised that as the police had examined the vehicle at the scene, it was no longer in their custody, and suggested that because of the vehicle being manhandled since that time it was too late for an independent examination. Secondly, Mr Hihimanis and the appellant believed that at the time, as the BMW was the property of SGIC, they could not organise for the vehicle to be independently examined. Neither Mr Hihimanis nor the appellant made any inquiries with SGIC regarding independent examinations of the vehicle despite Mr Hihimanis’s suggested concern that the incident was the result of a mechanical defect.

Evidence

Evidence Before The Court

The magistrate upheld the objection and ruled, exercising the general unfairness discretion, that a portion of the videotaped record of interview was inadmissible. In his reasons of 21 March 2005 the magistrate stated:I am not persuaded that the police officer intended to conduct the interview in a way that was unfair to the defendant but the manner in which he proceeded, particularly adopting the tactic of posing questions such to be the sort of questions which had the potential to lead to unfairness. Exclusion of Constable Graham’s evidence Defence counsel further submitted that the evidence of Constable Graham led at the preliminary hearing should be rejected in the trial. Counsel’s submissions were based on the same grounds as the preliminary hearing - that the vehicle had not been preserved by the police to enable an independent examination and the insufficiency of the examinations conducted by Constable Graham. The magistrate ruled that the trial would not be unfair if the evidence of Constable Graham was admitted. The magistrate considered that the appellant was not unfairly prejudiced by the absence of an independent examination of the vehicle. In his reasons, the magistrate distinguished the present case from Whelan v Police.[1]The appellant had not been denied the opportunity of having the vehicle examined by an independent examiner of his choice. [1] Whelan v Police [2005] SASC 205. The prosecution needed to prove beyond reasonable doubt that the appellant, when reversing his vehicle, failed to exercise the standard of care that a reasonably prudent driver would exercise in similar circumstances. In particular, the magistrate needed to decide whether on the defence case, the prosecution could exclude beyond reasonable doubt a reasonable hypothesis that the incident was the result of uncontrolled acceleration due to mechanical fault. The Prosecution Case The prosecution submitted there was no evidence to suggest that the appellant’s BMW had any mechanical fault that caused the incident. Constable Graham gave evidence of the examination that he had undertaken on the defendant’s car. The purpose of the investigation was to determine whether there was any fault that would have contributed or caused the incident. The tests performed by Constable Graham included an examination of the controls and the driver’s seat position. Upon inspection, the rear of the driver’s seat was slightly twisted to the left, the selector lever of the transmission was in first gear and the other controls such as the air conditioning and heating controls, were set to a normal position. Constable Graham examined the foot brake to determine pedal pressure and then the accelerator to ensure the lever was operating up and down and that it did return to the “off” position. The handbrake was checked. Constable Graham noted that it was off at the time. Before starting the vehicle, Constable Graham further examined the general condition of the engine and the accelerator linkages. The vehicle was subsequently started. Constable Graham then performed a number of tests including selecting the gears to ensure the gears were engaging. A road test was not conducted as the engine repeatedly stopped.

Decision

Reasons for decision

Mr Richer’s evidence primarily concerned the location of the fuel pump. Mr Richer claimed that his examination of the similar vehicle revealed that the fuel pump was located near the fuel tank and the chassis, not in the boot of the vehicle as Constable Graham stated in his evidence. He considered that due to the fuel pump’s location it could not have been damaged in the incident. However, at the end of Mr Richer’s evidence, defence counsel and the prosecution agreed that the precise location of the fuel pump on the appellant’s vehicle could not be established with certainty.The Magistrate’s decision The magistrate, at the conclusion of the trial, reserved his decision and later delivered considered reasons for his decision to record a conviction. The magistrate took the view that the appellant had raised the possibility of the existence of a latent mechanical defect:When Senior Constable Bakker from the Major Crash Investigation Unit interviewed the defendant on 3 January 2002, he gave the defendant an opportunity to describe in his own words what happened on the day of the accident. The defendant stated, in part:“Yes officer, I parked my car between two cars in the parking there. I did a small shopping at Woolworths and then, when I finished, I went back to my car with intention to get between the two cars and then go forwards straight towards Edwards Street, with intention to go towards Kent Town. Now I got in my car, I looked in the back in the mirrors, everything was clear so I start the engine. Then I apply the reverse gear to get out from two cars and then stop it to put the forward, like the drive to go forward, but for some reason, I don’t know how, the car was still reversing. I was trying to stop it. I couldn’t and the next thing I knew was that I hit a car with my rear of my car. Now I been shopping and going to that carpark many times and never happens before and I’m surprised that it happened to me because I don’t know, officers, if you check my driving record, despite the fact that I drive at least 30 years, I don’t have a driving charge. I’m very careful driver. I never speed, I never cross lights, very courteous with other drivers. I think I have a record that most of people should be proud to have it.”…In his evidence, Mr Richer said that, in his role as a technical liaison officer for the RAA, he had investigated possible mechanical causes of uncontrolled acceleration in other vehicles. He identified seven mechanical defects which might have caused that condition in the BMW. He explained how he would go about looking for and detecting those defects, if they existed. He commented on Mr Graham’s examination of the BMW and was critical of some aspects of it. He suggested that Mr Graham was in error in his description of the BMW’s brake system and in his description of the site of the fuel pump. He also suggested that Mr Graham’s examination of the BMW was inadequate to eliminate the possible existence of some mechanical defects which might have caused uncontrolled acceleration.In my view, the evidence of the defendant’s statement to the police, taken in conjunction with the evidence of Mr Richer, were sufficient to raise the possibility that the BMW may have had a latent mechanical defect which caused it to accelerate in an uncontrolled manner when the defendant was reversing it in the carpark on 19 November 2001.

Ratio Decidendi

Legal Principle Established

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