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 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.
In December 2001, the appellant was contacted by the police for the purpose of arranging an interview at the Parks Police Station. This interview took place on 3 January 2002. During the interview, the appellant asserted for the first time that the incident was caused by the uncontrolled acceleration of the BMW whilst reversing. At the interview, Senior Constable Bakker informed the appellant that he may be charged with causing death by dangerous driving. On 13 August 2002, the appellant was charged with the lesser offence of driving without due care contrary to section 45 of the Road Traffic Act 1961 (SA).
Application for a stay
On 31 January 2005, counsel for the appellant made application before the magistrate for a permanent stay on the ground of abuse of process. Counsel submitted that there had been an abuse of process when the appellant’s vehicle was released without, as counsel alleged, sufficient mechanical examination. The vehicle was examined at the scene of the incident and subsequently towed by a commercial tow truck to the crash repairers. Counsel submitted that the examinations that took place at the scene were insufficient. It was said that the vehicle should have been secured as evidence and preserved. Counsel claimed that it was impossible to guarantee the integrity of any further investigations.
Defence counsel further submitted that as the vehicle, having been involved in a fatal accident, it should have been secured in police custody and the appellant given a proper opportunity to have an independent examination undertaken. As a result, counsel submitted, it would be prejudicial for the prosecution to be allowed to continue when the appellant had been unfairly deprived of the opportunity to have his vehicle independently examined and the police examination conducted was inadequate and inconclusive.
To determine the preliminary application, the magistrate heard evidence from Constable Graham, the police mechanic who examined the vehicle at the scene of the incident and Michael Richer, a motor mechanic whose expertise included investigating failed components in motor vehicles. Constable Graham detailed his examination of the vehicle and the opinion he formed as a result of those investigations. Mr Richer gave evidence about the tests that should have been performed on the vehicle and the possible mechanical failures that may have caused uncontrolled acceleration.
The magistrate refused the application on the grounds that the appellant had not been denied the opportunity of having the vehicle examined by an independent expert. An independent examination could have taken place once the vehicle was released by the police into the appellant’s custody. The magistrate further concluded that the absence of an independent examination did not prevent defence counsel from criticising the adequacy of the tests conducted by Constable Graham. The onus was not on the defence to prove there was a mechanical defect; rather, once this possibility was raised, the prosecution carried the onus to exclude any reasonable hypothesis consistent with innocence beyond reasonable doubt. The magistrate concluded there was no abuse of process.
The Trial
Exclusion of video interview
The trial commenced on 21 March 2005. During the trial, defence counsel submitted that the video interview between the police and the appellant on 3 January 2002 was inadmissible. On the voir dire, defence counsel submitted that the magistrate should exercise discretion and exclude parts of the video interview on the ground of unfairness. Counsel submitted that the unfairness arose because the appellant did not speak fluent English and accordingly should have been offered an interpreter. It was further submitted that the police officers continued to ask the appellant questions after he repeatedly stated he did not want to answer any further questions and only wanted to make a statement.
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.
Constable Graham inspected the damage caused by the accident to the near side of the BMW. The impact had destroyed the electric fuel pump. Constable Graham concluded that this was the cause of the vehicle constantly stalling when pressure was placed on the accelerator. As a result of this test he was satisfied that the vehicle idle system and accelerator were functioning.
The brake system was re-examined by applying pressure to the brake pedal and examining the brake pads on each wheel. The hand brake was re-examined while the rear of the vehicle was hoisted. These tests revealed to Constable Graham that the brake system was in good mechanical order.
Further tests included the examination of the steering whilst the front of the vehicle was hoisted, a general check of the condition of the tyres and the vehicle body. This was followed by an examination to ensure the car was electronically functional. An assessment of the general position of the air-conditioner, cruise control, window-wipers, seats and seatbelts was undertaken.
During the examination Constable Graham was required to complete a mechanical report, electrical system report and a general report. At the end of the examination Constable Graham concluded, “The vehicle was in a reasonable condition but there was no mechanical fault which has caused, or contributed towards, this crash”.
Constable Graham gave evidence that he was appropriately equipped with the necessary tools to complete a satisfactory examination of the vehicle. He considered that there were many advantages in examining a vehicle at the scene of an incident rather than at the Ottoway compound. An examination in situ increased the accuracy of reports. It was also less likely that the position of the parts of the vehicle would be disturbed. This could occur during a towing process.
In addition to the tender of seven witness statements from persons present in the vicinity of the car park when the incident occurred, the prosecution called Maik Boaden to give oral evidence. Mr Boaden worked at the Woolworths Supermarket in the Norwood Mall Shopping Centre. Mr Boaden came upon the scene after the incident occurred. He recognised the appellant and the BMW as the driver and vehicle he had previously observed in the car park on approximately three occasions. Mr Boaden stated:
First thing I noticed was when the car was turned over, it was like someone had their foot straight on the accelerator and you know when you start a car quickly and you’ve got your foot flat to the boards the actual engine winds with the fan belt making a lot of noise, like a squealing noise
…then the driver would bring the car back and then the rev’s [sic] would come down quite slowly and he would take off at the normal pace for the carpark.
The prosecution submitted that Mr Boaden’s evidence was relevant to explain the appellant’s driving manner on occasions prior to the incident on 19 November 2001.
It was the prosecution’s case that the examination of the appellant’s vehicle at the scene by Constable Graham and his subsequent findings were sufficient to exclude mechanical defect as a cause of the incident. The evidence of Mr Boaden, it was suggested, established that it was probable that the man he had observed on prior occasions starting his vehicle with his foot heavy on the accelerator was the appellant.
No case to answer
Defence counsel then submitted that there was no case to answer. The magistrate ruled that there was a case to answer:
The test is whether there is evidence which, if accepted, is capable of proving each essential element of the alleged offence beyond reasonable doubt…I have to consider whether there is evidence capable of proving that the defendant drove the vehicle on the carpark in question on the relevant occasion and whether there is evidence capable of proving beyond reasonable doubt that, on that occasion, he failed to exercise the standard of care that one would expect of a reasonably prudent driver in like circumstances.
…I am required to judge the sufficiency of the evidence upon a consideration only of that evidence which militates for the prosecution and to disregard the evidence favouring the defendant. I have to assume for the purposes of the assessment that all evidence of primary fact considered at its strongest from the point of view of the case for the prosecution is accurate and to further assume that all inferences most favourable to the prosecution, which are reasonably open, are drawn.
…Approaching the evidence in that way I consider that there is evidence which, if accepted, is capable of proving each essential element of the alleged offence beyond reasonable doubt.
The Defence Case
Mr Richer gave evidence concerning tests that, on the defence case, should have been conducted by Constable Graham. Mr Richer’s evidence was said to establish that Constable Graham’s assessment was not sufficient to exclude uncontrolled acceleration as the cause of the incident.
Counsel for the defence submitted that the examination conducted on the appellant’s vehicle was insufficient and, without an independent examination, uncontrolled acceleration as a cause of the incident was a reasonable hypothesis. As a result, it was said that the prosecution had not proved beyond reasonable doubt that the appellant was driving without due care. The prosecution had not excluded beyond reasonable doubt a hypothesis consistent with innocence, namely mechanical failure.
Mr Richer considered that it was not sufficient to examine the vehicle at the scene. The vehicle should have been completely hoisted off the ground to allow for a thorough examination of the linkages on the transmission. He considered that this was important as:
…if the nut comes loose then the linkage can move. There is a share pin in the transmission that can break, especially under load, and you would only feel that by moving the transmission from underneath to see what was actually moving either the linkage or the shaft or if they were both moving-
Mr Richer considered that this was relevant in terms of uncontrolled acceleration or another mechanical defect as:
…the statement [of Constable Graham] said that the gear lever was in I think it was ‘drive’ or ‘low’, ‘drive’ I think it was from memory. It was in a forward position. The gear lever was in a forward position when it was found but the car had reversed up a tree, or into a tree. I would say in the case there must be a problem with the linkage because it can only go backwards when the gear lever is in reverse if everything is okay.
Mr Richer continued that, in his opinion, whilst the vehicle was on the hoist, the gear-box should have been checked internally to determine whether there was any material in the transmission pan. If there was it would indicate that the clutch had possibly failed. A clutch failure can sometimes lead to the transmission remaining in reverse gear so the vehicle is prevented from going forward. This, however, would not cause uncontrolled acceleration.
Mr Richer gave evidence of the tests that he claimed should be conducted when examining a vehicle for a mechanical defect or uncontrolled acceleration, tests that he stated were not included in Constable Graham’s reports. This included examining the kick down cable, a transmitter cable operated by the accelerator linkage. Mr Richer stated that this was important because if the accelerator is depressed and the cable sticks the vehicle would continue to accelerate.
Mr Richer stated that the cruise control on the model of the appellant’s vehicle was controlled by vacuum. After some research he discovered that if there was a failure in the cruise control the vacuum can pull the kick down cable on to the accelerator causing uncontrolled acceleration.

A further test Mr Richer considered should have been performed by Constable Graham was the examination of the constant idle solenoid, which controls the amount of engine revolutions when a vehicle is idling. If the constant idle solenoid was jammed open it could increase the idle, which would increase the engine revolutions.
Mr Richer stated that both the cruise control and the idle solenoid could only be accurately tested if the vehicle’s engine was running. Since Constable Graham could not keep the appellant’s vehicle running due to the damaged fuel pump, Mr Richer considered that the fuel pump should have been fixed for the purpose of conducting these tests. Mr Richer considered that it was very important to carry out tests whilst the vehicle was running as this was the only way to ascertain how the gear-box was functioning and whether the vehicle was going to reverse despite the gear stick being in a forward gear.
Mr Richer concluded that the tests Constable Graham performed in relation to the transmission were only sufficient to show that the linkage for the accelerator was free and operating.
Mr Richer gave evidence of further tests that could have been conducted to determine whether there was a mechanical defect or uncontrolled acceleration. This included examining whether there was a loose or split idle by-pass hose. The by-pass hose bypasses the throttle butterfly. If the hose is split or loose it will draw in air and the vehicle will act as though the accelerator is open.
The butterfly inside the throttle and the brake booster were also tests Mr Richer considered to be important. The butterfly regulates the amount of air that flows into the engine. If the butterfly became stuck the vehicle would accelerate. The throttle body would need to be dismantled to perform this test.
The brake booster was considered important to test as a vacuum leak would increase the airflow to the throttle or behind the throttle and this could cause increased engine revolutions. The engine would need to be running to perform this test.
Mr Richer concluded that, in the absence of the above tests being performed, a finding could not be made that there was no mechanical fault. The presence of “burn marks” created by the BMW and the continuation of the wheels spinning after the vehicle had hit the tree, indicated that the vehicle was travelling at a rapid speed and was still in reverse when it hit the tree. Mr Richer was concerned as to why the selector lever of the transmission in the appellant’s vehicle was in first gear when it was travelling in reverse.
Mr Richer was later called by defence counsel at the trial to give further evidence. This evidence concerned an examination Mr Richer performed after the preliminary hearing on a vehicle that was the same make, model and year as the appellant’s. The prosecution objected to the tendering of the evidence on the grounds that it was evidence from another vehicle when evidence could be adduced in relation to the appellant’s own vehicle.
Defence counsel submitted that service records were inadequate to show, and the mechanics who worked on the appellant’s BMW prior to the accident would not have sufficient expertise to analyse, what mechanical fault could have caused the particular situation. In the absence of the vehicle it was necessary to have evidence led by an expert such as Mr Richer as to the problems that can arise on a particular model and year.
After submissions regarding the admissibility of the evidence, the magistrate overruled the prosecution’s objection and allowed the evidence of Mr Richer and the photographs of the identical vehicle examined by Mr Richer.
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.
The magistrate then considered whether the prosecution had excluded that possibility, that is, of a latent mechanical defect being the cause of the incident as a reasonable hypothesis consistent with innocence, beyond reasonable doubt. In that respect the magistrate concluded:
The evidence of Mr Michael Hihimanis indicated that, prior to the accident, the BMW was properly maintained and was in a roadworthy condition. The evidence of Mr Graham indicated that the BMW was in a reasonable condition prior to the accident and that there was nothing mechanically wrong with it that would have contributed towards or caused the accident. There was no evidence that pointed to the actual existence of a latent mechanical defect. Mr Richer acknowledged that he was not in a position to say whether there was a mechanical problem with the BMW or not. ...
As a result of my assessment of the evidence I am satisfied, and I find, that the prosecution has excluded beyond reasonable doubt, the possibility that the uncontrolled acceleration which was evident when the defendant reversed the BMW in the carpark, was caused by a latent mechanical defect in the vehicle. In other words, I am satisfied that the behaviour of the vehicle was not affected by any mechanical defect. By way of inference, I am satisfied beyond reasonable doubt, and I find, that the uncontrolled acceleration was caused by the manner of the defendant’s driving.
Finally, the magistrate considered, given his findings of fact and his conclusions in regard to the exclusion of mechanical defect, whether the prosecution had proved its case beyond reasonable doubt:
I have considered the evidence with those principles of law in mind. On the basis of the evidence, I am satisfied beyond reasonable doubt, and I find, that the defendant’s manner of driving on the occasion in question exhibited a substantial departure from the standard of care expected of a reasonably competent and skilful driver. He caused the BMW to reverse at a speed that was excessive in the circumstances then existing and he failed to exercise proper control of the vehicle.
The Appeal
On appeal, counsel for the appellant repeated the substance and detail of the arguments presented to the magistrate. It was contended that a stay should have been ordered, that in the alternative the evidence of Constable Graham should not have been admitted and that finally, even if the evidence was admitted, the prosecution had failed to exclude the reasonable hypothesis of latent mechanical defect, that being a hypothesis consistent with innocence.
The Stay Application
An important issue in the proceedings was whether there was a latent mechanical defect that could explain the acceleration and reverse of the BMW and the resultant collision. It was contended by counsel for the appellant that the handling by the police of the BMW after the incident precluded or denied the appellant the reasonable opportunity to have the vehicle examined. In particular, counsel said that the towing of the vehicle from the scene to the crash repairer allowed for the possibility of there being interference with the integrity of the damaged vehicle.
Counsel drew attention to the decision of this Court in Whelan[2] and suggested that the present case was analogous to that decision. The magistrate distinguished the decision of Whelan. In my view he was right to do so.
[2] Whelan v Police [2005] SASC 205.
In Whelan, the critical item of evidence had been destroyed. The destruction of the evidence precluded any clear basis for ascertaining the location of fingerprints. The location of those prints was a matter that was critical to the recording of a conviction. The defendant had no opportunity to examine the piece of glass. The police notes were equivocal.
In the present case the appellant had the vehicle returned and available to him within 24 hours of the incident. Consideration was given to the undertaking of an independent examination but the appellant, in consultation with his son, made the decision not to proceed with an examination. There is a possibility that the towing of the vehicle may have interfered with the integrity of the damaged vehicle but that is no more than a mere possibility. No evidence was led to establish any real risk of interference with the vehicle in any material way.
In the present case, no relevant unfairness arose as a result of the police handling of the motor vehicle. Following an examination of the vehicle by Constable Graham, the vehicle was returned to the appellant. There is no suggestion that the police investigation in any way interfered with the integrity of the vehicle. Constable Graham made notes of his observations, gave evidence at the trial and was available for cross-examination. As Cox J observed in Holmden v Bitar:[3]
[T]he power to order a stay of proceedings – or, it may be, to dismiss them – as an abuse of a court’s process is a quite exceptional remedy. Any procedural device that has the effect of denying an informant a trial on the general issue is a very drastic one indeed. It is not to be used simply because the court perceives some feature of the prosecution that can be characterised as “unfair” … It can be expected that the instances of its application will be rare.
The magistrate was correct to decline to order a stay.
[3] Holmden v Bitar (1987) 47 SASR 509 at 517.
Admissibility of the Evidence of Constable Graham
Counsel for the appellant submitted that as the appellant did not have an independent examination of the vehicle performed there was some unfairness in the admission of the evidence of Constable Graham’s observations. The same arguments that were advanced concerning the stay were advanced in regard to this aspect of the matter. This submission should also be rejected. There was no relevant unfairness in the obtaining of the evidence and no unfair prejudice in its reception. Constable Graham was well-qualified, made contemporaneous notes and was available to be cross-examined.
Reasonable Hypothesis Consistent with Innocence
Counsel for the appellant submitted that a careful analysis of the evidence of Constable Graham and of Mr Richer demonstrated that there was a reasonable doubt arising on the totality of the evidence. It was said that the prosecution had failed to exclude beyond a reasonable doubt a reasonable hypothesis consistent with innocence, that a latent mechanical defect could have been the cause of the incident.
This submission should be rejected. Constable Graham gave detailed evidence of his examination of the vehicle and his reasons for concluding that there was no mechanical defect to explain the rapid reverse acceleration of the vehicle. Earlier in these reasons Constable Graham’s evidence has been set out in some detail. When cross-examined he addressed each of the criticisms advanced about the tests that were performed on the vehicle. He maintained his opinion. It was for the magistrate to assess this evidence and accord the weight to be given to Constable Graham’s opinion.
Mr Richer also gave detailed evidence before the magistrate. Again his evidence has been referred to earlier in these reasons. He gave evidence of possibilities that could have explained the incident as being consistent with some form of mechanical failure. However his evidence gave rise to no more than possibilities. His evidence did not preclude the magistrate’s acceptance of Constable Graham’s evidence.
The issues at trial were primarily issues of fact to be determined by the trier of fact in accordance with the evidence and the weight to be accorded to that evidence by that trier of fact.
The magistrate was prepared to accept and act on Constable Graham’s opinion in reaching the conclusion that the prosecution had excluded mechanical defect as a reasonable hypothesis and had done so beyond a reasonable doubt. Such a conclusion was open to the magistrate. No error has been shown in his approach. He has not been shown to have considered any irrelevant material or to have failed to have regard to any relevant material. The expert evidence was to be assessed against the other body of evidence at the trial. In all the circumstances it was open to the magistrate to reach the conclusion that he did.
Conclusion
This appeal should be dismissed.