Htut v Knowles
[2010] WASC 84
•22 APRIL 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HTUT -v- KNOWLES [2010] WASC 84
CORAM: HASLUCK J
HEARD: 22 APRIL 2010
DELIVERED : 22 APRIL 2010
FILE NO/S: SJA 1113 of 2009
BETWEEN: NAY MYO HTUT
Appellant
AND
KENNETH DAVID KNOWLES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R B LAWRENCE
File No :PE 25998 of 2009
Catchwords:
Criminal law and procedure - Appeal from Magistrates Court against conviction - Driving offence of making a U-turn and failing to give way - Appellant unrepresented at trial - Whether magistrate erred in fact or in law - Principles concerning appellant being unrepresented at trial and at appeal - Turns on own facts - Leave to appeal refused and appeal dismissed
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 14, s 39
Road Traffic Code 2000 (WA), reg 32
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr D E Leigh & Mr D Jones
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Cains v Jenkins (1979) 28 ALR 219
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dietrich v The Queen (1992) 177 CLR 292
Garrett v Nicholson (1999) 21 WAR 226
Keystart Loans Ltd v Haydon Wood [2005] WASC 231
MacPherson v The Queen (1981) 147 CLR 512
Skerritt v O'Keefe [1999] WASCA 183
Smith v McCusker [2005] WASCA 226
HASLUCK J:
Introduction
The appellant, Nay Myo Htut, was charged that on 1 November 2008 at Northbridge he infringed reg 32(2) of the Road Traffic Code 2000 (WA) in that, being the driver of a motor vehicle registration number TAXI 832 on a road, namely, Roe Street, he made a U‑turn and failed to give way to another vehicle.
The case against the appellant, as outlined by the prosecutor in his opening address, was that at 6.30 am on Saturday, 1 November 2008 the accused, being a taxi driver, was driving his Ford Falcon taxi east on Roe Street near Lake Street in Northbridge.
On the prosecution case, the complainant, Alan Stewart MacPherson, was travelling on a motorcycle in the right hand lane behind the appellant. The appellant allegedly pulled over to the left hand lane, then started to do a U‑turn, crossing once again into the right hand lane where the complainant's motorcycle collided with the front side of the appellant's taxi.
The complainant was thrown over the handlebars of his motorcycle onto the bonnet of the taxi, then onto the road. The complainant was said to have sustained minor injuries in the crash.
Regulation 32(1) concerning U‑turns provides that a driver shall not commence a U‑turn unless the turn can be made with safety and without interfering with the movement of other traffic and the driver has a clear view of any approaching traffic.
The regulation specified in the charge, that is, reg 32(2), provides that a driver making a U‑turn shall give way to all vehicles and pedestrians. This is followed by reg 32(3) which provides that a driver making a U turn shall commence the U‑turn from the lane nearest or as near as practicable to the dividing lane or median strip if the carriageway where the driver is turning has a dividing line or median strip or in any other case from the left of the centre of the carriageway.
The appellant pleaded not guilty to the charge and, as appears from the transcript of the proceedings on 3 September 2009, the matter was heard in the Magistrates Court. The appellant was not represented at the hearing by counsel.
The hearing
At the hearing, having outlined the prosecution case, the prosecutor led evidence from the complainant to the effect that he was proceeding east down Roe Street on his motorcycle to get onto the Horseshoe Bridge. He was riding behind the taxi driven by the appellant which was a little way in front of him. According to the complainant, some people on the railway side or opposite side of Roe Street hailed the taxi.
At about that time the taxi pulled to the left or inside lane of the two lanes comprising the easterly route, but then proceeded to do a U‑turn in front of the complainant. Being on the inside lane closest to the centre of the road, the complainant collided with the front right hand side of the taxi and was thrown over the handlebars of his motorcycle. The appellant did not cross‑examine the complainant about this evidence.
The prosecution case was supported also by the evidence of First Class Constable Shane Liston. He said that at the relevant time he was just coming down Lake Street on a bicycle and was about to make a left hand turn into Roe Street when he saw a taxi in the middle of the road 'sort of on an angle' and a motorbike lying on its side with the rider standing nearby.
Constable Liston said that the appellant's vehicle was in the road right hand lane at an angle of between 45 and 60 degrees to the middle of the road. Constable Liston did not hear or see the accident but identified himself as a police officer upon arriving at the scene. He spoke to both parties and recalled being advised by the taxi driver that 'he didn't see the motorbike rider'. The police officer was not cross‑examined.
The prosecutor also led evidence from a customer services officer at the Cannington police station, Neville Winston Huntley, who produced a police accident crash report dated 1 November 2008 signed by the appellant.
In the portion of the report containing a description of how the crash happened it was said that the vehicle driven by the appellant called 'V1' was 'preparing for U‑turn after median strip while driving on second lane'. It was said further that the vehicle driven by the complainant called 'V2' 'tried to overtake V1 on right hand side of V1 and median strip on second lane. V1 was hit at right front by V2'.
The report contained a sketch of the scene. This showed a median strip in the centre of the carriageway named as Roe Street. The appellant, by his sketch, placed V1 and V2 slightly to the east of the point where the median strip terminates. V1 is positioned at an angle to the centre line of the road and is situated entirely in the right hand land with V2 in the right hand lane also, pointing directly at the front right hand side of V1. Two stick figures are portrayed as being on the railway or southern side of Roe Street but slightly to the west of V1 and V2 and, thus, slightly to the west of the point at which the median strip terminates.
The appellant's evidence
The appellant gave sworn evidence to the effect that he was driving in an easterly direction on the morning in question when he was involved in an accident with the complainant's motorcycle. When asked to identify the lane in which the complainant was driving, the appellant said, 'I did not even notice him. He was coming behind me from Roe Street, sir'. The appellant agreed that he was going to do a U‑turn 'to pick them up'. This can be regarded as a reference to the two potential passengers on the opposite side of the road.
The appellant said that he was in the centre of two lanes, that is, the right hand side lane. When questioned by the magistrate as to whether he saw the motorcyclist, he responded, 'No, sir. I already indicate and I have already checked (indistinct) before and there was no one there, no one behind me'. The appellant went on to say that he had slowed down. The next thing he knew was that the motorcycle 'was in my sight' and the two vehicles collided. He said that he did not see the complainant prior to the collision and the first time he saw him was when he collided.
Reasons for decision
The magistrate commenced his reasons for decision by describing the charge and saying further that he was satisfied beyond reasonable doubt that the appellant was driving a taxi in an easterly direction on Roe Street and that he did make a U‑turn in that street. His Honour said further that the question for determination was whether he was satisfied beyond reasonable doubt that the appellant 'failed to give way to another vehicle in doing so'.
His Honour went on to say that the appellant's evidence that he did not 'pull to the left' before making a U‑turn would seem to be inconsistent with the crash report sketch which depicted the appellant's vehicle as being the one in the right hand lane across the direction of travel.
His Honour rejected the appellant's evidence that the appellant had looked to his rear before executing the U‑turn and went on to assert that the appellant 'failed to take any reasonable precaution to ensure that it was safe to execute the U‑turn before doing so and proceeded to execute the U‑turn directly in front of Mr MacPherson'. His Honour held that the charge had been made out and proceeded to fine the appellant $300 with costs of $114.20.
Appeal notice
The appellant filed an appeal notice dated 29 September 2009 in which four grounds of appeal are set out as follows:
1.Given the circumstances of my alleged offending behaviour it was impossible for me to commit the offence in question - one cannot give way to a speeding motorcyclist approaching you from behind and overtaking in a dangerous manner.
2.The Magistrate failed to give proper weight to the evidence of the motorcyclist that prior to our collision he observed my taxi slowing down at the same time when two persons on the other side of the road were hailing my taxi down.
3.The Magistrate's decision to convict me is unsafe and unsatisfactory in that it is against the weight of the evidence.
4.There has been a miscarriage of justice as I was not able to properly defend myself owing to matters such as:
a)English being a second language for me;
b)not understanding the court procedure for a hearing; and
c)not being able to effectively cross‑examine prosecution witnesses or effectively adduce evidence in my defence.
On 7 May 2009 Jenkins J made various orders concerning the appeal, including that the application for leave to appeal be heard at the same time as the appeal.
Before turning to the submissions of the parties concerning the grounds of appeal it will be useful to look briefly at some important principles concerning an appeal of this kind.
Legal principles
Section 9 of the Criminal Appeals Act 2004 (WA) provides that leave of the Supreme Court is required for each ground of appeal. Leave to appeal must not be given unless the Court is satisfied that the ground has a reasonable prospect of succeeding, that is, the appeal must have a real prospect of success. The question of whether each ground has a real prospect of success obviously requires that some consideration be given to additional provisions and principles.
By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing. Section 14(2) of the Act provides that even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. By s 39 the Supreme Court must decide the appeal on the evidence and materials that were before the lower Court, but this does not prevent consideration of any evidence that the lower Court refused to admit.
A magistrate is generally required to set out the relevant findings of fact and the reasons for decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226. The sufficiency of fact finding will vary widely with the exigencies of each case: Skerritt v O'Keefe [1999] WASCA 183.
Generally an appeal court will refrain from interfering with findings of fact based upon the credibility of witnesses unless it appears that the judicial officer has failed to use or misused the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts clearly established by the evidence or which was clearly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
Let me now return to the various grounds of appeal.
The first ground of appeal
The first ground of appeal contains an assertion that it is impossible for the appellant to have committed the offence in circumstances where, on the appellant's case, the appellant could not give way to a speeding motorcyclist approaching from behind and overtaking in a dangerous manner. In other words, the appellant appears to assert by necessary implication that the magistrate erred in finding that the appellant made a U‑turn from the left hand lane since the motorcycle would only have been approaching the taxi 'from behind and overtaking in a dangerous manner' if the taxi had also been in the right hand lane - as a matter of law a person cannot give way to a vehicle behind them.
The phrase 'give way' is not defined in either the Road Traffic Act 1974 (WA) or the in the Road Traffic Code (WA). Section 7 of the Code sets out the circumstances in which an obligation to give way arises, being a requirement that takes effect when there is a reasonable possibility that if the driver proceeded, he or she would collide or come into conflict with or create any other dangerous situation. The person subject to the requirement of giving way is obliged to slow down to such an extent or, as the circumstances may require, stop and remain stationary for such time as may be necessary to allow the other person or vehicle to continue on his, her or its course.
Given these requirements, the respondent accepted at the hearing of the appeal that a vehicle could not give way to another vehicle which was directly and immediately behind the first vehicle. However, the respondent did not accept that it was impossible for a vehicle to give way to another vehicle which was behind it and in a different lane.
In the present case the magistrate's reasons for decision show that he directed himself that the question he had to determine beyond reasonable doubt was whether the appellant failed to give way to another. It is clear that in order for the magistrate to determine the matter in question he must have been of the view that the appellant was obliged to slow down or stop at the time of the collision in order to let the complainant pass. This view could only have been reached if the magistrate had found the appellant had pulled into the left hand lane immediately prior to the collision.
The magistrate did not refer explicitly to such a finding, but in the course of formulating his conclusion as to which of the two contradictory versions should be preferred his Honour said, and thus apparently found, that the appellant 'was travelling in an easterly direction which would indicate that he came from the left lane'. This led to the conclusion that he, the appellant, 'proceeded to execute the U‑turn directly in front of Mr MacPherson'.
To my mind it is clear that the magistrate's conviction of the appellant proceeded from a finding of fact that the appellant was in the left lane at the time he commenced the U‑turn, as alleged by the complainant, and did not look to his rear before doing so, with the result that in turning across the right lane in front of the complainant the collision occurred. That finding is consistent with the uncontested evidence provided by Constable Liston to the effect that the appellant's taxi displayed damage to its right front guard immediately after the collision and other evidence substantiating damage of that kind.
It was open for the magistrate to hold that it was improbable that the right hand front panel of the appellant's taxi would have been struck by the complainant had the appellant been executing a U‑turn which was commenced in the right eastbound lane of Roe Street. The finding was consistent also with the appellant's description in evidence and in his sketch that he was seeking to pick up two potential passengers on the opposite side of Roe Street, but was hit while still in the right hand lane.
In this case there was contradictory evidence given by the complainant and the appellant. It emerges from the summary of the magistrate's reasons for decision referred to earlier that the magistrate expressly rejected the evidence of the appellant to the effect that he checked his rear before making the U‑turn. In concluding that the appellant proceeded to execute the U‑turn directly in front of the complainant, the magistrate accepted and preferred the evidence of the complainant to that effect.
In this case it cannot be said that the advantage enjoyed by the magistrate after hearing the contradictory evidence of the two witnesses could not explain his conclusion. The objective documentary evidence available in this matter, being Liston's evidence and the appellant's sketch, supported the magistrate's conclusions.
For these reasons I am of the view, and so hold, that there are no grounds upon which an appellate court should interfere with or displace the findings of fact that underpinned the magistrate's decision.
The second ground of appeal
In the second ground of appeal the appellant complains that the magistrate did not give proper weight to the complainant's evidence, that is, evidence allegedly to the effect that he observed the appellant's taxi slowing down prior to the collision.
It follows from earlier discussion concerning the legal principles that an appeal court must be satisfied that the magistrate understood correctly the issue to be resolved and undertook a proper evaluation of the evidence.
The line of argument reflected in this ground of appeal is not entirely clear because it is apparent that his Honour generally preferred the evidence of the complainant and therefore obviously took account of and gave weight to the complainant's evidence.
I remind myself also that the complainant did not state that he saw the appellant's taxi slowing down in the right hand lane. He said more specifically that he saw the taxi pull into the left hand lane and that it appeared to him to have parked there. It was from a position in the left hand lane, according to the complainant, that the appellant commenced the U‑turn which led to the accident. As appears from earlier discussion, the magistrate made a factual finding to that effect and a related and crucial finding that the appellant infringed the subject regulation by failing to give way. In my view, there is no reasonable prospect of the appeal succeeding on this ground.
The third ground of appeal
In the third ground of appeal the appellant contends that the magistrate's decision is unsafe and unsatisfactory in that it is against the weight of the evidence.
It emerges from the reasons I have given concerning the first ground of appeal that it was open to the magistrate upon the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty of the charge brought against him. Further, the position of the vehicles in the appellant's sketch weighs against the notion that he commenced his U‑turn from the right hand lane or, putting it another way, the centre lane.
The position of V1 entirely in the eastbound centre lane at the moment of impact - in the appellant's sketch - permits an inference to be drawn (which is supportive of the complainant's evidence) that the appellant commenced his U turn from the left hand eastbound lane, rather than from the right hand or centre eastbound lane for in the latter case the turning movement would almost immediately have taken the front of the appellant's vehicle across the centre or dividing line separating eastbound and westbound traffic. However, the appellant's sketch and Constable Liston's evidence establishes that the appellant's vehicle did not cross the centre line but remained entirely in the right hand eastbound lane at an angle to the dividing line as if it were hit while moving across the right hand eastbound lane as described by the complainant. To my mind this ground is without merit and has no reasonable prospects of success.
The fourth ground of appeal
The appellant asserts in the fourth ground of appeal that there has been a miscarriage of justice because he did not properly understand or engage in the hearing process partly because English is his second language. This is said to have resulted in him being unable to effectively adduce evidence or cross‑examine prosecution witnesses.
In my view, the transcript discloses that the appellant, while certainly a less fluent speaker of English than the prosecution witnesses, was nonetheless able to provide evidence to the magistrate and did so without difficulty. Moreover, during the hearing he did not complain of difficulty, nor request any assistance.
Cases such as Dietrich v The Queen (1992) 177 CLR 292 and MacPherson v The Queen (1981) 147 CLR 512 articulate the principles applicable to unrepresented litigants. In Dietrich's case Mason CJ and McHugh J made these observations:
For the foregoing reasons, it should be accepted that Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused. (311)
In the case of Cains v Jenkins (1979) 28 ALR 219 these observations were made by Sweeney and St John JJ:
Whether a deaf mute or a migrant with no English should have representation is a question that could have a different answer to the same question about Queen's Counsel. On the authorities there is no absolute right to representation even where livelihood is at stake. But that is not to say that in all cases a tribunal can refuse it with impunity. The seriousness of the matter and the complexity of the issues, factual or legal, may be such that refusal would offend natural justice principles. (230)
These cases dealing with the obligation of a court to assist an unrepresented party are in the main concerned with the assistance of an accused person. However, cases dealing with the principles of natural justice and the right to representation require a court to have regard to the capacity of a person to effectively represent his interests. Relevant matters will include the person's familiarity with the relevant rules and the complexity of those rules, language difficulties and similar matters. The seriousness of the issue and any qualifications which may place an opponent at an advantage will also be considered.
It has been said in cases of this kind, and more particularly in MacPherson's case by Mason CJ at 534, that a trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as fair. The cases described in summary indicate that the obligation is to take steps to ensure that the accused is aware at each stage of the trial of relevant aspects of procedure and law, including the rights which he has and the options which he may exercise and is aware of the possible consequences to him of the choice of one option rather than the other. What is necessary in any particular case to produce a fair trial of the matter to be adjudicated upon depends on the subject matter and the circumstances of the case.
In Keystart Loans Ltd v Haydon Wood [2005] WASC 231 I observed that the Court will afford to an unrepresented litigant a degree of assistance. However, that does not mean that the Court will confer upon the party in person advantages which if he were represented he or she would not have. The Court ought not to deprive the other side of its lawful entitlement.
In Smith v McCusker [2005] WASCA 226 Wheeler JA at [64] observed:
It is because there is a possibility that a litigant in person may have a case which he is unable to properly articulate that many indulgences are extended to litigants in person. However, in the end, as with any other litigant, the view has to be taken that if a litigant does not point to evidence which could lead to a claim succeeding, that is because there is no such evidence.
In the present case in respect of a comparatively simple trial the magistrate took steps to ensure that the appellant was aware at each stage of the trial of relevant aspects of the process, including the opportunity to cross‑examine. He assisted the appellant by prompting him to cross‑examine prosecution witnesses if he wished to do so and by inviting him to add further information at the conclusion of his evidence‑in‑chief, and before any decision was made. Moreover, the magistrate entered into a dialogue with the unrepresented litigant which permitted the appellant to present his version of events in a coherent way.
The evidence considered as a whole, notwithstanding the absence of cross‑examination or prosecution witnesses, does not suggest that important evidence that may have changed the outcome was overlooked or not brought forward due to the appellant being unrepresented. The appellant was afforded an opportunity to present his version of the events and did so. I have heard nothing to suggest that the nature of the case he wished to put to the Court was prejudiced in any significant way by the absence of representation bearing in mind the comparative simplicity of the factual situation and the charge before the Court.
In all of these circumstances I am of the view that on this ground the appeal has no reasonable prospects of success.
Summary
It follows from the reasons I have provided that leave to appeal will be refused in respect of each of the four grounds of appeal and the appeal will be dismissed. In the exercise of my discretion there will be no order as to costs. This is a case in which a foreign‑born litigant unrepresented at the trial and on appeal harboured a sense of grievance which was referable to some extent to language difficulties and the fact that he was not represented. He did not act unreasonably seeking to ventilate his grievance by taking the matter on appeal. To my mind in this situation the legal system is better served by a full exploration of the issues without the appellant being exposed to further financial consequences. For that reason there will be no order as to costs.
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