Hutchison v Horan - [2021] TASSC 36

[2021] TASSC 36

COURT: SUPREME COURT OF TASMANIA

CITATION: Hutchison v Horan [2021] TASSC 36

PARTIES:  HUTCHISON, Graeme John
  v
  HORAN, Melinda

FILE NO:  572/2021
DELIVERED ON:  26 August 2021
DELIVERED AT:  Hobart (Heard in Burnie)
HEARING DATE:  20 August 2021
JUDGMENT OF:  Marshall AJ

CATCHWORDS:

Magistrates – Appeal – Tasmania – Motion to review – Whether reasonable person would have arrived at the same conclusion – Grounds not made out.

Traffic Act 1925 (Tas) s 32(2A).
Shi v Wilkie [2021] TASFC 1, applied.
Aust Dig Magistrates [1349].

REPRESENTATION:

Counsel:
           Applicant:  S Wright
           Respondent:  E Bill
Solicitors:
           Applicant:  Stephen G Wright
           Respondent:  Director of Public Prosecutions

Judgment Number: [2021] TASSC 36
Number of paragraphs: 15

Serial No 36/2021
File No 572/2021

GRAEME JOHN HUTCHISON v SERGEANT MELINDA HORAN

REASONS FOR JUDGMENT MARSHALL AJ

26 August 2021

The applicant, Mr Hutchison, has applied to review the order of Magistrate L Topfer made in a proceeding where Mr Hutchison was found guilty of an offence against s 32(2A) of the Traffic Act 1925. That sections provides:
"(2A) A person must not cause the death of another person by driving a motor vehicle on a public street negligently."
In the matter before the magistrate the particulars of negligence were failures to:
·    keep a proper lookout;
·    give way to pedestrians;
·    avoid a collision; and
·    drive with reasonable caution and care for other road users including pedestrians.
At about 12.30pm on Saturday, 4 January 2020, Mr Hutchison was driving a bus in Cattley Street, Burnie and was making a left turn into Wilson Street. At the same time an elderly woman, who was visiting Burnie and had arrived earlier that day on a cruise ship, was crossing Wilson Street when favoured by a green pedestrian light. Mr Hutchison's bus collided with the elderly woman and she died as a result of her injuries.
In the penultimate paragraph of her decision, the magistrate said:
"In this case the incident took place at a pedestrian crossing at the traffic lights in the Burnie CBD on a Saturday at about midday. The deceased crossed the road on a green pedestrian light. The evidence indicated she was walking at a consistent pace. She did not suddenly run out in front of the traffic. In fact CCTV indicates she had walked across Cattley St before commencing to cross Wilson St. The defendant did not see her at all. I find that he failed to keep a proper lookout, focusing on the other pedestrian who was crossing the road and that even if there was a blind spot, and I am not satisfied that any blind spots were a factor in the fatality, he did not take sufficient care when turning left into Wilson Street given the blind spot in the bus of which he stated he was aware."
The question for the Court on the hearing of an order to review is whether on the evidence the magistrate might, as a reasonable person, have come to the conclusion she did. See Shi v Wilkie [2021] TASFC 1 at [21] and the authorities referred to therein.
There are three grounds relied on in the amended notice of review. They are briefly stated:
·    there was no evidence to support the finding that Mr Hutchison failed to keep a proper lookout;
·    there was a finding that blind spots were not a factor in the fatality but the magistrate found that Mr Hutchison did not take sufficient care given a blind spot in the bus;
·    the finding of the charge as proven was not open to the magistrate to be satisfied of beyond reasonable doubt as a reasonable person.
It is not for this Court to weigh the evidence and reach its own independent conclusion on whether the charge was made out: see Shi at [21].
The task for this Court is to consider the review grounds to determine if the magistrate erred in respect of any of them to see if a view can be formed that a reasonable person would not have arrived at the same conclusion.
Counsel for Mr Hutchison, Mr Wright, submitted that it was not open to the magistrate to form the view that his client failed to keep a proper lookout. He contended that the fact that Mr Hutchison's bus collided with the deceased does not, of itself, prove that there was a failure to keep a proper lookout. So much is true. For example the deceased may have run across the road after the bus had started to turn, or she may have stumbled into the path of the bus. Neither of those things happened, but Mr Wright gave four reasons as to why Mr Hutchison may not have seen the deceased. The first was that a male pedestrian crossing from the opposite side of the road from the deceased, on whom Mr Hutchison was focusing, may have obscured his vision of the deceased who was a relatively small woman. The second was that the deceased's white clothing made her blend into the light coloured buildings around her. The third was that Mr Hutchison's vision may have been impeded by the headboard on his bus. The fourth was that the ticket box may have hindered his vision.
In her decision the magistrate found that "blind spots" were not a factor. This, in effect, was consistent with a finding contrary to possible reasons three and four referred to in the preceding paragraphs as reasons as to why Mr Hutchison failed to see the deceased. In my opinion, it was open to the magistrate as a reasonable person to reject those possible explanations and find that blind spots were not a contributing factor to the fatal collision. It was open to the magistrate to find those reasons as entirely speculative. In that context it is noted that in his handwritten account of the event given to police not long after the event, Mr Hutchison makes no reference to the ticket box or the headboard being a factor in the collision. When Mr Hutchison spoke to the crime scene investigator, Senior Constable Mason, he said that he did not see the deceased. He did not say that his vision was obscured by the headboard or ticket box. Senior Constable Mason gave evidence that he examined the bus driven by Mr Hutchison in detail and that he checked for obstructions and that "there was good visibility out to the front".
As to the first reason relied on by Mr Wright as a possible basis for the collision, the evidence before the magistrate was to the effect that Mr Hutchison was focussed on the male pedestrian who was crossing the intersection from the opposite side to the deceased. The parties requested that I look at the CCTV footage. I did and it is consistent with Mr Hutchison watching the male pedestrian cross without regard to who else may be crossing from the other side of the intersection. It is also consistent with the written comment of Mr Hutchison to police about that pedestrian when he said: "as he was going over on a red light I watched him as he came over the road". Unfortunately this diverted Mr Hutchison's attention from pedestrians crossing the road from the opposite side of the intersection with a green signal. It was open to the magistrate not to conclude that the male pedestrian obscured Mr Hutchison's view and form the view that that conclusion was remote, given that the male pedestrian was moving much more quickly than the deceased.
As to the second reason relied on by Mr Wright, that the white clothing of the deceased meant she blended into the white coloured buildings around her and she effectively became camouflaged, it was open to the magistrate to not seriously consider such a reason and dismiss it as being entirely fanciful and speculative with no basis in fact. Photographs of the deceased show her wearing a distinct scarf with light red patterns and that she had a shock of grey hair. The footpath nearby is reddish in colour, while there is white paint on the building nearest from where the deceased was crossing. The building largely consists of red bricks. The magistrate acted entirely reasonably in not treating this reason as a serious scenario. In his evidence Senior Constable Mason said that he did not consider in his investigation the fact that the deceased may have been "blending into the landscape". He said he did not consider it a relevant factor. It was not unreasonable for the magistrate to accept that evidence.
All four possible reasons raised by Mr Wright to attempt to explain why Mr Hutchison did not see the deceased were reasons which a magistrate acting reasonably was entitled not to take into account. The magistrate did not act unreasonably in failing to conclude that any one or all of them explained why Mr Hutchison did not see the deceased. Her finding that he did not see the deceased because he did not keep a proper lookout because his attention was focussed on the male pedestrian is a view of the evidence which can be taken by a magistrate acting as a reasonable person in coming to the conclusion which she did. A reasonable magistrate in the circumstances of the case, on the evidence, was capable of considering, as the magistrate did, that Mr Hutchison failed to keep a proper lookout. Accordingly, it was open to her to be satisfied as a reasonable person that Mr Hutchison was guilty of the offence with which he was charged, beyond a reasonable doubt. Grounds 1 and 3 on the amended notice to review lack merit and are rejected.
Ground 2 of the review grounds misinterprets [13] of the reasons for decision of the magistrate. The magistrate did say that blind spots were not a factor in what happened, but she did not make a finding that Mr Hutchison did not take sufficient care in the circumstances, given a blind spot in the bus. She was simply pointing out that Mr Hutchison had given evidence about a blind spot in the bus and that if he believed that to be the case he would be expected to exercise special care when turning the bus in the vicinity of pedestrians. I also reject ground 2 of the review grounds.
The application to review the decision of the magistrate is dismissed.