Illich v Garvey - [2001] WASCA 236

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ILLICH -v- GARVEY [2001] WASCA 236

CORAM: WHITE AUJ

HEARD: 31 JULY 2001

DELIVERED : 13 AUGUST 2001

FILE NO/S: SJA 1197 of 2000

BETWEEN: PAUL STEPHEN ILLICH
Appellant
AND
JONATHON JAMES GARVEY
Respondent

Catchwords:

Traffic accident - Duty to stop - Duty to report - Driving without due care and attention - Reversing vehicle colliding with stationary car in dark street at night - Reasons for judgment - Whether adequate

Legislation:

Road Traffic Act 1974

Result:

Appeal upheld
Counsel to be invited to make submissions as to the appropriate orders to give effect to these reasons

Category: B

Representation:

Counsel:

Appellant: Ms J C Pritchard
Respondent: Mr J C Hammond

Solicitors:

Appellant: State Crown Solicitor
Respondent: Hammond Worthington

Case(s) referred to in judgment(s):

Crispin v Rhodes (1986) 40 SASR 202
Laitt v Magden (1992) 16 MVR 72
Lloyd v Faraone (1989) WAR 154
Milkins v Roberts [1949] SASR 215

Case(s) also cited:

Aitken v Weary (1985) 2 MVR 378
Attree v Randall (1993) MVR 95
Critchley v Downes [1964] SASR 350
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dinsdale v The Queen (2000) 74 ALJR 1538
Garrett v Nicholson (1999) 21 WAR 226
Geneff v Townshend [1970] WAR 20
Keelan v Wallinger [1981] WAR 148
Lloyd v Faraone [1989] WAR 154
Mason v Strudwick (1993) 17 MVR 305
Matsebula v Vandeklashort [2000] WASCA 141
Pallot & Ors v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995
Palmer v "A" (A Child) [1999] WASCA 290
Papps v Police (SA) (2000) 31 MVR 1
Penfold v Hobbs, unreported; SCt of WA; Library No 7529; 15 February 1989
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
Stojkovski v Fitzgerald [1989] WAR 328
Underwood & Ors v Gayfer & Anor [1999] WASCA 56
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Wedd v The Queen [2000] WASCA 273; 115 A Crim R 205
Wing Luck Foods v Lay Choo Lim [1989] WAR 358

WHITE AUJ: This is an appeal by the Crown against the decision of Mr Burton SM in the Court of Petty Sessions on 3 October 2000, whereby his Worship dismissed each of the three charges against the respondent, being:
"(a)complaint No 22794 of 2000, which alleged that the Respondent (Defendant) failed to report an accident in contravention of s 55(1) of the Road Traffic Act 1974 (WA) ('the Act');
(b)complaint No 22795 of 2000, which alleged that the Respondent (Defendant) failed to stop immediately after the occurrence of an accident in contravention of s 54(1) of the Act; and
(c)complaint No 22796 of 2000, which alleged that the Respondent (Defendant) drove a motor vehicle without due care and attention in contravention of s 62 of the Act."
The grounds of appeal are:
"(a)the learned Magistrate erred in dismissing complaint No 22794 of 2000 in that he:
(i)erred in law by construing s 55 of the Act as requiring the Applicant (Complainant) to prove, as an element of the offence created by that section, that the Respondent (Defendant) had reasonable cause to believe that the damage caused by an accident exceeded $1,000;
(ii)erred in fact in failing to hold that the Applicant (Complainant) had proved beyond reasonable doubt that the Respondent (Defendant) did not have reasonable cause for believing that the damage caused in the accident on 9 January 2000 (the 'Accident') did not exceed $1,000.
Particulars
The learned Magistrate should have so held on the unchallenged evidence that the Defendant did not properly examine the damage caused in the Accident and the Defendant was informed of the amount of the damage approximately 2 weeks before the Defendant reported the accident.
(b)The learned Magistrate erred in dismissing complaint No 22795 of 2000 in that he:
(i)erred in law by holding that it was sufficient compliance with s 54 of the Act for the Respondent (Defendant) to provide his name and address to the householder he was visiting. The learned Magistrate should have held that, by virtue of s 54 of the Act, the Respondent (Defendant) was required to provide his name and address, if it was within his power to do so, to the owner of the other vehicle involved in the Accident, namely Michelle Mundy, or to a person representing Michelle Mundy or to a member of the Police Force;
(ii)erred in fact by failing to hold that it was within the power of the Respondent (Defendant) to provide his name and address to Michelle Mundy or to a member of the Police Force.
Particulars
(a)The learned Magistrate should have held that it was within the Respondent's (Defendant's) power to have provided his name and address to Mundy having regard to the evidence of Claridge and Mundy that Mundy arrived at the scene of the Accident within 15-20 seconds after the Accident;
(b)The learned Magistrate should have held that it was within the Respondent's (Defendant's) power to have given his name and address to a member of the Police Force having regard to the evidence that the Respondent (Defendant) was able to drive off after the Accident.
(c)The learned Magistrate erred in dismissing Complaint No 22796 of 2000 in that he erred in law and in fact in holding that the Respondent (Defendant) did not commit an offence against s 62 of the Act when the unchallenged evidence was that the Respondent (Defendant) reversed his vehicle into another stationary vehicle.
(d)In relation to complaints No 22794-6 of 2000, the learned Magistrate erred in law in failing to provide adequate reasons for his decision. The learned Magistrate's reasons fail to sufficiently disclose his rulings of law and findings of fact to enable the parties to understand how he reached his determination."
The facts were that on 9 January 2000 the respondent reversed his motor vehicle out of a driveway and on to Alma Road, Mt Lawley and collided with a BMW motor vehicle which was parked in that street, on the opposite side to the driveway. The respondent reported the accident to the police on 25 January 2000.
At the trial before the learned Magistrate, the prosecution called three witnesses, namely Michelle Anne Mundy, the owner of the BMW vehicle, Marcus Essex Claridge, an independent witness who observed the collision, and Colston Stephen Burgess, a police constable, who produced and tendered a statement by the respondent which he had recorded and which was admitted into evidence as part of the Crown case. The respondent did not give evidence or call any witnesses at the trial.

The Prosecution Evidence

The first witness for the prosecution was Ms Mundy, the owner of the BMW vehicle. At about 9 pm on 9 January 2000, she was in her bedroom reading a book inside the house that she was living in at the time. She said:
"I heard a loud noise outside the front of of my house. It was loud enough that I knew straight away that my car had been hit. And so I ran out the front of my house, just in time to see another car pulling out the driveway across the road and taking off."
She said that the vehicle:
"… appeared to have been driven back into the driveway across the road and was reversing back again, clearing my car this time, in order to take off back down the road - - - It was white, I think it was a Ford Falcon. I wasn't sure at the time exactly what type of vehicle it was. - - - Straight away, I could see that my car had been hit. There was a big dent in the side panel. And because I could see that the car had come from across the road and there was no‑one in sight."
She said that it had taken about 15 seconds after hearing the noise for her to put down her book, put on her shoes and run outside.
The damage to her car was on the back left hand panel, on the side.
She obtained three quotations for the repair of the damage, two in writing, and these were produced and accepted as exhibits. The quotations were for $1,154.21 (which included five days hire of a Hyundai at $15 a day) and $1,320.81 (which included $150 for car hire at $30 a day for five days) respectively. She was content to accept the lower of those quotations. The third, oral, quotation was for a substantially greater sum and she had not required it to be given in writing.
Subsequently, the witness' friend obtained from the occupant of the property from whose driveway the respondent's vehicle had been driven, particulars identifying the respondent.
The only cross‑examination was directed to show that the period of 15 seconds deposed to was a guess, with which the witness agreed.
The next witness for the prosecution was Mr Claridge. He said that at 9 pm on 9 January 2000, he was sitting in his car, which was parked in Alma Road, Mt Lawley. He was looking in the rear‑view mirror of his car when he saw a late model dark coloured car reverse out of a driveway with its lights on. The vehicle reversed across the road and hit the left rear hand side of the parked blue coloured BMW, which was parked parallel to the road. He then saw the vehicle immediately drive back into the driveway and then immediately reverse out of the driveway, this time clearing the BMW. Once it had cleared the BMW, it then drove in a westerly direction up Alma Road, passing the witness' vehicle. As it did so, Mr Claridge noted its registration number, 1AMP 157, the registration number of the respondent's car. He got out of his vehicle and walked back down to the BMW, where he observed a dent on the left hand side at the boot end. He had heard the sound of the collision and said that the BMW had been shunted sideways a few centimetres from the force of the collision. The dent was about a metre by half a metre. The driver did not stop at all - when he hit the vehicle, he drove back into the driveway and then immediately reversed out of the driveway, this time missing the BMW and then he drove along the street straight away He did not see the driver stop or speak to anybody, and he was watching the whole time. It was 9 pm and the street lights were on, it was a clear night and he had an unobstructed view and could see everything perfectly.
He was cross‑examined and said he could not see into the driveway of the house from which the respondent's vehicle had been driven and could not see who else was in the driveway of the house. The following evidence was then given in cross‑examination:
"You couldn't see the driver in conversation with someone in the driveway of the house?---Well, I'd be very surprised. He might have done.
Well, he spoke to someone in the driveway. You're not saying that you were in a position to deny that to this court?---Well given that he immediately drove out of the driveway, within as I say under 2 seconds, I would be very surprised if he'd just spoken to someone.
When you say under 2 seconds, you referred to a guess of seconds in court this morning; within a short space of time?---No I'd say about 2 seconds.
And did you give an estimation - - I'll just have a look at that. Couldn't see any damage on the car that drove past you?---No, I couldn't.
You could see a dent without the paint being removed on the other car?---That's correct, yes."
In re‑examination, Mr Claridge said:
"What I saw was the driver reverse the vehicle out, hit the car, drove back in. And he drove only halfway in the driveway, so I could see his actual - - rear of the vehicle from the wheel - - wheel arch out. And then he immediately, as I say in about a couple of seconds, reversed straight out, by passing the BMW, and drove up Alma Road."
Constable Burgess obtained from the respondent a statement which the respondent declined to sign and which was read to the court. The statement reads:
"I am the owner of a green coloured Holden Commodore sedan - 1AMP 157.
Caution: 'I understand the caution.'
At about 9.00pm, Sunday 9.1.00, I reversed my car, 1AMP 157, from a private driveway and out onto Alma Road, Mt Lawley. I was alone in the car. I was aware of parked cars on the road, prior to reversing. As I was reversing out, with my headlights on, and swinging around to the right, I misjudged the distance, and that's when I felt the nudge, I was looking everywhere when I was reversing. It was a dark street. As soon as impact occurred, I immediately drove back into the driveway and stopped. I then got out and spoke to the owner of the house. My car was within the property line. I asked him if he could see any damage, and he said 'He couldn't see any.' I looked also and couldn't see any either. We were about 10 - 15 metres away and I had a clear view. I was out of the car, for about 5-10 minutes. We talked about who the car could have been owned by. My friend didn't recognise who owned it. Neither of us went over to the car. My friend then said, because I have to pick up my daughter, he would make inquiries as to who owned the vehicle. I then drove away and when I was about 200 metres up the road, I stopped. I phoned my friend, who I had just left, and suggested he put a note under the windscreen with all my details. I then drove off and went to pick up my daughter in Shenton Park and then I drove straight home. I never checked my car for damage, that night, only until the next day. There was no damage to my car. That same day I phoned my friend to see if he had tracked down the owner of the other car, which he said he did. He said he had given her my details. I can't recall if I asked for her details. I asked him did he inspect the car and he said yes. I asked him was there any damage and he said not much. He said he didn't think it was over $1,000 damage. On the 25.1.00 at 12.20pm I attended at the Claremont Police Station and completed a crash form (MR 72) which I signed and dated. I have no idea who the owner of the car I had collided with, contacted me. I didn't report the accident straight away to Police because it was under $1,000. I had no alcohol that night. It was a business meeting. The reason I did report it was when I was made aware the damage was over $1,000. Road was dry weather fine, visibility wasn't that good due to poor lighting. I received no injuries. I have full insurance."
I turn now to the grounds of appeal.

The first ground

Section 55(1) of the Road Traffic Act 1974 ("the Act") provides:
"Where, in the course of the use of any vehicle on a road, an accident occurs whereby damage is caused to any property the driver or person in charge of the vehicle shall (unless disabled by personal injury himself) report the accident forthwith to the officer in charge of the nearest police station unless the driver or person in charge of the vehicle has reasonable cause for believing that the damage so caused does not exceed, in the aggregate, an amount of $1 000 and the owner, in each case, of any property damaged is, then or immediately thereafter, present or represented at the place where the accident occurred.
Penalty: For a first offence, 8 PU
For a subsequent offence, 16 PU."
The passage from his Worship's judgment relevant to this ground is at page 38 of the Appeal Book, where his Worship said:
"The defendant doesn't have to prove anything. But by cross‑examination in this case, hopes to have raised a matter which has not been negatived beyond reasonable doubt at the end of the day.
The key part of this is did he have reasonable belief that it was over $1000? There's a bit of dispute on the facts. Some people - - - well, he says in a statement that he - - - and I believe I can take that into account under that rule where there was a video interview that was objected, and they said it couldn't be admitted because it wasn't under oath. I believe his statement is admissible, and I can take that into account what he says there.
There's a dispute there between what another witness saw, as to what happened, whether he stopped or not at that time or whether he did get out and have a look at the damage to the property. I note, and it's all very well being wise after the event, that the actual repairs were only about $1100. He gives - - - the defendant through his statement says it's a minor amount. The repairs say $1100.
I don't think that that's proved beyond reasonable doubt, that he has reasonable cause to believe that it exceeded $1000. It was probably a minor accident. So that the owner of the property wasn't present there at the time. But it only has to be apparently if it's over $1000. I dismiss the charge of failing to - - - failing to report the accident. That's dismissed."
As I read that sub‑section, the duty to report an accident whereby, in the course of the use of any vehicle on a road, damage is caused to any property is excluded only if both of two elements are present, namely:
(i)that the driver or person in charge of the vehicle has reasonable cause for believing that the damage so caused does not exceed in aggregate an amount of $1,000; and
that the owner, in each case, of any property damaged is, then or immediately thereafter, present or represented at the place where the accident occurred.
No doubt, the intention of the legislature was to provide for the situation in which damage not exceeding $1,000 is caused by a driver and there is the opportunity for the owner of the property damaged to obtain details of the driver. I do not think that the legislature intended that a driver who damages property to an extent of less than $1,000 can simply depart from the scene without affording the owner of the property an opportunity to obtain such details from him as might facilitate a civil claim for damages.
In the present case, it was not in dispute that in the course of the use by the respondent of his vehicle on a road (Alma Road) an accident had occurred, whereby damage was caused to the BMW vehicle of Ms Mundy.
In his statement to the Police, the respondent said that he did not report the accident straight away to the Police because it was under $1,000. That observation was presumably based on the telephone call to his friend the following day when the latter said there was not much damage to the BMW and that he did not think it was over $1,000 damage. On his statement, the owner of the damaged vehicle was not at the time of the accident or immediately thereafter present at the place where the accident occurred.
Accordingly, even on the basis of the statement by the respondent, I am of the opinion that his duty to report the accident forthwith had not been excluded in accordance with s 55(1) of the Act. The learned Magistrate did not advert to the provision relating to the presence of the owner at the time of the accident or immediately thereafter.
However, this was not a ground of appeal, although I had some discussion on the matter with the respondent's counsel during the hearing.
In stating the test to be whether or not it had been proved beyond reasonable doubt that the respondent had "reasonable cause to believe that it exceeded $1,000", the learned Magistrate seems, with respect, to have misconstrued the provisions of the sub‑section. Apart from the question of the presence of the owner, to which I have adverted above, the duty to report is not excluded if the driver has no reasonable cause to believe that the damage does not exceed $1,000 and that is what the prosecution must establish beyond reasonable doubt. It is not the task of the prosecution to prove that the driver had a reasonable belief that the damage was over $1,000.
The evidence of Ms Mundy and of Mr Claridge was to the effect that the respondent did not inspect the BMW before driving away. In his statement, the respondent said that neither he nor the owner of the house could see any damage. They were 10‑15 metres away. The fact is that there was a substantial dent in the BMW and Mr Claridge had no difficulty in seeing this on his approach. The respondent knew that his vehicle had collided with the BMW. This in itself would suggest the probability that some damage had been sustained by the BMW. Even on the respondent's own version, he failed to make a reasonable inspection of the BMW to ascertain whether it was damaged and, if so, the extent of that damage. I consider that the proof that in the circumstances the fact that the respondent failed properly to examine the damage before departing is sufficient to establish that he had no reasonable cause for believing that the damage did not exceed $1,000. In the result, I would uphold the first ground of appeal.

The second ground

Section 54(1) and (4) of the Act provides:
"(1)Where in the course of the use of any vehicle, an accident occurs whereby any person is injured or any property is damaged, the driver or person in charge of the vehicle shall unless himself disabled from doing so stop immediately after the occurrence of the accident, and, if required, shall produce his licence and give his name and address, and also if it is in his power to do so the name and address of the owner of the vehicle, to any person who has been injured or whose property has been damaged, or to a member of the Police Force, or to any person representing a person who has been injured or the owner of any property which has been damaged.
Penalty: 30 PU; and, if the offence relates to an accident whereby a person was injured, the court may in addition impose an additional fine of not more than 50 PU or a sentence of imprisonment for a term not exceeding 12 months, or both the fine and the imprisonment.
(4)In any proceedings in respect of any offence against subsection (1) of which the failing to stop immediately after the occurrence of any accident is an element, it is a defence for the person charged to prove that he was not aware of the occurrence of the accident to which the alleged offence relates."
In relation to s 54(4), Mr Hammond, of counsel for the respondent, submitted that the word "accident" when used in that sub‑section, should be construed as meaning "accident whereby any property is damaged", so that for the defence to be made out, the person charged is required to prove that he was not aware of the occurrence of an accident whereby any property is damaged. This is a case where the onus of proof of a defence lies upon the defendant. On that submission, the defence would not fail, therefore, if the person charged was aware that an accident had occurred, provided he was not aware that damage to property had been occasioned by the accident. I do not, with all due respect, accept that submission as applicable in the circumstances of the present matter. The absence of knowledge of damage resulting from a failure to inspect the target vehicle could not, I my view, afford an excuse in this connection. If, in a hypothetical case, a proper inspection revealed that there was in fact no damage done, different considerations would no doubt arise.
The respondent was aware that his vehicle had collided with the BMW.
There was, as indicated above, a conflict of evidence as to whether the respondent had stopped after the accident. The respondent's statement that he had been out of the car for 5 to 10 minutes was not put to either Ms Mundy or Mr Claridge in cross‑examination. It is clearly inconsistent with their evidence. Of course, the respondent's statement was part of the prosecution evidence, not part of the respondent's case.
The learned Magistrate's judgment in respect of this charge appears at page 38 of the Appeal Book and was as follows:
"I then turn to stopping. He stopped without being disabled from doing so. There's no evidence that he was disabled. He drove off. Stopping I think says that he's got to stop, sufficient time to be around to give his name and address. He says he gave it to somebody else. That's uncontroverted. He hasn't given evidence. One witness said he drove off pretty quickly and probably didn't give evidence to anybody. He didn't give information to anybody. He hasn't tried to avoid the matter. He's left the particulars there with somebody else, and that was followed up later. And those particulars were given.
So that there was an accident. That property was damaged. And the question is whether he failed to stop immediately afterwards. It's 9 o'clock at night. There's nobody around. But he leaves his information. It's not proved beyond reasonable doubt, and that's dismissed."
It is clear that the section envisages that the driver of the vehicle involved in an accident is to stop and, if required, to produce his licence and give his name and address and other information. The obligation must, I think, be to stop for a reasonable period to enable him to comply with those requirements. The respondent's unsworn statement that he had waited for 5 to 10 minutes was entirely inconsistent with the evidence of Ms Mundy, that she had reached the scene within 15 seconds, to see the car come from the driveway and proceed down the road. It was entirely inconsistent with the evidence of Mr Claridge that the vehicle had carried out the manoeuvre of reversing into the BMW, driving part‑way into the driveway, reversing and then driving off, all in the space of about two seconds. If accepted, that evidence would, in my opinion, have established the charge of failing to stop in compliance with s 54 of the Act. I would uphold the second ground of appeal.

The third ground of appeal

Section 62 of the Act provides:
"62. Careless Driving
Every person who drives a motor vehicle without due care and attention commits an offence.
Penalty: 12 PU."
The prosecution relied upon the fact that the respondent reversed into the BMW as proof that the respondent had driven without due care and attention at the time.
His Worship dealt with this count at pages 38 ‑ 39 of the Appeal Book, as follows:
"Then going to the careless driving. Careless means doing what a normally prudent driver wouldn't do. What Mr Quigley argues that this is a momentary inattention. He's trying to back out. He backs out almost completely, but in the process he touches this car, a bit more than a touch, perhaps, but touches the car. Is - - would a jury be satisfied that he's driven without due care and attention? I've come to the conclusion not proved beyond reasonable doubt, and it's dismissed."
In Crispin v Rhodes (1986) 40 SASR 202 at 204-205, O'Loughlin J said, in relation to the equivalent South Australian legislation:
"The question whether the actions or the omissions of the appellant constitute conduct which falls short of what is required of him in order to fulfil his duty of care must be answered after having regard to the surrounding circumstances and to the existing and surrounding hazards. Hence, the extent to which the appellant must take care is to be measured according to 'factors calling for specific acts of watchfulness, caution and vigilance'. (Dunsmore v Dawson [unreported, Walters J, 18 June 1981]). And see also O'Brien v Scotland [(1972) 4 SASR 411] per Hogarth J at p 415.
It will rarely, if ever, assist a driver or a rider of a motor vehicle to plead 'bad luck' or 'error of judgment':
'The expression "error of judgment" is not a term of art. It is, in fact, one of the vaguest possible description. It can, colloquially, be used to describe either a negligent act or one which, though mistaken, is not negligent. When one is considering s 12, the marginal note of which is "careless driving", it is, in our opinion, clear that a driver may not be using due care and attention, although his lack of care may be due to something which could be described as an error of judgment. If he is driving without due care and attention it is immaterial what caused him to do so. The question for the justices is: Was the defendant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances? If he was not, they should convict. If, on the other hand, the circumstances show that his conduct was not inconsistent with that of a reasonably prudent driver, the case has not been proved. The justices here thought that Howell's case [(1938) 160 LT 16] obliged them as a matter of law to dismiss the summons, but the question whether a man is driving carelessly, to use a compendious expression, raises only a question of fact.' (Simpson v Peat [[1952] 1 All ER 447] per Lord Goddard CJ at pp 448-449)."
In Laitt v Magden (1992) 16 MVR 72, Commissioner Ng said, at 78-79:
"The words 'care and attention' as they appear in s 62 of the Act require no elucidation. The words should be given their ordinary meaning. They signify prudence, a state of readiness to cope with the hazards of driving, a need to be on the lookout, and watchfulness, per Douglas Brown in his book on Traffic Offences at para 9.5. In Geneff v Townshend [1970] WAR 20, Hale J held that the words 'due care and attention' as they appear in the precurser to s 62 meant: 'that degree of care and attention which a reasonable and prudent driver would exercise in the circumstances'."
It was said by Mayo J in Milkins v Roberts [1949] SASR 215 at 254 that "Due care means, I think, 'adequate caution in all the circumstances'."
In the present case the circumstances included the facts that the collision took place at night, that, on the second attempt the respondent was able to avoid contact with the BMW when reversing, that the respondent regarded the street as a dark street (AB 51) – although this is inconsistent with the evidence of Mr Claridge at AB 29, who said that it was a clear night, the street lights were on and he could see everything perfectly – and that the respondent failed to see the BMW when he was driving, although he was able to see it from a distance of 10 to 15 metres when he was out of his car (as he said.)
His Worship dealt with this issue in the following terms:
"Then going to the careless driving. Careless means doing what a normally prudent driver wouldn't do. What Mr Quigley argues that this is a momentary inattention. He's trying to back out. He backs out almost completely, but in the process he touches this car, a bit more than a touch,perhaps, but touches the car. Is - - would a jury be satisfied that he's driven without due care and attention? I've come to the conclusion not proved beyond reasonable doubt, and it's dismissed"
The respondent said in his statement,
"As I was reversing out, with my headlights on, and swinging round to the right, I misjudged the distance, and that's when I felt the nudge, I was looking everywhere when I was reversing. It was a dark street."
The statement that he had "misjudged the distance" indicates, I think, that he saw the BMW as he was reversing. As O'Loughlin J said in Crispin (supra) "It will rarely, if ever, assist a driver … of a motor vehicle to plead … 'error of judgment'." The situation that the car was being reversed at night into a dark street in which (as he said) the visibility was not good and in which there was a vehicle at risk, called for particular care and attention by the respondent.
In my opinion, the appellant has made out this ground of appeal.

The fourth ground of appeal

I have set out above in full the reasons for judgment of the learned Magistrate in relation to each of the three counts brought against the respondent.
The learned Magistrate did not articulate any findings of fact and did not express any view as to the credibility of the prosecution witnesses. His Worship seems to have preferred the evidence in the statement of the respondent to the evidence of Ms Mundy and Mr Claridge where they were in conflict – a conflict recognised by his Worship.
As was pointed out in Lloyd v Faraone (1989) WAR 154 at 162 (per Malcolm CJ, with whom Brinsden J agreed), "it is the duty of the trial judge to deal with the evidence relevant to each factor and to make findings assessing the significance of each of them."
With respect, his Worship has not complied with that requirement.
I would uphold this ground of appeal as well.
In the result, the appeal succeeds and I shall invite submissions from counsel as to the appropriate orders that should be made to give effect to these reasons.