Krul v Police No. Scgrg-99-427 Judgment No. S200

KRUL v POLICE
[1999] SASC 196

Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against his conviction following a hearing in the Magistrates Court sitting at Adelaide. He pleaded not guilty to charges that on 1 March 1998 at Brighton he drove a car at a speed dangerous to the public contrary to s46 of the Road Traffic Act 1961, and on the same occasion that he drove a car at a greater speed than 60 kilometres per hour km/h, namely, 110 kilometres per hour, contrary to s49 of the same Act.
As well, there was an application to enforce a bond upon which a sentence of imprisonment for four months had been suspended.
After hearing evidence from a police officer who had timed the driving of the appellant the subject of the charge, the evidence of the defendant and of a witness whom the defendant called, the learned trial magistrate convicted him of the charge of driving at a speed dangerous to the public and dismissed the second count of driving at an excessive speed.
It was some time later before she came to sentence the appellant. When she did so she imposed a fine of $450, suspended the appellant from holding or obtaining a driver's licence for three years and six months and extended the bond by a period of a further 12 months.
As I said, the appeal is against the conviction only.
The offence occurred at about 10.35 pm on the day in question, when two police officers, Constables Rawling and Pearce, were in an unmarked police vehicle on Brighton Road on the western side facing north. They became aware of the appellant who was driving a white Holden Commodore sedan in the same direction. The police officers drove off in pursuit of him, being of the view that he was exceeding the speed limit which at that stage and at all other relevant times was 60 kilometres per hour. That view was confirmed by the use of a laser gun which at that initial stage suggested that the speed of the appellant was of the order of 83 kilometres per hour.
Of the two police officers, Constable Rawling was the driver of the police car. He gave evidence to the effect that the appellant overtook two vehicles travelling in the left lane on the offside of those vehicles, and then moved into the left lane where he overtook a motor vehicle in the right hand lane. Following that, he moved back into the right lane to overtake another vehicle in the left lane. Having cleared those vehicles, the appellant accelerated at a fast rate of speed.
According to Constable Rawling's evidence, the police vehicle was then positioned about 100 metres to the rear of the appellant. He proceeded to time the appellant over a distance which he initially estimated at some 400 metres, but under cross-examination conceded was closer to 350 metres. According to Constable Rawling, the appellant was timed over that distance at a constant speed of 110 kilometres per hour.
The attention of the appellant was then obtained by the police officers flicking their headlights, following which the appellant stopped. There was a conversation between the appellant and Constable Rawling. When the appellant was accused of driving at 110 kilometres per hour, he responded by saying that he was not doing more than 80 kilometres per hour, and he added, according to the police evidence, “I'm late for work”. The appellant further asserted that he was driving fast but not dangerously.
The police case was that not only did the appellant travel at the speed to which I have referred over some 350 metres, but that during the course of doing so he passed some 16 junctions on the western side, 14 on the eastern side, passed through the major junction of Sturt and Brighton Roads which is controlled by traffic lights, and in addition two other sets of traffic lights and two pedestrian crossings.
At the time of the hearing the other police officer who was present in the police car, Constable Pearce was ill, having suffered a heart attack. He was unable to attend court. The prosecution therefore relied on the evidence of Constable Rawling alone.
The appellant gave evidence in which he maintained that he was travelling at no more than about 70 kilometres per hour, except that at one stage he might have increased that to something of the order of a little over 80, but certainly less than 90 kilometres per hour.
The appellant said that during the course of his travel along the road he passed a Celica driven by a young woman with whom he had a relationship, Ms Cotleanu, and that he made eye contact with her as he passed. He said that she was travelling at about 60 kilometres per hour, that is, at the speed limit.
Ms Cotleanu gave evidence on the appellant's behalf which was, to a certain extent, somewhat equivocal. She had previously given a statement to the police officers which was tendered in evidence, during the course of which she said:
“Whilst driving home north along Brighton Road I was overtaken by a white Commodore which Johnny Krul was driving. As he passed at around 70 - 90 km/h we had eye contact. He then continued driving at the same speed.”
Her evidence before the learned trial magistrate was consistent with that statement. She then estimated that the appellant was travelling “only at about 80 or 90 kilometres per hour”. She emphasised he was going fast, but nothing more than 90 kilometres per hour and that his speed was constant. Ms Cotleanu saw the police vehicle pass her with its lights flashing and she estimated the speed of the police vehicle at 110 to 120 kilometres per hour, a speed which she thought was much faster than the appellant's vehicle. She later saw the appellant's vehicle pulled over at the side of the road with the police vehicle alongside it.
It emerged during Ms Cotleanu’s evidence that she had driven on P plates for 12 months, and some 18 months on a full licence before this incident and that she admitted that she had had no experience of driving at high speeds.
In dealing with her evidence the learned trial magistrate observed, after referring to her estimate, that the appellant passed her at around 70 to 90 kilometres per hour:
“I think that underlines the weight that can or cannot be attached to her evidence; this is a variation of 20 km/h; 10 km/h above the speed limit or 30 km/h above the speed limit. In my view this witness' evidence for all her good intention is unreliable both in relation to speeds and distances.”

As to the appellant, the leaned trial magistrate commented:

“The defendant, on the other hand was uneasy and appeared to be reconstructing rather than recalling events. His evidence was inconsistent in relation to the speeds that he was prepared to concede. I reject the defendant's evidence wherever it conflicts with that of police officer Rawling.”

The learned trial magistrate went on to say that she accepted that Ms Cotleanu was doing her best, but in all the circumstances she found her evidence unreliable. She concluded by stating:
“I have no difficulty whatever finding proven beyond reasonable doubt that the defendant is guilty of count one as charged.”
Mr Hall for the appellant, who also appeared in the court below, put everything in favour of the allowance of the appeal which could conceivably be argued. However, his submissions, and indeed the appeal itself, come down to a short point. He contended that given the fact that, for whatever reason, the passenger in the police vehicle, that is, the other police officer Constable Pearce, was not called, it was impossible to put sufficient reliance on the otherwise uncorroborated evidence of Constable Rawling, as he put it, to justify the conviction. He submitted that it would have obviously been difficult for Constable Rawling to watch the appellant's car ahead of him and maintain a constant distance behind it, and at the same time check his own speedo often enough to be able to depose confidently of its reading, and at the same time cope with the exigencies posed by the fact that necessarily he was travelling at an unsafe, if not dangerous, speed.
There is much in those submissions. But at the end of the day, it comes down to a question of the assessment of the witnesses as they appeared before the learned trial magistrate. She had the benefit of hearing Constable Rawling's evidence and his cross-examination and also she heard evidence of the appellant and his witness, Ms Cotleanu. She had the inestimable advantage of being able to assess their reliability having regard to their demeanour and the manner in which they gave their evidence.
It would be a rare case in which this court could properly interfere with findings of fact reached against that background. As I have said, the learned trial magistrate commented that she had no difficulty whatever finding the charge proved. This necessarily means that she must have come to a firm view as to the credit of the witnesses whom she had heard.
Furthermore, I think it is not quite accurate to say that the evidence of Constable Rawling was uncorroborated. It seems to me that the evidence of Ms Cotleanu was something of a two edged sword and to a substantial extent tended to corroborate the police case.
In any event, as Mr Hall quite properly conceded, there is no requirement in law that the evidence of a police officer in these circumstances should necessarily be corroborated before it may be accepted as proof beyond reasonable doubt.
True it is that I must on an appeal against conviction reassess the evidence for myself: see Taylor v Hayes,[1] but in the process of reassessment of the evidence, I must nonetheless give due weight to the advantage held by the trial magistrate in seeing and hearing the witnesses. It seems to me that when due weight is given to that, it could not be said that the appeal is made out.
[1] (1990) 53 SASR 282 per Perry J at 291.
In my opinion, none of the grounds urged, which were that the magistrate wrongly accepted the uncorroborated evidence of Constable Rawling, did not give sufficient weight to the evidence of the defence witnesses and found the appellant guilty when there was not sufficient evidence to so find, has been established.
The appeal must be so dismissed. I so order.
I order the appellant to pay the respondent's costs of and incidental to the appeal which I fix at $150.

JUDGMENT CITATION

(1990) 53 SASR 282 per Perry J at 291.

[1999] SASC 200

12 May 1999