Lawn v Police - [2013] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LAWN v POLICE
[2013] SASC 67
Judgment of The Honourable Justice Blue
10 May 2013
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
The appellant was convicted by a Magistrate of failing to give way. The Magistrate found that he attempted to change lanes in circumstances in which there was insufficient space to do so and thereby failed to give way. The appellant contends that (1) there was insufficient evidence to prove the offence beyond reasonable doubt and (2) the Magistrate gave no or inadequate reasons for finding the charge proved beyond reasonable doubt.
Held:
1. If the Magistrate was satisfied beyond reasonable doubt that the police officers' evidence was honest, reliable and accurate and rejected the appellant's evidence as reasonably possible, there was evidence capable of proving the offence beyond reasonable doubt (at [20]-[23]).
2. The Magistrate did not explicitly reject the appellant's evidence, accept the police officers' evidence beyond reasonable doubt, make findings of fact or identify or give reasons for conclusions (at [31]-[35]).
3. Appeal allowed, conviction set aside and matter remitted to Magistrates Court for new trial (at [36]).
Road Traffic Act 1956 (SA) section 80; Australian Road Rules rule 148, referred to.
Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, applied.
R v Beard [2004] SASC 411, discussed.
Papps v Police [2000] SASC 183; (2000) 77 SASR 210; R v Dennis [2010] SASC 69; (2010) 202 A Crim R 453; R v Keyte [2000] SASC 382; (2000) 77 SASR 210, considered.

LAWN v POLICE
[2013] SASC 67
Magistrates Appeal Criminal:
BLUE J:

The appellant/defendant, Mr Lawn, was convicted on 6 November 2012 by a Magistrate of failing to give way.[1]
[1] Road Traffic Act 1959 (SA) s 80 and Rule 148 of the Australian Road Rules.
Mr Lawn appeals against the conviction on the ground that the finding of guilt was unreasonable and cannot be supported having regard to the evidence. Mr Lawn contends that:
1. the Magistrate erred by failing to give reasons for finding the charge proved beyond reasonable doubt;
2. there was insufficient evidence to prove the offence beyond reasonable doubt.
Background facts
Grand Junction Road at Northfield runs east-west. It generally comprises three lanes in each carriageway separated by a median strip.
Hampstead Road/Briens Road at Northfield runs north-south. It generally comprises two lanes in each carriageway.
Grand Junction Road intersects Hampstead Road/Briens Road at Northfield. The intersection is controlled by traffic lights. Immediately approaching the intersection from the west, Grand Junction Road comprises four eastbound lanes. The left-hand lane is a dedicated left-hand turning lane and the right-hand lane is a dedicated right-hand turning lane. The middle two lanes are dedicated straight-ahead lanes. For vehicles travelling eastwards along Grand Junction Road approaching the Briens Road intersection, the three normal lanes diverge in the following manner:
1.   The left-hand lane (“No 1 lane”) becomes a turn left only lane for vehicles turning left into Briens Road.
2.   The middle lane (“No 2 lane”) becomes the left-most straight-ahead lane continuing through the intersection.
3.   The right-hand lane (“No 3 lane”) becomes the right-most straight-ahead lane continuing through the intersection.
4.   A new lane further to the right (“No 4 lane”) diverging out of No 3 lane becomes a turn right only lane for vehicles turning right into Hampstead Road.
On 8 November 2011, a police constable and probationary constable were travelling in a police car east on Grand Junction Road approaching the Briens Road intersection. The constable was driving and the probationary constable was in the front passenger seat. They were driving in No 3 lane. A white Commodore was travelling in No 2 lane. Mr Lawn was travelling in his Skyline in No 1 lane.
The police constable intended to and did drive through the Briens Road intersection in No 3 lane. The driver of the Commodore apparently intended to and did drive through the intersection in the No 2 lane. Mr Lawn intended, if he could, to change lanes from No 1 lane into No 2 lane so that he could pass through the intersection (and, if he could not, to turn left into Briens Road and then return via Briens Road to Grand Junction Road travelling east).
The constable and probationary constable each gave evidence at trial that their vehicle was travelling at about 60 km/h as they approached the intersection. They each observed generally that the vehicles in the two lanes adjacent to them and the vehicles in front of them were all travelling at about the same speed as their own vehicle. They each gave evidence that they were generally aware of the movements of the traffic around them, but were not focusing on any particular vehicle.
The police officers each gave evidence that their attention was drawn to the Commodore by its horn being sounded, its brake lights coming on and its being braked hard. At that point, their vehicle was about three car lengths behind the Commodore, albeit they were in adjacent lanes. At the point at which their attention was first drawn to the Commodore, they both observed the Skyline in the process of moving into No 2 lane from No 1 lane. It had not yet fully moved into No 2 lane, but was most of the way into that lane. The Skyline was a very small distance in front of the Commodore, which they estimated at about 1 metre.
Each police officer formed the opinion that, if the Commodore had not braked suddenly, there would have been a collision between the Commodore and the Skyline. They each gave evidence that the Skyline and Commodore were very close to the entrance to the intersection at the point at which their attention was first specifically drawn to the vehicles. They estimated the distance as being within 10 metres and were adamant that it was not in the vicinity of 50 metres back from the intersection.
All three vehicles proceeded east through the intersection. The police officers pulled over the driver of the Skyline. They interviewed Mr Lawn. The probationary constable made notes. He gave evidence that the interview included the following interchange:
Q.    What was that about?
A.    I had my indicator on for a while. I wanted to get across, but he wouldn't let me.
Q.You can’t cross like that, you nearly caused an accident, you shouldn't cross a solid line.
A.    No, it was dotted.
A.You can't cut across like that at the intersection, you could have caused an accident. You should have gone left and then turned around if you wanted to go up Grand Junction Road.
A.    What is going to happen because I only have one point left?
Mr Lawn gave evidence. He said that he was travelling in No 1 lane in relatively heavy traffic, looking for an opportunity to move into No 2 lane so that he could pass through the Briens Road intersection. At about 500 metres before the intersection, he put on his right hand indicator to indicate a general intention to move into No 2 lane, but he was not able to do so due to traffic in No 2 lane. He subsequently saw the white Commodore about 200 metres from the intersection and stationary with a substantial gap ahead of the Commodore. He decided that, after he had overtaken the Commodore on its left, he would move into No 2 lane into the gap in front of the Commodore.
Mr Lawn gave evidence that he overtook the Commodore on its left while he was travelling at about 55 kph. He was approximately 100 metres from the intersection at the point at which he commenced to move into No 2 lane. At that point, the Commodore had started moving and was travelling at about 30 kph. He had virtually moved into No 2 lane by the time he was 50 metres before the intersection. At that point, he heard the sound of the Commodore’s horn, looked in the rear vision mirror and saw the Commodore’s front dip down under heavy braking. He surmised that the Commodore’s driver had accelerated to within one or two metres behind his car in annoyance at his having overtaken it and then sounded the horn and applied the brakes heavily.
Mr Lawn gave evidence that the interchange with the police officers was as follows:
Q.    Can you tell us what happened there?
A.    The person obviously didn't want to let me in, that's why they’ve sounded the horn.
Q.    You mustn't have had your indicator on.
A.Yes, I did. I had it on before I even made the move. You obviously didn't see what happened. Am I getting any sort of fine?
Q.    Did you cross a continuous white line?
A.    No, I didn't.
Q.    Why did they beep?
A.Obviously the person must have got angry and didn’t want to let me in, as I would do so as well.
It was the common evidence of the police officers and Mr Lawn that the police officers said that they were en route to a crash, would return to the scene to check whether the lane marking was a continuous white line and would then decide what action to take.
Grounds of appeal
The two points argued on appeal by Mr Lawn are inter-related. His first contention is that the Magistrate gave no reasons for finding the charge proved beyond reasonable doubt. His second contention is that, because the police witnesses were not focusing on the Commodore or his Skyline before the Commodore’s horn was sounded, their evidence was not inconsistent with his own evidence and there was insufficient evidence to prove the offence beyond reasonable doubt.
I address Mr Lawn’s second contention first, because it provides the context in which to consider the adequacy of the Magistrate’s reasons.[2]
[2] See the approach of the Full Court in R v Keyte [2000] SASC 382; (2000) 78 SASR 68 at [54] and [57] per Doyle CJ (Wicks J agreeing) and [69] per Williams J.
Evidence to prove offence beyond reasonable doubt
On Mr Lawn’s evidence, at the point at which he overtook the Commodore and then moved into No 2 lane, there was a large gap in front of the Commodore, Mr Lawn was travelling at approximately twice the Commodore's speed (55kph v 30kph) and he moved into the No 2 lane well ahead of the Commodore. On his evidence, there was no failure to give way to the Commodore and the manoeuvre was safe at all times. On his evidence, the only reason the two vehicles ended up in very close proximity was because the Commodore driver deliberately accelerated to catch up with Mr Lawn’s vehicle due to and as a signal of annoyance.
Mr Lawn contends that the police evidence was not inconsistent with his own evidence. The police officers were not focusing on the Commodore or the Skyline until the end point, being the point at which the Commodore’s horn sounded and it suddenly braked. The police officers did not know what had happened before that point. They could not negate that Mr Lawn had already safely performed (or largely performed) the overtaking and lane changing manoeuvre, with the Commodore then accelerating to catch up with him as a signal of annoyance.[3]
[3] Mr Lawn also contends that the obligation to give way ceased once he commenced to move into No 2 lane. This issue does not arise because on his own evidence he gave way at all stages of the lane changing manoeuvre and the police case was that he did not do so at any stage.
I reject Mr Lawn’s contention. It was common ground that the police vehicle was approximately three car lengths behind the Commodore at the point at which the Commodore’s horn sounded and it braked suddenly. The police officers both gave evidence that the traffic in their vicinity was all moving at approximately the same speed as their own vehicle. That evidence is inconsistent with the Commodore accelerating from a standing start and then suddenly accelerating towards the Skyline which had already overtaken and was well ahead of the Commodore.
In addition, whereas Mr Lawn’s evidence was that he had virtually completed the lane changing manoeuvre at least 50 metres back from the intersection (at which point the Commodore’s horn sounded), both police officers gave evidence that this occurred virtually at the entrance to the intersection, being only a matter of metres before the entrance. Their evidence was that Mr Lawn had still not fully completed the lane changing manoeuvre at that point. If their evidence were accepted, Mr Lawn had left the lane changing manoeuvre until it was too late to implement safely or to give way to the Commodore.
Further, on the probationary constable’s evidence, Mr Lawn admitted that he wanted to get across, but the Commodore driver wouldn't let him. Mr Lawn denied that account of the conversation.
If the Magistrate was satisfied beyond reasonable doubt that the police officers’ evidence was honest, reliable and accurate and accepted their evidence beyond reasonable doubt in preference to that of Mr Lawn, there was evidence capable of proving the offence beyond reasonable doubt.
Accordingly, Mr Lawn fails on his second contention.
Adequacy of reasons
It is common ground on appeal that it is an error of law for a Magistrate not to give reasons, or reasons which are adequate in all the circumstances, for a finding of guilt.[4]
[4] Papps v Police [2000] SASC 183; (2000) 77 SASR 210 at [20]-[33] per Gray J (Olsson and Wicks JJ agreeing); R v Keyte (2000) 78 SASR 68 at [44]-[57] per Doyle CJ (Wicks J agreeing) and [64] per Williams J; Douglass v The Queen [2012] HCA 34 at [8] and [14] per French CJ Hayne, Crennan, Kiefel and Bell JJ.
In the present case, the Magistrate in her reasons set out at length and in detail the evidence of the two police officers and then the evidence given by Mr Lawn.[5]
[5] [2012] SAMC 62 at [2]-[15].
The Magistrate then said as follows:
I note the evidence given by the police officers with regard to their observations. I note both officers say at the time when they first saw the Nissan Skyline it was moving from the far left-lane into the lane in front of the Commodore. At that point the distance between the two vehicles was very close and had the Commodore not braked, it would have hit the Skyline. I note the defendant’s explanation for this is that the Commodore driver was upset and he had come up fast behind him and had braked at the last minute.[6]
…
On the defendant’s version of what occurred his vehicle was well within his lane prior to the Commodore coming up, well within the lane adjacent to the police officers prior to the Commodore coming up and there is no suggestion he was changing lanes at all at the point closest to the police vehicle.
Having heard all of the evidence, I am satisfied beyond reasonable doubt the offence is made out and accordingly, I find the defendant guilty of the charge.
[6] The Magistrate then noted at [17] the evidence that the police officers returned to the scene after seeing the crash elsewhere and their evidence of a discussion on that topic with Mr Lawn. As this was common ground, nothing turned on this.
In Douglass v The Queen,[7] a sexual offence charge turned on an assessment of the credibility of the complainant and defendant. The trial Judge gave the following reasons for his conclusion:
I warn myself of the caution I must take in determining whether to accept CD's unsworn evidence and the weight to be given to it.
I bear in mind as well that the accused has given sworn evidence denying the allegations. Further, I do not find anything in his demeanour that assists the prosecution.
While bearing all these matters in mind, I am satisfied beyond reasonable doubt that the accused contrived to have CD touch his penis during or about the time he urinated in a shed.[8]
[7] [2012] HCA 34; (2012) 86 ALJR 1086.
[8] (2012) 86 ALJR 1086 at [7].
The High Court held that these reasons were insufficient in the circumstances. French CJ, Hayne, Crennan, Kiefel and Bell JJ said:
... the Court of Criminal Appeal … said that following a trial by judge alone a judge should state findings on the main grounds on which the verdict rests and the judge should usually give reasons for making those findings. However, when a finding or the resolution of a case turns on credibility, the Court said that it may be enough for the judge to state that he or she believes one witness in preference to another …
The Court of Criminal Appeal characterised the appellant’s trial as a case of “word against word”; observing that it had been for the trial Judge to assess the credibility and reliability of the evidence of CD and the appellant. It said:
… “[h]aving considered the evidence as whole, and being satisfied of the truth and reliability of [CD’s] evidence, the Judge necessarily rejected the denials by [the appellant].”
…
To dismiss the appellant’s complaint respecting the sufficiency of the reasons on the footing that the Judge’s acceptance of CD’s evidence necessarily carried with it rejection of his evidence was to overlook that the judge’s acceptance of CD as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the judge was not persuaded by the appellant’s evidence, he could not convict unless satisfied that it was not reasonably possibly true.[9]
[9] (2012) 86 ALJR 1086 at [9], [10], [11] and [13].
In the present case, it was a live issue at trial whether the Magistrate was satisfied beyond reasonable doubt that the evidence of the two police officers was reliable and accurate and that there was not a reasonable possibility that the defendant’s version was correct. It was also a live issue at trial (to which the Magistrate adverted in the first and second paragraphs quoted at [27] above) whether, if the Magistrate was so satisfied, that was inconsistent with there being a reasonable possibility that Mr Lawn had overtaken the Commodore when it was safe to do so and the Commodore had then accelerated and then braked hard in annoyance.
In relation to the first issue, the Magistrate did not explicitly say that she rejected Mr Lawn’s evidence (as a reasonable possibility), that she was satisfied beyond reasonable doubt that the evidence of the police officers was reliable and accurate, or give reasons for such a conclusion.
On the one hand, the reasons for making credibility findings can often be brief and frequently it is difficult and would be artificial to elaborate on the reasons for making a credibility finding. In R v Beard,[10] Vanstone J (Doyle CJ and Perry J agreeing) said:
… the Judge was entitled to find as he did, without identifying, or indeed without there being, any particular reason for rejecting the appellant’s version, over and above acceptance of the competing account. It was not essential that any specific shortcomings in the appellant’s evidence be identified. This was a case where the preference for the victim’s evidence was very much a matter of impression made by the victim in her evidence, rather than a matter of logic. Where a decision rests on such a basis – as it well may – it is difficult to see how a judge might elaborate upon his reasons for decision.[11]
[10] [2004] SASC 411.
[11] [2004] SASC 411 at [13]. See also R v Dennis [2010] SASC 69; (2010) 202 A Crim R 453 at [29] per Vanstone J (Nyland and Kourakis JJ agreeing).
On the other hand, the Magistrate did not explicitly say that she rejected Mr Lawn’s evidence or was satisfied beyond reasonable doubt that the evidence of the police officers was reliable and accurate or give any reasons at all for such a conclusion. While it might be implicit that the Magistrate must have made such finding logically to achieve the requisite satisfaction beyond reasonable doubt, her reasoning was not exposed for scrutiny and it cannot be discerned whether she fell into error. Sufficient reasons in the circumstances required a brief identification of the essential inconsistencies between the evidence of the police officers and Mr Lawn[12] and brief reasons why the Magistrate rejected Mr Lawn’s evidence and was satisfied beyond reasonable doubt that the evidence of the police officers was reliable and accurate. It did not call for lengthy or elaborate reasons, but it did call for identification of the Magistrate’s reasoning.
[12] Such as those identified at [20]-[22] above.

In relation to the second issue, the Magistrate did not identify why, assuming the evidence of the police officers was accepted beyond reasonable doubt over that of Mr Lawn, there was not a reasonable possibility that Mr Lawn had overtaken the Commodore when it was safe to do so and the Commodore driver had then accelerated and braked as a show of annoyance. Again, in order to provide sufficient reasons, it was necessary for the Magistrate to identify findings of fact made upon acceptance of the evidence of the police officers which proved beyond reasonable doubt that Mr Lawn did not overtake the Commodore when it was safe to do so and why that was so.[13] The Magistrate did not explicitly say that she reached this conclusion or give any reasons for reaching it.
[13] Such as identified at [20]-[22] above.
Accordingly, Mr Lawn succeeds on his first contention.
Conclusion
I allow the appeal. I set aside the orders of the Magistrate. I remit the matter to the Magistrates Court for a new trial. I will hear the parties as to any further orders.