Leary v Holloway
[2007] TASSC 52
•13 July 2007
[2007] TASSC 52
CITATION: Leary v Holloway [2007] TASSC 52
PARTIES: LEARY, Mathew Ronald
v
HOLLOWAY, Brian Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 9/2007
DELIVERED ON: 13 July 2007
DELIVERED AT: Hobart
HEARING DATE: 26 June 2007
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Evidence – Burden of proof, presumptions and weight and sufficiency of evidence – Generally – Party's failure to give or call evidence – Generally – Failure of defendant to give or call evidence – Effect on inferences that may be drawn – Whether finding of guilt unsafe or unsatisfactory.
Traffic Act 1925 (Tas), s32(2A).
Kelly v O'Sullivan (1995) 4 Tas R 446; M v R (1994) 181 CLR 487, applied.
Aust Dig Evidence [142]
Traffic Law – Offences – Particular offences – Negligent driving – Causing death by negligent driving – Inability or failure of defendant to explain how the collision occurred – Sufficiency of evidence – Prima facie case.
Traffic Act 1925 (Tas), s32(2A).
Langan v White [2006] TASSC 83; Police v Chappell [1974] 1 NZLR 225; Sanders v Hill [1964] SASR 327, followed.
Aust Dig Traffic [49]
REPRESENTATION:
Counsel:
Applicant: K Edwards
Respondent: A R Hensley
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 52
Number of paragraphs: 28
Serial No 52/2007
File No LCA 9/2007
MATHEW RONALD LEARY v BRIAN ROSS HOLLOWAY
REASONS FOR JUDGMENT UNDERWOOD CJ
13 July 2007
The single issue upon this motion to review is whether a finding that the applicant was guilty of causing the death of another person by negligent driving is unsafe or unsatisfactory.
The background
The complaint that laid the charge of causing death by negligent driving also contained one count of failing to stop after an accident, contrary to the Traffic Act 1925, s33(1), one count of driving whilst not the holder of a driver's licence, contrary to the Vehicle and Traffic Act 1999, s8(1), and one count of using a vehicle in contravention of vehicle standards, contrary to the Vehicle and Traffic (Vehicle Standards) Regulations 2001, reg4(1)(b). The principal issue at trial was whether the applicant was the driver of a vehicle that hit a pedestrian and caused injuries from which the pedestrian later died.
For reasons that were reduced to writing, the learned magistrate found all four matters of complaint proved. There is no longer any dispute about who was driving the car. The motion to review only seeks a review of the finding of guilt of causing death by negligent driving on the basis that the finding that the applicant's driving was negligent within the meaning of the Traffic Act, s32(2A), is unsafe or unsatisfactory.
The evidence and findings
There was no evidence to establish exactly what time the applicant hit the deceased. A Mr Michael Hardy gave evidence, which the learned magistrate accepted, that between 7.45pm and 7.50pm on 16 September 2003, he was driving along Middle Road, Devonport towards Spreyton. Middle Road is a wide, suburban street that runs past Reece High School, under the Bass Highway and joins Stoney Rise Road, which leads to Spreyton. Mr Hardy said that as he approached the junction with Berrigan Road (on his left), he saw a cap lying in the middle of the road. Shortly afterwards he noticed an object lying in his path of travel. He had to swerve to avoid it. As he went past the object, he realised that it was a body. Mr Hardy stopped, activated his hazards lights and called the emergency number. Mr Hardy's unchallenged evidence was that it was not raining, but the road was slightly damp. He described the street lighting as "quite reasonable". Mr Hardy's evidence was that as he approached the Berrigan Road junction, he did not notice any other traffic either behind him or approaching him, but shortly after he stopped, another car pulled up behind him. Mr Hardy said that the deceased was dressed in dark clothing. He said that from the Berrigan Road junction, Middle Road was reasonably straight for about two to three hundred metres for traffic travelling in the direction of Spreyton.
In the vicinity of where the deceased was found, the houses on either side of Middle Road are set well back from the footpath. The footpath, to the left of Mr Hardy as he approached the deceased, is wide. It comprises a concrete path adjoining the house frontages for pedestrians to walk along, and a wide grass strip finishing at the edge of the gutter. Electricity poles, each with a street light fixed to it, are set in the edge of the grass strip furthest from the gutter.
The police and ambulance officers attended the scene. The deceased's clothes were cut off him and left on the road before he was taken to hospital where he later died.
Constable Mason from the Accident Investigation Service arrived at the scene a little less than an hour after Mr Hardy saw the deceased on the road and stopped. He described the road surface as dry and the weather fine. By the time Constable Mason got there, the road had been closed to traffic and the deceased taken to hospital. He said that there were no parked cars in the vicinity of where the deceased had been lying when he got there.
For traffic travelling in the same direction as Mr Hardy was travelling, the junction of Berrigan Road is at the end of a gentle right hand bend and at the beginning of the straight stretch to which Mr Hardy referred in his evidence. Constable Mason gave evidence that he saw the cap that Mr Hardy referred to lying close to the centre line of the road. Although a scale plan was tendered in evidence, so far as I have been able to ascertain, there was no evidence of how far this cap was from the Berrigan Road junction. A pair of glasses was found in the lane in which Mr Hardy was travelling ("the left lane") a short distance from the cap. They were 1.6 metres out from the left hand kerb. About 22 metres on from the glasses, also in the left lane, lay the deceased's clothes. Broken windscreen and headlight glass was strewn over about 16 metres between the glasses and the clothes. Near the clothes was a pool of blood.
Constable Mason said that the distance between the glasses and the clothes was the "throw distance". From that he calculated that the applicant was travelling at 55 kilometres per hour at the time of impact. There were no skid marks. As all the material was in the left lane, Constable Mason opined that the point of impact occurred in that lane. Two broken stubbies and two intact stubbies of ginger beer were also found on the road in the vicinity of the other debris. The pathology report tendered in evidence showed that there was no alcohol in the deceased's blood.
An attending police officer said that he found a passport in the deceased's pocket that told him that the deceased was Dr Bernd Aberle, an Austrian national. There was no evidence to indicate what Dr Arbele might have been doing in Middle Road at the time he was knocked down, and no evidence to indicate from where he might have come or to where he was going. Although a theory was floated that because he was an Austrian national he may have looked the wrong way and stepped off in front of the applicant without warning, there was no evidence to support this theory. Indeed, there was no evidence of whether Dr Arbele was walking along the left lane or crossing the road and if the latter, in which direction, when he was knocked down.
The applicant was interviewed by the police but denied that he was the driver of the vehicle that hit the deceased and he did not give evidence at the hearing. All the other evidence called at the hearing concerned the issue of the identity of the driver of the vehicle.
The reasons for decision
The learned magistrate made the following findings of fact:
"1The accident happened on a 200-300 metre straight and level stretch of road.
2The weather at the time of the accident was fine and the road surface was damp.
3There were no vehicles parked on the side of the road in the immediate vicinity of the accident that might have obscured a motorist's vision of someone standing on the footpath or on the edge of the roadway.
4There were no tyre marks or skid marks on the road surface leading up to the point of impact such as would indicate that the vehicle braked or manoeuvred to avoid colliding with Dr Arbele.
5That the roadway in the immediate area of the collision was well lit.
6That the vehicle was travelling at a speed of at least 55 kph."
The learned magistrate found that 55 kilometres per hour was not an excessive speed and if the driver had seen the deceased, he would have had time to avoid him, even if the theory about the deceased looking the wrong way was the correct explanation of events.
The learned magistrate found that an inference of negligence was the only one reasonably open on the evidence and proceeded to find all matters of complaint proved.
Appellate review
The applicant relied upon the single ground:
"The finding [of guilt] was unsafe and unsatisfactory in that the learned magistrate erred in fact and/or in law in that he concluded that the inference of negligence was the only one reasonably open in the circumstances."
Kelly v O'Sullivan (1995) 4 Tas R 446 is binding authority for the proposition that an order (as defined by the Justices Act 1959, s116) may be reviewed if the court is satisfied that it was unsafe or unsatisfactory. In that case, Crawford J said, at 460, that a finding of guilt that was unsafe or unsatisfactory amounted to an error of fact. The approach to this ground of review was authoritatively stated by the High Court in M v R (1994) 181 CLR 487 at 492 – 493 in these terms:
"Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as 'unjust or unsafe, (see Davies and Cody v The King (1937) 57 CLR 170, at p 180) or 'dangerous or unsafe' (see Ratten v The Queen (1974) 131 CLR at p 515. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. See Raspor v The Queen (1958) 99 CLR 346, at pp 350-351; Plomp v The Queen (1963) 110 CLR 234 at pp 246, 250. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence (Morris v The Queen (1987) 163 CLR 454) and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand' (see Hayes v The Queen (1973) 47 ALJR 603, at p 604)."
By way of further elucidation, I cite the following passage from the judgment of Gaudren J in Gipp v R (1998) 194 CLR 106:
"It is well settled that, where it is contended that a verdict is unsafe or unsatisfactory, in the sense that the jury should have entertained a reasonable doubt as to guilt, '[a]n appellate court must itself consider the evidence in order to determine whether it was open to the jury to convict' Carr v The Queen (1988) 164 CLR 314 at 331 per Brennan J. And '[i]f the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.' M v The Queen (1994) 171 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ, referring to Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 618-619 and Chidiac v The Queen (1991) 171 CLR 432 at 443-444. See also Jones v The Queen (1997) 72 ALJR 78; 149 ALR 598. In that exercise, it is necessary for an appellate court to have regard to the whole of the evidence. And ordinarily, it will also be necessary to have regard to the trial judge's summing up."
For present purposes, full allowances must be made for the advantages enjoyed by the learned magistrate, although they would appear to be few, as the majority of the facts were not in dispute.
In his reasons for finding guilt, the learned magistrate correctly directed himself with respect to the relevant law in these terms:
"In Langan v White [2006] TASSC 83 His Honour Underwood CJ said at paragraph 12:-
'the following principles, set out in Mr Porter's written submissions, are the principles that the learned magistrate was bound to apply:
"(a)the doctrine of res ipsa loquitur has no application, and the mere happening of an accident does not give rise to a presumption of negligent driving; R v Hinz [1972] Qd R 272, Waldie v Cook (1988) 91 FLR 413, and Brown v Baker [2001] TASSC 113;
(b)the facts and circumstances of the case may be such that an inference of negligence is the only one reasonably open unless an explanation is offered; ie where a defendant offers no explanation that may be sufficient to convert a prima facie case into one proved beyond reasonable doubt; Kiernan v Pierce [1933] SASR 137, Police v Chappell [1974] 1 NZLR 225, Brown v Baker, Sanders v Hill [1964] SASR 327;
(c)where a defendant offers an 'explanation' in the sense of establishing that there is no explanation within his present knowledge, the prosecution case does not go unanswered in that sense; Sanders v Hill at 329;
(d)where there is no explanation offered, the court must consider all reasonable possibilities; Sanders v Hill and Police v Chappell"'."
The applicant offered no explanation, so the critical question on appellate review is whether the learned magistrate should have had a reasonable doubt that the only rational inference open was that death was caused by the applicant's negligent driving. The same proposition could be put this way, as the defendant offered no explanation, should the magistrate have concluded that the evidence gave rise to a reasonable inference that death was caused other than by the applicant's negligent driving?
In her submissions, counsel for the applicant, Ms Edwards, submitted that the learned magistrate erred in finding a number of facts. Firstly, Ms Edwards submitted that error attended the finding that there were no parked vehicles that might have obscured the applicant's vision. I reject this submission. Mr Hardy made no reference to any parked vehicles and there were no such vehicles when Constable Mason arrived on the scene, although of course, that was a considerable time after the accident. More importantly, although there is no evidence of the precise time of the accident, nor how long the deceased had been lying on the road before Mr Hardy found him, any parked vehicle that might have blocked the applicant's view of the deceased just before impact, must have moved away at some time after impact and before Mr Hardy arrived on the scene and consequently would have had to drive around the deceased at a relatively slow speed, as he lay on the road. The unlikelihood of this occurring warranted the making of the impugned finding.
Ms Edwards also attacked the finding that the area was well lit. That finding is in accordance with Mr Hardy's evidence ¾"the lighting is quite reasonable in the area" ¾and Constable Mason's evidence. The latter said that the collision occurred between house number 85 and house number 87. He said there was a working street light between houses numbered 85 and 87, and also between houses numbered 91 and 93. Ms Edwards submitted that the area could not have been well lit because of Mr Hardy's evidence that he did not see the deceased until after he had seen the cap, and then he did not realise it was a body until he had swerved past it. However, there is a wealth of difference between seeing an upright human being and seeing a lump of dark material lying on the road, especially if initial concentration was directed to the cap lying in the middle of the road.
Next, Ms Edwards criticised the finding that the vehicle was travelling at at least 55 kilometres per hour at the time of impact. I think there is force in this criticism, for the assumptions upon which Constable Mason based his opinion are indeed flimsy. However, if error did attend this finding, and I note that is not how the motion to review is pleaded, the test would be whether there was an inference reasonably open other than that the death was caused by negligent driving in the event that the speed at which the applicant was driving at the moment of impact is unknown.
In the course of argument it was submitted that the deceased could have stepped out from behind an electricity pole or a wall but both are set well back from the edge of the road and even if he did so step out, he would have some few steps to walk before reaching the gutter.
The single immutable fact is that the deceased and the applicant were at the same point on Middle Road at the same time. Given the evidence that the body, the glasses, the cap and the debris were on the side of the road for traffic travelling in the same direction that Mr Hardy was travelling, the only reasonable inference is that the applicant was also travelling in that direction and that the accident happened on that side of the road. The absence of any skid mark entitles the drawing of an inference that the applicant did not apply his brakes with full force at any time prior to, or immediately after, he hit the deceased.
Accepting the finding that there were no parked vehicles obscuring the applicant's view as he approached the moment of impact, the only rational inference is that the deceased must have been within the view of the applicant for a period of time before impact, regardless of whether he was walking along the road or crossing it from left to right or right to left, and regardless of whether he was running or walking, or looking to his right or left. It would be negligent for the applicant to have driven his car without keeping a proper lookout and had he been doing so, he should have avoided the impact unless the time within which the deceased must have been within his view was insufficient for him to have done this. In these circumstances the issue is whether it is reasonably possible that for some reason, the amount of time that the deceased was within the view of the applicant, if he had been keeping a proper lookout, was insufficient to enable him to swerve, brake, slow down or otherwise avoid the collision. The answer to that question is in the negative if the deceased had been walking along the road, if he had been crossing from the applicant's right to his left and, given the set back of the houses and electricity poles, if he was crossing from the applicant's left to his right at an ordinary walking pace. There remain only two possibilities. Is it reasonably possible that the deceased ran from the footpath onto the roadway, or stepped from a stationary position on the edge of the roadway into the path of the applicant's car when it was close to the point of impact?
These are unlikely events. Prima facie a case of causing death by negligent driving has been made out. Although the doctrine of res ipsa loquitur has no place in the criminal law, the facts may be so strong that the only inference is that there has been negligent driving unless the driver suggests some explanation. This is such a case. As Chamberlain J said in Sanders v Hill (supra) at 330, "it is not for the Court to conjure fancy improbable explanations." The Court's duty is to consider reasonable possibilities. Although there was no onus on the applicant to prove that he was not guilty, it is easier to draw an inference of guilt from a prima facie case when facts are peculiarly within the knowledge of the defendant, but he offers no explanation. See Police v Chappell [1974] NZLR 225 at 227. This proposition of law was put in Sanders v Hill in these terms at 329:
"Where the prosecution's case depends on facts which if unexplained, indicate guilt, the failure or the defendant to offer and innocent explanation, which if one exists, could only be known to him, may well be treated as sufficient evidence that there is, in fact, no such innocent explanation."
See also Waldie v Cook (1998) 91 FLR 413. The proposition that in some circumstances a prima facie case can become one established beyond reasonable doubt applies a fortiori in this case as the applicant lied to the police about his driving of the car, and shortly after the accident the applicant's car was discovered by the police damaged and "burnt out." For these reasons, the applicant's claim that the finding of guilt of causing death by negligent driving is unsafe or unsatisfactory is not made out. The motion to review is dismissed.
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