Lingard v Dearnley
[2007] WASCA 82
•24 APRIL 2007
LINGARD -v- DEARNLEY [2007] WASCA 82
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 82 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | SJA:1079/2004 | 20 OCTOBER 2006 | |
| Coram: | McLURE JA BUSS JA | 24/04/07 | |
| 53 | Judgment Part: | 1 of 1 | |
| Result: | Application for review to be resolved in accordance with s 62(3), (4) and (5) of the Supreme Court Act 1935 (WA) | ||
| B | |||
| PDF Version |
| Parties: | GARY EDWARD LINGARD NICHOLAS DEARNLEY |
Catchwords: | Road traffic offence Regulation 126(2) of the Road Traffic Code 2000 (WA) Review of the decision of a single Judge of appeal refusing appellant's application for leave to appeal Whether the Magistrate erred in his findings on the evidence and as to credibility New argument not raised below Whether the Magistrate erred in failing to find the point where collision occurred Whether the Magistrate erred in excluding certain evidence Turns on own facts Practice and procedure Governing legislation for applications for leave to appeal under the Justices Act 1902 (WA) that were pending before the repeal of the Justices Act and the commencement of the Criminal Appeals Act 2004 (WA) Applicable statutory test for such applications for leave to appeal |
Legislation: | Acts Amendment (Court of Appeal) Act 2004 (WA), s 31 s 36, s 38 Courts Legislation Amendment and Repeal Act 2004 (WA), s 23, s 43, s 47(1) Criminal Appeals Act 2004 (WA), s 9, s 18, s 27 Criminal Procedure (Summary) Act 1902 (WA) (repealed) Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), s 3, s 4 Interpretation Act 1984 (WA), s 36, s 37 Justices Act 1902 (WA) (repealed), s 187(1), s 199, s 206A Road Traffic Code 2000 (WA), reg 126(2) Supreme Court (Court of Appeal) Rules 2005 (WA), r 8 Supreme Court Act 1935 (WA), s 61(3) |
Case References: | Barry v The State of Western Australia [2007] WASCA 12 CSR Ltd v Della Maddalena (2006) 80 ALJR 458 Dearman v Dearman (1908) 7 CLR 549 Dempster v National Companies and Securities Commission (1993) 9 WAR 215 Fingleton v The Queen (2005) 79 ALJR 1250 Fox v Percy (2003) 214 CLR 118 Hedge v Thurstun [2001] WASCA 43 Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 Lingard v Dearnley [2004] WASCA 306 Meiklejohn v Central Norseman Gold Corporation Ltd (1997) 18 WAR 368 Mitchell v Myers (1955) 57 WALR 49 Pantorno v The Queen (1989) 166 CLR 466 Pezzino v The State of Western Australia [2006] WASCA 131 Samuels v Western Australia (2005) 30 WAR 473 Sherkam v Parker [2002] WASCA 179 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LINGARD -v- DEARNLEY [2007] WASCA 82 CORAM : McLURE JA
- BUSS JA
- Appellant
AND
NICHOLAS DEARNLEY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : WHEELER JA
Citation : LINGARD -v- DEARNLEY [2005] WASCA 122
File No : SJA 1079 of 2004
Catchwords:
Road traffic offence - Regulation 126(2) of the Road Traffic Code 2000 (WA) - Review of the decision of a single Judge of appeal refusing appellant's application for leave to appeal - Whether the Magistrate erred in his findings on the evidence and as to credibility - New argument not raised below - Whether
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the Magistrate erred in failing to find the point where collision occurred - Whether the Magistrate erred in excluding certain evidence - Turns on own facts
Practice and procedure - Governing legislation for applications for leave to appeal under the Justices Act 1902 (WA) that were pending before the repeal of the Justices Act and the commencement of the Criminal Appeals Act 2004 (WA) - Applicable statutory test for such applications for leave to appeal
Legislation:
Acts Amendment (Court of Appeal) Act 2004 (WA), s 31 s 36, s 38
Courts Legislation Amendment and Repeal Act 2004 (WA), s 23, s 43, s 47(1)
Criminal Appeals Act 2004 (WA), s 9, s 18, s 27
Criminal Procedure (Summary) Act 1902 (WA) (repealed)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), s 3, s 4
Interpretation Act 1984 (WA), s 36, s 37
Justices Act 1902 (WA) (repealed), s 187(1), s 199, s 206A
Road Traffic Code 2000 (WA), reg 126(2)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 8
Supreme Court Act 1935 (WA), s 61(3)
Result:
Application for review to be resolved in accordance with s 62(3), (4) and (5) of the Supreme Court Act 1935 (WA)
Category: B
Representation:
Counsel:
Appellant : Mr D M Meagher
Respondent : No appearance
Solicitors:
Appellant : Denis Meagher
Respondent : State Solicitor
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Case(s) referred to in judgment(s):
Barry v The State of Western Australia [2007] WASCA 12
CSR Ltd v Della Maddalena (2006) 80 ALJR 458
Dearman v Dearman (1908) 7 CLR 549
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
Fingleton v The Queen (2005) 79 ALJR 1250
Fox v Percy (2003) 214 CLR 118
Hedge v Thurstun [2001] WASCA 43
Lackovic v Insurance Commission (WA) (2006) 31 WAR 460
Lingard v Dearnley [2004] WASCA 306
Meiklejohn v Central Norseman Gold Corporation Ltd (1997) 18 WAR 368
Mitchell v Myers (1955) 57 WALR 49
Pantorno v The Queen (1989) 166 CLR 466
Pezzino v The State of Western Australia [2006] WASCA 131
Samuels v Western Australia (2005) 30 WAR 473
Sherkam v Parker [2002] WASCA 179
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1 McLURE JA: The appellant applies to set aside the order made by Wheeler JA as a single judge of appeal refusing leave to appeal and for leave to appeal from the decision of Pullin J dismissing the appellant's appeal against his conviction in the Court of Petty Sessions for driving contrary to reg 126(2) of the Road Traffic Code 2000 (WA).
2 On 21 December 2004 Pullin J dismissed the appeal under s 199 of the Justices Act 1902 (WA). By application dated 30 March 2005 the appellant sought leave from the Full Court to appeal from the decision of Pullin J.
3 Section 206A of the Justices Act provided for an appeal by leave from a decision under s 199. By s 36 of the Acts Amendment (Court of Appeal) Act 2004 (WA), which section commenced on 1 February 2005, s 206A(3) of the Justices Act was repealed and the following inserted:
"(3) An application for leave to appeal must be made to the Court of Appeal constituted by a single judge of appeal.
(3a) If a single judge of appeal refuses an application for leave to appeal, the applicant may apply to the Court of Appeal to set aside the refusal and determine the application afresh."
4 By the CourtsLegislation Amendment and Repeal Act 2004 (WA), which commenced on 1 May 2005, the title of the Justices Act was changed to the Criminal Procedure (Summary) Act 1902 (WA). Section 31 of the Acts Amendment (Court of Appeal) Act, which commenced on 2 May 2005, repealed s 206A(3) of the Criminal Procedure (Summary) Act and replaced it with new subs (3) and (3a) in precisely the same terms as that inserted in the Justices Act by s 36 of the same Act.
5 By s 4 of the Criminal Procedure and Appeals(Consequential and Other Provisions) Act 2004 (WA), which commenced on 2 May 2005, the Criminal Procedure (Summary) Act was repealed. On the same date (2 May 2005) the Criminal Appeals Act2004 (WA) and the Criminal Procedure Act2004 (WA) commenced. As the appellant filed his application in March 2005, s 206A of the Justices Act as amended governs the appellant's application that was heard by Wheeler JA. Wheeler JA applied the test for the grant of leave under the Criminal Appeals Act which is that leave should not be granted unless the appellant establishes that the appeal has a reasonable prospect of succeeding, as that term is explained in Samuels v Western Australia (2005) 30 WAR 473
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- at [55] - [56]. The appellant does not challenge the correctness of the test. However, I agree with Buss JA that s 206A(4) and the test in s 187 of the Justices Act apply and leave must be granted unless the appeal is frivolous or vexatious or the grounds of appeal advanced do not disclose an arguable case.
6 The appellant ran his case before us as if it was an appeal at large from the decision of the learned Magistrate. It is not. The task before Wheeler JA was to consider and determine whether any of the appellant's grounds of appeal disclosed an arguable case. I will proceed on the basis that this Court is required to make its own assessment on that subject.
7 There is difficulty in this case in clearly identifying the grounds of appeal pressed before Pullin J and Wheeler JA. That is because the grounds of appeal failed to comply with the rules. They do not contain a clear and concise statement of the relevant error of fact or law. It is important to identify the grounds of appeal because leave is required to raise additional grounds.
8 The background facts, relevant evidence and reasons of the Magistrate, Pullin J and Wheeler JA are detailed by Buss JA and not repeated here unless required for an understanding of these reasons. It is common cause that a vehicle driven by the appellant collided with a vehicle driven by a Mrs Johnson. The collision caused damage to the appellant's car (a green Humber) and he obtained a quotation for repairs to the car.
9 The first ground of appeal addressed in oral argument before us was in substance that the quotation for repairs to the appellant's vehicle did not provide a proper basis for an adverse inference drawn by the Magistrate at trial as to the reliability of the appellant's evidence.
10 This ground was not relied on in the appeal to Pullin J. The only potentially relevant ground of appeal was (d) which alleged that the Magistrate "erred in law when, in ruling to 'reject' the whole of the evidence of the Applicant, he … took into account only such matters as were not material to a proper determination thereof". The vague unfocussed nature of this ground is not clarified in the appellant's written submissions in the appeal before Pullin J. I infer from Pullin J's failure to address the issue as formulated in this application that it was not raised before him.
11 There were 27 grounds in the application heard by Wheeler JA. Ground (d) was repeated. The only other relevant ground for present
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- purposes is 2(i)(f) which was that Pullin J "misdirected himself as to the significance, if any, which should properly be attached to the evidence of the Applicant as to a quotation for work to his vehicle, in that the totality of such evidence is that the Applicant was at pains to make clear there was but an unobserved mistake in the document". In his evidence at trial the appellant accepted as correct the factual basis of the cross-examination on the quotation which was that it included the repair of damage that was not caused by or associated with the accident and said he had not studied the document. Ground 2(i)(f) accepts the prosecutor's premise and relies on the appellant's evidence that there was an unobserved mistake in the document. Further, the ground raised in this Court was not raised in oral submissions to Wheeler JA. Because of the appellant's failure to clearly identify the issues in his grounds of appeal, Wheeler JA in the course of oral submissions identified what she regarded as the only two issues in the appeal. Neither issue involved grounds (d) or 2(i)(f) and the appellant did not press them. The question for this Court is whether the appellant should be permitted at this very late stage to raise the proper construction of the quotation as a new ground of challenge to the Magistrate's decision.
12 I would refuse leave on the basis that the new ground is inconsistent with the way the trial was conducted on behalf of the appellant. The appellant tendered the quotation in his evidence-in-chief. There was no objection to the line of cross-examination on the quotation. The appellant accepted in cross-examination that the quotation referred to damage that had not been caused by the accident. He was asked for an explanation and gave the following evidence:
"So how does it come about that they have given you a quote in relation to those particular items?---Well, I think -- I don't know if this is right because I honestly can't remember but I think I may have -- because I am interested in upkeeping my car I may have asked them as an aside, 'What do you think it would cost to fix this or that?' … "
13 And later:
"So I put it to you that you've actually included things on there that weren't caused by the accident?---By the document it is there but I did not consciously --
Just -- ?--- -- do so.
But you would agree that that's the way it looks now?---Well, it could be construed that way, yeah.
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- Just like on the police report where you've got the boot keyhole cover missing?---Mm hm."
14 In his report to police the appellant stated that his vehicle's boot keyhole cover was missing after the accident. The appellant said he had forgotten that it had fallen off at a previous time.
15 The appellant was re-examined about the quotation as follows:
"MR MEAGHER: Did you have a close study at all of this before you -- yes, thanks?---This estimate?
How much of a study of this had you made before you gave evidence today?---I obviously did not study it very well because, as Officer Burnett pointed out, these are obviously not anything to do with the accident, so -- so, no, I -- I didn't see it."
16 As is clear from the Magistrate's reasons, the appellant's counsel did not contend at trial that the quotation was consistent with the accident-caused damage. Rather, it was accepted that the quotation covered work that was not related to the accident and that its inclusion was an oversight on the appellant's part. Moreover, the issue in this form was not raised before Pullin J or Wheeler JA. It is now too late to do so.
17 Further and in any event, I am not persuaded it is arguable that the Magistrate would not have accepted the evidence of Mrs Johnson and an independent witness, Mrs Opacak, if the appellant had conducted his defence on the basis that the quotation related solely to repairs arising out of accident-caused damage. It was common cause that there was a collision between a four-wheel drive driven by Mrs Johnson and a 1966 Humber driven by the appellant. Mrs Opacak and the appellant were driving in a westerly direction along Wellington Street. Their cars were stationary at red traffic lights at the intersection of Wellington and Sutherland Streets West Perth. Mrs Opacak was in the left-hand (kerbside) lane with one car in front of her at the lights. Mrs Johnson was waiting in the driveway of the City Stay Apartments which are located on the southern side of Wellington Street. She was waiting to turn left into Wellington Street where she intended to drive to the Wellington and Havelock Streets intersection. Mrs Opacak saw Mrs Johnson's vehicle waiting to pull into the traffic and motioned her to move into the traffic in front of Mrs Opacak's vehicle. The appellant was in the next lane to the north of the kerbside lane. The appellant's evidence was that his car was stationary a few car lengths back from the lights at the intersection of Wellington and Sutherland Streets and as he was reaching the white line
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- of the intersection he noticed that Mrs Opacak's vehicle was stationary and realised she was giving way to Mrs Johnson's vehicle which was departing from the driveway of the apartments. He continued:
"As I proceeded [Mrs Johnson's vehicle] engaged a turn into the inside lane but the front right-hand side of [her vehicle], in particular the bull-bar, encroached into my lane and hit the left-hand rear panel and door of my vehicle … "
19 Mrs Johnson gave evidence that after the collision, the Humber moved ahead of her vehicle and pulled into her lane so that Mrs Johnson was required to stop. Mrs Opacak remembered that they all pulled over but she could not recall the details of how that occurred.
20 At the hearing in this Court the appellant contended that the evidence of Mrs Opacak was consistent with that of the appellant. The assertion is untenable. First, Mrs Opacak's evidence is in direct conflict with the appellant's version of how the accident occurred (which was that Mrs Johnson entered the lane in which the appellant was travelling). Secondly, Mrs Opacak's evidence of how the accident occurred (by the appellant moving into the lane in which Mrs Johnson was travelling) is wholly consistent with Mrs Johnson's evidence. The Magistrate accepted their evidence as he was clearly entitled to do. Moreover, his decision to do so was influenced by his assessment of their credibility.
21 A finding of fact based on the credibility of a witness may only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrate that the conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case: Fox v Percy (2003) 214 CLR 118. In his evaluation of the probabilities the Magistrate, correctly in my respectful opinion, gave significant weight to the fact that Mrs Opacak was an independent witness. Even if the Magistrate had not taken an adverse view as to the appellant's credibility, it cannot be demonstrated
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- that it is arguable that the Magistrate's conclusions were erroneous, glaringly improbable or contrary to the compelling inferences in the case. Thus, the appellant's first ground of appeal fails on procedural and substantive grounds.
22 The second ground goes to the question whether the collision occurred where there were marked lanes on the road. The grounds as framed by the appellant are that Pullin J (and by extension Wheeler JA) erred by failing to find that the learned Magistrate himself:
"(a) erred by finding the complaint proved when there was no evidence (and there being evidence to the contrary) that:
(i) the Applicant was driving his vehicle in a single marked lane
(ii) the Applicant moved laterally from a single marked lane
(iii) the other vehicle (to which it was alleged the Applicant failed to give way) was then travelling in a marked lane.
(b) erred in failing to make a finding as to whether:
(i) the Applicant was driving his vehicle in a single marked lane (immediately prior to any collision)
(ii) the Applicant moved laterally from a single marked lane to another marked lane
(iii) the other vehicle was then travelling in that other marked lane in the same direction.
(c) erred in that he failed to make a finding as to where on Wellington Street, West Perth, the alleged act of 'failing to give way' occurred, as was required for a proper finding on the complaint."
23 At the material time reg 126(2) of the Road Traffic Code provided:
"A driver who is moving laterally from any single marked lane or line of traffic shall give way to any vehicle travelling in the same direction as the driver in the marked lane or line of traffic into which the driver is moving."
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24 Thus, the offence under reg 126(2) applies to single marked lanes as well as lines of traffic. However, the complaint was framed in terms of the appellant moving laterally from a single marked lane, failing to give way to another vehicle travelling in the same direction in the marked lane into which he was moving.
25 There was no issue at trial as to whether the collision occurred where there were marked lanes. The examination and cross-examination of witnesses reflects this. Like ground 1, the issue of marked lanes was an afterthought although it was raised in the appeal before Pullin J. If it had been a meritorious issue at trial the complaint would have been amended to refer to a single line of traffic: s 46 of the Justices Act; Mitchell v Myers (1955) 57 WALR 49; Hedge v Thurstun [2001] WASCA 43.
26 The Magistrate did not make an express finding as to where the accident occurred. However, he accepted the evidence of both Mrs Johnson and Mrs Opacak and the evidence of them both was that the collision occurred after the Wellington and Sutherland Streets intersection. Mrs Opacak's evidence on that point was clear and consistent.
27 In a report to police, Mrs Johnson had drawn a sketch of the accident which may be regarded as ambiguous as to whether the accident occurred wholly within or partially out of the Wellington and Sutherland Streets intersection. However, she drew a diagram at trial that has not been retained. The Magistrate described her evidence as follows:
"And she drew a diagram as she did today, as to where the collision occurred. And her diagram today was not quite as precise as the one she did previously, but it does accord with her evidence that it was across the intersection, not on the intersection as has been pointed out by counsel."
28 The Magistrate's summary of her evidence is made with the benefit of a diagram that is not in evidence in the appeal. However, it is consistent with her contemporaneous description in the evidence. She said (at AB Vol 2 page 26):
"Can you show the court where your vehicle and the defendant's vehicle collided?---It would've been around about here. It wasn't far after I went through the traffic lights."
29 The Magistrate accepted Mrs Johnson's evidence at trial as honest and reasonable. Thus on any view of the evidence accepted by the
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- Magistrate the collision occurred across the intersection not wholly within it. From the evidence it is clear that marked lanes commenced on the west side of the intersection. As the rear of the appellant's vehicle collided with the front of Mrs Johnson's vehicle the collision must have occurred where there were marked lanes. It is not to the point that there may have been inconsistencies between Mrs Johnson's out of court statement or possible ambiguities in some of her evidence. Unlike the Magistrate, this Court does not have the benefit of the diagram referred to by the Magistrate. He found in effect that the collision occurred across the intersection and it was clearly open to him to do so. That being the case, Wheeler JA was correct to refuse leave to appeal on the second ground because it is not arguable and has no prospect of succeeding.
30 I agree with Buss JA that the third issue he identified has no prospect of succeeding for the reasons he gives. I am satisfied that the grounds of appeal do not disclose an arguable case and that the appeal has no prospect of succeeding. Accordingly, I would dismiss the review application.
31 BUSS JA: On 12 July 2004 the appellant was convicted, after a trial before Magistrate Cullen, of an offence contrary to reg 126(2) of the Road Traffic Code 2000 (WA), namely, that on 20 November 2002 at West Perth "whilst driving a vehicle, registered number USS111, on a road, namely Wellington Street, [the appellant] moved laterally from a single marked lane, failing to give way to another vehicle travelling in the same direction in the marked lane into which he was moving".
32 The appellant was granted leave to appeal to the Supreme Court against his conviction. Pullin J (as his Honour then was) heard the appeal and, on 21 December 2004, dismissed it: Lingard v Dearnley [2004] WASCA 306.
The legislative scheme relating to the appeal proceedings
33 Pullin J determined the appeal under Pt VIII of the Justices Act 1902 (WA). His Honour's decision was made under s 199.
34 On 28 January 2005, the appellant filed an application for leave to appeal from the decision of Pullin J dismissing the appeal.
35 At all material times before 1 February 2005, s 206A(1) - (3) of the Justices Act provided:
"(1) Subject to any other Act, an appeal lies to the Full Court, by leave as provided in this section, from a decision
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- under section 199, 205 or 206C of the Court constituted by one Judge.
(2) An application for leave to appeal may be made by -
(a) a party to an appeal; or
(b) the Attorney General.
(3) The application may be made -
(a) in chambers or in court, to the Judge who constituted the Court; or
(b) to the Full Court.
… "
- Where an application for leave to appeal to the Full Court was refused by the Judge constituting the Court appealed from, it was competent for the appellant to renew his or her application before the Full Court. See Meiklejohn v Central Norseman Gold Corporation Ltd (1997) 18 WAR 368; Sherkam v Parker [2002] WASCA 179.
36 On 17 March 2005, Pullin J heard the application for leave to appeal, and refused leave.
37 On 30 March 2005, the appellant filed a renewed application for leave to appeal from the decision of Pullin J dismissing the appeal.
38 Section 36 of the Acts Amendment (Court of Appeal) Act 2004 (WA), which came into operation on 1 February 2005, made various amendments to the Justices Act. Relevantly, for present purposes:
(a) the reference in s 206A(1) to the "Full Court" was deleted and replaced with a reference to the "Court of Appeal"; and
(b) s 206A(3) was repealed and replaced with the following subsections:
"(3) An application for leave to appeal must be made to the Court of Appeal constituted by a single judge of appeal.
- (3a) If a single judge of appeal refuses an application for leave to appeal, the applicant may apply to the Court of Appeal to set aside the refusal and determine the application afresh."
39 Section 38 of the Acts Amendment (Court of Appeal) Act contained transitional provisions which came into operation on 1 February 2005. By s 38(1):
"If on the commencement of this Act an appeal or an application for leave to appeal is pending before -
(a) the Full Court of the Supreme Court; or
(b) the Court of Criminal Appeal,
the appeal or application is to be taken to have been commenced or made and to be pending before the Court of Appeal."
- The explanatory memorandum in respect of the bill which, upon enactment, became the Acts Amendment (Court of Appeal) Act states, relevantly, that s 38 "provides for continuity of pending applications and appeals to the Full Court or the Court of Criminal Appeal".
40 In my opinion, the reference in s 38(1) of the Acts Amendment (Court of Appeal) Act to an application for leave to appeal which is "pending before … the Full Court" on the commencement of that Act includes an application for leave to appeal to the Full Court which, as at the commencement date, was pending under s 206A of the Justices Act, whether before the Judge constituting the Court appealed from or before the Full Court. This construction of s 38(1) is consistent with Parliament's intention to provide for continuity of pending applications for leave to appeal. There is no rational basis for distinguishing between applications for leave to appeal to the Full Court which, on the commencement of the Acts Amendment (Court of Appeal) Act, were pending before the Judge constituting the Court appealed from and renewed applications which were pending before the Full Court.
41 In the present case, the appellant's renewed application for leave to appeal came before Wheeler JA, as a single judge of the Court of Appeal, pursuant to s 206A(3), as enacted by s 36 of the Acts Amendment (Court of Appeal) Act and in operation after 1 February 2005. Her Honour heard the renewed application on 17 May 2005, and on 1 July 2005 she dismissed it.
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42 At all material times before 1 May 2005, s 206A(4) of the Justices Act provided, relevantly, that:
"Subject to this section, the provisions of this Part (other than section 186) and the relevant rules of court apply, with all necessary changes, to -
(a) an application for, and an order granting, leave under this section;
…
as if they were respectively -
(f) an application for leave under section 185 and an order granting leave to appeal under section 187;
… "
- At all material times before 1 May 2005, s 187(1) of the Justices Act provided:
"The Judge shall grant leave to appeal unless he considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case."
44 In Samuels, the Court referred to s 38 of the Acts Amendment (Court of Appeal) Act and commented, at 477 - 478 [17], on its effect, as follows:
"From the coming into existence of the Court of Appeal on 1 February 2005, all appeals previously to the Full Court or the Court of Criminal Appeal were to be made to the Court of Appeal (s 38 of the Acts Amendment (Court of Appeal) Act) and
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- all appeals or applications for leave to appeal pending before the Full Court or the Court of Criminal Appeal were to be taken to have been commenced or made and pending before the Court of Appeal (s 38). However, those amendments did not alter the position with respect to rights of appeal or any requirements for leave, nor the procedures which applied to appeals or applications for leave to appeal from single Judges of the Supreme or District Courts. Those changes occurred in May 2005."
45 Section 23 of the Courts Legislation Amendment and Repeal Act 2004 (WA), which came into operation on 1 May 2005, changed the name of the Justices Act to the Criminal Procedure (Summary) Act 1902 (WA). Sections 43 and 47(1) of the Courts Legislation Amendment and Repeal Act also replaced s 185 and amended s 206A, respectively, of the Justices Act, but those changes are not relevant for present purposes. Section 31 of the Acts Amendment (Court of Appeal) Act, which commenced on 2 May 2005, repealed s 206A(3) of the Criminal Procedure (Summary) Act and replaced it with subsections (3) and (3a) in exactly the same terms as previously inserted into the Justices Act by s 36 of the Acts Amendment (Court of Appeal) Act.
46 The Criminal Procedure (Summary) Act 1902 was repealed, by s 4(1) of the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), with effect from 2 May 2005. In these reasons, it is convenient to refer to the Criminal Procedure (Summary) Act as the Justices Act.
47 The Criminal Appeals Act 2004 (WA) came into effect on 2 May 2005.
48 In my opinion, the Justices Act, and not the Criminal Appeals Act, applies to applications for leave to appeal under s 206A(1) of the Justices Act that were pending before the repeal of the Justices Act and the commencement of the Criminal Appeals Act. There are no relevant transitional provisions in the Criminal Appeals Act (or any other statute relating to the repeal of the Justices Act, the enactment of the Criminal Appeals Act and the establishment of the Court of Appeal). That legislation does not evince an intention that the Criminal Appeals Act should apply to applications for leave to appeal that were commenced or made and were pending before the repeal of the Justices Act. Each such application conferred on the appellant a right to have his or her application heard and determined under s 206A of the Justices Act and, by
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- s 206A(4), in accordance with the test embodied in s 187 of that Act. The right in question was preserved by s 37 of the Interpretation Act 1984 (WA). Also see s 36 of the Interpretation Act read with ss 3 and 4 of the Criminal Procedure and Appeals (Consequential and Other Provisions) Act.
49 By the Criminal Appeals Act, leave is required to appeal against either conviction or sentence from a Magistrate's Court to a single Judge of the Supreme Court (s 9), from a decision of a single Judge on such an appeal to the Court of Appeal (s 18) or from the Supreme or District Court to the Court of Appeal (s 27(1)). See Samuels at 478 [25]. The statutory test, in each instance, is, relevantly, that the leave of the court appealed to is required for each ground of appeal and, after an appeal is commenced, the court appealed to must not give leave on a ground unless it is satisfied the ground has "a reasonable prospect of succeeding". As noted in Samuels at 486 [50], the provisions of the Criminal Appeals Act with respect to granting leave set a higher threshold than those which applied under s 187 of the Justices Act:
"That the new statutory provision in this State was intended to set a higher threshold than previously applied in s 187 of the Justices Act is apparent from two features. The first is that leave of the Court is now required for each ground of appeal, whether involving error of law or error of fact. Secondly, it postulates a presumptive refusal of leave unless the Court is satisfied the ground has a reasonable prospect of succeeding - 'the Court of Appeal must not give leave to appeal …'. Moreover, this is apparent from the legislative history, in particular the Law Reform Commission Report which, as we have said, was the genesis of the amending legislation."
50 In my opinion:
(a) By s 38(1) of the Acts Amendment (Court of Appeal) Act, the appellant's application for leave to appeal, which was pending on 1 February 2005, must be taken to have been commenced or made and to be pending before the Court of Appeal.
(b) The appellant's application for leave to appeal should not have come before Pullin J. His Honour heard the application in his capacity as the Judge constituting the Court appealed from and not as a single Judge of appeal.
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- (c) In any event, the so-called renewed application for leave to appeal came before the Court of Appeal constituted by Wheeler JA as a single Judge of appeal, as contemplated by s 206A(3) of the Justices Act (as enacted by s 36, and s 31, of the Acts Amendment (Court of Appeal) Act and in operation after 1 February 2005).
(d) The Justices Act, and not the Criminal Appeals Act, applies, and at all material times has applied, to the appellant's application for leave to appeal, in that the application was commenced or made and was pending before the repeal of the Justices Act (or the Criminal Procedure (Summary) Act 1902 as it was re-named on the day before its repeal) and before the commencement of the Criminal Appeals Act.
51 Section 206A(3a) of the Justices Act authorises the appellant's application to this Court. By s 206A(3a), if a single Judge of appeal refuses an application for leave to appeal, the appellant may apply to the Court of Appeal to set aside the refusal and determine the application afresh.
The application before this Court
52 The appellant has applied to this Court under s 206A(3a) of the Justices Act to set aside Wheeler JA's refusal to grant leave to appeal from the decision of Pullin J dismissing the appellant's appeal against his conviction. The appellant contends that this Court should determine his application for leave afresh, and grant leave to appeal.
53 It is unnecessary, in determining this application, to decide or express an opinion on whether s 206A(3a) contemplates a re-hearing de novo before this Court. In my opinion, the application should be allowed and conditional leave to appeal granted, for the reasons set out below, whether or not s 206A(3a) obliges the appellant to demonstrate that Wheeler JA made a material error of fact or law. Compare, in the context of s 61(3) of the Supreme Court Act 1935 (WA) and r 8 of the Supreme Court (Court of Appeal) Rules 2005 (WA), Pezzino v The State of Western Australia [2006] WASCA 131 at [10], [49] - [54], [60]; Barry v The State of Western Australia [2007] WASCA 12 at [14].
Regulation 126(2) of the Road Traffic Code
54 At the material time, reg 126(2) of the Road Traffic Code provided:
(Page 18)
- "A driver who is moving laterally from any single marked lane or line of traffic shall give way to any vehicle travelling in the same direction as the driver in the marked lane or line of traffic into which the driver is moving."
55 I emphasise that the appellant was charged with moving laterally from a single "marked lane", and not with moving laterally from a single "line of traffic". Diagrams set out under reg 126(2) confirm that "marked lanes" are lanes on a carriageway which are delineated by broken or unbroken white lines, whereas "lines of traffic" refer to multiple lines of vehicles travelling in the same direction on a carriageway which is not delineated into lanes by broken or unbroken lines.
The background facts
56 The background facts, which are not in dispute, are set out in pars 3 - 5 of Pullin J's reasons:
"The undisputed facts are that a Mrs Johnson, who was driving a Nissan Patrol, was waiting in the driveway of the City Stay Apartments, which are located on the southern side of Wellington Street. This driveway is just before the intersection of Wellington and Sutherland Streets, West Perth. Mrs Johnson was waiting to turn left into Wellington Street where she intended to drive down to the Wellington and Havelock Streets intersection. While she was waiting, a Mrs Opacak was driving a Ford Laser west in Wellington Street in the kerbside lane. She saw Mrs Johnson's Nissan Patrol waiting to pull out into the traffic and she motioned her in to the traffic in front of her. Mrs Johnson took advantage of that offer and did pull into the kerbside lane in front of Mrs Opacak's car.
It is also not in dispute that the appellant, who was driving a Humber motor vehicle also west in Wellington Street, but in the next lane to the north of the kerbside lane, began to draw level with Mrs Johnson.
The Magistrate in effect found that after Mrs Johnson had taken up her position in the kerbside lane and travelled along to the west, the Humber vehicle driven by the appellant moved laterally from his marked lane across into the kerbside lane and failed to give way to Mrs Johnson's vehicle. This resulted in a collision between the two vehicles. There is no dispute that a collision occurred. How and where it occurred is in dispute."
(Page 19)
57 The Wellington and Sutherland Streets intersection is a T junction, with Sutherland Street being the terminating road.
58 It is plain, from photographic evidence tendered at the trial, that there are marked traffic lanes in Wellington Street:
(a) before the commencement of the Wellington and Sutherland Streets intersection; and
(b) between the end of the Wellington and Sutherland Streets intersection and the commencement of the Wellington and Havelock Streets intersection.
- It is also plain, from that evidence, that the Wellington and Sutherland Streets intersection does not have marked lanes.
59 Further, photographic evidence tendered at the trial reveals that, at the Wellington and Sutherland Streets intersection, there are traffic lights facing vehicles travelling in a westerly direction on Wellington Street. The lights are located at the commencement, on the kerb in the middle, and at the end, of the intersection.
The evidence of Mrs Johnson
60 Mrs Johnson gave evidence, relevantly, as follows:
(a) The point where her vehicle and the appellant's vehicle collided "wasn't far after [she] went through the traffic lights" [AB 26]. She indicated the point of collision on a diagram drawn on a whiteboard.
(b) Her vehicle was "partially in the intersection past the lights" when the two vehicles collided [AB 26].
(c) When she pulled out from the City Stay Apartments and started driving through the intersection she "would've been lucky if [she] was doing 20 kilometres [per hour]. [She had] only just really started to go because [she] came out very slowly out of the driveway" [AB 28].
(d) She did not move from the kerbside lane to the inner lane [AB 28].
(e) Once [she] started driving through the lights [she] saw the [appellant's vehicle] … come across into [her] lane. [She] felt a bump and then he, sort of, pulled out again,
- went up and pulled in front of me but on an angle" [AB 28].
- (f) When she saw the appellant's vehicle start to come across into her lane, his vehicle was positioned "slightly in front of [her] vehicle on the right hand side" [AB 28 - 29].
(g) After she felt the bump:
"[the appellant] went up and pulled across there into the lane with no indicator or anything, just pulled in front of me again. I was actually worried about the vehicle behind me because I slammed on the brakes and I was a bit worried she might - - didn't know how fast she was going, what - -
You said you slammed the brakes on. Why did you slam the brakes on?---Because after he'd - - he'd bumped he'd gone into his lane, then he sped up and he actually stopped but stopped on an angle a bit further up in front of me. Like, there's actually a hill there and he had stopped where it was starting to become the hill, and that's why I braked - because I didn't know that he was actually stopping in my lane.
Right, okay. So when you say he - - can you just show the court on the diagram there where he eventually stopped and in what position he stopped compared to your vehicle?---There's a hill here, because that goes up towards - -
Right?--- - - Princess Margaret.
You are indicating that there's a hill going up the board?---Yep.
And he would have stopped in this - - in the lane - - two lanes here, and he would've stopped here, and he, sort of, parked on an angle like that.
Yes?---It wasn't where the traffic lights are, it was a bit further up. It was on angle like that.
- And roughly how far past the intersection was this, past the traffic lights?---I'm not good on distances, sorry.
Just roughly?---From the intersection it would be about one and a half car-lengths and, like, my vehicle." [AB 29 - 30]
- (h) The traffic lights at the intersection of Wellington and Sutherland Streets were "right on the entrance to the driveway" of the City Stay Apartments [AB 39].
(i) She could not move from the driveway of the City Stay Apartments into Wellington Street immediately because "the traffic lights were red and there was traffic there" [AB 41].
(j) She "would've been lucky if [she] was doing 5 kilometres [per hour] actually coming out of the driveway. [Her] car is automatic and all [she] did was let [her] foot off the brake slightly and let it roll out into the traffic" [AB 46].
(k) When she first saw the appellant's vehicle the "back end" of her vehicle "may still have been at the traffic lights, where the traffic lights were, where I had come out of the driveway" of the City Stay Apartments [AB 47].
(l) When she first saw the appellant's vehicle, her vehicle was in the kerbside lane and his vehicle was "coming over … in the lane next to me … slightly in front of me" [AB 47].
(m) When she first saw the appellant's vehicle she saw only the back part or rear end of it; she did not see the front of his vehicle [AB 47].
(n) She did not see the actual point of collision; she only felt the bump [AB 48].
(o) At the time of the collision she would have been "lucky if [she] was [travelling at] 20 kilometres [per hour]" [AB 49].
(Page 22)
- (p) After the bump the appellant increased his speed and stopped in front of her, in the kerbside lane, on an angle [AB 53].
61 In a written statement dated 2 December 2002 given to a police officer, Mrs Johnson described the accident, as follows:
"I had turned left out of the driveway of City Stay Apartments into the left hand lane and was proceeding straight ahead when [the appellant's] car came across into my lane and hit the right hand corner of the bull bar on my vehicle."
62 A sketch drawn by Mrs Johnson on the written statement she gave to the police officer indicates that when the collision occurred the rear end of her vehicle was opposite the western end of the driveway from the City Stay Apartments. She drew a traffic light on the sketch, but it is difficult to understand where, in relation to the Wellington and Sutherland Streets intersection, it is located. The sketch is not drawn to scale.
The evidence of Mrs Opacak
63 The evidence of Mrs Opacak was, relevantly, as follows:
(a) On the date of the accident she was driving a Ford Laser motor vehicle in a westerly direction on Wellington Street, in the kerbside lane. She stopped immediately before the driveway of the City Stay Apartments and permitted Mrs Johnson's vehicle to enter the kerbside lane in front of her [AB 59].
(b) After Mrs Johnson's vehicle had entered Wellington Street, she saw the appellant's vehicle, as follows:
"We'd just gone through the traffic lights so it was very - - within a few seconds I saw it and I thought, 'I can't believe he's going into that lane'." [AB 59]
(c) She first saw Mrs Johnson's vehicle when it was attempting to exit the driveway. She said [at AB 60]:
"The driveway was literally at the intersection."
(d) She permitted Mrs Johnson's vehicle to enter her lane, and "it proceeded along Wellington Street and I followed after" [AB 60].
(Page 23)
- (e) Mrs Opacak's vehicle was stationary immediately before Mrs Johnson's vehicle entered Wellington Street because the traffic lights at the intersection were red [AB 60].
(f) There was one vehicle in front of Mrs Opacak's vehicle (immediately before Mrs Johnson's vehicle turned into Wellington Street) when the traffic lights at the intersection were red [AB 61].
(g) Mrs Opacak was asked how far Mrs Johnson's vehicle had proceeded when she [Mrs Opacak] saw the appellant's vehicle. The following exchange occurred:
"How far had it proceeded when you saw this other car come?---Well, we were both travelling so it would have only been a few metres. It was before the Havelock Street lights.
Okay. What sort of speed, roughly, were you doing?---Well, it probably would have only been 20 kilometres - not even.
Okay. So you see the Patrol now driving in front of you?---Mm hm.
And you were behind it?---Mm hm.
What did you see then?---All I saw out of the corner of my eye was this car veering - into the left lane, into our lane - and I just thought, 'No, there's no way he's going to do that' because he had nowhere to move, so - -
…
Okay. What - - what brought it to your attention that he was changing lanes?---That he was actually physically moving. The car was moving from the right lane to the left and I knew that there was nowhere for that vehicle to go except into the Patrol.
Okay?---And the fact that he didn't have an indicator on was - - was another thing.
All right, so when it moved, when the green vehicle moved to that lane, to your lane - - ?---Mm hm.
(Page 24)
- - - what did you see happen?---It collided with the Patrol.
Okay. Where did it collide?---It was on the driver's side. Yeah, the corner of the bullbar - -
Okay?--- - - collided with the Humber. I think it was - - I'm not sure as to whether it was the front door or the back."
[AB 61]
(h) Mrs Opacak was asked [at AB 62]:
" - - how far up the road had you proceeded when this actually - - actually happened?---Not too far at all. It was only a few metres.
Okay, and as a result of the accident what did you do?---We all pulled over to the side of the road."
(i) Mrs Opacak gave some evidence [at AB 63] as to what occurred after the accident:
"The driver of the other car? What did he do?---He came out and he was - - he was being totally unreasonable and I thought, 'I'll just let him have his piece and then if I - - he wants to ask me something I'll say what I saw' so - -
So when you say 'unreasonable' what do you mean?---He was speaking very loudly and saying to her that it was all her fault, putting all the blame on her.
Okay, and what other conversation took place at that time?---That he said that we were both incorrect. I said that - - I told him what I had seen and that if a police officer or insurance investigator was there they would have said the same thing, that he was - - he was at fault, it was that obvious.
Okay?---And then he actually suggested that I was incorrect and I should change my mind and that he would proceed with going to court.
(Page 25)
- Okay. On what occasions when the 4-wheel drive, or the Patrol, pulled out into your lane - - what occasions did you see it pull into the lane, the second lane?---Oh, the Patrol stayed in the left lane close to the verge. It didn't - -
Okay. On what occasion did you see any part of the Patrol go to the left - - go to the second lane?---It didn't at all. It was in my lane the whole time.
How were the lanes marked?---I think it was unbroken lines. The middle - - the one separating the flow of traffic would have been a full line, unbroken line."
(j) When she stopped at the traffic lights there was a vehicle in front of her that was "over the line" [AB 65].
(k) She could not recall whether Mrs Johnson's vehicle was to the left or the right of the driveway before it turned into Wellington Street [AB 66 - 67].
(l) She reiterated [at AB 69 - 70] that Mrs Johnson's vehicle remained in the kerbside lane, and mentioned that the appellant and his solicitor had endeavoured to persuade her to change her mind and her statements in relation to that point.
(m) She first saw the appellant's vehicle when her vehicle was moving: the appellant's vehicle was in the inner lane to her right and in front of her [AB 70 - 71].
(n) She permitted Mrs Johnson's vehicle "to take off while [she] was still stationary" at the Wellington and Sutherland Streets traffic lights. She "waited a few seconds" [AB 72].
(o) Mrs Johnson's vehicle was between:
(i) the traffic lights at the intersection of Wellington and Sutherland Streets; and
(ii) the traffic lights at the intersection of Wellington and Havelock Streets,
(Page 26)
- when Mrs Opacak's vehicle started moving after she had let Mrs Johnson turn from the driveway into Wellington Street [AB 72 - 73].
(p) She was not aware of the appellant's vehicle until just before the collision when she saw it "moving, veering into the other lane. The first thing [she] noticed was no indicator" [AB 73].
(q) The following exchange occurred, in cross-examination [at AB 75], in relation to the point where the collision occurred:
"You gave evidence earlier that when you were just beginning to drive forward the Patrol had moved up along Wellington Street?---Yes, it had.
And was halfway between the two sets of lights?---That was where the collision occurred. We had just passed through the lights.
Ms Opacak, I think I must correct you there. Your evidence was that when you began to take off - - ?---Mm hm.
- - the Patrol had moved up?---Yes.
To halfway between the two sets of lights?---It was just before that. It - - it all happened at the same time. She was there, she had just passed - - just before the middle of the intersections and then that's when the collision occurred and we pulled over, then and there.
…
HIS WORSHIP: When you talk about where the collision occurred are you talking about where the traffic lights are situated at Sutherland Street or up halfway between Havelock and Sutherland?---Halfway. The collision occurred halfway between Havelock and Sutherland."
(r) Counsel for the appellant put to Mrs Opacak a written statement dated 21 February 2003 which she had given to RAC Insurance. In this statement Mrs Opacak said:
(Page 27)
- "The collision happened just before the Wellington/Hay Street, West Perth, controlled intersection."
Mrs Opacak agreed with counsel that she intended in that statement to refer to the Wellington/Havelock Street intersection.
(s) Mrs Opacak was cross-examined [at AB 77] about the behaviour of the appellant's vehicle and Mrs Johnson's vehicle after the collision:
" … did you see the two cars pull away again, or one car pull away from the other, at that stage?---I would have, yes.
But those two cars then pulled over to the side of the road?---Mm hm."
The evidence of the appellant
65 The evidence of the appellant was, relevantly, as follows:
(a) Some days after the accident he approached Stokes & Renk, motor vehicle repairers, for an estimate of the cost of repairing his vehicle. Stokes & Renk provided a written estimate number 18319 dated 26 November 2002 [AB 90].
(b) The Stokes & Renk estimate [at AB 153] contained various items including, relevantly, these:
(i) "remove & replace", door fittings, rear quarter panel moulds, rear bumper, tail lamps and boot trims;
(ii) "repair & align" door and quarter panel;
(iii) "re-finish" door and dog leg;
(iv) "parts required": door handle.
(Page 28)
- (c) Some time after the accident he returned to the scene and measured the width of the kerbside lane It was 3.79 metres. He also took some photographs of a 4-wheel drive vehicle which was being driven by Stuart Davis, a mechanic who carried out work from time to time on the appellant's vehicle. The photographs depicted Mr Davis driving the 4-wheel drive vehicle from the driveway of the City Stay Apartments into Wellington Street [AB 90].
(d) He described the circumstances of the accident [at AB 88], as follows:
"'My vehicle, vehicle 1, was stationary, a few car-lengths back from the lights in the outer lane of Wellington Street, not the right-turning lane, at the intersection of Wellington Street and Sutherland Street, West Perth, with the red Stop traffic lights against my direction of travel. When the traffic lights turned to green I proceeded to accelerate in a north-westerly direction along Wellington Street.
'As I was reaching the white line of the intersection I noticed a car in the inside lane, the driver of which is the witness, was stationary. At this point I realised the driver was giving way to vehicle 2, which was departing from the driveway of the hotel-motel on the left-hand side. As I proceeded vehicle 2 engaged a turn into the inside lane but the front right-hand side of vehicle 2, in particular the bullbar, encroached into my lane and hit the left-hand rear panel and door of my vehicle, vehicle 1. I was wearing a seatbelt at the time.'"
It is apparent, from the evidence given at trial, that the appellant, in referring to the "outer lane" of Wellington Street was referring to the right-hand or inner lane, and in referring to the "inner lane" of Wellington Street was referring to the left-hand or kerbside lane.
(e) His vehicle made contact with Mrs Johnson's vehicle at the traffic control lights at the intersection [AB 95].
(f) The police did not attend the scene of the accident [AB 95].
(Page 29)
- (g) The left hand rear section of his vehicle made contact with Mrs Johnson's vehicle [AB 95].
(h) There was no damage to his vehicle during the period after the accident occurred up to the taking of the photographs [AB 97].
(i) The damage caused to his vehicle as a result of the accident was this:
"As a result of the accident, going from top to bottom, the handle was broken, the area surrounding the handle was dented through the impact, the door was dented. As I have said before, there was a crease mark. There was also a crease mark and a dent just back from the door, which is called the rear panel."
[AB 97]
(j) The prosecutor showed the appellant the Stokes & Renk estimate. The following cross-examination then occurred, relevantly [at AB 98 - 100]:
"Can you tell the court how it comes about that work has been done on the boot trims?---There has been no work done on the boot trims.
PROSECUTOR: If you read down the list of that - - ?---Yes.
- - that document, what does it say - - ?---Yes.
- - in relation to the boot trims?---There is an estimate here for boot trims, 1 hour.
So from your knowledge what's that work done on?---There has - - no work has been done on my car.
Well, it just says 1 hour?---This is an estimate.
Well, okay, an estimate?---Yeah.
So, it says there's 1 hour's worth of work to do to your boot trim. Is that correct?---That's what it says.
(Page 30)
- It's also got 'Tail-lights'. What's it got beside 'Tail-lights'?---It has .60 hours.
Okay, and what about the rear bumper? What does it say beside that?---It says 2 hours.
So what work needs to be done to those items?---I don't know. Certainly not in relation to the accident.
Okay. Well, you've presented a quote, is that correct, in relation to the accident?---Those items, no.
But you agree that you presented this to the court today saying it's a quote in relation to damage that was caused by the accident, during the accident?---Yes.
Okay, so it's not - - ?---Not in entirety - -
- - exactly true, is it?---Well, not in its entirety.
So it's not entirely a true document, is it, in relation to the damage that was caused to your car during this accident?---No, but it does have information relating to that.
So how does it come about that they have given you a quote in relation to those particular items?---Well, I think - - I don't know if this is right because I honestly can't remember but I think I may have - - because I am interested in upkeeping my car I may have asked them as an aside, 'What do you think it would cost to fix this or that?' Now, boot trims I can imagine possibly myself asking him that. Rear bumper - there was nothing wrong with my rear bumper, there was a scratch on it, so it could have been chrome work, possibly, but that's the only thing that's wrong with my bumper. My rear bumper. There was an existing scratch or something like that. Tail-lamps - there was actually nothing wrong with my tail-lamps so I'd have no idea why there would be any mention of a tail-lamp there.
PROSECUTOR: All right, well, what I'm saying to you is you've presented this to the court today, this
- document, saying this is the damage that has been caused. 'This is what it's going to cost me to get it fixed.' Is that correct? Now we're finding that there's items in there which weren't even caused during the accident?---It would appear to be so.
- It would, wouldn't it?---Yes.
Okay. So it looks like you've got that particular bit wrong on that document, or in relation to the damage that has been caused?---That was an estimate from Stokes & Renk in relation to the accident on my vehicle. Part of it was obviously not.
Who did they speak to in relation to the vehicle? Is it true they spoke to you in relation to what damage was to be fixed on the vehicle?---Yes, I drove over to Stokes & Renk - -
Okay?--- - and asked them for an estimate.
So you gave them instructions in relation to what damage?---I said to them I was in an accident, 'Can you please give me a quote for the cost of repairing this side damage area', yeah.
All right?---And to be honest, I - -
So I put it to you that you've actually included things on there which weren't caused by the accident?---By the document it is there but I did not consciously - -
Just - - ?--- - - do so.
But you would agree that that's the way it looks now?---Well, it could be construed that way, yeah.
Just like on the police report where you've got the boot keyhole cover missing?---Mm hm.
You said you've owned this vehicle for 5 years?---Yeah. Yes.
(Page 32)
- And then you just forgot - - your explanation is you forgot that this was missing prior to that accident date?---Yes.
PROSECUTOR: That it was in your possession?---Yes.
You simply forgot?---Yes. Well, I was a bit shocked at the time so, I mean, I did."
(k) The collision occurred inside the intersection of Wellington and Sutherland Streets [AB 104].
(l) The driveway of the City Stay Apartments is about 5 metres before the intersection of Wellington and Sutherland Streets [AB 104].
(m) The right hand front section of Mrs Johnson's vehicle came into his line of travel [AB 104 - 105]. Her vehicle entered his traffic lane by about half a metre [AB 105].
(n) He was travelling at about 15 to 20 kilometres per hour at the time of the accident [AB 106].
(o) He denied having changed lanes and collided with Mrs Johnson's vehicle [AB 106].
(p) As at the date of the trial his motor vehicle had not been repaired [AB 107].
The evidence of Stuart Davis
66 The evidence of Stuart Davis was, relevantly, as follows:
(a) Between 1976 and 1994 he worked in garages and conducted his own business as a mechanic [AB 107].
(b) The appellant had been a customer of his for some time [AB 107].
(c) At least six months before the trial he serviced the appellant's vehicle and noticed that a rear passenger side door had been damaged. He described the damage [at AB 109] as follows:
(Page 33)
- "The damage to the rear passenger side door. It had been pushed in and the door handle itself was almost ripped out of its socket shall we say. It certainly wasn't functional and it was bent in."
The dent was "quite substantial" and it affected "most of the door; virtually from the bottom of the door to the bottom of the window, and I'd say three-quarters of the width of the door including the door handle". The damaged door had been dented and scraped.
(d) He had worked as a general mechanic and was familiar with the type of vehicle Mrs Johnson had been driving (that is, a Nissan Patrol) [AB 110].
(e) The model of vehicle driven by Mrs Johnson had a steering circle with a radius of 6.7 metres and a diameter of 13.4 metres [AB 111].
(f) The damage he noticed on the appellant's vehicle included some scratching and denting "past the door" over the top of the wheel [AB 113].
67 There was an exchange between the learned Magistrate and counsel for the appellant, at AB 113 - 114, as to whether Mr Davis was qualified to express any opinion about the driving characteristics or capacity of the model of vehicle driven by Mrs Johnson. The learned Magistrate said, at AB 113:
" … he's not said anything to me that would qualify him to pass any opinion about driving the car. He's … qualified as a mechanic. He's given evidence about the mechanical aspects of a vehicle but he certainly is not qualified to give evidence with regards to the driving of the motor vehicle, because all … you're doing is reconstructing something that you can't reproduce. … "
- The learned Magistrate also said, at AB 114:
"He's said about what the specifications of the steering of the vehicle are, and that's as far as he's going, Mr Meagher. He's not going to give me any evidence about what he believes that this vehicle or a vehicle similar to that of Mrs Johnson's could or could not have done when exiting … those apartments on Wellington Street."
(Page 34)
The learned Magistrate's reasons
68 The learned Magistrate accepted the evidence of Mrs Johnson and Mrs Opacak in relation to the events in question and rejected the appellant's account.
69 The learned Magistrate said, relevantly, in his reasons:
"Now, there has been ample evidence given with regards to the intersection itself. That is, that Wellington Street travelling west has four traffic lanes, two of which turn right and two go straight ahead, and that on the day in question there's no challenge to the fact that the driver, Mrs Johnson, was waiting in the entrance to the apartments which are situated at the intersection, waiting to turn left in order to go to Havelock Street with her child to collect some X-rays.
The [appellant] says that at all times he was in the right-hand lane, that is the straight ahead lane, which is one of the two which go ahead. Ms Opacak, who gave evidence, was in the left-hand land and was the second vehicle at the traffic lights. When she arrived there, the traffic lights were on red and she stopped. There was one vehicle in front of her and she says that she believes that when she was stationary there were no vehicles behind her, except that when the traffic lights turned green, she noticed then that vehicles were travelling up behind her. But she cannot say as to what vehicles were in the right-hand lane at that particular time. The [appellant] says that he was there and I think he said that he was the third car from the traffic signals, and he moved forward.
Now, Ms Opacak said that - - her evidence was that when the lights turned to green she acknowledged to Mrs Johnson that she was able to proceed in front of her and she said that she saw Mrs Johnson exit from the apartments in the left-hand lane and then move forward across the intersection. Now, there was some difference with regards to Mrs Johnson and Ms Opacak as to the point of impact of the vehicles. That is, whether or not it was at the intersection or between the intersection and Havelock Street as Ms Opacak says. She said that there's not very much distance between the two but I think one could take notice of the fact that there is some considerable distance between the two points.
(Page 35)
- However, it doesn't alter the fact that Ms Opacak says that at no time did Mrs Johnson - - Mrs Johnson's vehicle, I should say, enter the lane upon which [the appellant] was travelling, nor did any part of her vehicle enter that right-hand lane. She says that her - - her vision was clear, that she saw the [appellant's] vehicle commence to move towards Mrs Johnson's vehicle. She was, as she said, quite surprised at the way in which the vehicle was moving to its left. It did not signal and she at one time contemplated sounding her horn to warn Mrs Johnson. However, she wasn't quick enough and she says that the [appellant's] vehicle then collided with Mrs Johnson's vehicle, which was at that point in its correct lane.
…
At the time, Mrs Johnson had in her vehicle a 5 or 6-week-old child who was the subject of the X-rays that she was going to obtain. And she also, as a result of contact with the police, made a statement to the police, that is a P72 to the police, with regards to what she says occurred on this particular day, and in that she said:
'I had turned left out of the driveway of City Stay Apartments into the left-hand lane and was proceeding straight ahead when [the appellant's] car came across into my lane and hit the right-hand corner of the bullbar of my vehicle.'
And she drew a diagram as she did today, as to where the collision occurred. And her diagram today was not quite as precise as the one she did previously, but it does accord with her evidence that it was across the intersection, not on the intersection as has been pointed out by counsel.
Now, [the appellant's] evidence or statement says that:
'My vehicle was stationary a few car lengths back from the lights, in the outer lane of Wellington Street, not the right-hand turning lane, at the intersection of Wellington and Sutherland Streets, West Perth, with the red stop traffic signal against my direction of travel. When the traffic lights turned to green I proceeded to accelerate in a north-westerly direction along Wellington Street.
- 'As I was reaching the white line of the intersection I noticed that a car in the left inside lane (the driver of which is the witness) was stationary. At this point I realised the driver was giving way to vehicle 2 which was departing from the driveway of the hotel/motel on the left-hand side. As I proceeded, vehicle 2 engaged to turn into the inside lane but the front right side of vehicle 2, in particular the bullbar, encroached into my lane and hit the left-hand rear panel of - - and door of my vehicle, vehicle 1. I was wearing a seat belt at the time.'
- So there is some considerable difference as to the description of the wy [sic] in which the collision occurred by Mrs Johnson and by the [appellant].
… my observation of the evidence of Mrs Johnson was that she was precise with regards to her recollection of the events of this particular day … She was, as I have said, precise and frank with regards to her evidence. I could detect nothing in the way in which she gave her evidence which would lead me to conclude that she did not give an honest and reasonable account of what transpired on the 20th of November.
One must bear in mind that the only independent witness to the events which occurred on that day between the two parties, was Ms Opacak and Ms Opacak's evidence was also, in my view, clear and concise with regards to what she saw on this particular day.
… There may be, I suppose, some inconsistency [sic] which have been pointed out by Mr Meagher, minor as they may be with regards to the two witnesses that I've mentioned. That is, Ms Johnson and Ms Opacak.
But as I've said, Ms Opacak's evidence, she was in fact the only independent witness to the events. I must ask the question, I suppose, why should she first of all come along and give evidence first of all which is untrue, or whether or not she is mistaken as to - - as is put by counsel for the [appellant], that the only coming together as she perceived of the two vehicles, was when the [appellant's] vehicle crossed in front of the - - Mrs Johnson's vehicle prior to it stopping and that she had not witnessed the actual collision between the two vehicles.
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- Well, Ms Opacak's evidence was clear, as I have said, and concise with regards to what occurred on that particular day.
…
Now, if I might just return to the damage of the [appellant's] vehicle, it seems fairly clear that when he wrote out the damage on the P72, he correctly annotated on there the damage caused to the vehicle at that particular time. However, when it came to the point where … a quotation was to be obtained by him from a body works, suddenly appearing in the quotation are matters which do not form part of the damage which was as a result of the collision between the two vehicles. That is, he says, an oversight on his part and it's put by his counsel that it's something that he didn't take enough time to study. Well, I would have thought that somebody in his position where his motor vehicle - - and it appears that he has some fondness for this elderly vehicle, that he did not know that he was also obtaining quotes with regards to the tail amps [sic], the boot trims and in addition to the other items.
Whether or not they are all the items which are alien to the collision I don't know, it would be speculation on my part. But it does show on the part of the [appellant] that he may well be prone to exaggeration and he did on that occasion give or get a quote for matters which were totally unrelated to what occurred on the 20th of November of 2002. And that was done, the quotation, on the 26th of November 2002 when it was fresh in his mind. Not as though it was something which occurred a long time after. One would have thought that you would have known that. The vehicle was not insured at the time and of course had this not have come to this point then no doubt the insurance company may well have paid out a claim for something which was not as a result of the collision between the two vehicles.
I also, from my observation, observed [the appellant] when he gave evidence. My view is that he was anything but frank with respect to not only the damage to the motor vehicle when he was cross-examined by the sergeant, but he has from the outset, that is from the 20th of November until now, consistently given a version of events which is not consistent with the truth of what happened on the 20th of November of 2002.
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- I'm satisfied that on this particular day the [appellant] drove his motor vehicle from the right-hand lane into the left-hand lane into the path of the vehicle which was properly driven by Mrs Johnson, thereby colliding with the front right-hand side of her vehicle, which caused damage to both his vehicle and the damage of Mrs Johnson's vehicle.
There's nothing in the fact that he has consistently told the same story, which would lead me to conclude that there was some doubt as to the events of this particular day. I have no hesitation in accepting the evidence of Mrs Johnson and of Ms Opacak as to the events of the 20th of November. Their version is consistent with the version of the truth. That is the [appellant] failed not only to signal his intention to the left, that is to change traffic lanes, but he did so contrary to law in that he moved laterally from his lane and failed to give way to Mrs Johnson's vehicle, which I said was travelling correctly in the left-hand lane.
I reject the evidence of the [appellant] as to what transpired on this particular day. Also, of course, the evidence of Mr Davis as to the question of the Nissan Patrol, it's [sic] capabilities as to 23 degrees. Both of the women said - - even thought it may well be that Ms Opacak said that the vehicle in her view was on the left-hand side of the driveway, Mrs Johnson says that she had positioned her vehicle in a way in which she could exit the vehicle without going into the gutter, and that's what she did on this particular day. She says that she has driven from that driveway on prior occasions and knows how to exit from that - - or those premises.
The prosecution in my view therefore, have proved beyond reasonable doubt all elements of the offence and I find the case proved."
The reasons of Pullin J
70 Before Pullin J, there were 17 grounds of appeal, some of them containing several sub-grounds. The appellant appears to have had three complaints:
(a) first, there was no evidence that the appellant was driving his vehicle in a single marked lane or moved from a single marked lane;
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- (b) secondly, the learned Magistrate erred in rejecting the evidence of the appellant and accepting the evidence of Mrs Johnson and Mrs Opacak and erred in failing to consider discrepancies between the evidence of Mrs Johnson and Mrs Opacak; and
(c) thirdly, the learned Magistrate erred in ruling that Mr Davis could not give evidence as to the "capability" of a Nissan Patrol, of the kind driven by Mrs Johnson, to turn from the driveway of the City Stay Apartments into Wellington Street and remain within the kerbside lane.
71 As to the appellant's first complaint, Pullin J held that the learned Magistrate's finding that there was lateral movement from a single marked lane, thereby failing to give way to Mrs Johnson's vehicle, was open on the evidence. His Honour said, at [24] - [26]:
"His Worship said of Mrs Johnson's evidence:
' … she drew a diagram as she did today, as to where the collision occurred. And her diagram today was not quite as precise as the one she did previously, but it does accord with her evidence that it was across the intersection, not on the intersection as has been pointed out by counsel'.
This accords with the evidence of Mrs Opacak and Mrs Johnson who both said the collision was to the west of the Sutherland Street intersection. There were marked lanes on the other side of the intersection and this is evident from the aerial photograph and Mrs Opacak's diagram at AB 152.
On my review of the evidence, the learned Magistrate did not err in concluding that the appellant did make a lateral movement from a marked lane. He did not make a finding about where the collision occurred but it was not necessary for him to do so. It is clear that once he rejected the appellant's version of events, and accepted the prosecution evidence, then the collision was to the west of the intersection and the movement of his vehicle from his lane occurred there."
72 As to the appellant's second complaint, Pullin J said, at [35] - [37]:
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- "In this case the Magistrate very carefully set out the evidence which had been led by each of the three critical witnesses, that is Mrs Johnson, Mrs Opacak and the appellant. It was clearly necessary to consider the differing accounts given by those witnesses. On the appellant's evidence, he was not guilty of the offence. The Magistrate set out the evidence which was in dispute, pointed out and referred to discrepancies which existed between Mrs Johnson and Mrs Opacak and then decided to reject the evidence of the appellant and to accept the evidence of Mrs Johnson and Mrs Opacak. His Worship decided to reject the appellant's evidence not only on the basis of his demeanour in the witness box, but also because of aspects of his evidence which were unsatisfactory. For example the appellant presented a quotation for the repair of his vehicle. It became an exhibit. He informed the court that this was a quote to repair the damage caused by the accident. When questioned in cross-examination he then admitted that this was not 'exactly true'. The quote also related to other damage. The Magistrate rather kindly said that this showed the appellant was 'prone to exaggeration'. Having set out the evidence given by the three witnesses and having reached the conclusion that he rejected the evidence of the appellant, the learned Magistrate in the second last paragraph of his reasons, repeated again evidence of Mrs Johnson and Mrs Opacak which showed that the collision did not occur as the appellant had said. The Magistrate then concluded:
'The prosecution in my view therefore, have proved beyond reasonable doubt all elements of the offence and I find the case proved.'
Earlier he said:
'I'm satisfied that on this particular day the [appellant] drove his motor vehicle from the right-hand lane into the left-hand lane into the path of the vehicle which was properly driven by Mrs Johnson, thereby colliding with the front right-hand side of her vehicle, which caused damage to both his vehicle and the damage of Mrs Johnson's vehicle.'
In my view, this indicates that his Worship had in mind that, having reviewed the evidence and resolved the conflict between the witnesses that his task was then to consider whether all of
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- the elements of the offence had been established beyond reasonable doubt and this is what he found."
73 As to the appellant's third complaint, Pullin J said, at [44] - [46] and [49] - [50]:
"In my opinion, it would have been permissible for the appellant to lead extra evidence from Mr Davis that he measured the distance from the earliest point where the Nissan could have commenced turning within the driveway to the edge of the second lane. There had already been evidence given by Mr Davis that the turning radius for a Nissan was 6.7 metres. Clearly if evidence was led to show that the distance between the edge of the second lane and the earliest point where the vehicle could have commenced to turn was less than 6.7 metres, then that evidence would have been highly relevant evidence, not of opinion but of fact. It would have corroborated the appellant's evidence that Mrs Johnson swung her vehicle into his lane and collided with him. If the distance was much more then the evidence would have been neutral and it would then be a matter once again of deciding on the evidence what happened on the day.
In fact there was some evidence about the distance from the second lane to the point where the Nissan Patrol could have commenced its turn. This showed up on the scale on one of the aerial maps tendered in evidence. It is clearly difficult to try and use the scale to determine the relevant distance, but if the scale is used, it does appear to be a distance of over 10 metres. I recognise however, that reliance on the scale is unsafe. More to point, however, is that the appellant himself gave evidence about the width of the kerbside lane. He measured it as just under 4 metres. He did not however, give any evidence about how wide the footpath was or make any measurement about the distance from the kerb back to the point where the Nissan Patrol could have commenced its turn.
Counsel for the appellant did not tell the Magistrate that he wanted to lead evidence from Mr Davis about the measurement to which I have referred. He was indeed attempting to give evidence about attempts made to 'replicate' what happened on the day the offence was committed. It was quite obvious that in trying to demonstrate what had happened on the day, one could
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- position the Nissan Patrol on the left-hand side of the driveway, on the right-hand side of the driveway, could commence to turn late or early, and all of these matters would require speculation about what actually happened on the day. This was not an attempt to lead expert evidence because a person needed no particular qualification (save as a driver) to carry out this manoeuvre.
…
In my opinion that reveals a critical distinction. The evidence of Mrs Johnson and Mrs Opacak and the appellant was evidence of what the particular vehicle was observed to do on the day. Mr Davis gave evidence about the vehicle's capability, ie that its turning circle had a radius of 6.7 metres. What he was not permitted to do was to speculate about how and where the vehicle was actually driven on the day.
In my opinion the decision of the Magistrate to exclude that evidence was a correct decision. His conclusion that 'You can't replicate what happened on that particular day' is, in effect, a conclusion that Mr Davis would not be permitted to give evidence about an attempt to replicate or rather speculate about how Mrs Johnson drove on the day. Even counsel for the appellant told the Magistrate that it would be 'impossible' to replicate the position of Mrs Johnson's vehicle on 20 November 2002."
74 Pullin J therefore dismissed the appeal.
The reasons of Wheeler JA
75 Wheeler JA described the grounds of the proposed appeal, accurately in my respectful opinion, as "extraordinarily prolix". Her Honour reduced the issues to the following:
(a) First, an assertion that the learned Magistrate failed to find that there were marked lanes on the road at the point where the accident occurred, that being an element of the offence, and, further, a finding that there were marked lanes at the point where the accident occurred was not reasonably open.
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- (b) Secondly, the learned Magistrate could not have relied upon the evidence of both Mrs Johnson and Mrs Opacak since they described two different events.
76 As to the first issue, Wheeler J said, at [6] - [7]:
" … if there is no evidence as to an essential element, it is an error for the Magistrate to have convicted the [appellant] even if no point was taken in relation to it. There was, however, evidence in this case as to what markings appeared on the road. There was a diagram which was drawn on a whiteboard. That was not preserved or reproduced. There was an aerial photograph of the scene, which was accepted as evidence of the truth of what it depicted. It depicts clearly marked lanes along the length of Wellington Street, save for those portions of the road which are within the area of the intersection. The intersection is unmarked. There were other photographs. There was also in evidence the accident reports of the [appellant] and of the complainant and a witness statement form of Mrs Opacak, which contain sketches of the scene.
So far as the sketches are concerned, the [appellant's] diagram shows the accident occurring in the middle of the Sutherland Street/Wellington Street intersection, where no lanes are marked. However, [Mrs Johnson's] diagram shows the accident occurring just after that intersection, at the point at which lanes on the road are marked (although the diagram is small, it appears that [Mrs Johnson] has drawn lanes in that diagram at the point of impact), and Mrs Opacak's diagram shows the accident happening after the intersection, and again at a place where lanes are marked. Mrs Opacak has drawn the lanes on her diagram. None of the diagrams are, of course, to scale, and it does appear that Mrs Opacak's diagram shows the accident happening a little further up the road than does the complainant's. However, those of Mrs Johnson and Mrs Opacak are to broadly similar effect."
- Her Honour referred, at [10], to the sketch drawn by Mrs Johnson on the written statement she gave to the police:
"The [appellant's] submission is that, when one has regard to the photographs, the traffic lights are located next to the driveway at the point where the intersection begins, and that if the 'back end' of Mrs Johnson's vehicle had been at those lights, the
- collision must have occurred at a point where there were no marked lanes. The difficulty with that submission, as I understand it, is that the diagram drawn by Mrs Johnson in her accident report shows the traffic lights on the far side of the intersection. Although that position of the lights is incorrect, if the lights had been where she believed them to be, and her 'back end' had been at that set of lights, her vehicle would have been almost out of the intersection and at least a significant portion of it would have entered the part of Wellington Street on which the lines again commenced."
- Her Honour held, at [12], that:
" … there can be no doubt that both Mrs Johnson and Ms Opacak were describing a collision which happened not in the intersection, but in an area where there were marked lanes. His Worship accepted the evidence of Ms Opacak and Mrs Johnson, notwithstanding that there was some difference between them as to the precise location of the collision, and formed the view that the [appellant] was 'anything but frank'. An attempt to overturn those findings, on the material which I have described, has, in my view, no arguable prospect of success."
" … [the Magistrate] generally accepted the evidence of Ms Opacak as an independent witness, describing it as 'clear, concise and consistent'. He did note some differences between her evidence and that of Mrs Johnson, but obviously regarded the evidence of the two women as being sufficiently similar to be satisfied that they were describing the same incident, and to be satisfied as to what the essential elements of that incident had been. Again, I am of the view that there is no prospect of success in relation to this issue."
78 Wheeler J therefore dismissed the application for leave to appeal.
The issues in the review
79 The issues in the review may be distilled to these:
(a) First, whether the appellant has some prospect of succeeding in his contention that Pullin J should have held that the learned Magistrate erred in rejecting the
- evidence of the appellant and accepting the evidence of Mrs Johnson and Mrs Opacak.
- (b) Secondly, whether the appellant has some prospect of succeeding in his contention that Pullin J should have held that the learned Magistrate erred in failing to evaluate the discrepancies between the evidence of Mrs Johnson and Mrs Opacak, and in failing to find that:
(i) the collision occurred within the intersection of Wellington and Sutherland Streets;
(ii) alternatively, he was not satisfied beyond reasonable doubt that the collision occurred outside the intersection; and
(iii) there are no marked lanes within the intersection.
(c) Thirdly, whether the appellant has some prospect of succeeding in his contention that Pullin J should have held that the learned Magistrate erred in ruling that Mr Davis could not give evidence as to the "capability" of a Nissan Patrol, of the kind driven by Mrs Johnson, to turn from the driveway of the City Stay Apartments into Wellington Street and remain within the kerbside lane.
- I will consider each of these issues in turn.
The first issue in the review
80 The learned Magistrate rejected the appellant's evidence for these reasons:
(a) his Honour's adverse finding in relation to the appellant's demeanour in giving his evidence;
(b) the appellant's evidence and concessions in relation to the Stokes & Renk estimate; and
(c) his Honour's acceptance of the evidence of Mrs Johnson and Mrs Opacak where it differed from the appellant's evidence.
81 The reasoning of a trial Judge which is based on a credibility determination must be distinguished from the reasoning of a trial Judge
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- which is based on inferences drawn from facts that were undisputed or found by the trial Judge. See Fox v Percy (2003) 214 CLR 118 at 146 [88]. As Kirby J observed in CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at 466 [21] - [22]:
"Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it'."
Also see Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 at 477 - 478 [65] - [67].
82 Normally, therefore, a trial Judge's credibility-based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. In other words, usually it must be established that the trial Judge's decision was erroneous, notwithstanding that it appears to be, or is stated to be, based on credibility findings.
83 Although an appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance" (Dearman v Dearman (1908) 7 CLR 549 at 561), it must necessarily observe the "natural limitations" that exist where the appellate court proceeds wholly or substantially on the record. See Dearman at 561; Fox v Percy at 125 - 126 [23]. In Dearman, Isaacs J said, at 561:
"The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a
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- signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal."
84 In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ said, at 126 [23], in relation to the "natural limitations" of an appellate court proceeding wholly or substantially on the record:
"These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share (Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637, per Lord Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 All ER 21 at 26. See also Chambers v Jobling (1986)7 NSWLR 1 at 25). Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole (SRA (1999) 73 ALJR 306 at 330 [89] - [91]; 160 ALR 588 at 619 - 620, citing Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209 - 210; Jones v The Queen (1997) 191 CLR 439at 466 - 467)."
85 In the present case, the appellant conceded, in cross-examination, that he had presented the Stokes & Renk estimate to the Court as an indication of the cost of repairing the damage caused to his vehicle in the accident, and also conceded that the estimate appeared to include items for the repair of damage which was not caused by the collision. The learned Magistrate formed an adverse view of the appellant's credit on the basis of those concessions.
86 However, a scrutiny of the Stokes & Renk estimate, which I have relevantly reproduced at [65(b)] above, suggests an apparently innocent explanation for the items which attracted the appellant's concessions.
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- Although the damage caused by the collision was confined to the left rear door and quarter panel of the appellant's vehicle, it appears from the estimate to have been necessary, in the course of repairing and aligning those parts, to remove and re-install other parts, including the rear bumper, tail lamps and boot trims. The estimate does not suggest that the rear bumper, tail lamps or boot trims required repair or that new parts should be substituted for them. Rather, it appears that those existing items would be re-installed after the door and quarter panel (which had been damaged in the collision) were repaired and aligned. Significantly, the only "parts required", referred to in the estimate, comprised a "door handle". The learned Magistrate failed to appreciate the apparently innocent explanation for the items in question on the estimate. The transcripts of the hearings before Pullin JA and Wheeler JA reveal that this point was not raised before their Honours. Although the transcript of the submissions before the learned Magistrate were not before this Court, it is reasonable to proceed on the basis that the point was not raised at trial.
87 In Pantorno v The Queen (1989) 166 CLR 466, Mason and Brennan JJ made these observations, at 475 - 476, in relation to an appellant's attempt to raise for the first time before the High Court a point which was not argued below:
"The jurisdiction of this Court, once special leave to appeal is given, is to pronounce the judgment or order which the Full Court sitting as a Court of Criminal Appeal should itself have pronounced: Craig v The King ((1933) 49 CLR 429, at p 444). Although that jurisdiction is as extensive as the jurisdiction of the Court of Criminal Appeal itself, it may be that this Court does not have jurisdiction to set aside a judgment correctly and regularly pronounced when the only ground which might warrant the allowing of an appeal is raised for the first time in this Court. Whether the Court's reluctance to entertain such a ground has its foundation in an absence of jurisdiction or in a discretionary rule or rule of practice is a question which this Court left unresolved in Hicks v The King ((1920) 28 CLR 36); see also Banbury v Bank of Montreal ([1918] AC 626); Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan ((1931) 46 CLR 73, at pp 107-111, esp at p 109) (where Dixon J considered that the speech by Lord Atkinson in Banbury was more appropriate to the exercise of original rather than appellate jurisdiction). As this question was not argued, it would be undesirable now to attempt to resolve it.
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- And, in the circumstances of this case, it is unnecessary to do so. However the question be resolved, it can be said that there is a general rule -- of practice or discretion, if not of jurisdiction -- that this Court will not ordinarily set aside a judgment correctly and regularly pronounced when the only valid ground of appeal is raised for the first time in this Court. Grounds of appeal are not narrowly construed but they never the less confine the issues which, in any curial proceeding of an adversarial kind, define what the court is to decide. And even when a point which counsel seeks to argue in this Court for the first time can be seen to fall within the grounds of appeal to an intermediate appellate court, this Court will not give effect to the point if evidence could have been given in the court below which by any possibility could have prevented the point from succeeding: Coulton v Holcombe ((1986) 162 CLR 1, at pp 7, 8). But, absent such a possibility, there are some cases in which it is expedient in the interests of justice to allow a point to be raised on appeal which was not argued in the court below: see O'Brien v Komesaroff ((1982) 150 CLR 310, at p 319)."
- Also see Fingleton v The Queen (2005) 79 ALJR 1250 at 1279 [147] - [148].
88 The Stokes & Renk estimate was tendered by the appellant's counsel at the trial. It was not, however, relevant to any fact in issue. The estimate was used by the prosecutor for the purpose of endeavouring to discredit the appellant in cross-examination. The estimate was relevant solely to credit, and whether and to what extent the appellant's credit was damaged depended on its proper construction and the appellant's evidence in relation to it. In the circumstances, it is reasonably arguable (in the sense that it is an argument which has some prospect of success) that:
(a) the appellant should be permitted to raise, in an appeal before this Court, the assertions now made in relation to the Stokes & Renk estimate; and
(b) the Stokes & Renk estimate, and the appellant's concessions in relation to it at trial, did not form a proper basis for rejecting his account of the circumstances of the accident.
89 The learned Magistrate's reasons, considered as a whole, reveal that he considered the evidence of each of the appellant, Mrs Johnson and Mrs Opacak. His Honour was impressed by the manner in which
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- Mrs Johnson and Mrs Opacak gave their evidence, and was unimpressed by the appellant's demeanour. The advantage enjoyed by his Honour, in proceedings which involved a contest of credibility, is not to be underestimated. The manner in which each of Mrs Johnson, Mrs Opacak and the appellant gave evidence was capable of assisting his Honour in deciding whose evidence to accept and what findings should be made. His Honour does not, however, identify the particular aspects of the appellant's demeanour which were unimpressive and caused him to reject his evidence.
90 In my opinion, the Stokes & Renk estimate was a significant factor in the learned Magistrate's decision to reject the appellant's evidence. The existence of an apparently innocent explanation for the items in the estimate which attracted the appellant's concessions, combined with his Honour's failure to specify those aspects of the appellant's demeanour which were unimpressive, cause me to conclude that the appellant's contention in relation to the first issue in the review has some prospect of success.
The second issue in the review
91 The learned Magistrate did not make a finding as to the precise point at which the collision occurred.
92 It is apparent, however, that the learned Magistrate found the collision occurred in Wellington Street, to the west of the intersection between Wellington and Sutherland Streets. In other words, his Honour found the collision did not occur in the intersection of Wellington and Sutherland Streets. As I have mentioned, the photographic evidence which was tendered at the trial established that there were marked lanes in Wellington Street on either side of the Wellington and Sutherland Streets intersection, but not in the intersection itself.
93 The learned Magistrate appears to have relied upon the evidence of both Mrs Johnson and Mrs Opacak in finding that the collision occurred to the west of the intersection between Wellington and Sutherland Streets. My analysis of the evidence indicates, however, that although Mrs Opacak's evidence supported that finding, it is at least reasonably arguable that Mrs Johnson's evidence did not.
94 Mrs Opacak's evidence was, relevantly, that the collision occurred between the Wellington and Sutherland Streets intersection and the Wellington and Havelock Streets intersection. That evidence is consistent with the written statement dated 21 February 2003 she gave to
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- RAC Insurance (as explained in her evidence) and the sketch she drew on the statement.
95 Mrs Johnson's evidence, however, was to the effect that the collision occurred in Wellington Street, a short distance after the commencement of the Wellington and Sutherland Streets intersection. It is at least reasonably arguable that her statements in evidence that the point where the collision occurred "wasn't far after [she] went through the traffic lights" and that her vehicle was "partially in the intersection past the lights" when the collision occurred, should be understood as references to the traffic lights at the commencement of the Wellington and Sutherland Streets intersection. This understanding of Mrs Johnson's evidence is consistent with the sketch she drew on the written statement dated 2 December 2002 she gave to the police. As I have mentioned, that sketch indicates that when the collision occurred, the rear end of her vehicle was opposite the western end of the driveway from the City Stay Apartments. Also, as I have mentioned, Mrs Johnson drew a traffic light on the sketch, but it is difficult to understand where, in relation to the Wellington and Sutherland Streets intersection, it is located.
96 More significantly, it is apparent from a passage in Mrs Johnson's examination-in-chief, which I have reproduced at [60(g)] above, that she was asked to indicate, on a diagram drawn on a whiteboard, where the appellant's vehicle stopped after the collision. Mrs Johnson's evidence was that, after the collision occurred, the appellant "sped up" and then stopped "on an angle a bit further up in front of me". It appears, from the trial transcript, that Mrs Johnson indicated on the diagram that the appellant stopped in Wellington Street (after having "sped up" subsequent to the collision) "about one and a half car-lengths and, like, my vehicle" to the west of the Wellington and Sutherland Streets intersection. As Wheeler JA mentioned, at [6], the diagram on the whiteboard was not preserved or reproduced.
97 It is reasonably arguable (in the sense that it is an argument which has some prospect of success) that the learned Magistrate (and, with respect, Pullin J and Wheeler JA) misconstrued Mrs Johnson's evidence in relation to the point at which the collision occurred.
98 Although it is plain, on Mrs Opacak's evidence, that the collision occurred to the west of the Wellington and Sutherland Streets intersection, where there are marked lanes, it is reasonably arguable, on the basis of Mrs Johnson's evidence, that the collision occurred in the Wellington and Sutherland Streets intersection, where there are no marked lanes. The
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- appellant asserted in evidence that the collision occurred in the intersection itself.
99 In my opinion, it was necessary for the learned Magistrate to evaluate the apparent conflict I have identified between Mrs Opacak's evidence and that of Mrs Johnson. The resolution of that conflict was critical to an element of the offence with which the appellant was charged, namely, that the appellant "moved laterally from a single marked lane, failing to give way to another vehicle travelling in the same direction in the marked lane into which he was moving". It is reasonably arguable that his Honour (and, with respect, Pullin J and Wheeler JA) failed to appreciate the existence of the apparent conflict, and the importance of resolving it.
100 It isunnecessary, in this review, to consider whether, if the second issue in the review had been agitated at trial, the respondent might have applied successfully to amend the complaint to allege that the appellant's breach of reg 126(2) of the Road Traffic Code involved his failing to give way to Mrs Johnson's vehicle while moving laterally from a single line of traffic (as distinct from a single marked lane). Even if that point has merit in relation to the second issue in the review, it does not determine, or render unarguable, the appellant's contention in relation to the first issue in the review. The point in question should be dealt with on the appeal.
101 The appellant's contention in relation to the second issue in the review has some prospect of success.
The third issue in the review
102 This issue raises for consideration the correctness of Pullin J's decision that the learned Magistrate did not err in ruling that Mr Davis could not give evidence as to the "capability" of a Nissan Patrol, of the kind driven by Mrs Johnson, to turn from the driveway of the City Stay Apartments into Wellington Street and remain within the kerbside lane.
103 In my opinion, Pullin J was correct, with respect, for the reasons he gave, in deciding that the learned Magistrate did not err in the ruling he made in relation to Mr Davis's evidence.
104 The appellant does not have a reasonably arguable case in relation to the third issue in the review.
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Conclusion
105 I would set aside Wheeler JA's decision, refusing leave to appeal from the judgment of Pullin J, and grant leave to appeal in relation to the first and second issues in the review. The appellant should be required to reformulate its grounds of appeal. The new grounds of appeal, limited to the issues I have mentioned, should be filed and served within 14 days.
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