Lingard v Dearnley - [2005] WASCA 122

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LINGARD -v- DEARNLEY [2005] WASCA 122

CORAM: WHEELER JA

HEARD: 17 MAY 2005

DELIVERED : 1 JULY 2005

FILE NO/S: SJA 1079 of 2004

BETWEEN: GARY EDWARD LINGARD
Applicant
AND
NICHOLAS DEARNLEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :PULLIN J
Citation  :LINGARD -v- DEARNLEY [2004] WASCA 306
File No  :SJA 1079 of 2004

Catchwords:

Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr D M Meagher
Respondent: No appearance

Solicitors:

Applicant: Denis Meagher
Respondent: State Solicitor

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

Lingard v Dearnley [2004] WASCA 306

Case(s) also cited:

Nil

WHEELER JA: This is an application for leave to appeal from a decision of Pullin J. His Honour had dismissed the applicant's appeal against his conviction in the Court of Petty Sessions. The background facts, which are not in dispute, are set out in pars 1, and 3 ‑ 6 of his Honour's reasons for decision dated 21 December 2004 (Lingard v Dearnley [2004] WASCA 306), which are as follows:
"1PULLIN J: Mr F Cullen SM, on 12 July 2004, convicted the appellant of an offence that on 20 November 2002 at West Perth, "whilst driving a vehicle, registered number USS111, on a road, namely Wellington Street, 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". This was an offence against reg 126(2) of the Road Traffic Code 2000.
…
3The 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.
4It 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.
5The 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.
6The appellant gave evidence that he did not leave his lane and that Mrs Johnson, in pulling out from the driveway, turned across the kerbside lane and partly into the lane in which the appellant was driving, and that her vehicle collided with the appellant's vehicle. The appellant therefore denied that he moved from his lane at all … "
Considering the narrow compass of the dispute, the grounds of the proposed appeal are extraordinarily prolix. On a generous view, there are at least 26 points raised, all of them, although frequently asserted to be errors of law, involving matters of fact.
Some of them are nonsense. For example, ground 3(h) asserts that his Honour erred in failing to find that his Worship had erred in asserting that Mrs Opacak was an "independent" witness, given that, the ground asserts, Mrs Opacak's evidence exhibited antipathy towards the applicant. His Worship plainly did not mean to make any finding as to Mrs Opacak's feelings one way or the other; rather, he was merely making the obvious point that Mrs Opacak was independent in the sense of having no prior connection with any of the parties involved, and nothing either to gain or to lose from the trial, whatever its outcome. It seems clear enough that Mrs Opacak was antipathetic towards the applicant, since she considered his conduct after the accident had occurred to be rude and inappropriate, but this does not detract from her independence.
Shorn of unnecessary verbiage, the issues in the appeal seem to boil down to two. First, it is asserted that his Worship failed to find that there were indeed marked lanes on the road at the point at which the accident occurred, that being an element of the offence, and that his Honour erred in not making that finding about his Worship's reasons. I think it is also asserted, as part of this ground, that, as a matter of fact, a finding that there were marked lanes was not open. The second point revolves around a submission which, as I understand it, is that his Worship could not have relied upon the evidence both of the complainant, Mrs Johnson, and of Mrs Opacak, since they described two different events. It appears to be the submission that what Mrs Opacak described was not, in fact, a collision, but was an event which occurred after the collision when the two drivers (the complainant and the applicant) pulled up in order to exchange details and discuss what had occurred.
So far as the "marked lanes" point is concerned, counsel for the applicant concedes that no issue was taken before his Worship as to whether there were marked lanes at any point on the road. The issue was whether Mrs Johnson had come out of the driveway and run into the applicant, or whether he had changed his direction and run into her.
Of course, if there is no evidence as to an essential element, it is an error for the Magistrate to have convicted the applicant 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 applicant 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 applicant's diagram shows the accident occurring in the middle of the Sutherland Street/Wellington Street intersection, where no lanes are marked. However, the complainant'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 the complainant 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.
In order to understand the reference to the evidence which follows, it should be noted that the driveway of the City Stay Apartments is adjacent to traffic lights which control the intersection of Sutherland and Wellington Streets. The driveway and Sutherland Street are not directly opposite each other, but appear to be very slightly offset. As Mrs Johnson drove out of the driveway then, her vehicle apparently would have been entering an area of intersection which was not marked with lanes. She would not have had to proceed very far down the road, in order to come to the area where lanes again commenced.
The applicant relies heavily upon the description in Mrs Johnson's oral evidence of where her vehicle was when the collision occurred. Unfortunately, the description is plainly made by reference to the drawing on the whiteboard, which we do not have. Immediately after marking the position of her vehicle with an "A", she was asked to show the Court where her vehicle and the applicant's vehicle collided, and she responded (at AB 26):
"It would've been around about here. It wasn't far after I went through the traffic lights.
… I think my vehicle - - the back end of my vehicle could have still been, like, back here … virtually and the front end … "
The prosecutor then asked, in clarification:
"So from what you're saying there, you're indicating that your vehicle was partially in the intersection past the lights … "
and Mrs Johnson agreed. There is also a passage at page 47 of the appeal book upon which the applicant relies, which reads as follows:
"So after you had straightened - - how many - - how far had you moved along?‑‑‑Not very far.
How many car lengths, vehicle lengths?‑‑‑I said that to you. I probably had half - - behind - - my back end may still have been at the traffic lights, where the traffic lights were, where I had come out of the driveway."
The applicant'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.
A consideration of the oral evidence, in the light of the photographs and diagrams, gives rise to no more than an ambiguity. For all one knows, the description may well have been perfectly clear to his Worship, who had the assistance of the whiteboard. It may be that it was for that reason that no issue was taken in relation to the question of whether there were lanes marked. His Worship's understanding of the evidence appears from his reasons at pages 127 ‑ 128 of the appeal book. He described it in this way:
"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."
His Worship also said (at AB 129) in relation to Mrs Johnson's evidence that:
" … 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." (Emphasis supplied)
When one takes the evidence as a whole, it appears to me, as it appeared to Pullin J, that there can be no doubt that both Mrs Johnson and Mrs 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 Mrs 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 applicant 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 other matter raised by the applicant is that he submits that Mrs Opacak described "one event", being a collision taking place and then the vehicles pulling over immediately. Mrs Johnson was said to have described two events, one being the collision outside the City Stay Apartments and then pulling up a little further along the road after the collision had taken place. Mr Lingard's evidence was not transcribed, but it was said by counsel that his evidence was to broadly the same effect as Mrs Johnson's, in the sense that there was a collision and then a pulling over a little later. The submission was made, based upon that difference, that Mrs Opacak had not seen the collision at all, but, when she purported to describe the collision, was in fact describing the event which occurred shortly afterwards, of the two vehicles pulling over to enable the drivers to discuss the incident.
There is no transcription of the submissions made to his Worship in the appeal book, so it is not clear whether this proposition was put to him. However, if one looks at Mrs Opacak's evidence‑in‑chief at pages 59 to 64 of the appeal book, her evidence is very clearly that she had allowed Mrs Johnson's vehicle to enter the line of traffic, that she had noticed the applicant's car veering into the lane occupied by Mrs Johnson's vehicle and that she both anticipated a collision and saw the applicant's vehicle collide with Mrs Johnson's, on the driver's side of the vehicle driven by Mrs Johnson in the area of the bull‑bar on that vehicle. Whether the vehicles then pulled up immediately or some little time afterwards, it is clear that the time interval cannot have been very long.
Slight differences of emphasis of this kind are not unusual in any trial. His Worship generally accepted the evidence of Mrs 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.
I would therefore dismiss the application.