Lingard v Dearnley
[2004] WASCA 306
•21 DECEMBER 2004
LINGARD -v- DEARNLEY [2004] WASCA 306
| Link to Appeal : | [2005] WASCA 122 [2007] WASCA 82 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 306 | |
| Case No: | SJA:1079/2004 | 15 & 16 DECEMBER 2004 | |
| Coram: | PULLIN J | 21/12/04 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GARY EDWARD LINGARD NICHOLAS DEARNLEY |
Catchwords: | Traffic law Minor traffic offence Evidence Ruling to exclude expert evidence Turns on own facts No new point of principle |
Legislation: | Road Traffic Code 2000 (WA), reg 126 |
Case References: | Anikin v Sierra [2004] HCA 64 Canale v Bayens [2001] WASCA 383 Fox v Percy (2003) 214 CLR 118 Harling v Hall (1997) 94 A Crim R 437 Liberato v The Queen (1985) 159 CLR 50 Weal v Bottom (1966) 40 ALJR 436 Abalos v Australian Postal Commission (1990) 171 CLR 167 Benter v Corkill [1999] WASCA 48 Devries v Australian National Railways Commission (1993) 177 CLR 472 Garrett v Nicholson (1999) 21 WAR 226 Halge v George [2004] WASCA 141 Hautlieu Pty Ltd t/as Russell Pathology v McIntosh [2000] WASCA 146 Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934; 201 ALR 470 Joslyn v Berryman (2003) 214 CLR 552 Landers v Teather [2004] WASCA 138 Lloyd v Faraone [1989] WAR 154 Pallot & Ors v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995 Shorey v PT Ltd (2003) 77 ALJR 1104; 197 ALR 410 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 Underwood v Gayfer & Anor [1999] WASCA 56 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; 200 ALR 447 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
NICHOLAS DEARNLEY
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR F CULLEN SM
Citation : THE POLICE -v- GARY EDWARD LINGARD
File No : PE 4616 of 2004
Catchwords:
Traffic law - Minor traffic offence - Evidence - Ruling to exclude expert evidence - Turns on own facts - No new point of principle
Legislation:
Road Traffic Code 2000 (WA), reg 126
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D M Meagher
Respondent : Mr T C Russell
Solicitors:
Appellant : Denis Meagher
Respondent : State Solicitor
Case(s) referred to in judgment(s):
Anikin v Sierra [2004] HCA 64
Canale v Bayens [2001] WASCA 383
Fox v Percy (2003) 214 CLR 118
Harling v Hall (1997) 94 A Crim R 437
Liberato v The Queen (1985) 159 CLR 50
Weal v Bottom (1966) 40 ALJR 436
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Benter v Corkill [1999] WASCA 48
Devries v Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson (1999) 21 WAR 226
Halge v George [2004] WASCA 141
Hautlieu Pty Ltd t/as Russell Pathology v McIntosh [2000] WASCA 146
Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934; 201 ALR 470
Joslyn v Berryman (2003) 214 CLR 552
Landers v Teather [2004] WASCA 138
Lloyd v Faraone [1989] WAR 154
(Page 3)
Pallot & Ors v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995
Shorey v PT Ltd (2003) 77 ALJR 1104; 197 ALR 410
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306
Underwood v Gayfer & Anor [1999] WASCA 56
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; 200 ALR 447
(Page 4)
1 PULLIN 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.
2 The appellant appeals against that conviction, having earlier been granted leave to do so by a Judge of this Court.
3 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.
4 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.
5 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.
6 The 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. The appellant said that the collision occurred to the east of the Sutherland/Wellington Streets intersection. This evidence was contrary to the evidence of Mrs Johnson
(Page 5)
- and Mrs Opacak who said the collision was on the other side (the west side) of that intersection.
7 The learned Magistrate did not accept the appellant's evidence. His Worship said:
"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 2002."
8 The learned Magistrate concluded:
"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 to Mrs Johnson's vehicle."
9 His Worship also said and found:
"… the [appellant] failed not only to signal his intention to the left, that is to change traffic lanes, but he did so contrary to the 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."
10 The witnesses called for the prosecution were Mrs Johnson, Mrs Opacak and Senior Constable Dearnley. Senior Constable Dearnley's evidence is not relevant to this appeal. Mrs Johnson and Mrs Opacak both gave evidence which, if accepted (as it was), established that Mrs Johnson's vehicle did not pull across into the lane in which the appellant's vehicle was travelling.
11 The appellant gave evidence and he also called a mechanic, a Mr Davis, who gave evidence about the turning capability of a Nissan Patrol and who was involved in an attempted reconstruction of the scene
(Page 6)
- as the appellant described events. Photographs of this were taken by the appellant and tendered into evidence.
Grounds of appeal
12 There are 17 grounds of appeal, some of them containing several sub-grounds.
13 These grounds however, reduce to the following points:
(a) First that there was no evidence that the appellant was driving his vehicle in a single marked lane or moved from a single marked lane;
(b) Secondly that 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;
(c) Thirdly that the Magistrate erred in ruling that Mr Davis could not give evidence as to the "capability" of a Nissan, similar to Mrs Johnson's to turn into Wellington Street and stay within the kerb side lane.
14 This is an appeal by way of rehearing. See Canale v Bayens [2001] WASCA 383. In Fox v Percy (2003) 214 CLR 118 the nature of a rehearing was explained. It does not involve a completely fresh hearing by the appellate court of all the evidence. The court proceeds, in a case like this, on the basis of the record alone. [22]. In general the Appeal Court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge. However, there are natural limitations that exist in the case of any appellate court when it proceeds 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. This limitation is particularly important in this case because of the significantly different accounts the witnesses gave.
15 It is necessary for an appellant to show that an error has occurred. [27] See also Anikin v Sierra [2004] HCA 64 at [38].
(Page 7)
Did the appellant move laterally from a single marked lane?
16 This point boils down to a submission on behalf of the appellant that the collision and the offence occurred in the middle of the intersection of Sutherland Street and Wellington Street where there were no marked lanes. This is somewhat surprising because no witness said the collision occurred in the intersection. The appellant said it happened before it and to the east, and the prosecution witnesses said it happened on the other side of the intersection, ie to the west. Counsel for the appellant submits that there was some confusing evidence on the point and that I should conclude that the collision occurred in the intersection. There were undoubtedly some differences in the evidence given by Mrs Johnson and Mrs Opacak about precisely where the collision occurred. Mrs Johnson in evidence-in-chief at AB 26 did a drawing on a whiteboard suggesting that the vehicle was partially in the intersection past the lights when the two vehicle collided. This was explained in more detail in cross-examination where she said (AB 47):
"My back end may still have been at the traffic lights where the traffic lights were where I had come out of the driveway."
17 This answer may contain some ambiguity if read on its own but becomes clear when all her evidence is considered. The sketch on the white board corresponded with her sketch given in an accident report. The white board sketch was not reproduced in the appeal book but the accident report sketch was. This showed the collision occurring in Wellington Street to the west of the intersection.
18 Mrs Opacak considered that the collision occurred even further west along Wellington Street "half-way between Havelock and Sutherland".
19 After the accident the appellant completed a Report of Road Traffic Crash which he signed and gave to the Police Service. This, and a sketch of the locality suggesting that the collision occurred opposite the City Stay driveway. The sketch appears to be incorrect because it shows Mrs Johnson's vehicle turning out of the drive in the middle of the intersection when in fact as shown on the aerial photographs which were tendered as exhibits, the driveway is to the east of the intersection. This is confirmed by the subsequent photographs taken by the appellant showing Mr Davis pulling out of the driveway and showing that it is before the intersection. Mrs Johnson's report also wrongly shows the driveway as being in the middle of the intersection. However, as I have mentioned, she shows the collision occurring just after the Sutherland/Wellington Streets intersection. This is consistent with her evidence.
(Page 8)
20 In the cross-examination of the prosecution witnesses by counsel for the appellant it was never put to them that the collision occurred in the middle of the intersection. This is not surprising given that the appellant's case was that the collision occurred before the intersection.
21 Nevertheless, there was at the end of the case some discrepancy about where the collision occurred. As to that his Worship said:
"Now there was some difference with regards to Mrs Johnson and Mrs 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 Mrs Opacak says. She said that there is 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."
22 His Worship then continued:
"However, it doesn't alter the fact that Mrs Opacak says that at no time did Mrs Johnson - - Mrs Johnson's vehicle, I should say, enter the lane upon which Mr Lingard was travelling, nor did any part of her vehicle enter that right-hand lane."
23 His Worship then concluded:
"I am satisfied that on this particular day the defendant 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."
24 The charge was concerned with the lateral movement from a single marked lane failing to give way to Mrs Johnson's vehicle. His Worship's finding that there was lateral movement from a single marked lane, thereby failing to give way to Mrs Johnson's vehicle, was open to the Magistrate on the evidence before him. 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".
(Page 9)
25 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.
26 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.
Reasons for rejecting the appellant's evidence and accepting the prosecution witnesses' evidence
27 There were numerous grounds of appeal alleging that the Magistrate was wrong to reject the whole of the evidence of the appellant. It was submitted that the Magistrate took into account matters not material to a proper determination of the case. I do not accept that submission. Evidence about the events which occurred after the accident, even though not directly relevant to the elements of the charge, were relevant to the assessment made by the Magistrate about the appellant's evidence.
28 The appellant points to a discrepancy in the evidence given by Mrs Johnson and Mrs Opacak about the location of Mrs Johnson's vehicle in the driveway before she pulled into Wellington Street. The appellant alleges that Mrs Opacak had antipathy to the appellant and was evasive when answering questions, and that the damage suffered to the appellant's vehicle made it more probable that the damage was caused in the manner described by the appellant. There were also discrepancies in the evidence about whether the collision involved a "bump", suggesting a minor collision, or a collision of a more serious kind. Another ground alleges that the Magistrate erred in finding that Mrs Johnson's evidence was "precise" and "frank"; another, that he erred in finding that Mrs Opacak's evidence was "clear" and "concise".
29 These were all observations made by the Magistrate after seeing and hearing the witnesses. The assessment of the evidence, the resolution of minor discrepancies, the inferences to be drawn and the conclusion about how the accident happened were all matters within the province of the Magistrate. Most of the grounds amount to arguments about why the
(Page 10)
- Magistrate might have reached a different decision. The existence of such an argument does not mean that the Magistrate erred.
30 There was also a ground alleging that the Magistrate erred in finding that Mrs Opacak was an independent witness because, it was asserted by the appellant, she was partial towards Mrs Johnson, antipathetic to the appellant and evasive in answering questions by the appellant's counsel. These are, with respect, complaints which have no consequence. Mrs Opacak was undoubtedly an independent witness in that she did not know either driver before the collision. It seems that Mrs Opacak regarded the appellant's conduct after the accident as unreasonable (he suggested to Mrs Opacak that she should "change [her] mind" about what she said she had seen); Mrs Opacak gave her telephone number to Mrs Johnson and not to the appellant; but this was because, on Mrs Opacak's account, the appellant was to blame for the collision based on her observation of what happened. These points do not mean that Mrs Opacak was not an "independent" witness or that the Magistrate should not have accepted her version of events.
31 Having reviewed the evidence, I am not satisfied that the learned Magistrate erred in the conclusions that he reached about the essential issues, namely whether there was a lateral movement from a single marked lane on Wellington Street and failure to give way to Mrs Johnson's vehicle. The Magistrate enjoyed the particular advantage of hearing the whole of the evidence and then reaching the conclusion that he did after seeing the witnesses. According to the appellant, Mrs Johnson drove her car out of the driveway into the appellant's lane and collided with him. According to Mrs Johnson and Mrs Opacak, Mrs Johnson pulled into her own lane, drove along for a time, and then the appellant moved his vehicle laterally into Mrs Johnson's lane, failed to give way to her vehicle and collided with it. That dispute had to be resolved by the Magistrate, and in my opinion his reasons for rejecting the evidence of the appellant and accepting the evidence of Mrs Johnson and Mrs Opacak reveals no error.
32 As I have said, there was also a discrepancy between the evidence of Mrs Johnson and Mrs Opacak about the location of the collision but, in my view, this is not a critical difference as the offence alleged lateral movement in Wellington Street. They both said this happened to the west of the intersection. Lanes were marked between Sutherland and Havelock Streets. The lateral movement occurred somewhere between Sutherland and Havelock Streets on Wellington Street and because the appellant did not give way the offence was committed.
(Page 11)
33 It was submitted that Mrs Opacak confused the event of the collision and the time when Mrs Johnson and the appellant pulled up after the accident. Counsel for the appellant submitted that Mrs Opacak mistakenly thought that when the appellant pulled into the kerb in front of Mrs Johnson after the collision occurred, that this was the collision. This submission about Mrs Opacak was mere assertion and I reject it. Mrs Opacak watched as the appellant's car moved across from his lane. Mrs Opacak went to sound her horn by way of warning and the collision occurred in front of her.
34 Counsel for the appellant correctly points out that a finding of guilt is not to be reached simply by rejecting the evidence of the defendant. There cannot be a guilty verdict unless the court of trial accepts, that is, actually and positively believes to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. When a defendant gives exculpatory evidence, the question is not so much whether it is to be preferred to the prosecution evidence, but whether in the light of it, the prosecution has proved its case. Even if the court does not positively believe the defendant's evidence and in that sense does not prefer it, the question remains whether on the whole of the evidence the guilt of the defendant has been proved beyond reasonable doubt. See Liberato v The Queen (1985) 159 CLR 50 and Harling v Hall (1997) 94 A Crim R 437 at 443. As Anderson J said at that page, "this is not a mere exercise in semantics". There is always a real possibility that whilst the evidence of the prosecution witnesses may be generally preferred to that of the defence witnesses, the evidence as a whole still leaves a reasonable doubt as to the guilt of the defendant.
35 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
(Page 12)
- 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."
"I'm satisfied that on this particular day the defendant 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."
37 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 the elements of the offence had been established beyond reasonable doubt and this is what he found.
38 There was also a submission that the evidence of Mrs Johnson and Mrs Opacak was glaringly improbable. I see nothing glaringly improbable in the account of the incident given by Mrs Johnson and Mrs Opacak. There is nothing improbable in the evidence of the prosecution witnesses that Mrs Johnson pulled out into Wellington Street, stayed within her lane, drove along, only to have the appellant move from his marked lane across into Mrs Johnson's lane and to fail to give way to Mrs Johnson's vehicle.
Magistrate's ruling concerning the Davis evidence
39 Mr Davis was a retired mechanic. In his career he had spent time working on 4-wheel drives, including Nissan Patrols. He gave evidence that "the steering deviation or deflection" was 23 degrees which produced a steering circle of a radius of 6.7 metres or a diameter of 13.4 metres. Counsel for the appellant having led the evidence from Mr Davis, then asked him:
(Page 13)
- "Do you think there's anything more that you could possibly know about the steering capabilities of a vehicle such as that that you - anything else you can tell his Worship about it, or is there anything more to tell?---Well, I suppose this is basically just opinion. However, it is relevant.
Well, that's what you're here for, to give your opinion as a mechanic?---Okay. Well - -"
40 His Worship then intervened and said:
"Well, he's done all that. 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 that - - those apartments on Wellington Street."
41 Counsel for the appellant accepted that ruling and pressed on to refer to some photographs after the day of the charge which had already gone into evidence through the appellant, showing the location of the Nissan Patrol as the appellant said it was when it collided with his vehicle as it pulled out of the driveway. Mr Davis was then asked "And did you drive in and out - -". His Worship then intervened again and said:
"Well, look, Mr Meagher, you're not listening to what I've said. I'm not having this witness pass any comment or opinion about the capabilities of a vehicle similar to Mrs Johnson's entering or exiting the apartments because you can't replicate what happened on that particular day and he's not qualified to give evidence of an expert nature with regards to driving of a motor vehicle."
42 This ruling having been made, the witness was asked to leave the court and counsel for the appellant then made an attempt to change the Magistrate's mind. He also disclosed what it was that he wanted Mr Davis to give evidence about. This was explained as follows:
"MR MEAGHER: If your Worship finds the factual situation is that the - - there is a possibility that Mrs Johnson's vehicle was in the left-hand lane as it was driving out, this witness will give evidence as to what he tried to do in the same circumstances knowing what he knows about such a vehicle and applying his
(Page 14)
- skill to it in the maximum to try to get it to stay within the first lane.
PROSECUTOR: Well, just on that, your Worship, I believe - -
HIS WORSHIP: Just let Mr Meagher finish, thank you. Yes?
MR MEAGHER: And your Worship would have the factual situation of being able to say if that was the case, with a vehicle such as Mrs Johnson had, this is what a person skilled in the knowledge - - or in the - - knowledgeable about such vehicles, who've driven such vehicles with a view to testing that they're working properly, and coming out through the same - - along the same pathway as Mrs Johnson was travelling and trying to find out whether or not the vehicle could stay within the first lane. His evidence will be that it was impossible to do so, and that - -
HIS WORSHIP: Well, you know, that might be so. This is like, in my view, comparing Michael Schumaker (sic) driving a Ferrari motor car with me. I mean, there's no doubt Michael Schumaker (sic) can manoeuvre a Formula 1 car much better than I can or ever could ever expect to do. So how can you have me come to the conclusion that he's an expert? He's not an expert. He's a mechanic. He's not an expert on the driving of a motor vehicle, whether he tries his best or not, because he could never replicate the position of Mrs Johnson's motor vehicle on the 20th of November of 2002.
MR MEAGHER: It would be impossible to do, sir.
HIS WORSHIP: Yes.
MR MEAGHER: Because the time has gone on and - - however, look, I won't - -
HIS WORSHIP: Well, I'm not going to allow it anyway. I'm not going to allow him to give evidence with regards to his manoeuvring of this motor vehicle in or out of the apartments. He is not an expert witness. There's no body of learning behind what he's trying to tell us. He's a motor mechanic and that's where it finishes. I accept he's a motor mechanic and that's the end of it."
(Page 15)
43 The appellant complains about this ruling which was in effect a repetition of the ruling made earlier.
44 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.
45 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.
46 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 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.
47 Counsel for the appellant referred to the High Court's decision in Weal v Bottom (1966) 40 ALJR 436 where witnesses gave evidence about
(Page 16)
- the behaviour of an articulated vehicle that would have a tendency to "drift" out when travelling around a curve in a road so that the rear of the trailer would not be trailing exactly behind the prime mover. That evidence was held to be admissible. It was said (at 438) that in truth the evidence of that kind was not the expression of an opinion. Rather, it was evidence of the capability of the vehicle as a fact within the witness's experience or observation. The witness Coomber in that case had driven articulated vehicles for 18 years around the curve in question. He was therefore qualified by long experience to say how articulated vehicles behaved when driving around the curve.
48 It was also said at 438 that:
"The fact to be proved was the possibility of the rear end of the tank trailer being over the midline of the road at the critical time. The possibility involved the behaviour of an articulated vehicle in the particular circumstances which I have detailed. That possibility would need to be made out, not by evidence of what the particular vehicle was observed to do this day, but by evidence as to what such a vehicle, because of its nature, was capable of doing in the given circumstances."
49 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.
50 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.
51 For all of those reasons, I dismiss all grounds of appeal.
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