Lingard v Dearnley [No 5]
[2008] WASCA 29
•18 FEBRUARY 2008
LINGARD -v- DEARNLEY [No 5] [2008] WASCA 29
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 29 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | SJA:1079/2004 | 17 DECEMBER 2007 | |
| Coram: | STEYTLER P MILLER JA BEECH AJA | 17/02/08 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | GARY EDWARD LINGARD NICHOLAS DEARNLEY |
Catchwords: | Traffic law Road traffic offence Regulation 126(2) of the Road Traffic Code 2000 (WA) Minor traffic offence Evidence Second review of decision of single judge of appeal refusing appellant's application for leave to appeal 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) |
Legislation: | Criminal Appeals Act 2004 (WA) Justices Act 1902 (WA), s 187(1), s 206A Road Traffic Code 2000 (WA), reg 126(2) Supreme Court Act 1935 (WA), s 62 |
Case References: | Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hedge v Thurstun [2001] WASCA 43 Lingard v Dearnley [2004] WASCA 306 Lingard v Dearnley [2005] WASCA 122 Lingard v Dearnley [2007] WASCA 82 Mitchell v Myers (1955) 57 WALR 49 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Weal v Bottom (1966) 40 ALJR 436 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- MILLER JA
BEECH AJA
- 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
(Page 2)
Catchwords:
Traffic law - Road traffic offence - Regulation 126(2) of the Road Traffic Code 2000 (WA) - Minor traffic offence - Evidence - Second review of decision of single judge of appeal refusing appellant's application for leave to appeal - 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)
Legislation:
Criminal Appeals Act 2004 (WA)
Justices Act 1902 (WA), s 187(1), s 206A
Road Traffic Code 2000 (WA), reg 126(2)
Supreme Court Act 1935 (WA), s 62
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D M Meagher
Respondent : Ms J C Pritchard
Solicitors:
Appellant : Denis Meagher
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hedge v Thurstun [2001] WASCA 43
Lingard v Dearnley [2004] WASCA 306
(Page 3)
Lingard v Dearnley [2005] WASCA 122
Lingard v Dearnley [2007] WASCA 82
Mitchell v Myers (1955) 57 WALR 49
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Weal v Bottom (1966) 40 ALJR 436
(Page 4)
1 STEYTLER P: This application for review of the judgment of a single judge of this court has an extraordinary history.
2 On 12 July 2004, the appellant was convicted, after a trial before a magistrate, of an offence under reg 126(2) of the Road Traffic Code 2000 (WA) (Code). The offence was one of failing to give way, when moving his car laterally from a single marked lane of traffic, to a vehicle in the marked lane of traffic into which his car was moving. He was fined $100.
3 The appellant was given leave to appeal against his conviction. The appeal was heard by Pullin J. On 21 December 2004, he dismissed the appeal: Lingard v Dearnley [2004] WASCA 306. The appellant applied for leave to appeal against the decision of Pullin J. On 17 March 2005, Pullin J dismissed that application.
4 On 30 March 2005, the appellant filed a renewed application for leave to appeal from the decision of Pullin J. That application came before Wheeler JA, sitting as a single judge of the Court of Appeal. She heard the renewed application on 17 May 2005. On 1 July 2005 she dismissed that application: Lingard v Dearnley [2005] WASCA 122.
5 On 7 July 2005 the appellant applied to this court for review of Wheeler JA's decision. That application (first review) was heard by McLure JA and Buss JA. They delivered their respective reasons on 24 April 2007. They were unable to agree on the result: Lingard v Dearnley [2007] WASCA 82. McLure JA would have dismissed the review application. Buss JA would have set aside Wheeler JA's decision and granted leave to appeal in relation to two of the three issues raised in the review proceedings.
6 Section 62 of the Supreme Court Act 1935 (WA) provides that, if the Court of Appeal is constituted by two judges of appeal and they are divided on the decision to be given on a question, any party to the appeal may, within a month after the date of delivery of the judgments, serve a notice requiring the appeal to be reheard by the Court of Appeal constituted by three or more judges of appeal. The appellant was offered the option of adding a third judge to the panel, upon the basis that he or she would rely upon the transcript of argument before the first two judges. That offer was declined. The appellant insisted upon a rehearing by three different judges of appeal. Consequently, issues that have already been considered by one judge of the General Division of this Court and three judges of the Court of Appeal must now be considered by an additional three judges of the Court of Appeal.
(Page 5)
7 Because the application heard by Wheeler JA was filed in March 2005, it was governed by s 206A(4) of the Justices Act 1902 (WA) (Act). Section 206A(4)(f) required the application to be determined in accordance with the test provided for by s 187 of the Act. That is so for reasons given by McLure and Buss JJA in the first review at [3] - [5] and [38] - [48] respectively. Wheeler JA was consequently required to grant leave to appeal unless she considered that the appeal was 'frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case': s 187(1) of the Act.
8 Wheeler JA considered that the issues raised by the grounds of appeal (some of which she described as 'nonsense') boiled down to two issues ([2], [3] and [4] of her judgment). In considering the test for a grant of leave in respect of each issue she mistakenly applied the test under the Criminal Appeals Act 2004 (WA), which is that leave should not be granted unless the appellant establishes that the appeal has a reasonable prospect of succeeding, as that test was explained in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55] - [56]. That appears to have been the test that both parties invited her to apply. However, nothing turns on that error as Wheeler JA found, in respect of each of the two issues, that the appeal had no prospect of success [12], [15]. That finding necessarily amounted to a finding that the grounds did not disclose an arguable case. Counsel for the appellant did not raise any contrary contention before us.
9 Section 206A(3a) of the Act provides that, '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'. In the first review, Buss JA found it unnecessary to express an opinion on the question whether that section contemplates a rehearing de novo [53]. McLure JA proceeded on the basis that the court was required to make its own assessment whether any of the appellant's grounds of appeal disclosed an arguable case [6]. I am content to proceed upon the latter basis.
The charge brought against the appellant
10 The appellant was summonsed upon a complaint pursuant to the provisions of the Act. The summons alleged that on 20 November 2002 the appellant, whilst driving his car on Wellington Street, Perth, 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
(Page 6)
- moving. He was said thereby to have infringed reg 126(2) of the Code. That regulation reads as follows:
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.
Undisputed facts
12 There are some undisputed facts. These are as follows.
13 On 20 November 2002 Mrs Cheryl Johnson was driving a Nissan Patrol. Her car was stationary in the driveway of the 'City Stay Apartments', located on the southern side of Wellington Street, just before the intersection of Wellington and Sutherland Streets in West Perth. She was waiting to turn left (or west) into Wellington Street. She intended to drive down Wellington Street in a westerly direction towards the intersection between Wellington and Havelock Streets. While Mrs Johnson was waiting to turn into Wellington Street, Mrs Hilda Opacak was driving her Ford Laser in the kerbside lane in Wellington Street. She was travelling in a westerly direction. She saw Mrs Johnson's Nissan waiting to pull out into the traffic. She motioned her to pull out in front of her own car. Mrs Johnson then drove her Nissan out of the driveway and into the kerbside lane, in front of Mrs Opacak's car.
14 At that time, the appellant was also driving his Humber motor vehicle in a westerly direction in Wellington Street. He was driving in the lane adjacent to the kerbside lane (there were two lanes enabling traffic to travel in a westerly direction past the intersection of Wellington and Sutherland Streets). After Mrs Johnson's Nissan had entered the kerbside lane in Wellington Street there was a collision between the appellant's Humber and Mrs Johnson's Nissan. How and where the collision occurred were in dispute.
The scene of the accident
15 Photographs of the area in which the accident occurred were tendered at the trial. These reveal that, immediately before the intersection of Wellington and Sutherland Streets, there are four marked lanes in Wellington Street for use by traffic travelling in a westerly
(Page 7)
- direction. However, two of these are marked with arrows requiring traffic to turn right into Sutherland Street. Traffic intending to continue west down Wellington Street, after the intersection, must do so in the kerbside lane or in the lane adjacent to it.
16 The intersection between Wellington and Sutherland Streets is controlled by traffic lights. When the lights facing east on Wellington Street are red, traffic travelling in a westerly direction is required to stop behind a white line which is marked at the eastern side of the intersection. Between that line and the western end of the intersection there are no marked lanes. The marked lanes resume at the western end of the intersection. These continue until the commencement of the next intersection, between Wellington and Havelock Streets.
17 The traffic lights facing traffic travelling in a westerly direction on Wellington Street at the Sutherland Street intersection are located at the eastern end of the intersection (on the southern kerbside and on a kerb in the middle of Wellington Street) and also at the western end of the intersection.
18 The exit from City Stay Apartments is located immediately prior to the line at which west-bound traffic on Wellington Street is required to stop when facing a red light at the Sutherland Street intersection.
The evidence at trial
19 The principal witnesses at the trial were Mrs Johnson, Mrs Opacak and the appellant. There were other witnesses. However, it is necessary to refer to only one of them, Mr Stuart Davis, a mechanic who had serviced the appellant's car after the collision. I will refer to the evidence of each of these four witnesses in turn.
Mrs Johnson
20 Not long after the accident, on 2 December 2002, Mrs Johnson gave a written statement to a police officer. In it, she described the accident in the following way:
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.
21 The statement included a sketch. The sketch is not particularly helpful. It shows that the collision took place after the front of
(Page 8)
- Mrs Johnson's Nissan had passed through the Sutherland Street intersection. However, it also shows the rear end of her car partly adjacent to the City Stay Apartments' driveway. The driveway is shown as being directly opposite Sutherland Street when that is not the case. The appellant's car is shown as having passed completely through the Sutherland Street intersection. There is a circle drawn directly in front of Mrs Johnson's car. There is also a note on the sketch indicating that there are traffic lights. This note is presumably intended to refer to the circle. The circle is shown in front of the City Stay Apartments but, confusingly, after the Sutherland Street intersection.
22 The statement and sketch were tendered at the trial.
23 In her evidence at the trial, Mrs Johnson said that the point of collision 'wasn't far after [she] went through the traffic lights'. She showed the point of collision on a diagram she had drawn on a whiteboard. There is now no record of that diagram. In the course of showing the point of collision, she said:
It would've been around about here. It wasn't far after I went through the traffic lights … I think … the back end of my vehicle could have still been … back here … and the front end …
- She was then asked if she was indicating that her car was 'partially in the intersection past the lights'. She answered, 'Yes'.
24 When asked what speed she had been doing at the time of the collision, she said that she 'would've been lucky if [she] was doing 20 kilometres [per hour]' because she had 'only just really started to go because [she] came out very slowly out of the driveway'. She said that no part of her car entered the lane adjacent to the kerbside lane and that, once she started driving through the lights, she saw the appellant's car 'come across into [her] lane'. She said that she 'felt a bump and then [the appellant], sort of, pulled out again, went up and pulled in front of me but on an angle'. She said that when she saw the appellant's car first start to come across into her lane his car was slightly in front of her car on the driver's side.
25 In the course of cross-examination, Mrs Johnson said that she did not see the appellant's car at any time when she was making her turn into Wellington Street. She said that the appellant's car came across into her lane after she had 'straightened up'. When asked how far she had 'moved along', she said that the back end of her car 'may still have been at the traffic lights, where the traffic lights were, where I had come out of the
(Page 9)
- driveway'. She did not say whether she was referring to the traffic lights at the western or eastern end of the intersection.
26 Mrs Johnson's evidence was clear, on a number of occasions, that the collision occurred after she saw the appellant's Humber in front of her car and coming across into her lane. She said, in the course of cross-examination, 'I saw him come and I thought, "No he's not coming into my lane" and then I felt the impact'.
27 Mrs Johnson also confirmed, when cross-examined, that after the collision the appellant drove back into his lane, sped up, and then pulled up in her lane at an angle in front of her car.
Mrs Opacak
28 In her evidence at the trial, Mrs Opacak said that she had allowed Mrs Johnson's car to enter her lane. She said that, 'As we travelled off I noticed a car veering into the left lane, which we were both in … ' She said that 'We'd just gone through the traffic lights so it was … within a few seconds I saw it and I thought, "I can't believe he's going into that lane"'.
29 Mrs Opacak also said that Mrs Johnson's Nissan proceeded along Wellington Street after she had allowed it to enter and that she 'followed after'. She was asked how far Mrs Johnson's car had proceeded when she saw the appellant's car. She responded, 'Well, we were both travelling so it would have only been a few metres. It was before the Havelock Street lights'. When asked what speed she was doing, she said, 'Well, it probably would have been only 20 kilometres [per hour] - not even'. When asked what she saw she said, 'All I saw out of the corner of my eye was this car veering - 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 … '. A little later in her evidence the following exchange occurred:
How far had you proceeded? After the Patrol pulled into your lane - - ?---Mm hm.
- - how far up the road had you proceeded when this actually - - actually happened?---Not too far at all. It was only a few metres.
30 Mrs Opacak said that no part of Mrs Johnson's car went into the second lane at any stage. When asked how the lanes were marked, she said, 'I think it was unbroken lines. The middle - - the one separating the flow of traffic would have been a full line, unbroken line'. It is unclear
(Page 10)
- whether she was then referring to the lanes at the point at which her car was still stationary (where the white lines were unbroken) or those at the point of collision described by her (where they were not). However, it is likely that she was referring to the former point, given the context in which the question was asked (immediately after she had been asked whether she saw any part of the Nissan Patrol go into the second lane).
31 Prior to the trial, on 21 February 2003 (some three months after the accident), Mrs Opacak had given a statement to an insurance company, RAC Insurance Ltd. In it, she said that, after allowing the Nissan Patrol to enter her lane:
[T]he 'Patrol', as well as myself, proceeded along Wellington Street in the same direction (me being behind the 'Patrol'). I then saw the 'Humber' entering the lane that the 'Patrol' and I were in. It happened within seconds and I was unable to sound my horn in warning before the 'Humber' collided with the 'Patrol'. It was very clear the driver of the 'Humber' was at fault … Both the Patrol and I were already travelling at the time of the collision.
32 Mrs Opacak's statement included a diagram which indicated that the collision occurred on Wellington Street, just before the intersection of Wellington and Hay Streets. The statement was tendered at the trial. In her oral evidence, Mrs Opacak said that she had intended to refer to the intersection of Wellington and Havelock Streets and that the reference to Hay Street was an error.
33 During the course of cross-examination, Mrs Opacak was asked by the magistrate to clarify where the collision had occurred. She said that it occurred halfway between Havelock and Sutherland Streets. However, that evidence must be considered together with her (mistaken) evidence that 'there was only a few metres' to the Havelock Street intersection from the entry point of the City Stay Apartments.
34 Mrs Opacak was also asked, in the course of cross-examination, when she first saw the appellant's car. She answered, 'While we were travelling on the road. I was not stationary'. When asked how far in front of her car the appellant's car was when she first saw it, she responded by saying that she could no longer say 'specifically', but that she believed that it was about two car lengths in front of her car.
The appellant
35 Half of the appellant's evidence at the trial was not transcribed. However, the magistrate's notes of that part of his evidence have been
(Page 11)
- made available. The notes indicate that he said that he first saw Mrs Johnson's car while it was still in the driveway of City Stay Apartments. He said that, as he approached the white line immediately prior to the intersection, Mrs Johnson's car came out and hit his car on its rear left side. The magistrate's notes then record that the appellant said, 'I kept in my lane - past the intersection'.
36 Shortly after the accident, on 22 November 2002, the appellant had given a statement to police concerning the collision. It was accompanied by a map. The statement read 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 and Sutherland Streets, 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 at 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 a hotel/motel on the left hand side. As I proceeded, vehicle 2 engaged to turn into the inside lane but the front right hand side of vehicle 2 (in particular, the bull bar) encroached to my lane and hit the left hand rear panel and door of my vehicle (vehicle 1). I was wearing a seatbelt at the time.
37 In his evidence at the trial, the appellant said that this statement was accurate. Later in his evidence, when cross-examined, he was asked where his car contacted the other car. He responded, 'At the traffic control lights at the intersection'.
38 The appellant also gave evidence concerning the cost of repairing his car. He did so by tendering an estimate that he had obtained from a firm of motor vehicle repairers, Stokes & Renk. That firm had provided him with a written estimate dated 26 November 2002. The work quoted for included the following, under the heading 'Remove & Replace'.
L R door fittings
L R quarter panel moulds
Rear bumper
Tailamps [sic]
Boot trims
(Page 12)
39 The estimate recorded that it would be necessary to repair and align 'L R door' and L R quarter panel'. Under the heading 'Refinish', the following appeared:
L R door
L R dog leg
L R quarter panel
40 There was also a heading, 'Parts Required'. The only part listed under that heading is 'L R door handle'.
41 The appellant was cross-examined about this estimate at some length. He was asked, first, to describe the damage to his car arising from the collision. He said:
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. Some people call it the mud guard area.
- He was then asked about the estimate. He acknowledged that, notwithstanding that these items were mentioned in the quotation under the heading 'Remove & Replace', no work had been required, as a result of the accident, in relation to the boot trims or the tail lights. The following exchange then took place:
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.
Mr Davis
42 I have said that Mr Davis was a mechanic. The appellant had been a customer of his for some time. He said that, when he serviced the appellant's car at least six months before the trial, he noticed that the rear passenger side door had been damaged. He said that the door had been pushed in and that the door handle was almost ripped out of its socket. He said that the dent to the door affected 'three-quarters of the width of the
(Page 14)
- door including the door handle'. He said that the damage had 'continued on past the door' and that there had been some scratching and denting over the top of the wheel.
43 Mr Davis also said that Mrs Johnson's Nissan had a steering circle with a radius of 6.7 m and a diameter of 13.4 m. However, when counsel for the appellant sought to lead opinion evidence from Mr Davis concerning the probable behaviour of Mrs Johnson's vehicle on exiting the City Stay Apartments, the magistrate would not permit him to do so. He said that Mr Davis had given no evidence that would qualify him to express an opinion about 'driving the car'. He went on to say:
He has 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. Unless he's had some experience in competition driving or advanced driving skills, or whatever, he's not an expert driver. He's a mechanic.
The magistrate's reasons
44 In his reasons for finding the charge proven, the magistrate referred to the evidence of each of the appellant, Mrs Johnson and Mrs Opacak. He mentioned that there had been 'some difference' between Mrs Johnson and Mrs Opacak 'as to the point of impact of the vehicles', in particular 'whether or not it was at the intersection or between the intersection and Havelock Street'. He mentioned that Mrs Opacak had said that there was not much distance between the two but that there was in fact some considerable distance between the two points. He went on to say:
However, it doesn't alter the fact that Ms Opacak says that at no time did … Mrs Johnson's vehicle … enter the lane upon which Mr Lingard was travelling, nor did any part of her vehicle enter that right-hand lane. She says that her … vision was clear, that she saw the defendant'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 defendant's vehicle then collided with Mrs Johnson's vehicle, which was at that point in its correct lane.
45 The magistrate referred to the diagram that had been drawn by Mrs Johnson in court. He said that this 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'. Counsel for the appellant suggested that this last reference was
(Page 15)
- one to his closing submissions in the course of which he had mentioned that the drawing made by Mrs Johnson in court demonstrated that the collision had taken place 'right by the corner, just near the traffic light'.
46 The magistrate found that Mrs Johnson had given an honest and reasonable account of what transpired on the day of the collision. He said that she was 'precise and frank' in her evidence.
47 He said, of Mrs Opacak, that she was the only independent witness to the events. He said that her evidence, too, was 'clear and concise [sic] with regards to what she saw on this particular day'. Towards the end of his reasons, the magistrate said that he had no hesitation in accepting the evidence of Mrs Johnson and Mrs Opacak. He found that the appellant had failed to signal his intention to turn to the left and that his car had moved laterally from his lane and, in the course of doing so, failed to give way to Mrs Johnson's car which was travelling correctly in the left hand lane.
48 The magistrate rejected the appellant's evidence. He said, in this respect:
Now, if I might just return to the damage [to] the defendant'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 the - - and 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 lamps, 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 defendant 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 of 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.
(Page 16)
- I also, from my observation, observed Mr Lingard 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.
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.
Pullin J's reasons
49 The appellant raised 17 grounds of appeal against the magistrate's decision. Pullin J found that these reduced to the following three 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 Patrol, similar to Mrs Johnson's to turn into Wellington Street and stay within the kerb side lane.
50 Pullin J found that none of those points had any substance.
51 As to the first of them, he said that this boiled down to a submission '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' [16]. Having referred to some of the material evidence in that respect, and also to the magistrate's reasons, he found no error on the part of the magistrate. He said that it was clear, once the magistrate rejected the appellant's version of events and accepted the prosecution evidence, that the collision occurred to the west of the intersection and that that was where the movement of the appellant's vehicle from his lane to the kerbside lane occurred [26]. In the course of his analysis of the evidence, Pullin J said that no witness had said that the collision occurred in the intersection [16]. The prosecution witnesses had said that it happened to the west of the intersection and the appellant had said that it
(Page 17)
- happened immediately before the intersection. He said that, in 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 [20].
52 As to the second point, Pullin J rejected a number of submissions that had been put up on behalf of the appellant. In the course of doing so he said [31] - [32]:
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.
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.
53 He went on to say that the magistrate had very carefully set out the evidence which had been led by each of the three critical witnesses, that he had referred to the material discrepancies and that he had then decided to reject the evidence of the appellant and to accept that of Mrs Johnson and Mrs Opacak [35]. He also said that the decision to reject the appellant's evidence was based both on his demeanour in the witness box and also because aspects of his evidence had been unsatisfactory, in particular, his evidence concerning the quotation for the repair of his vehicle. He rejected a submission to the effect that the evidence of Mrs Johnson and Mrs Opacak had been glaringly improbable.
54 As to the appellant's third point, Pullin J accepted that it would have been permissible for the appellant to lead evidence from Mr Davis
(Page 18)
- concerning the ability of Mrs Johnson's vehicle to turn from the City Stay Apartments into Wellington Street without crossing into the lane adjacent to the kerbside lane. Pullin J said, in this respect [45] - [46]:
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 the 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 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.
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.
The reasons of Wheeler JA
56 Wheeler JA, in the course of dismissing the renewed application for leave to appeal against the decision of Pullin J, rightly described the appellant's grounds as 'extraordinarily prolix' [2]. I have said that she was
(Page 19)
- able to distil those grounds to two issues. She described these grounds in her reasons as follows [4]:
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.
58 Wheeler JA went on to say that there was, in any event, evidence that there had been markings on the road at the material place. She said that there had been the diagram on the whiteboard, but that this had not been preserved or reproduced. She referred to aerial photographs of the scene which depicted marked lanes along the length of Wellington Street save for those portions of the road which were within the area of the intersection [6]. Then, she referred to the three diagrams. The first of these was the appellant's diagram, which showed that the accident occurred in the middle of the Sutherland/Wellington Street intersection, where no lanes were marked. The second was Mrs Johnson's diagram, which showed that the accident occurred just after the intersection, at a place where lanes were marked. The third was Mrs Opacak's diagram, which showed that the accident had happened after the intersection, at a place where lanes were marked (she, like Mrs Johnson, had drawn the markings on her diagram). Wheeler JA went on to say [8] - [12]:
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
(Page 20)
- 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
(Page 21)
- 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.
59 Wheeler JA then turned to the second issue. She said, in this respect [13] - [15]:
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.
(Page 22)
- 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.
The issues in the review
60 There are six grounds of complaint raised in the review. The same grounds were raised in the first review. McLure and Buss JJA distilled these grounds and their particulars, to the following three propositions (they are enunciated by Buss JA at [79]):
(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.
The first issue
61 As Buss JA pointed out in the first review, the magistrate rejected the appellant's evidence for three reasons. The first was his adverse finding in relation to the appellant's demeanour in giving his evidence. The second related to the appellant's evidence and concessions concerning the Stokes & Renk estimate. The third was his acceptance of the evidence of Mrs Johnson and Mrs Opacak.
62 As will be apparent, the appellant conceded, in cross-examination, that he had presented the Stokes & Renk estimate to the court upon the basis that it reflected the damage caused to his car as a result of the collision. He also conceded that the estimate included items of damage that were not caused by the collision.
63 As Buss JA said in the first review, there may be an innocent explanation for the items thought by the magistrate to have been significant. Buss JA points out that [86]:
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.
64 It is significant that, as explained by McLure JA [11], the point was raised, for the first time, in the first review. By then the matter had passed through three sets of judicial hands. I am not persuaded that there is any basis for allowing the appellant now to rely upon the point. At trial, neither he nor anyone on his behalf suggested the explanation which is
(Page 24)
- now offered. The appellant went so far as to say, in his evidence, that he might have asked Stokes & Renk to give him an estimate in respect of other repairs necessary for the upkeep of his car. The submission that was made on the appellant's behalf at the trial was that the quotation should be accorded no significance solely because the appellant had not noticed the additional items in it. The new ground is inconsistent with the way the trial was conducted on behalf of the appellant.
65 In any event, given the threefold basis for the magistrate's rejection of the appellant's evidence, it seems to me to be unlikely that, if he had appreciated that there may have been an innocent explanation for the quotation, he would have arrived at any different conclusion concerning the appellant's credibility. There is no doubt that the magistrate regarded the appellant's evidence concerning the quotation as significant. However, it is plain that he was impressed by the evidence of Mrs Johnson. He was also impressed by the evidence of Mrs Opacak, who, he repeatedly mentioned, was the only independent witness.
66 The evidence of each of these women was entirely inconsistent with the circumstances of the accident as they were described by the appellant. His evidence was that the accident was caused by Mrs Johnson encroaching into his lane, and not by him encroaching into her lane.
67 Mrs Johnson was very clear in her evidence that she had not encroached into the adjacent lane. I have mentioned that she said that she had often made the turn from City Stay Apartments into Wellington Street and that she was able to do so without encroaching into the second lane. Moreover, she was confident that she had driven some distance forward before the collision occurred. She was also confident that the cause of the collision was the appellant turning into her lane.
68 Mrs Johnson's evidence was supported by the independent evidence of Mrs Opacak. As will be apparent, she said that Mrs Johnson's vehicle did not, at any stage, enter the lane in which the appellant's vehicle was travelling. She, too, said that the collision took place some time after Mrs Johnson's vehicle had left the intersection (albeit there was some conflict between the two women concerning how far Mrs Johnson had travelled before the collision took place). She was certain that she had seen the appellant's vehicle move towards Mrs Johnson's vehicle, without indicating, in circumstances in which a collision was inevitable.
69 Counsel for the appellant suggested, in argument, that Mrs Opacak had not seen the collision at all. He said that her description of the
(Page 25)
- accident was such as to indicate that she had seen only the incident when the appellant had sped up and then pulled over in front of Mrs Johnson's car, forcing her to stop, and that she had assumed that this was when the collision took place. He said that this would explain why she said that the collision had happened close to the Havelock Street intersection and also why she said that the appellant had cut in front of Mrs Johnson's car.
70 However, she was clear in her evidence (and in her statement) that she had seen the collision. It was never put to her that she had not seen it. She also agreed that she saw 'one car pull away from the other' after the collision and before the two cars pulled up at the side of the road.
71 Also, as I have pointed out, her evidence as regards the place of the collision indicates that she had some problems in estimating distances. Although she said that the collision occurred halfway between the Sutherland Street intersection and the Havelock Street intersection, she also said, when asked about the speed at which the Nissan 'took off', that she 'couldn't have been travelling that fast' because 'there was only a few metres before the next intersection'.
72 It is plain that the magistrate found that each of the two women was credible (although he found that Mrs Johnson had been mistaken in her recollection of the force of the collision and of the extent of the damage caused by the collision, the last being a matter which, he said, she had no reason to 'take particular note of'), and that each had given evidence in a precise and honest manner. He said of Mrs Johnson that he 'could detect nothing in the way in which she gave her evidence which would lead [him] to conclude that she did not give an honest and reasonable account'. It was open to him to reach that conclusion notwithstanding that she had erred in the respects to which he referred. Consequently, and because the circumstances described by the appellant directly conflicted with those described by the two women in a number of respects, it seems to me to be most unlikely that the magistrate would have arrived at any different conclusion, had he recognised that there might have been an innocent explanation for the estimate from Stokes & Renk. This is especially so in circumstances in which he had obviously formed an adverse view of the appellant's demeanour. It is important to bear in mind, in this respect, that, having mentioned his conclusions arising from the Stokes & Renk quotation, he said:
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
(Page 26)
- 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 2000. (emphasis added)
73 This is not a case in which there are incontrovertible facts or uncontested testimony that demonstrate that the conclusion arrived at by the magistrate in respect of the credibility of the two women is erroneous. Nor is the conclusion arrived at by the magistrate one that was glaringly improbable or contrary to compelling inferences in the case: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
74 Because the point now raised in relation to the Stokes & Renk quotation has not previously been raised, and because it seems to me that any error in that respect would not have influenced the decision of the magistrate, I would not be prepared to countenance the point at this late stage. There being no other arguable proposition raised by the appellant's contentions in respect of the first issue, I am not persuaded that Wheeler JA made any error in refusing leave to appeal in respect of that issue.
The second issue
75 Central to the second issue is the proposition that Wheeler JA should have found that Pullin J erred in failing to find that it had not been open to the magistrate to conclude, beyond reasonable doubt, that the collision occurred outside the intersection, where there were marked lines. I have said that, notwithstanding that reg 126(2) of the Code makes it an offence not to give way, on moving laterally, to a vehicle travelling in the same direction in a marked lane, or line of traffic, the complaint was framed only in terms of a movement from one marked lane to another.
76 The magistrate made no express finding as regards the point of collision. That is explicable by the fact that there was no issue at the trial as to whether or not the collision occurred where there were marked lines. That issue was not raised in examination-in-chief or in cross-examination, although it is apparent from the evidence of each of Mrs Johnson and Mrs Opacak that they believed that the point of collision had been at a place where there were marked lanes. Rather, as counsel for the appellant has since acknowledged, the focus at the trial was on the question whether the appellant had cut in front of Mrs Johnson or whether she had transgressed by driving part of her car into his lane. Had the issue of marking been raised, the prosecutor would (if he had thought that it had any substance) have had the option of applying to amend the complaint to
(Page 27)
- refer to a line of traffic rather than to a marked lane: s 46 of the Act; Mitchell v Myers (1955) 57 WALR 49; Hedge v Thurstun [2001] WASCA 43 [22] - [25] (Roberts-Smith J).
77 It is true, as Buss JA pointed out in the first review [94], that there is some ambiguity in Mrs Johnson's evidence [94] - [99]. Her evidence that the collision occurred not far after she 'went through the traffic lights' and that her vehicle was 'partially in the intersection past the lights' when the collision occurred is capable of being understood in two senses. The same is true of her evidence that the back end of her car 'may still have been at the traffic lights, where the traffic lights were, where I had come out of the driveway'. One sense is that the collision occurred shortly after the lights at the eastern end of the intersection. This understanding of her evidence would be consistent with her statement that the back end of her car may still have been at the traffic lights when she had come out of the driveway (although it is not clear what she meant by 'at', or whether her reference was intended to be one to all four traffic lights - and hence to the intersection - or only to the traffic lights at the eastern edge of the intersection). The other sense is that it occurred shortly after the lights at the western end of the intersection. That understanding is consistent with her statement that there were marked lanes where the collision occurred and with her evidence that her car had completely straightened and was moving forward at the time of the collision and that it was by then travelling at up to 20 km per hour.
78 I have said that the sketch that Mrs Johnson drew for the purposes of the police report was of little assistance. I have also said that the diagram drawn by her on a whiteboard no longer exists. However, the magistrate observed Mrs Johnson giving evidence and had the benefit of the diagram to which she pointed on the whiteboard. I have mentioned that he said that her evidence in respect of that diagram accorded with her evidence that the point of collision was 'across the intersection, not on the intersection as has been pointed out by counsel'.
79 Counsel for the appellant argued that the words 'as has been pointed out by counsel', taken together with the reference to his submissions at the trial to which I have earlier referred, demonstrate that, by this comment, the magistrate meant that Mrs Johnson's Nissan had been across the first traffic light at the intersection, but that the front of it was still in the intersection when the collision occurred. I am not at all sure that that is so. The magistrate's comment that the whiteboard diagram accorded with Mrs Johnson's evidence that the point of collision 'was across the intersection, not on the intersection as pointed out by counsel' is also
(Page 28)
- capable of being read as a rejection of what was pointed out by counsel in his closing submissions. However the magistrate intended that comment to be understood, it is plain from his use of the words 'across the intersection, not on the intersection', when referring to Mrs Johnson's evidence regarding the place of the collision, that he meant that the front of Mrs Johnson's car had completely crossed the intersection.
80 It also seems to me to be plain from the magistrate's reasons, read as a whole, that he was satisfied that the collision occurred on the western side of the intersection, and not within it. That would be true even if the back part of Mrs Johnson's vehicle was still within the intersection, given that he had found that the collision occurred when the appellant's vehicle cut across Mrs Johnson's vehicle and was struck by the front of it. I have said that the damage to the appellant's vehicle was on the rear passenger door.
81 The magistrate's conclusions in this respect were supported by the evidence. I have earlier mentioned Mrs Opacak's evidence that the Nissan had passed through the intersection before the collision occurred. Each of Mrs Johnson and Mrs Opacak said that Mrs Johnson had driven forward before the impact. Both said that her speed could have been up to 20 km per hour at the time of the collision. Mrs Opacak said that the Nissan had proceeded along Wellington Street and that she had followed it before she even saw the appellant's car. I have said that her evidence was that the appellant's car was then about two car lengths in front of her car. If that evidence was correct (the magistrate accepted it, as he was entitled to do), the appellant's car could not still have been in the intersection at the point of collision, given that (as I have said) the driveway of the City Stay Apartments intersects Wellington Street immediately before the eastern end of the Sutherland Street intersection.
82 I am consequently not persuaded that Wheeler JA made any error in refusing leave to appeal in respect of this second issue.
The third issue
83 As to the third issue, I am not persuaded that Pullin J made any error in dismissing the complainant's contention that the failure to admit the evidence of Mr Davis was sufficient cause to overturn the judgment of the magistrate. I should add that I would query the entitlement of the appellant to have a question on which McLure and Buss JJA were not divided re-determined under s 62 of the Supreme Court Act. Although s 62 speaks of an entitlement to have the 'appeal' reheard, that is in a
(Page 29)
- context in which the entitlement arises only because the two judges of appeal are divided on the decision to be given on 'a question'. It is questionable whether the legislature intended that, where more than one discrete and severable question falls for decision and the judges are divided on the decision to be given on only one or some of the questions arising, all questions must be reheard by three or more judges of appeal. However, no submissions were directed to that issue and I will consequently put it to one side.
84 In my respectful opinion, the magistrate was right to conclude that Mr Davis should not be permitted to give evidence concerning an attempt to replicate or speculate about how Mrs Johnson had driven on the day of the accident. This case is unlike that of Weal v Bottom (1966) 40 ALJR 436, upon which counsel for the appellant relied. There was in the present case no ruling from the magistrate precluding evidence of the Nissan's turning circle, or of the road dimensions, being the only relevant evidence that Mr Davis could have given. He was not an expert in the driving of a Nissan Patrol. Nor did he know precisely how the Nissan had been angled, and where it stood, immediately prior to making the turn into the intersection (I have mentioned that Mrs Johnson said that she had made this turn, without crossing into the adjacent lane, on many occasions).
85 Mr Davis' evidence concerning the Nissan Patrol's turning capability was admitted. It was open to counsel for the appellant to argue, on the strength of that evidence, that it was likely that Mrs Johnson's vehicle had strayed into the adjacent lane. However, as Pullin J pointed out, the available evidence, so far as it was accepted by the magistrate, did not permit any such conclusion to be drawn and there was no reason why the magistrate should have drawn it. There was direct evidence from Mrs Johnson and Mrs Opacak that the Nissan did not enter the adjacent lane.
86 It accordingly seems to me, as it did to each of McLure and Buss JJA, that Pullin J was right for the reasons given by him and, consequently, that Wheeler JA was right to find that the grounds raising this issue do not disclose an arguable case.
Conclusion
87 I would dismiss the application for review. If, contrary to my opinion, any of the grounds raised an arguable case, I would have dismissed it, for the reasons I have given.
88 MILLER JA: I agree with Steytler P.
(Page 30)
89 BEECH AJA: I agree with Steytler P.
0
9
4