M, EG v Police - [2007] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
M, EG v POLICE
[2007] SASC 128
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice Kelly)
16 April 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
Appeal against conviction - appellant was convicted in Youth Court, after a trial by Judge alone, of offences of causing death and injury by culpably negligent or reckless driving - Judge convicted on the basis that he preferred the evidence given by a prosecution witness to the evidence given by the appellant and other witnesses - whether trial Judge erred in failing to give reasons to justify or explain his preference for the prosecution witnesses - Held: convictions set aside - verdicts of acquittal entered - conviction of driving without due care recorded - matter remitted to the Youth Court for the appellant to be sentenced - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 19A; Road Traffic Act 1961 (SA) s 45; Motor Vehicles Act 1959 (SA) s 75A; Youth Court Act 1993 (SA) s 14, s 22, referred to.
P v Police [1996] SASC S5677 (unreported, Full Court, 19 July 1996); VM v Police [2002] SASC 78; HA v Minister for Families and Communities [2006] SASC 339; R v Coventry (1937-38) 59 CLR 633; McBride v The Queen (1965-66) 115 CLR 44; Kroon v R (1990) 55 SASR 476; Liberato v The Queen (1985) 159 CLR at 515; R v Yusuf [2006] VSCA 117; Harris v Mill [1988] SASC 592 (unreported, Von Doussa J, 7 April 1988); Selig v Hayes (1989) 52 SASR 169; R v Keyte (2000) 78 SASR 68; R v Power (2003) 141 A Crim R 203; Fleming v The Queen (1998) 197 CLR 250, considered.

M, EG v POLICE
[2007] SASC 128
Full Court: Gray, Layton and Kelly JJ
THE COURT

This is an appeal against conviction.
The appellant was charged in the Youth Court that she:
1.On the 30th day of October 2004, at Morphett Vale in the said State drove a motor vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public and by that culpable negligence, recklessness or other conduct, caused the death of [RG]. Section 19A(1) of the Criminal Law Consolidation Act 1935.
2.On the 30th day of October 2004, at Morphett Vale in the said State drove a vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public and by that culpable negligence, recklessness or other conduct, caused bodily harm to [SN]. Section 19A(3) of the Criminal law Consolidation Act.
3.On the 30th day of October 2004, at Morphett Vale in the said State drove a motor vehicle, namely a motor sedan, on a road namely Wheatsheaf Road, without due care. Section 45 of the Road Traffic Act 1961.
4.On the 30th day of October 2004, at Morphett Vale in the said State was the holder of a learner’s permit who drove a motor vehicle upon a road namely Wheatsheaf Road, whilst the seat next to the said learner was not occupied by a person who held an appropriate licence to drive the said vehicle. Section 75a(5) of the Motor Vehicles Act 1959.
The appellant pleaded not guilty to counts one and two. The driving without due care charge, the third count, was an alternative to counts one and two. The appellant pleaded guilty to the fourth count. Following a trial by Judge alone in the Youth Court, the appellant was convicted on the first two counts.
Section 14 of the Youth Court Act 1993 (SA) relevantly provides:
(1)Subject to this section, the Court, when sitting to adjudicate on any matter must be constituted of a Judge or a Magistrate.
(2)The Court, when sitting to hear and determine a charge of a major indictable offence, must be constituted of a Judge.
A statutory right of appeal is provided by section 22 of the Youth Court Act. That section provides:
(1)A party to proceedings in the Court may appeal against any judgment given in the proceedings (including an acquittal on a charge of a summary or indictable offence) but an appeal does not lie against a judgment in a preliminary examination.
(2)     The appeal lies—
(a)     in the case of an interlocutory judgment given by a Magistrate or a special justice—to the Senior Judge;
(b)     in the case of an interlocutory judgment given by a Judge—to the Supreme Court constituted of a single Judge;
(c)     in the case of any other judgment given by a Magistrate or a special justice—to the Supreme Court constituted of a single Judge;
(d)     in the case of any other judgment given by a Judge—to the Full Court of the Supreme Court.
(3)On the appeal, the appellate court may exercise any one or more of the following powers:
(a)     it may confirm, vary or quash the judgment subject to the appeal and, if the court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)     it may remit the matter for hearing or further hearing;
(c)     it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
Authority suggests that the appeal is by way of rehearing and is to protect the appellant against any substantial miscarriage of justice.[1]
[1] P v Police [1996] SASC (unreported 55677, Cox, Perry and Lander JJ, 19 July 1996), VM v Police (2002) 128 A Crim R 308, H,A v Minister for Families and Communities [2005] SASC 339.
This appeal raises an important question concerning the approach to be taken by a Judge conducting a criminal trial alone to the evaluation of competing evidence.
Background Facts
Late in the evening of 30 October 2004, the appellant, a 16-year-old learner was driving a small hatchback motor vehicle. At the time she had five passengers –friends who were of similar ages, RG, KH, SN, MD and TV. The vehicle was overloaded resulting in one occupant sitting on another’s knee without a seatbelt. The appellant had turned over her L-plates to conceal her status as a learner driver. She did not have a licensed driver next to her.
The appellant was travelling in a suburban area. She turned left from Main South Road into Wheatsheaf Road to travel east. A collision occurred at a point between 100-200 metres east of that turn.
The appellant continued travelling east in the lane nearest the centre of Wheatsheaf Road. At this point there was another lane to her left for eastbound traffic on Wheatsheaf Road. As the appellant travelled on Wheatsheaf Road, she approached the junction of Wheatsheaf Road and Creighton Avenue on her left. As the appellant approached the junction a raised concrete strip in the centre of Wheatsheaf Road divided the north and south carriageways. At the eastern end of the concrete strip rumble bars extended for some metres ending at or about the junction. This strip was angled away from the concrete strip at an angle of almost 45°. Photographs tendered at the trial evidenced these matters. The accident scene was about 40 metres east of the junction.
The centre lane of Wheatsheaf Road for eastbound traffic changed direction in its approach to the Creighton Avenue junction. The centre lane veered to the right, that is, more to the south. The centre lane followed the course of the rumble strip. Accordingly, the natural manoeuvre for a vehicle travelling east and remaining in this lane would be to veer to the right. The centre lane then veered left and merged over a distance with the left lane for eastbound traffic on Wheatsheaf Road. The two lanes formed the one eastbound lane. Photographs tendered at the trial also evidenced these matters.
A driver travelling east in the centre lane of Wheatsheaf Road who wished to stay in the lane as the vehicle approached the Creighton Avenue junction, would first veer right and would then as the vehicle travelled through the junction, veer left. These manoeuvres would be necessary as a result of the changes in the direction of the centre lane and its merger with the left lane. If a vehicle stayed in the centre lane and veered right and did not then veer back to the left to stay within that lane, the vehicle would enter onto the incorrect side of Wheatsheaf Road.
The Prosecution Case
It was the prosecution case that the appellant’s vehicle, being driven east on Wheatsheaf Road within the speed limit, travelled through the Creighton Avenue junction. As it did so, the vehicle veered to the right, moved partly onto the incorrect side of the road, and then in a sudden and erratic manoeuvre, veered back to the left. The prosecution contended that in this process, the appellant lost control, drove into the northern kerb of Wheatsheaf Road and then collided into a tree, killing RG and severely injuring SN.
The appellant’s vehicle was in good condition, the road was clear and there was no traffic nearby. There was no evidence the appellant applied the vehicle’s brakes as she headed toward the northern kerb of Wheatsheaf Road.
An important aspect of the prosecution case was the allegation that the appellant deliberately drove her vehicle onto the incorrect side of Wheatsheaf Road before turning sharply left to return to the correct side. It was the prosecution case that a remark was made by one of the occupants in the car about the appellant’s status as a learner driver. It was in response to that remark that the prosecution said the appellant deliberately veered to the incorrect side of Wheatsheaf Road. The prosecution asserted that this was a deliberate and dangerous manoeuvre – in short, culpably negligent, reckless and dangerous driving.
The prosecution relied on evidence from MD and TV and two witnesses, Nicholas Barton and Amy Ottoway. Mr Barton and Ms Ottoway observed movements of the appellant’s vehicle whilst sitting in a vehicle in a car park of an oval on the southern side of Wheatsheaf Road. They were positioned to the east of the junction and to the east of the collision. An investigating officer testified as to a plan of the scene. Photographs of the accident scene and of the general location were tendered. Neither KH nor SN, the other two surviving passengers in the appellant’s vehicle, had any memory of the events leading to the collision and could not assist the Judge in relation to the contentious issues.
It is relevant to record that the prosecution’s final submissions with respect to the movements of the appellant’s vehicle were as follows:
Nicholas Barton provides the best evidence from his observations from what he saw [the appellant’s] car do as it was seen in the left turn lane at the intersection of South Road and Wheatsheaf Road, travelling at that safe speed to properly negotiate the turn onto Wheatsheaf Road, and then as I’ve said before drove in a normal manner until Creighton Road, when the vehicle veered to the right and then more sharply to the left, before colliding with the kerb. I say that those acts as seen by him are consistent with [MD] and [TV’s] evidence.
The Defence Case
At trial, the appellant gave evidence. She denied any deliberate movement to the incorrect side of Wheatsheaf Road. She admitted that in the moments before the collision she realised her vehicle was at least partially on the incorrect side of the road. She stated that she tried to correct this by turning the wheel of the vehicle to the left. The appellant acknowledged that she then lost control and collided with the kerbing and the tree.
The appellant’s case was that her driving on the occasion involved inattention followed by actions in panic when she over-corrected. She denied that she drove in a manner dangerous to the public. She accepted that death and serious injury resulted from the collision with the tree.
Reasons for the Verdicts
Following final submissions, the Judge reserved judgment. Considered reasons for the verdicts were published in which the Judge made the following findings:
In my opinion the evidence supports the following findings of fact. That on entering Wheatsheaf Road the [appellant’s] vehicle travelled in the correct lane and travelled straight in an appropriate position on the northern carriageway for vehicles travelling in an easterly direction along Wheatsheaf Road until it was on the western side of the intersection of [Creighton] Avenue and Wheatsheaf Road.
I find that in the distance between the point of the collision and the eastern kerbing alignment of [Creighton] Road – 35 metres – that the vehicle veered onto the incorrect side of the road and then veered to the left and was at this stage heading towards the kerb at an angle of about 45 degrees.
I accept the evidence of Miss Ottoway in preference to the other witnesses as to the manoeuvres of the vehicle immediately prior to the collision. I therefore find that the vehicle moved suddenly to the right and was on the incorrect side of the road and that the [appellant] then sharply steered to the left. I find that this was the result of sudden movements of the steering wheel by the [appellant]. I find that those sudden movements coincided with the first and only remarks about the status of the [appellant] as a learner driver.
I find that the [appellant] thereafter:
.       Did not brake or attempt to brake
.       Did not decelerate or attempt to decelerate
.       Headed towards the northern kerb at about 60kmh
.Took no action of any type to avoid colliding with the northern kerb – she did not steer or swerve in an attempt to avoid colliding with the northern kerb.
I find that the vehicle driven by the [appellant] was in good mechanical condition and that the mechanical condition of the vehicle played no role in the collision.
I find that there was no immediate danger approaching the [appellant’s] motor vehicle as it progressed east along Wheatsheaf Road so as to cause alarm or concern on the part of the [appellant].
[Emphasis original]
The Judge addressed the legal test and observed:
Was the [appellant] driving in a manner which was dangerous to the public? In R v Coventry ... the Full Court held that to establish the offence of driving at a speed or in a manner dangerous to the public the evidence should justify the inference of a fairly high degree of indifference to the safety of others, and that driving in a manner dangerous to the public means the act of driving in a manner which an ordinary person in the situation as a driver would recognise as dangerous in the sense that it involves a risk to others which exceeds the ordinary risks of the road.
The Judge then concluded:
During submissions from counsel it seemed to me that mere learner’s licence status – without more – could not – of itself have a bearing on the issue to be determined in the case (ie was the driving dangerous). I remain of that opinion.
In assessing the driving it is necessary to look at “multiple factors”. In my opinion relevance [sic] factors are:
. Veering to the right
. Veering to the left
.Failing to stop, slow, swerve or manoeuvre the vehicle so as to prevent it coming into collision with the northern kerb
.Failing to keep a proper lookout as to the proximity of the northern kerb and to then take steps to avoid colliding with it.
.Responding to the remark about learner driver status by deliberately veering – first to the right and then to the left in rapid succession.
Having regard to these factors I conclude that the prosecution has proved beyond reasonable doubt that the driving of the [appellant] on Wheatsheaf Road between Creighton Road at the place marked “A” on the northern kerb of Wheatsheaf Road was culpably negligent, was reckless and was in all the circumstances at a speed and in a manner dangerous to the public.
I find therefore Counts 1 and 2 have been proved to the requisite degree.
As it will be discussed later, the Judge considered the witnesses, Mr Barton and Ms Ottoway, to be impressive witnesses. The Judge indicated that he preferred the evidence of Ms Ottoway to the other witnesses about the manoeuvres of the appellant’s vehicle immediately prior to the collision. No reasons were provided to explain this preference. As a consequence the Judge accepted her evidence. Of the other witnesses, the Judge accepted MD’s evidence. When discussing TV’s evidence, the Judge made a number of observations relevant to her reliability but made no specific finding in respect to her evidence.
The Judge was critical of the appellant’s evidence and specifically rejected her evidence on a number of matters. On certain matters her evidence was accepted, however the Judge otherwise found the appellant to be generally unreliable.
The Judge made no reference to, or findings about, the changes in a direction of the centre lane for eastbound traffic on Wheatsheaf Road in the vicinity of the Creighton Avenue junction.
The Legislative Provisions
Section 19A of the Criminal Law Consolidation Act 1935 (SA) relevantly provides:
(1)     A person who—
(a)     drives a vehicle ... in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public; and
(b)     by that culpable negligence, recklessness or other conduct, causes the death of another,
is guilty of an indictable offence.
...
(3)     A person who—
(a)     drives a vehicle ... in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to the public; and
(b)     by that culpable negligence, recklessness or other conduct, causes harm to another,
is guilty of an indictable offence.
Section 19B relevantly provides:
(2)The following offences (which are listed in order of seriousness) are offences to which subsection (3) applies:
(a) the offence constituted by section 19A(1);
(b) the offence constituted by section 19A(3);
...
(d)the offence constituted by section 45 of the Road Traffic Act 1961 ... .[2]
(3)If at the trial of a person for an offence to which this subsection applies (being an offence mentioned in subsection (2)(a) or (b)) the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of a less serious offence to which this subsection applies, the jury may bring in a verdict that the accused is guilty of that less serious offence.
[2] Section 45 of the Road Traffic Act relevantly provides:
(1) A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road. ...
The conduct of the appellant is to be assessed according to an objective standard. In Coventry,[3] Latham CJ, Rich, Dixon and McTiernan JJ observed:[4]
The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles… But, speaking generally, the expression ‘driving at a speed, or in a manner, which is dangerous to the public’ describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence.
In McBride[5] Barwick CJ noted:[6]
This section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public… A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.
[3] R v Coventry (1938) 59 CLR 633.
[4] R v Coventry (1938) 59 CLR 633 at 638.
[5] McBride v The Queen (1966) 115 CLR 44.
[6] McBride v The Queen (1966) 115 CLR 44 at 49-50.

His Honour continued:[7]
This concept [dangerous driving] is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby.
[7] McBride v The Queen (1966) 115 CLR 44 at 50.
In Kroon,[8] King CJ summarised the way in which the character of driving is to be tested:[9]
It is well established that the question whether a vehicle is driven in a manner dangerous to the public for the purpose of the offences created by s 19A of the Criminal Law Consolidation Act 1935 must be answered by reference to an objective standard and irrespective of whether the accused intended to drive dangerously or appreciated that he was doing so: see R v Coventry (1938) 59 CLR 633 at 637-638, 639; McBride v The Queen (1966) 115 CLR 44 at 49-50, 55; Giorgianni v The Queen (1985) 156 CLR 473 at 479, 490, 499; Cornish v The Queen (1988) 48 SASR 520. The character of the driving is tested not by reference to whether the danger to the public involved in the driving was appreciated by the accused but to whether he ought to have appreciated the danger; or, to put it another way, whether a reasonable person in the situation of the accused would have appreciated the danger: see R v Mayne (1975) 11 SASR 583, per Bray CJ at 585; R v Duncan (1953) 11 SASR 592 at 594.
The appellant’s conduct in the driving of her vehicle was to be judged objectively, by the standards of the reasonable person in the situation of the appellant.
[8] Kroon v R (1990) 55 SASR 476.
[9] Kroon v R (1990) 55 SASR 476 at 477-478.
The Appeal
The essential point on the appellant’s case was that the Judge stated that he accepted the evidence of Ms Ottoway in preference to all other witnesses as to the manoeuvres of the car immediately before collision, but failed to give any reasons to justify or explain his preference. In particular, his preference of Ms Ottoway over Mr Barton’s evidence, given that he described both Mr Barton and Ms Ottoway as “both very impressive witnesses”, called for an explanation. Counsel for the appellant contended that there was no rational basis for rejecting the evidence of Mr Barton and that the finding that the appellant moved “suddenly to the right”, based on Ms Ottoway’s evidence, was unsupported by any other witnesses including MD’s evidence which he said he accepted.
Counsel for the respondent accepted that there was an obligation for the Judge to provide reasons. However, it was the respondent’s submission that the Judge provided extensive reasons for his conclusions. It was submitted that the Judge carefully scrutinized the evidence of all relevant witnesses and carefully and fully weighed that evidence. In particular, counsel for the respondent submitted:
At the conclusion of the Judgment the Learned Trial Judge resolved the conflict in evidence as to whether the vehicle veered sharply or slowly on to the wrong side of the road in that he found that he accepted Ottoway’s version of the movements of the vehicle prior to the crash, as he was both entitled and right to do. Ottoway was strongly corroborated in any event by [MD], who the Learned Trial Judge also found to be a very reliable witness.
Evaluation of Evidence – Legal Principles
In Liberato,[10] Brennan J observed: [11]
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification”.
[Emphasis added]
[10] Liberato v The Queen (1985) 159 CLR at 507.
[11] Liberato v The Queen (1985) 159 CLR at 507at 515.
Deane J agreed and further noted:[12]
There can be no room for the application of the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) in an appeal where there is a significant possibility that, by reason of misdirection by the learned trial judge, a jury has convicted on the basis of a choice between the Crown and defence witnesses as distinct from being satisfied beyond reasonable doubt of the ingredients of the charge against the accused. If some members of a jury in a criminal trial have, by reason of misdirection, failed to comprehend that a finding of guilty cannot be based merely on a failure to believe the accused or on a choice between the Crown and defence witnesses, the accused has been denied a trial in accordance with law and, in the event of a conviction, there has been a fundamental miscarriage of justice. That being so, the Court of Criminal Appeal could not, in the present cases, properly have been satisfied for the purposes of the proviso that "no substantial miscarriage of justice" had "actually occurred". The reason is that a court of criminal appeal can only properly be so satisfied, in a case where there has been fundamental misdirection, if the circumstances are such that it is clear that there is no real possibility that justice has miscarried by reason of that misdirection: cf. Mraz v The Queen.
[12] Liberato v The Queen (1985) 159 CLR 507 at 520 (footnotes omitted).
These observations were referred to by the Victorian Court of Appeal in Yusuf,[13] where Chernov JA (with whom Redlich and Vincent JJA agreed) observed:[14]
[I]t was submitted on behalf of the applicant that his Honour failed to make clear to the jury that mere preference for the complainant's version of events was not sufficient to convict him of the offence in question. The jury should have been told that even if they preferred the evidence of the complainant, they could not convict the applicant unless they were satisfied beyond reasonable doubt of the truth of her relevant evidence. It was also claimed that his Honour failed to direct the jury that even if they did not positively accept the applicant's account on a critical issue, they could not find against him in relation to it if they had a reasonable doubt about it. Reference was made to a number of authorities which, it was said, support the claim that the jury should have been charged as the applicant now contends. In Liberato, for example, Brennan and Deane, JJ. made it plain that, where the jury had to choose between a Crown witness and a witness for the defence, they should be told that the mere resolution of a conflict against the defence is not to be taken as concluding the issue, namely, whether the Crown has proved beyond reasonable doubt the issue which it bears the onus of proving. The jury must be told that, even if they prefer the evidence of the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must also be told that even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. And in Crisafio, Murray J said that, in a case of this kind, where the evidence is entirely or substantially oath against oath:
It is imperative that the jury not be given any impression that in such a case the guilt of the accused will be established by the jury's preference for the evidence of the complainant. The matters discussed in Liberato are of critical importance and the jury must be properly instructed that if they are left unable to reject the evidence of the accused, although they do not positively accept it, they could not find guilt established beyond reasonable doubt, and even if the evidence of the accused is rejected attention must still be given to the important question whether the evidence of the complainant, or so much of it as the jury do accept, establishes the commission of the offence beyond reasonable doubt.
[Emphasis added]
[13] R v Yusuf (No 2) [2006] VSCA 117.
[14] R v Yusuf (No 2) [2006] VSCA 117 at [9] (footnotes omitted).
Similar observations have been recorded in judgments in this Court. Reference is frequently made to the unreported observations of Von Doussa J in Harris v Mill.[15] These observations were approved by Jacobs J in Selig v Hayes:[16]
There is not the slightest doubt that the fact that the appellant lied to the police when they first approached him had a profound influence on the learned special magistrate's decision. The risk of error in treating credibility as the only real issue was aptly stated by von Doussa J in Harris v Mill ... in a passage which I gratefully adopt:
In a sense the key issue in many trials is credibility, but to pose the question as "who to believe" is apt to be misleading and to cause a tribunal in a criminal trial to fall into error of the kind exposed in R v Calides (1983) 34 SASR 355. There is a very real risk that the inquiry will become: "Which of the parties giving the competing stories is to be preferred." The preference of the victim's evidence to that of the defendant, even where the defendant's evidence is in consequence rejected, leaves unanswered the essential question whether the tribunal is satisfied that every element of the charge is proved beyond reasonable doubt. Generally speaking, the rejection of the defendant's evidence does not provide positive proof of guilt. The preference of the victim's evidence does not lead inevitably to a conclusion that his or her evidence should be accepted as proof beyond reasonable doubt. Even a finding that the victim was a truthful witness does not mean that the victim's evidence is necessarily reliable. The victim might be patently honest yet mistaken, or through faulty memory unreliable in respects which leave open a reasonable doubt about the defendant's guilt.
[Emphasis added]
These two authorities involved appeals from trials conducted by magistrates.
[15] Harris v Mill [1988] SASC (unreported, Von Doussa J, 7 April 1988).
[16] Selig v Hayes (1989) 52 SASR 169 at 171 at 172.
In the course of submissions on appeal, attention was drawn to the decision of this Court in Keyte[17] and Power.[18] The appellant submitted that these authorities supported the obligation on a trial Judge to provide reasons.
[17] R v Keyte (2000) 78 SASR 68.
[18] R v Power (2003) 141 A Crim R 203.
In Keyte, Doyle CJ when addressing an appeal against conviction following a Judge alone trial in the District Court considered that there was an obligation to give reasons. The statutory provision authorising a trial by Judge alone did not expressly require the giving of reasons. The same is true in the present case having regard to the terms of section 14 of the Youth Court Act. In this respect the remarks of Doyle CJ are apposite when he observed:[19]
The first basis is that by conferring on a judge the power to decide innocence and guilt, Parliament must be taken to have intended that reasons would be given, because Parliament would have assumed that this would be done. One can understand Parliament assuming, because of the widespread acceptance that the giving of reasons is a necessary incident of the judicial function, that reasons would be given once the function of deciding innocence or guilt was conferred on a judge. Another possible basis for implying an obligation to give reasons is the existence and nature of the remedy of appeal. Once again, it may be that Parliament is to be taken as having by implication indicated that reasons are to be given, because the decision of a judge on the question of innocence or guilt is subject to appeal on the grounds identified by s 353(1) of the CLCA. If reasons are not given, the remedy of appeal may be frustrated, or at least substantially contracted in its scope.
The third basis draws on more fundamental considerations. Bearing in mind the history of our criminal process, it would be surprising if Parliament had established a process of deciding innocence or guilt which would deprive the parties and the community of any explanation, in terms of matters of law and matters of fact, for the decision reached. Our system of criminal procedure accepts the so-called inscrutable verdict of the jury, pronounced after adequate instruction by the judge on matters of law and of fact. There are practical reasons why that should be so. As well, the involvement of the community through the jury is a significant factor. It may be said that a decision made by a group, representative of the community, removes the need for an explanation by that group to the community of the reasons for its decision. The jury acts on behalf of the community. If the conferral of the jury’s function on a judge were to lead to a situation in which neither law nor facts need be expounded, the result would be a curious one, and unsatisfactory as well. The community has a real interest in the administration of criminal justice, and a process that requires no explanation at all for a verdict of guilt or innocence would deny a legitimate community interest in the criminal process.
[19] R v Keyte (2000) 78 SASR 68 [30]-[31].
Doyle CJ concluded in Keyte that the availability of the remedy of an appeal strongly suggested in that case that reasons should be given by a Judge who had been sitting without a jury. As he pointed out, if reasons are not given the remedy of appeal will be significantly restricted by the exercise of the right to be tried by a Judge sitting alone. Those observations have even more force in regard to the Youth Court provisions as the statute provides for a trial by Judge alone unless an order is made for a matter to be transferred to the District or Supreme Court. Such an order is in the discretion of the Youth Court. It would appear that a defendant has no right to a jury trial without first electing to be to be tried as an adult.[20]
[20] No complaint was made in the present case either at trial or on appeal about any constitutional implications of the appellant having no right to a jury trial.
As Doyle CJ further observed in Keyte, the conclusion that reasons must be given is supported by the fact that the function of deciding innocence or guilt is performed by a Judge and the giving of reasons for a decision of a Judge is an established incident of the judicial process. As Doyle CJ pointed out, this conclusion was supported by the community interest in the administration of justice. Further, as the High Court observed in Fleming,[21] “justice must not only be done but also be seen to be done”.
[21] Fleming v The Queen (1998) 197 CLR 250 at [22]
Doyle CJ then reviewed a number of authorities that had relevance in Keyte and are also of relevance in the present case. It is convenient to refer to some of those observations:[22]
[22] R v Keyte (2000) 78 SASR 68 at [44]-[45], [48]-[50].
There is authority to support the view that in a case like this, that is, a judicial decision subject to appeal, there is a requirement to give reasons, and that the failure to give reasons when required is itself an error of law. In Pettitt v Dunkley [1971] 1 NSWLR 376, a decision often referred to with approval by other courts, the Court of Appeal of the Supreme Court of New South Wales decided that in a civil action tried without a jury, the failure of the trial judge to give adequate reasons for his decision was an error of law, because that failure made it impossible for the appellate court to determine whether or not the decision was based on an error of law, and so frustrated the statutory right of appeal ...
I also respectfully adopt what Moffitt JA said at 388:
“The observations of Jordan CJ recognize that an obligation, concerning the giving of reasons, lies upon any court, including an intermediate court of appeal, so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court. The necessity referred to is, of course, of particular significance in a trial at first instance, when mixed questions of fact and law are involved and an appeal on a question of law only is given. It is important to observe, however, that the judicial obligation to give reasons in an appropriate case is directed to facilitating the exercise of a right of appeal.”
…
The requirement for reasons was affirmed by the Court of Appeal of the Supreme Court of New South Wales in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. Although there was some divergence of views as to the extent of the obligation, all members of the Court agreed that there was an obligation to give adequate reasons for a decision that was subject to appeal. The extent of the obligation depended upon the scope of the appellate review. I agree with what Kirby P said (at 259):
“This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.”
I also agree, without setting it out, with the approach taken by Mahoney JA and his adoption of the approach of McHugh JA when he said (at 280):
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons ... But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given ... the extent of the duty to give reasons is related ‘to the function to be served by the giving of reasons’. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies.”
More recently, in Papps v Police (2000) 77 SASR 210 the Full Court of this Court, approving of the same decisions, has held that a failure to give adequate reason (that is reasons adequate for the purpose of appellate review) is an error of law: at 218 [33].
Doyle CJ went on to consider the extent of the reasons that should be provided. Relevant to the present case, Doyle CJ observed:[23]
I do not have to decide whether it was incumbent upon the judge to identify the central evidence upon which he was prepared to act, and the basis upon which he preferred the evidence of Ms C to that of the appellant. I do not have to decide this issue, the extent of the obligation to make findings of fact, because in this respect the judge’s reasons are adequate. I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.
[23] R v Keyte (2000) 78 SASR 68 at [56], [59].

...
The case cannot be disposed of on the basis that the issue was oath against oath, and once the judge had decided who was to be believed, and that he could be satisfied of guilt beyond reasonable doubt on the evidence of Ms C, that was the end of it. The evidentiary issues to which I have referred had to be decided before the judge could properly come to that conclusion.
In Power,[24] the Court adopted the observations of the Chief Justice in Keyte. Perry J went on to observe:[25]
However, it seems to me that this is one of those cases where the trial judge’s preference for the evidence of V over that given by the appellant “... rests substantially upon the impression made by” the witnesses when giving evidence. In those circumstances, in my view, there is no requirement that the trial judge should attempt to give a detailed explanation for the decision to prefer the evidence of the one witness against that of another. The trial judge said that he was most impressed with V as a witness, and had no doubt that she was telling the truth. V’s evidence was adequately tested by close cross-examination by counsel for the appellant, and the trial judge had an adequate opportunity to assess her credibility insofar as it turned on the impression she gave while in the witness box. In the relevant respects her evidence appears consistent. Its consistency was reinforced, at least with respect to the incident the subject of count 1, in that this was followed by a prompt complaint to her mother.
[24] R v Power (2003) 141 A Crim R 203.
[25] R v Power (2003) 141 A Crim R 203 at [59] (footnotes omitted).
In considering the respective submissions of the parties, it is relevant to observe that Keyte and Power were addressing the issue of the extent of reasons required to be given by a Judge to explain a preference for one witness over another, particularly where the preference rests substantially on the impression made by a witness. Even in this latter circumstance, the Courts concluded that reasons were required but they did not need to amount to a “detailed explanation”. These cases did not address the problem identified in the Liberato line of authority - the preference of evidence relied on by the prosecution and the onus of proof. The observations of Doyle CJ in Keyte, approved and applied in Power, were qualified and there was no reference to or discussion about the Liberato line of authority. The decisions in Harris and Selig in this Court have been consistently approved, followed and applied from the time of their pronouncement.
The Trial Judge’s Assessment of the Evidence
As earlier observed, the Judge simply expressed his preference for the evidence of Ms Ottoway to the other witnesses as to the manoeuvres of the appellant’s vehicle immediately prior to the collision. To understand the significance of this conclusion, having regard to the observations in the Liberato line of authority, it is necessary to discuss the evidence in more detail.
Ms Ottoway and Mr Barton were in a stationary vehicle positioned to the south of Wheatsheaf Road and east of the junction of Wheatsheaf and Creighton Avenue. As they looked to the west, they had a view along Wheatsheaf Road as far back as its junction with Main South Road.
Ms Ottoway first saw the appellant’s vehicle as it was passing through the Creighton Avenue junction. She described its speed as normal - 60 kilometres per hour. She first described the vehicle as driving straight and then veering to its right and over the centre line. She described the manoeuvre as happening quickly and later as a “jolt”. She stated that only a portion of the vehicle went over the centre line. Ms Ottoway observed the vehicle turn back to the left and then continue to veer left at an angle of about 45 degrees until it hit the northern kerb of Wheatsheaf Road.
In cross-examination, Ms Ottoway accepted that she had provided a statement to the police soon after the event in which she described the veer back to the left as being as though the driver had not realised that the vehicle was on the incorrect side of the road and had, on realisation, made a sharp move to get back.
Mr Barton, whom the trial Judge also found to be an impressive witness, observed the appellant’s vehicle earlier than Ms Ottoway. He saw the vehicle as it was completing its left turn from Main South Road into Wheatsheaf Road. He observed the vehicle as it travelled on Wheatsheaf Road, to veer slowly first to its right across the centre of the road and then to turn left to correct its course of travel onto the correct side of the road. He then observed the collision with the kerb and tree. He described the veer to the right as commencing at about the Creighton Avenue junction. He assessed the vehicle’s speed at 50 kilometres per hour. To his observations, the vehicle only partly crossed the centre line before it moved back to the left. He described the correction to the left as being a sharp correction. The vehicle then continued at an angle of about 45 degrees into the northern kerb.
The accounts of Ms Ottoway and Mr Barton are in substance the same. There are minor variations in their estimates of distances and speed, but those differences are not material. Both saw the veer to the right commence as the vehicle passed the Creighton Avenue junction and both recalled that the veer was only sufficient to take the vehicle partly over the centre line. The only possible material difference between Ms Ottoway and Mr Barton was their description of the veer to the right, Ms Ottoway – quick and a jolt - compared to Mr Barton - a slow veer.
Two witnesses in the vehicle - MD and TV - recalled the vehicle veering to the right and then to the left. Neither witness described the veer to the right as a quick or jolting movement. Both described the veer in terms consistent with Mr Barton’s recollection. The Judge accepted the evidence of MD. As to TV, the Judge made a number of observations relevant to her reliability but made no specific finding in respect to her evidence.
As earlier observed the prosecution in its final address invited the Judge to accept Mr Barton as supported by MD and TV.
It is also to be borne in mind that Ms Ottoway’s and Mr Barton’s observations were made whilst the vehicle travelled a short distance. As earlier observed, the impact of the appellant’s vehicle with the northern kerb and tree was only about 40 metres east of the Wheatsheaf Road and Creighton Avenue junction. This is of particular significance when consideration is given to the changes earlier described in the direction of the centre lane for eastbound traffic.
It is convenient at this point to return to the photographs of the scene and in particular the changes in direction of the centre lane for eastbound traffic on Wheatsheaf Road – that is, the lane in which the appellant was travelling.
As earlier observed, approaching the junction of Wheatsheaf Road and Creighton Avenue, the centre lane for eastbound traffic changed direction and angled more to the south, that is, veered to the right - the lane angled to about 45°. If the appellant’s vehicle were to remain in that lane, she would need to change direction and veer to the right. In this event, from their position, Ms Ottoway and Mr Barton, as they looked west, would see the appellant’s vehicle change direction and veer to the right as it passed through the junction. This accorded with the observations of both Ms Ottoway and Mr Barton.
Then, as mentioned earlier, the centre lane changed direction more to the east, that is, veered to the left. The centre lane then merged with the left lane. Were the appellant to have continued straight on, without veering left, a person in the position of Ms Ottoway and Mr Barton would observe the vehicle move onto the incorrect side of Wheatsheaf Road. This accorded with the observations of Mr Barton. It is consistent with Ms Ottoway’s evidence.
The Judge did not consider these possibilities. No findings were made about the changes in direction of the centre lane of Wheatsheaf Road. The Judge did not consider the observations of Ms Ottoway and Mr Barton with the changes in mind. The Judge did not consider whether the vehicle movements discussed above were a reasonable possibility. He did not consider whether this was a case of inadvertence. He did not exclude these movements as a reasonable possibility or as giving rise to a reasonable hypothesis of inadvertence consistent with innocence.
This discussion highlights the difficulty that arises from the Judge expressing a mere preference for the evidence of one witness over all others including the appellant. The Judge provided no reasoning or explanation for this preference, particularly after his acceptance of Mr Barton as impressive as well as the acceptance of the evidence of MD.
Ms Ottoway’s evidence was to the contrary of a number of other witnesses on the highly important fact as to the suddenness of the veering of the vehicle to the right. Mr Barton’s evidence of a gradual veer to the right was not only supported by MD and TV but also by the changes of direction of the centre lane of Wheatsheaf Road as previously discussed.
There is a further matter for consideration. Critical to the Judge’s conclusions of guilt were his findings that the appellant responded to a remark about her learner driver status by deliberately and suddenly veering to the right and then to the left. The issue of who made a remark and any consequential reaction of the appellant was the subject of markedly conflicting evidence.
MD recalled the remark being made by RG, the only male passenger. To MD’s observation the appellant neither responded by comment or laughter, although at the same time she spoke of a joking reaction by the appellant and she concluded that the appellant veered to the middle of the road “just to be stupid”. However, analysis of her evidence fails to disclose any relevant observation to justify her conclusion or to allow that conclusion to be assessed or evaluated. Furthermore as earlier observed, MD recalled a normal veer to the right.
TV recalled that it was one of the female passengers who made a remark with respect to the appellant’s learner status, and that the appellant replied sarcastically. TV recalled that, as these events were occurring, the car veered slowly to the right.
The appellant denied any deliberate movement to the right. She recalled a conversation about her driving status by RG. However, to her recollection, this occurred much earlier that evening.
On the topic of the appellant’s reaction to a remark, the evidence was confusing and of itself did not form a sound basis for a conclusion that there was deliberate foolhardy driving by the appellant. This highlighted again the need for the trial Judge to do more than express a mere preference for Ms Ottoway’s evidence. The observations in Liberato, Yusuf, Harris and Selig, indicate that the Judge needed to go further than to have a mere preference for a witness’ evidence relied on to support the prosecution case. The Judge needed to be satisfied about her account beyond reasonable doubt.
Unlike the case of Power, the Judge did not advert to matters that supported a reliance on the impression on him of Ms Ottoway in comparison with Mr Barton, or indeed MD and TV. This was a case in which further reasons were required for expressing a preference. Additionally, the Judge needed to reach a conclusion whether he was satisfied beyond a reasonable doubt of the critical aspects of Ms Ottoway’s evidence. He did not do so.
The evidence of the appellant, the observations of Ms Ottoway and Mr Barton and the observations and evidence of MD and TV, and the earlier referred to features of the centre lane of Wheatsheaf Road, provide an explanation for what occurred that night. This explanation was consistent with inadvertence. A conclusion needed to be reached whether this explanation was open on the evidence and a reasonable possibility. An alternative way of addressing this issue was to ask whether this explanation provided a reasonable hypothesis consistent with innocence. If it did, then a verdict of not guilty on both counts should have been returned.
A final point of concern is the Judge’s summary of the relevant “multiple factors” which he considered were relevant to a finding that the driving was culpably negligent, reckless and driving in a manner dangerous to the public. Five factors are referred to of which two are:
-failing to stop, swerve or manoeuvre the vehicle so as to prevent it coming into collision with the northern kerb, and
-failing to keep a proper lookout as to the proximity of the northern kerb and to take steps to avoid colliding with it.
In the context of this case these two factors were consequential factors due to the appellant losing control of the vehicle. The Judge accepted that the appellant panicked and lost control. They should not have been elevated to deliberate conduct on her part and then used to found the convictions.
Conclusion
All of the above circumstances lead to the conclusion that this appeal should be allowed.
The Judge was in error in his approach to the consideration of the evidence. In the circumstances of the present case, he needed to do more than have a preference for the evidence of one witness against others. He needed to be satisfied beyond a reasonable doubt of the accuracy of that witness’ evidence.
The Judge was in error in not making findings about the directional changes to the lane in which the appellant was travelling. These were material considerations to which he did not have regard.
There existed the real possibility that the appellant veered her vehicle to the right following the change in direction to the centre lane of Wheatsheaf Road as she passed through the Creighton Avenue junction – that is, the vehicle veered and remained in that lane. There existed the real possibility that through inattention the appellant failed to remain in the centre lane as it veered back to the left, that she then realised that her vehicle was partly on the incorrect side of the road, veered to the left, panicked, over-reacted and lost control. It is to be observed that an inability to handle an emergency situation may be understandable in the case of a learner driver. The appellant’s learner driver status provides a possible explanation for the difficulties encountered and her inability to cope with the problems associated with inattention.
On the evidence there was a reasonable possibility that the appellant’s driving involved no more than mere inattention. A consideration of whether the above-mentioned possibilities were reasonable should have been addressed by the trial Judge. He did not do so. They were real possibilities. The Judge should have considered the above hypothesis and whether it was a reasonable hypothesis consistent with innocence. There was a reasonable hypothesis consistent with innocence.
The appellant drove onto the incorrect side of the road as the result of inattention. Her attempt to return to the correct side of the road demonstrated a want of due care.
The appeal is allowed. The convictions are set aside. The sentence imposed is set aside. Verdicts of acquittal are entered on counts one and two. A conviction of driving without due care as alleged in count three is recorded. The matter is remitted to the Youth Court for the appellant to be sentenced on counts three and four.