Maher v Harper
[1991] TASSC 118
•19 February 1991
Serial No B4/1991
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Maher v Harper [1991] TASSC 118; B4/1991
PARTIES: MAHER
v
HARPER
FILE NO/S: LCA 93/1990
DELIVERED ON: 19 February 1991
JUDGMENT OF: Crawford J
Judgment Number: B4/1991
Number of paragraphs: 24
Serial No B4/1991
List "B"
File No LCA 93/1990
MAHER v HARPER
REASONS FOR JUDGMENT CRAWFORD J
19 February 1991
The applicant has moved for a review of an order of dismissal made by a magistrate in a Court of Petty Sessions at Hobart. The respondent was charged "with being the driver of a motor vehicle on the 23rd February 1989 which was standing close to the side of the road in Riawena Road, a public street at Clarence in Tasmania, and did not before and while moving such motor vehicle take all reasonable and proper precautions to avoid a collision" contrary to reg22(4)(b) of the Traffic (General & Local) Regulations 1956. A critically important question on the evidence, and in substance the only one, was whether a police car driven by the respondent was standing close to the left side of Riawena Road as claimed by two of the prosecution witnesses, or whether instead, as claimed by the respondent in evidence, it was further out onto the surface of the street, near the centre.
Undisputed facts were that Miss Rothbauer was driving a Datsun 200B down Riawena Road approaching the rear of the stationary police car opposite the mouth of Bastick Street which formed a junction with Riawena Road, Bastick Street running off at about a right angle to the right. She commenced to pass the police car on its right (driver's) side. At this time the respondent put the police car into motion, turning to the right. The two vehicles came into collision. The left front corner of the Datsun collided with the right front corner of the police car which was at an angle across the road.
The evidence of Miss Rothbauer was that having rounded the bend she was travelling at about 40 kmh when she first saw the police car about 40 metres away. It was parked parallel to and against the left kerb of Riawena Road opposite the Bastick Street junction. When she was about two car lengths behind she saw that the turn indicator on the police car was operating. She went to overtake, straddling the centre of the street, and when her vehicle was at the back of the police car the latter moved out to its right as if to turn into Bastick Street. She swerved to the right and braked but the collision occurred. As she had been approaching the police car she had seen a vehicle, which was coming up Riawena Road in the opposite direction, turn to its left into Bastick Street.
In the course of cross–examination Miss Rothbauer said that the respondent had said to her following the collision "Why didn't I go round the left hand side of her". Her evidence was that such a question did not appear strange and she did not respond to it because "I wasn't in the wrong, that's why". Also in cross–examination Miss Rothbauer appeared to agree that if the police car was parked against the kerb it would not have been necessary for her to drive half on the incorrect side of the road when overtaking, and yet that is where she said she did drive. She also said that she had previously seen police vehicles parked in Riawena Road "now and again" but some distance from the scene of the accident and on the other side of the street.
Evidence was given for the prosecution by an independent witness, Mrs White, whose house was on the left side of Riawena Road directly opposite the entrance to Bastick Street. She had been looking out a front window of her house for about ten minutes, waiting for her sister's car to arrive to take her to a tennis court. She said that she saw the police car come down Riawena Road and pull up in the gutter between the front of her house and the house next door. The car remained there for two or three minutes. She said that it definitely pulled into the kerb. She could not see its front, because of a hedge, but she could see its top and boot. In the course of her examination–in–chief she said the wheels were in the gutter but admitted to not being able to see the wheels. She said:
"I couldn't see the wheels, but I mean it was well into the – it had definitely pulled into the kerb because there's police cars come there quite often, nearly every morning, and sit outside our place to catch people coming through."
Mrs White said that after two or three minutes the police vehicle started to move, she assumed to proceed down Riawena Road, but instead it proceeded to either turn into Bastick Street or to commence to execute a "U" turn, "I really don't know, 'cause I wasn't looking". She had assumed it was moving off because it was close to 9 o'clock and "they don't book after 9 o'clock". She could not see if any indicators were illuminated because of a hedge. She saw the Datsun coming down the road at the time when the police car was turning to its right. The Datsun swerved to its right but the vehicles collided. In cross–examination Mrs White explained that when the police car was stationary she could not see its front headlights but could see its back lights. At one point she said, contrary to what she had said in examination–in–chief, that she could see the back wheels "and they were pulled into the gutter". She did not know how close they were to the gutter. Later however she said that she could not see the wheels. Shortly after that she said that she "could see the wheel pulled into the gutter kerb". When counsel pointed out to her the apparent conflict between her statements she became upset. The inconsistency was not resolved by her. It could not have been safely found that she did see the wheels at all.
Notwithstanding the uncertainty concerning whether Mrs White could see the wheels, the strong impression given by her evidence and that of Miss Rothbauer was that the police car was stationary against the kerb before it moved out into the path of the Datsun. If no evidence had been given by the respondent a conviction would, it seems to me, have been inevitable unless the demeanour of those two prosecution witnesses, not apparent from the transcript, was such as to cause doubt as to the accuracy of their evidence.
The respondent's evidence was that in the course of a general patrol she drove down Riawena Road intending to turn right into Bastick Street. She was new to the area and was not familiar with the practice of police drivers, established by other evidence, to park their vehicles in that area. She said that as she approached the junction a vehicle was coming toward her up Riawena Road and so she stopped at the junction to give way to it. As she did so another vehicle also came up Riawena Road and then a third vehicle came up which she described as a yellow van with mainland number plates. It turned to its left into Bastick Street. She had put her indicators on and had been stationary for about 30 to 40 seconds, as close as practicable to the centre of the road. She was not sure if there was enough room for a vehicle to pass on her left. Once the van had turned into Bastick Street she then proceeded to turn herself. As she did so she glanced to her right and saw the Datsun coming from behind. She tried to swerve but was unable to avoid the collision.
The evidence of the respondent was that following the collision she spoke to Miss Rothbauer and asked her "Why did you overtake me on my right?" Miss Rothbauer responded with "I thought I was allowed to do that" to which the respondent said, "You are not allowed if I am making a right hand turn". She said that Miss Rothbauer mentioned that she always saw police cars parked there booking people for making an illegal turn at the bottom of the street. But she had no reason to be parked there because she was on general patrol.
On the basis of such evidence it is not surprising that the magistrate dismissed the charge because of a reasonable doubt concerning whether the respondent had parked close to the kerb. There was a direct conflict between her evidence and that of Miss Rothbauer and Mrs White. There was a suggestion of reconstruction by Mrs White of the position of the police car from her prior experience of seeing police cars parked outside her home. The possibility was also revealed by the evidence that Miss Rothbauer may have wrongly assumed that the police car was parked at the kerb because of her prior experience of seeing parked police vehicles in the vicinity. Some support for the respondent's version can be found in the fact that she asked Miss Rothbauer following the collision either why she had not passed on the left side or why she had overtaken on the right side. Such a statement from the respondent is more consistent with her version of the accident than with her having moved from a parked position against the kerb. It is not conclusive but it helps to create a doubt concerning the position of the vehicle.
One ground of the application to review is that the finding of the learned magistrate that he was not satisfied beyond reasonable doubt that the vehicle driven by the respondent had been stationary at the kerbside was against the evidence and the weight of the evidence. It is not the task of a court on a motion to review under s107 of the Justices Act 1959 to exercise its own judgment whether the dismissal was correct upon a review of the evidence. The question is whether upon the evidence the magistrate might, as a reasonable man, have come to the conclusion to which he did come: Taylor v Armour & Co Pty Ltd [1962] VR 346 at p351; Bedelph v Weedon [1963] Tas SR 69 at p81; Richardson v Shipp [1970] Tas SR 105 at p117. For the reasons I have already expressed, this ground fails.
The other grounds of the application arise from what was said when the learned magistrate dismissed the complaint. At the end of the respondent's evidence her case was closed. The magistrate immediately proceeded to dismiss the complaint in the following terms:
"HIS WORSHIP: Yes thank you. At the close of the prosecution case it may have been possible, not unreasonably to find it proved, that the defendant was at the kerbside. Had the case been a civil case it may have been possible to find it proven more probably than not on that state of the evidence, but in my humble, but nonetheless firmly held opinion, anyone, on that state of the evidence who was prepared to say that that was proved beyond reasonable doubt should be shot and more so, the defendant, having contradicted that proposition upon her oath, it's of particular significance to me, I think, judging the case as a whole, that the driver of the vehicle with which hers collided, did say quite openly in cross–examination that the defendant's version, given now in evidence, on oath, words" [counsel agreed that perhaps the transcriber made an error and that 'words' should be replaced with 'was'] "put by her to that witness at the time. I don't think I need say any more. It's just not possible on that state of the evidence to find the allegation against the defendant proven beyond reasonable doubt, so I dismiss the complaint."
The remaining grounds of the application may be summarised. They complain that the magistrate failed to state his findings as to the credibility of Miss Rothbauer, Mrs White and the respondent and his reasons for such findings; that he failed to resolve the conflict between their evidence as to the position of the police car by making findings as to their credibility; that he gave insufficient weight to the evidence of Miss Rothbauer and Mrs White; that he gave undue weight to what was said by the respondent to Miss Rothbauer after the collision; that he erred in finding that Miss Rothbauer's evidence was that the respondent's version of the accident had been put to her by the respondent at the scene; and that he erred by finding that at the close of the prosecution case he could not be satisfied beyond reasonable doubt that the police car was at the kerbside prior to the collision.
There was an unfortunate lack of clarity and detail in the reasons expressed by the learned magistrate. But after reviewing the evidence and considering what he did say, I have come to the conclusion that what he meant was as follows:
1At the close of the prosecution case it would not have been unreasonable to find the charge proved, but that was not the question he had to address.
2"On that state of the evidence" (this expression was used three times consistently as a reference to all the evidence, including that of the respondent) it may have been possible to find the charge proved in accordance with the civil standard, on the balance of probabilities, but that was not the question he had to address either.
3He was firmly of the opinion that "on that state of the evidence" there was a reasonable doubt, the respondent having contradicted the prosecution witnesses on oath and both Miss Rothbauer and the respondent agreeing that following the collision the respondent said something to Miss Rothbauer that was consistent with the respondent's version of the incident.
4Therefore, being so clearly of the opinion that there was a reasonable doubt concerning the critical fact in issue, there was no need to say more, and the complaint should be dismissed.
Implicit in the magistrate's reasoning was that the credibility of the respondent, supported as it was by what she said to Miss Rothbauer shortly after the collision, was sufficient to create a reasonable doubt in his mind, without it being necessary to comment adversely on the credibility of the prosecution witnesses. In other words, even accepting that Miss Rothbauer and Mrs White appeared to be credible as witnesses, there was sufficient credibility in the respondent and her evidence to create a reasonable doubt. On this basis there was no need for the magistrate to make a finding in relation to the credibility of the prosecution witnesses. There is a significant difference between finding a disputed fact proven, either beyond reasonable doubt or on the balance of probabilities, and instead being left with a reasonable doubt whether the fact has been proved. In the latter case what is involved is an inability to make the finding at all.
The learned magistrate was not obliged to resolve the conflict between the witnesses as to the position of the police car in a situation where he was left with a reasonable doubt as to that fact.
It is not the function of this Court on an application to review a dismissal to decide whether the learned magistrate gave insufficient weight to the evidence of a particular witness except in so far as that may be a consideration when determining whether the magistrate, as a reasonable man, could have come to the conclusion to which he did come. I have already expressed my reasons for concluding that the dismissal was reasonably open on the evidence.
I do not agree that the learned magistrate gave undue weight to what was said by the respondent to Miss Rothbauer after the collision. There being little disagreement about what she did say, it was more consistent with the statement having been made by the respondent knowing that she had been executing a right hand turn from a position near the centre of the road rather than knowing that she had been parked at the kerbside. By saying, as the magistrate did, that Miss Rothbauer had agreed that the respondent's version had been put to her by the respondent was in my view no more than a careless reference to what both witnesses had agreed in evidence had in effect been said.
I do not agree that the learned magistrate said that at the close of the prosecution case he could not have been satisfied beyond reasonable doubt that the police car was at the kerbside prior to the collision. As I have already explained, my understanding of what he said was that after all of the evidence, including that of the respondent, he could not be so satisfied.
Counsel for the applicant referred to a number of authorities for the proposition that it is the duty of a magistrate or judge sitting without a jury to state his findings of fact and his reasons for findings on disputed issues. Those authorities included Pettitt v Dunkley [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, and Sun Alliance Insurance Ltd v Massoud [1989] VR 8. Those cases involved appeals from courts exercising civil jurisdiction and the courts appeared to favour that a failure to state findings and reasons could result in an appealable error. On the other hand courts in some other jurisdictions, while emphasising the desirability and even duty of judicial officers to state findings and reasons, have refused to classify a failure as necessarily amounting to an appealable error.
In R v Awatere [1982] 1 NZLR 644 the Court of Appeal referred to the different conclusions that have been reached in common law countries at the same time pointing out that there is a common denominator clearly to be discerned: that is that it must always be good judicial practice to provide a reasoned decision. At p649 that court "concluded that it would be both undesirable and impractical to lay down an inflexible rule of universal application". See also Public Service Board of New South Wales v Osmond (1985–1986) 159 CLR 656 at pp666–667.
The rule in South Australia was established in Lawson v Lee (1978) 19 SASR 442 at p446. The court stated that when a court of summary jurisdiction is constituted by a legally qualified magistrate he ought to give reasons in which he states his findings on disputed issues. The reasons do not have to be long but they should be coherent, intelligible and comprehensive. A court of appeal will more readily uphold the ultimate finding if it is supported by such reasons. But the court added that if no reasons are given a court of appeal may still uphold the magistrate if, on its own review of the evidence, it is satisfied that on the appropriate test the court is led to the conclusion that the ultimate finding was properly reached. Lawson v Lee (supra) was referred to by Green CJ in MJO v JUM B13/1990 at p4 where it was said:
"In reaching that conclusion I note that the magistrate did not expressly state the specific findings of fact which led him to the conclusion that the complaint had been proved nor did he give any reasons for making the findings which his ultimate finding imply he made. Those omissions do not constitute errors per se but in such circumstances before a court of review can conclude that it can safely uphold a finding it must be more circumspect than it would be in a case in which the findings and the reasoning are expressly stated and are therefore examinable – see Lawson v Lee (1978) SASR 442 at 446".
On the basis of the authorities I am unable to conclude that the statement by the learned magistrate of his reasons for dismissing the complaint, or his possible failure to state all of his reasons, amounted to an appealable error which would justify the setting aside of the order of dismissal. Although it would have been preferred that the learned magistrate state his reasons with more clarity and detail, his failure to do so does not justify the motion to review succeeding.
For the reasons stated the motion will be dismissed.
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