Marrapodi v Traynor - [2011] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: MARRAPODI -v- TRAYNOR [2011] WASC 72

CORAM: EM HEENAN J

HEARD: 14 MARCH 2011

DELIVERED : 14 MARCH 2011

PUBLISHED : 21 MARCH 2011

FILE NO/S: SJA 1116 of 2010

BETWEEN: DOMENICO MARRAPODI
Appellant
AND
KIM JOHN TRAYNOR
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 7995 of 2010

Catchwords:

Appeal - Dangerous driving causing grievous bodily harm - Admission to attending police officer - Voluntary and admissible - No reason to exclude admission in exercise of discretion

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J R Noble
Respondent: Ms M Greenshields

Solicitors:

Appellant: Jeremy Noble
Respondent: Director of Public Prosecutions (WA)

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

Bunning v Cross (1978) 141 CLR 54
R v Swaffield and Pavic (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265

EM HEENAN J: This is an appeal by leave from a decision of her Honour Magistrate B A Lane given in the Magistrates Court at Perth on 8 October 2010 convicting and sentencing the appellant Domenico Marrapodi of dangerous driving causing grievous bodily harm.
By appeal notice filed on 4 November 2010 Mr Marrapodi sought leave to appeal against that conviction on four grounds, and against the sentence imposed on one ground. Jenkins J granted leave to appeal on all grounds on 7 January 2011.
However, at this hearing of the appeal on 14 March 2011, the appellant through his counsel chose to pursue only one ground of appeal against his conviction, namely that the learned magistrate erred in law in ruling that admissions made by him at the scene of the accident shortly after the collision were admissible in circumstances where it was contended that they were unreliable and that it was unfair to the appellant to rely on them. The appeal against sentence was not pursued. At the end of that hearing I dismissed the appeal and, before delivering brief oral reasons for that decision, indicated that I would publish more detailed reasons in due course. Those reasons are as follows.
On 12 May 2009 at 4.30 pm there was a collision near the corner of Drake Street and Union Street in Bayswater. This was between a Ford Econovan being driven north-west in Drake Street by Mr Marrapodi and a Honda motorcycle being ridden in the opposite direction, south‑east, in Drake Street by Mr Kerr.
The corner of Drake Street and Union Street is a T‑junction. Drake Street is the through road. Union Street branches to the north‑east. It is a short street. There is no corresponding street or way on the south-west side of that T‑junction. Indeed, on the south‑west side there is a continuous park adjacent to the Hillcrest Primary School location.
The allegation by the prosecution, ultimately accepted by the learned magistrate, was that Mr Marrapodi, driving north‑west, intended to turn right into Union Street where he lives, and had commenced that turn without seeing the oncoming motorcycle driven by Mr Kerr. In doing so, Mr Marrapodi had crossed onto the wrong side of the road to commence that turn when there was a head-on collision between the two vehicles resulting in significant damage to both vehicles, but more particularly to the motorcycle, and severe injury, including head injury, to Mr Kerr.
In the reasons which her Honour published on 8 October 2010 the evidence, which the magistrate, accepted pointed to the impact occurring on the south‑east side of the intersection, that is on the wrong side of the road from Mr Marrapodi's direction of travel. There was no evidence which identified the point of impact precisely, although there were several indications suggesting the location of the point of impact. These were gouge marks on the surface of the roadway, and debris, broken glass and metal found near the accident scene. There was superficial and structural damage to both vehicles, which was recounted by the vehicle examiner. There was also direct evidence from Mr Kerr that his motorcycle was travelling on the correct side of the road and that the Ford Econovan was crossing over to the wrong side of the road in front of him.
All that, plus some other evidence to which I will next make reference led her Honour to conclude that the Ford Econovan was on the wrong side of the road and had turned in front of the approaching motorcycle without having seen it, and that in all the circumstances this was the dangerous driving which led to the conviction.
Part of the evidence which led to this conclusion was the evidence of Constable Clapton, who was the first police officer at the scene some minutes after the collision. Quite how long after does not precisely emerge, but it must have been a little time. The indications accepted by her Honour were that the Ford van had by then been moved.
According to Constable Clapton, he arrived at the scene and spoke to the accused Marrapodi. He did not have a precise recollection of exactly what was said. Sometime later, perhaps as much as 15 minutes later, he noted the substance of the conversation in his police notebook, which was produced at the trial. Though Constable Clapton was careful to acknowledge that it was not a complete note, he was quite emphatic that the substance of the conversation was correctly recorded in the notebook. His evidence in this regard is to be found at pages 39 and 40 of the transcript of 25 August 2010, and I read from what follows during the course of Constable Clapton's examination in chief by the police prosecutor.
If you can tell us, to the best of your recollection, what he said in response to each separate question. So the first one I think was - - - ?---I actually said, 'What direction were you going?' because I wasn't too sure at that stage, and he said - exact words - 'I was coming up this way.' I think they were the exact words.
And do you have a clear recollection of what the accused said word for word?---No.
Did you write any of it in your notebook?---I took some notes. I made general notes about what happened but I didn't write word for word.
If you could carry on then?---It would be easier - as I said, ma'am, we were standing about - in this area here. He said, 'I come this way' and he pointed back this way (indistinct) this way.
And what was the next question you put to him?---I said, 'Well, what happened?' and he said, 'The sun was in my eyes and I turned - - - '
So his response was, 'The sun was in my eyes'?---'And I turned. I didn't see it.' I mean, I can't tell you word for word, it's just too long ago, but it was in that general - - -
'The sun was in my eyes and I turned. I didn't see it.' What was your response to that?---I said, 'Well, if the sun was in your eyes, why didn't you stop and have a look and make sure that nothing was coming?' Then he replied, 'I wanted to get home,' and he lived about three doors - three houses down on - - -
And his response was, 'I just wanted to get home'?---Yes.
Now, obviously - well, I shouldn't say obviously. Did he volunteer the fact that he lived a few doors down spontaneously - immediately after he said, 'I wanted to get home' or was that - - -
There was an objection and after that it was clarified the officer said:
After he said, 'I wanted to get home' he identified the location.
There is also evidence which is uncontradicted and seems to be accepted that Mr Marrapodi alighted from his Econovan and saw for the first time a motor vehicle and the injured man, Mr Kerr, who appeared to have been very seriously injured. As a result, the appellant became immensely distressed, shaken and apparently confused and disconcerted.
There are a series of references to Mr Marrapodi being in shock, although that is obviously not meant to be a medical diagnosis but rather a general description of his disorientation and distress arising from what had happened. So much so that it was acknowledged not only by Constable Clapton but also by other constables that Mr Marrapodi was in no fit state to provide a detailed statement about the circumstances of the accident; indeed none was taken from him at the scene.
On this basis it was submitted by counsel for Mr Marrapodi at his trial that the statement as described by Constable Clapton should not be admitted into evidence on the grounds that it was not voluntary, or if it was voluntary, that it should be excluded in the exercise of discretion as being unfair or prejudicial or because of lack of reliability or cogency.
That objection was forecast at the commencement of the trial before her Honour during the opening yet, because it was said to be the practice of the learned magistrate to take evidence subject to objections and rule on the objections later, there was no voir dire conducted at the point where Constable Clapton gave his evidence. Nevertheless, the objection was renewed and developed quite fully by counsel for Mr Marrapodi in the course of final submissions. That was at pages 18 to 21 of the transcript of 26 August 2010.
In reaching the conclusion which led to the conviction, the learned magistrate said at [35]:
I accept that Constable Clapton cautioned Mr Marrapodi before he asked him what happened and therefore the oral statement made by Mr Marrapodi of the scene is admissible. Mr Marrapodi said the sun was in his eyes and he turned and didn't see.
Her Honour then said:
I accept the evidence of Mr Kerr that he saw Mr Marrapodi's motor vehicle as he drove down the incline. He did not see this vehicle. When asked by Constable Clapton why he did not stop and look and make sure nothing was coming, Mr Marrapodi said that he wanted to get home [to Union Street].
Her Honour then went on to address other aspects of the evidence which I have already mentioned. These include: the reliability of the evidence of Mr Kerr; the nature and extent of the damage to the vehicles; and the location of debris from the collision on the roadway. These all indicated that the collision in all probability had occurred on the right hand side of the road, and from the combination of this evidence her Honour concluded, beyond reasonable doubt, that the prosecution had established that the collision had occurred on the wrong side of the road, from Mr Marrapodi's line of travel.
The case for the appellant is that central to this decision, or at least very influential in the decision, was the acceptance of Constable Clapton's evidence about the discussion which took place immediately after his arrival at the scene, and that that evidence should not have been admitted in the exercise of the magistrate's discretion. The submission is that the learned magistrate appears to have condensed the question of the use to be made of that evidence into the question of whether or not it was admissible because her Honour had said at [35]:
I accept that Constable Clapton cautioned Mr Marrapodi before he asked him what happened therefore the oral statement of Mr Marrapodi at the scene is admissible.
There is more to the test of admissibility than whether or not a caution was administered, but in the context of this appeal there is no submission, nor evidence, nor any basis to conclude that the answers given by Mr Marrapodi were not given voluntarily. That being the case the evidence was admissible.
The real point is whether or not her Honour should have considered fully the submission that the evidence ought to have been excluded in the exercise of the well‑known Bunning v Cross (1978) 141 CLR 54 discretion, which is discussed and analysed more fully in a series of subsequent cases including: R v Swaffieldand Pavic (1998) 192 CLR 159 and R v Williams (1992) 8 WAR 265.
It seems that there was occasion for the magistrate to examine this question more fully, but having had the advantage of the detailed written submissions which have been filed by the parties, I do not consider that there was any reason to exercise the discretion to exclude that evidence. First of all the evidence appears to be reliable and cogent. The answers given were logical, addressed the questions which were put, and were appropriate to the scene; whether they were correct or not is another matter. There is no suggestion that the person being interviewed was intoxicated by liquor or drugs, or was delirious such that he was not able to give a conscious account of what he did before he left the scene to get help. Secondly, the answers which were given were consistent with other known features of the circumstances of the accident, and were confirmed by the evidence at trial from Mr Kerr and others about the location of the accident. In this regard it is significant that there is no reason to entertain any serious suspicion that the motorcycle driven by Mr Kerr was on the wrong side of the road. It was travelling south‑east in Drake Street. There was no roadway to turn into on the right hand side in Mr Kerr's direction of travel at or near Union Street. Mr Kerr had just come through a road calming device called a chicane and, on the evidence, was travelling slowly, between 20 and 40 km per hour. He was in second gear and it was not put to him in the course of his evidence at the trial that he had been on the wrong side of the road.
The only evidence which might suggest possibly that he could have been on the wrong side of the road is the evidence of a witness who appeared at the scene around 10 seconds after the collision, a Mr Joshua Taylor, whose evidence is to be found at page 22 of the transcript and following. Mr Taylor had been walking in the nearby park when he heard the collision and saw what he took to be debris in the air. He ran to the scene and found the vehicles stationary at the intersection. According to him the Ford Econovan driven by Mr Marrapodi was on its correct side of the carriageway.
Her Honour accepted Mr Taylor's evidence and there is no reason to call it into doubt. The explanation which her Honour accepted is that the Ford Econovan moved slightly after the point of the collision and in all likelihood was straightened up onto the correct side of the road because of safety considerations.
The evidence to the effect that the vehicles collided with one another on the north‑east side of Drake Street lends very considerable substance to the cogency and accuracy of the evidence given by Mr Marrapodi and noted, in the fashion that I have described, by Constable Clapton.
The next issue for consideration is whether or not it is unfair in some sense for that evidence to be taken and used against Mr Marrapodi in circumstances where he was confused, distressed, disoriented and later unable to give a statement.
In the first place he was able to answer questions from Constable Clapton about his name, address and whether or not he was the driver of the vehicle, and he was able to produce his driver's licence. Secondly, as I have already said, the answers he gave to these particular questions were cogent and reliable and confirmed by other matters.
No doubt he was distressed, but that does not mean that the answers which he gave were unfair. He was not exploited. He was not tricked into giving any answers. His privilege against self‑incrimination was not in any way invaded or compromised. He gave an account which in the end has been accepted as being accurate. That cannot be excluded from the evidence at the trial simply because it is incriminating.
I consider that the learned magistrate was correct to accept that evidence, and although her Honour might possibly have dealt with the issues arising more fully, her decision to accept and convict is well supported by the evidence at the trial. No error has been demonstrated and this appeal should be dismissed.