Nairn v Verkerk - [2000] WASCA 372

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: NAIRN -v- VERKERK [2000] WASCA 372

CORAM: MILLER J

HEARD: 8 NOVEMBER 2000

DELIVERED : 1 DECEMBER 2000

FILE NO/S: SJA 1128 of 2000

BETWEEN: GREGORY EDWIN NAIRN
Appellant (Defendant)
AND
ALAN JOHN STEVENUS VERKERK
Respondent (Complainant)

Catchwords:

Criminal law and procedure - Road traffic offence - Reckless driving - "Wilfully" - Extraordinary emergency - Driving at speed through chicanes and on straight stretch of road late at night - Whether constituted dangerous driving

Legislation:

Road Traffic Act 1974, s 60(1)

Criminal Code

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Defendant) : Mr M S Macdonald
Respondent (Complainant) : Mr F Sunderland

Solicitors:

Appellant (Defendant) : Macdonald Rudder
Respondent (Complainant) : State Director of Public Prosecutions

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

"R"(A Child) v Gwynne (1999) 28 MVR 441
Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
Larner v Dorrington, unreported; SCt of WA; Library No 930373; 12 July 1993
Mann v Mann (1957) 97 CLR 433
Nickisson v R [1963] WAR 114
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588
Walker v Osborne (1995) 22 MVR 363

Case(s) also cited:

Attree v Randall (1993) 19 MVR 95
Brunskill v Sovereign Marine and General Insurance Company Ltd (1985) 59 ALJR 842
"D"(A Child) v Hill [1999] WASCA 38
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Edmond v Taylor (1998) 27 MVR 158
Godbee v Samuels (1973) 5 SASR 236
Smith v R [1976] WAR 97
Vrisakis v Australian Securities Commission (1993) 9 WAR 395

MILLER J: The appellant was charged in the Court of Petty Sessions, Perth, that on 9 April 2000 at West Leederville, he wilfully drove a motor vehicle reg number 1ACG‑779 on a road, namely, Ruislip Road in a manner that was, having regard to all the circumstances inherently dangerous contrary to the provisions of s 60(1) of the Road Traffic Act 1974 ("the Act"). The appellant pleaded not guilty and the matter was heard before Mrs D Bennett-Borlase SM in the Court of Petty Sessions, Perth, on 28 June 2000. The matter was not concluded that day and was further heard on 12 July following which the learned Magistrate found the charge proven, fined the appellant $350 with $57.70 costs and disqualified him from holding a motor driver's licence for a period of six months.
On 11 August 2000, Templeman J granted the appellant leave to appeal the conviction. There are fifteen grounds of appeal, but in essence they allege the learned Magistrate erred in law in: (1) concluding that the manner of driving was either inherently dangerous or dangerous to the public or to any person having regard to all the circumstances; (2) in finding that there was no sudden emergency which lawfully excused the appellant from driving as he did pursuant to the provisions s 25 of the Criminal Code; (3) in concluding that the manner of driving of the appellant was wilful; (4) in refusing to admit a statement of material facts into evidence; (5) in concluding that certain video evidence tendered by the appellant was of no assistance to her; (6) in finding adversely to the appellant on the issue of credibility and favourably to the respondent on that issue; (7) in relation to her conclusion as to the appellant's behaviour in driving through a stop sign at the intersection of Ruislip and Northwood Streets, West Leederville.
There is a preliminary ground of appeal which asserts that the learned Magistrate erred in law in convicting the appellant under s 60(1) of the Act because her Worship should have held that the charge as formulated was not a charge under that section or any other statutory enactment. This argument proceeds on the basis that the inclusion of the words "having regard to all the circumstances" in the complaint rendered the complaint incompetent. In my view, this ground of appeal has no substance. Section 60(1) of the Act is in the following terms:
"Every person who wilfully drives a motor vehicle in a manner (which expression includes speed) that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an offence."
Counsel for the appellant argued that the complaint could only have been formulated as an allegation that the appellant wilfully drove in a manner that was either inherently dangerous or alternatively was, having regard to all the circumstances of the case, dangerous to the public or to any person. He contended that the use of the words "having regard to all the circumstances" before the words "inherently dangerous" invalidated the complaint. However, I see nothing wrong with the formulation of the complaint as it appears. True it is that it was only necessary to allege that the appellant had wilfully driven in a manner that was inherently dangerous or, alternatively, wilfully driven a motor vehicle in a manner which was, having regard to all the circumstances of the case, dangerous to the public or to any person. However, the admixture of the words "having regard to all the circumstances" and "inherently dangerous" does not create any problem that I can see. The complaint sufficiently identifies an offence known to law. I would therefore dismiss this preliminary ground of appeal.

The factual background

At about 12.30 am on Sunday 9 April 2000, Sergeant Alan Verkerk was on duty in an unmarked police Toyota Camry sedan which he was driving west on Vincent Street, West Leederville. He stopped at a red traffic light just under the freeway overpass and positioned to his left was a white Subaru Impreza hatchback, reg number 1ACG1‑779. The sergeant made an in‑court identification of the driver as the appellant. When the lights changed to green, the Impreza accelerated rapidly. It was described by the sergeant as a high performance vehicle and according to his evidence, it accelerated away to an estimated speed of 80‑90 kmh in Lake Monger Drive. The sergeant followed the vehicle and according to his evidence, the appellant drove it in the following manner:
"The defendant indicated and turned left into Kimberley Street, still under heavy acceleration. A short time later I also turned left and followed the defendant. He travelled under acceleration - - heavy acceleration in Kimberley Street for about 200 metres. A short distance from Lake Monger Drive up Kimberley Street is a small speed bump in the road. The vehicle was driver under heavy acceleration over the speed bump. It caused the body of the vehicle to lift at the front and then the back as it went over the speed hump. The defendant then turned right into Ruislip Street, still under heavy acceleration. There were a further two speed bumps in Ruislip Street, which the defendant negotiated in the same manner as the one prior to Ruislip Street. The defendant travelled for approximately 200 metres along Ruislip Street and then began to slow for a 'Stop' sign which was approaching him at Northwood Street. I accelerated alongside the defendant, to his right side. I had electric windows in my vehicle so I wound down the passenger window, turned the interior light on, pulled up alongside the defendant, as we were both still driving along, and I sounded my horn. I had a clear view of the defendant. At no time did I see the defendant look to his right. Upon sounding my horn he accelerated away heavily without coming to a stop at the 'Stop' sign. He passed over the intersection at Northwood and I followed. After Northwood Street, the defendant negotiated three speed reduction chicanes, the first of which is about 200 metres from Northwood Street; the next one is about 50 metres on.
…
The defendant accelerated a speed of approximate1y 100 kilometres per hour before braking for the first speed reduction chicane.
Mm hm?---He negotiated the three speed reduction chicanes at estimated speed of 60 to 70 kilometres per hour. In doing the defendant's vehicle hit the kerb entering and leaving the first and the third chicane. As it was quite dark in that area, I could see sparks fly from the vehicle as the vehicle came in contact with the kerbs of the chicanes. As the vehicle hit the kerbs the vehicle was sliding from the left to right and back to the left again. At one stage the rear whee1 - the left rear wheel - hitting the kerb, bounced up in air leaving what I could see only three wheels in contact the road surface. This was causing the vehicle to lose traction and slide on the road.
Yes?---After leaving the third chicane the defendant accelerated heavily to about 120 kilometres per hour and negotiated a fourth chicane which was about 450 metres - - 400 metres further down the road. Again, he negotiated this chicane at about 60 to 70 kilometres per hour after braking. Again I saw sparks fly from the vehicle as he came in contact the kerb. On this occasion, upon exiting the last chicane, the vehicle slid quite violently to the right and it appeared that the defendant had lost control of the vehicle. He regained control and accelerated away heavily to a speed estimated at. 140 kilometres per hour with me still following.
HER WORSHIP: Mm hm?---He travelled at this speed for approximately 400 metres, as 450 metres from the last chicane there is an intersection of Gregory Street with a 'Give Way' sign. The defendant slowed to about 80 kilometres per hour, estimated, and passed through the intersection and crossing over the 'Give Way' stop line, or 'Give Way' broken line at about 80 kilometres per hour. I continued to follow. About 150 metres further on the defendant came to a stop at the intersection of Harborne Street."
Sergeant Verkerk was extensively cross‑examined in relation to his testimony, particularly in relation to his estimates of speed and in relation to the manner in which the appellant drove through the stop sign at Northwood Street. As to the latter, the sergeant estimated that the appellant drove through at 40 kmh. In relation to speed over the speed humps, the estimate of speed was 50‑60 kmh and along Ruislip Street the estimated speed of the vehicle was 120 kmh.
It was put to the sergeant that he had "tail‑gated" the appellant whilst travelling along Ruislip Street but this the sergeant denied, contending that he was "catching up on the defendant" and travelling at 90 kmh in Kimberley Street to do so whilst estimating the speed of the appellant along Ruislip Street at 120 kmh.
The appellant gave evidence that from the traffic lights at Vincent Street under the freeway overpass, he had "accelerated briskly" as was his usual habit and proceeded along Lake Monger Drive at a speed of 60‑70 kmh before turning into Kimberley Street. He contended that he had driven it only 50‑60 kmh over the speed hump in Kimberley Street and likewise over the humps in Ruislip Street into which he turned from Kimberley Street. He claimed to have seen a motor vehicle following him which he thought was "a little unusual" at the outset and which concerned him at the time he was approaching the stop sign at the intersection of Ruislip and Northwood Streets. His evidence was that he thought the driver of the following vehicle must have taken some offence to the fact that "he had been left in the dust … so to speak at the lights … It's my usual habit of driving and sometimes it offends people". Excerpts from appellant's evidence of events thereafter are as follows:
"I then turned my attention away from this vehicle behind me, as I say, trying to remain calm, and then looked 1eft and right and right again at the "Stop" sign, as is my usual way at any 'Stop' sign. I then began to accelerate from the white line and suddenly the Camry was beside me, completely out of the blue to me. I did not see him veer out from behind me. It was just a complete surprise. It was under acceleration to catch up to me in the sense that he was coming alongside me. I heard a loud revving and I heard - - and I heard the horn repeat - - sorry; he repeatedly sounded his horn.
…
Had you looked inside?---No. No. No. I just was - - I - - I looked very quickly across when he became - - in the middle of the intersection, but there was nothing I could make out at all about the car. Just that it was the white Camry.
You did look across quickly?---Oh, yes.
Sergeant Verkerk said that he had his light on and his window down?---Well, I certainly didn't see that and I certainly wasn't aware of any light being on, or I wasn't even aware at that stage of how many people were in the vehicle. I had no idea whatsoever.
…
To me, I thought - - I was at this stage, to be quite honest, terrified because I did not want to have - - I did not want to stop and have some sort of confrontation with this guy, or there could be more than one guy. I just wasn't aware. So I decided that I've got two options; I can't stop, which I ruled out straight away, or I could proceed ahead and keep my vehicle in front of his. So I immediately stepped on the accelerator hard to keep in front of him, to make sure that I was able to proceed further down Ruislip Street. At that point I began approaching the first chicane.
…
I reached the first chicane. It's a pretty short distance as you would have seen on the video. I then began to decelerate. I wouldn't have exceeded perhaps 70. As I said, there's simply not an opportunity to do so approaching the first chicane. Through each chicane I went 50 to 60. The first three chicanes are in a close, tight bunch, as you would have seen, and I basically - and you're restricted to, you know, 50 to 60 through those. I'm very familiar with the street. I've been through it thousands of times. I went through each chicane, negotiated them. I do concede that I did clip one of the chicanes with the right - - sorry; the left front wheel. I don't recall specifically which chicane it was. I think it was the second or third. But it was a clip which I've done hundreds of times before even at low speeds.
…
So you've traversed the first three chicanes?---Mm hm.
Then you moved towards the fourth?---That's correct. I proceeded then to accelerate out of the third chicane to a speed of approximately 80 to 90 kilometres per hour.
Why were you speeding?---I was still very much in fear of this particularly individual who was still not far behind me at this stage, and that was basically the same situation that existed when I entered the chicanes; there was no difference in my mind after I exited the chicanes.
All right. So you continued on to - -?---That's correct. I approached the fourth chicane, decelerated from 80 or 90 to proceed through that fourth chicane, which is just near Kavanagh and Connolly Street. I then exited the chicane. I went through it as per normal.
…
As soon as I exited the fourth chicane I checked my rear view mirror to see where this Camry was, because that was my focus. I suppose at that - - through up to that point. The Camry appeared to be some way behind me. I felt much more comfortable as though he had given up. My particular vehicle is faster and is more capable, and I just thought that he had decided not to confront me any more, and I was very much starting to relax. I wasn't completely relaxed. I was still very agitated, I suppose; very nervous. But I decided I could drop off my speed. I didn't have to accelerate away to the next intersection. So I just decided I'll just start driving normally and let's see how this Camry reacts. I go - - I proceeded round the left - - there's a gentle left bend along Ruislip Street, and by this stage I was driving quite normally, as I would drive home on any night. As I say, I'm aware of the roads, I knew there was a 'Give Way' sign ahead. I slowed for the 'Give Way' sign; 20 to 30 kilometres per hour I would have gone through the 'Give Way' sign. I checked both ways as per normal. I had made very sure there was no one coming. I then proceeded a very short distance between that intersection and the 'Stop' sign at Harborne Street and stopped. Now, the reason I stopped is because it was a 'Stop' sign; it was as simple as that. And suddenly - I must say I was taken very much aback - the Camry was beside me at this point. It was a complete surprise."
The appellant called in evidence Robert Herridge, a professional rally driver who had intimate knowledge of WRX Subaru motor vehicles and who had inspected the appellant's vehicle at his workshop approximately two weeks after the incident. He found no evidence of any damage to it or signs that it had incurred damage from hitting any kerbs. Herridge also testified that he had driven through the chicanes in question and at the maximum allowable speed of 60 kmh. He said:
"In my experience you would be struggling to travel at more than 60 to 70 kilometres per hour through that chicane without losing control - - complete control of the car and hitting the chicane.
…
In my experience there is not enough room on the entrance to the chicane to slide the car violently in any direction and still negotiate the chicane, and the very nature of the chicane means that there is not enough room between the centre part and the exit of the chicane."
When cross‑examined, Herridge stated that the maximum speed that he could have traversed the chicanes was approximately 70 kmh.

The Magistrate's reasons

The learned Magistrate gave quite extensive reasons for her decision. After reviewing the facts, her Worship concluded:
(1)There was no sudden emergency or any situation which an ordinary person of sober demeanour and attitude could not exercise a power of control over in relation to driving.
(2)The result was that the provisions of s 25 of the Criminal Code could not be said to apply.
(3)In any event, there were a number of options open to the appellant if he was of the belief that he might be attacked by the occupants of the other vehicle. One of those was to drive into a driveway along the roadway and seek assistance.
(4)The video which was produced was of limited assistance to the Court because it was taken at an entirely different time in different weather conditions and in circumstances where it was unlikely to have attracted a police officer's attention.
(5)The evidence of Herridge was "interesting" but limited in its value because Herridge had no personal experience of the appellant's driving and could give no evidence in relation to the manner in which he drove on the evening in question. The evidence was, however, of value in relation to the handling characteristics of the vehicle.
(6)The appellant's evidence in relation to the speed at which he had travelled was unacceptable and on the issue of credibility, the sergeant was "very strong … very credible in his evidence" whereas the appellant was not either "credible or believable in his evidence".
(7)The sergeant's 23 years of experience as a police officer classified him as an expert in the field of speed estimation but even so, it was necessary to temper the sergeant's estimations of speed having regard to the fact that he was pursuing the appellant. Even taking into account that the appellant may not have reached 140 kmh or even 120 kmh, on the totality of the evidence, it could be concluded that the appellant had traversed the chicanes at 60‑70 kmh; had gone through a stop sign without stopping and had, even if not travelling at 120‑140 kmh, proceeded at 80‑90 kmh on the straight stretch of Ruislip Street.
From these conclusions, the learned Magistrate held that the appellant's driving was a wilful act of dangerous driving which meant that the charge was proven to the required standard.

Grounds of appeal

The first substantial ground contends that the driving found by the learned Magistrate was not inherently dangerous, nor (it is said) was it in all the circumstances dangerous to the public or to any person. The argument put was that 20 or 30 kmh above the speed limit attracted only certain demerit points or a fine and even if the appellant had driven through a stop sign without stopping, the roadway was clear, there was no traffic and the appellant had, in any event, almost stopped. Further, it was put that traversing chicanes at 60 kmh was safe for a competent driver.

The meaning of "inherently dangerous" driving was discussed in Walker v Osborne (1995) 22 MVR 363 per Scott J at 366‑367 where his Honour said:
"I can find no authority on the meaning of the term 'inherently dangerous' in s 60 of the Act. The Shorter Oxford English Dictionary defines 'inherent' to mean, inter alia, 'an essential element, of something; intrinsic, essential'. Thus the question arises in this case whether the expression 'inherently dangerous' in the first part of s 60(1) of the Act has a different meaning from the expression 'dangerous' where later used in that section or the expression 'dangerous', as used throughout s 61 of the Act. In my opinion there is a distinction to be drawn. In both ss 60(1) and 61(1) the expression that is used is 'dangerous to the public or to any person'. It follows that in relation to that part of the section it is necessary for the prosecution to establish that a member or members of the public was or were put at risk in the sense to be discussed later and as referred to by Murray J in Morton v Bevis (1993) 19 MVR 181 at 183.
In my opinion, however, the expression 'inherently dangerous' conveys a different meaning. In my opinion, for the purposes of s 60(1) of the Act, if the court is satisfied that the driving of itself is essentially dangerous so as to amount to recklessness then that is sufficient for reckless driving, whether or not any person is thereby endangered."
His Honour also said in relation to the question of dangerous driving (at 367):
"The test for dangerous driving is objective. The weight of the authorities is, per Murray J in Morton, 'whether there was a real potential danger arising out of a substantial possibility of injury to persons who might reasonably be expected to come upon the road': see 184 of that decision. [Emphasis added.]"
In "R"(A Child) v Gwynne (1999) 28 MVR 441 I made the following observations about reckless driving (at 444):
"Counse1 for the appellant referred to a number of cases in which the test for reckless driving is set out. It is sufficient to refer to Attree v Randell (1993) 19 MVR 95, where Murray J (at 97) pointed out that a line of cases establishes clearly that the crucial element in the charge of reckless driving is the wilfulness of driving in either way which the section proscribes. That is, that the consequences or likely consequences of that manner of driving are adverted to, but the defendant proceeds, recklessly indifferent to whether those consequences may occur or not. This, Murray J pointed out, is to be contrasted with the offence of dangerous driving under s 59(1) of the Road Traffic Act 1974, where to constitute that offence the driving must in reality, and not speculatively, be actually or potentially dangerous to the public or another person. As was pointed out by Brinsden J in Davey v Ridge (SC(WA), Brinsden J, 17 March 1983, unreported) there is no reason why the word 'wilfully' appearing in s 60(1) of the Road Traffic Act should receive a different interpretation to that which has been applied in respect of the same word appearing in the Criminal Code. Wilfulness requires proof that the accused either had an actual intention to do the particular kind of harm that was in fact done or deliberately did an act, aware at the time he did it, that the result was a likely consequence of his act and that he recklessly did the act regardless of the risk."
In my view, these principles entirely justified the learned Magistrate's conclusion that the appellant's driving on the night in question was inherently dangerous. She found him to have driven through a stop sign without stopping; to have travelled through chicanes at 60‑70 kmh and to have reached at least 80‑90 kmh on straight stretches of Ruislip Street. It was, in my view, open to the learned Magistrate to conclude that this manner of travel constituted inherently dangerous driving notwithstanding the hour of the night at which it occurred. There was ample evidence of reckless indifference to what the consequences of the driving might be, with the result that the learned Magistrate was entitled to conclude that the appellant drove recklessly, regardless of the risk. And there was clearly a risk to other road users should they have appeared on the roadway at any point during the appellant's journey along Ruislip Street. Expert testimony as to the maximum speed at which a person could traverse the chicanes was not to the point. The appellant's own admission that he drove at up to 60 kmh through the chicanes put him at the very limits of adhesion irrespective of what the police sergeant said in relation to the question of sliding of the vehicle. As to this, the learned Magistrate reached no actual conclusions, nor was she obliged to do so. It was the speed at which the appellant was travelling both through the chicanes and along Ruislip Street which constituted the inherently dangerous driving. In the appellant's own words, he "stepped on the accelerator hard" to keep in front of the appellant whilst in Ruislip Street, and on the accepted testimony of the police sergeant, he went through the stop sign at Northwood Street at about 40 kmh.
The second substantial ground of appeal raises the learned Magistrate's approach to the defence raised under the provisions of s 25 of the Criminal Code. That section is in the following terms:
"Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise."
In Larner v Dorrington, unreported; SCt of WA; Library No 930373; 12 July 1993 Walsh J (at 9) approved the formulation of the test for application of this section set out in Carter's Criminal Law of Queensland Vol 1 at 2197. His Honour said:
"In Carter's Criminal Law of Queensland Vol 1 the learned author at 2197 states:
'Necessity can only be a defence to a charge of reckless driving where objectively the facts establish duress of circumstances ie that the defendant was constrained by circumstances to drive as he did to avoid the threat of death or serious injury to himself or some other person. See R v Conway [1989] QB 290; [1988] 3 All ER 1025; 88 Cr App R 159, which was applied in R v Martin [1989] 1 All ER 652; (1988) 88 Cr App R 343, where it was held that the appropriate direction to the jury was that they had to determine two questions, namely: (i) whether the accused person was or might have been impelled to act and he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious physical injury would result; and (ii) if so, whether a sober person of reasonable firmness, sharing the characteristics of the accused person, would have responded to that situation by acting as the accused person had acted, and to acquit if both questions are answered affirmatively since the defence of necessity will then have been estab1ished'."
It was, of course, necessary for the prosecution to negative the defence of necessity and not for the appellant to establish it. When the learned Magistrate concluded that she could not accept that there was any sudden emergency, she was not, in my view, overlooking the question of onus but simply pointing out the inherently difficult task for the appellant in raising as a matter of evidence this line of defence. When regard is had to the test formulated in Larner v Dorrington (supra), it is obvious that the defence was unavailable to the appellant. In the first place there was, in my view, a lack of evidence that the appellant could be said to have had "good cause to fear that otherwise death or serious physical injury would result"; and in the second, it is impossible to conclude that a sober person of reasonable firmness "would have responded to the situation by acting as the accused person acted". I say this because I can find nothing in the evidence to suggest that the appellant had good reason to fear that he would suffer death or serious physical injury. All that had occurred was that an unmarked Toyota Camry had pulled alongside him at or about the stop sign at the Northwood Street intersection and the horn of the vehicle had been tooted. I would have thought that any reasonable motorist who observed a vehicle gaining on him at speed in circumstances where he (the motorist) had accelerated rapidly from a set of traffic lights and driven thereafter at or above the speed limit, might have anticipated that the following vehicle was a police vehicle. In any event, no‑one gave him any cause to fear death or serious physical injury. All that he was able to say was that he "became quite concerned" and was "terrified". Further, I cannot accept that the ordinary sober person of reasonable firmness driving a motor vehicle in the circumstances in which the appellant was placed would have responded to the situation by travelling through the stop sign and accelerating away in the manner in which he did. The appellant may have been concerned about the presence of a vehicle next to him at Northwood Street, but it was incumbent on him, in my view, to make further investigation as to what the driver of the vehicle was doing before accelerating away as he did.
The ground of appeal which relates to the learned Magistrate's refusal to accept a statement of material facts has no substance. Sergeant Verkerk was extensively cross‑examined about the statement of material facts and inconsistencies between it and his testimony were explored in the course of that cross‑examination. The sergeant explained why those inconsistencies existed and it cannot be said that any miscarriage of justice occurred by reason of the learned Magistrate's refusal to allow the statement to be tendered as an exhibit.
The learned Magistrate's conclusions in relation to credibility were, in my view, open to her. Clearly she accepted the sergeant as a much more credible witness than the appellant. Indeed, the appellant was specifically found to be neither credible nor believable in his evidence. Although the learned Magistrate did not accept in its entirety the evidence of the sergeant in relation to speed and tempered his estimates because he had been following some distance behind the appellant, that did not take away from her ultimate conclusion as to credibility. The learned Magistrate saw and heard the witnesses and it would be wrong for me to reverse any conclusions that she reached in relation to the issue of credibility: Abalos v Australian Postal Commission (1990) 171 CLR 167; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588; Devries v Australian National Railways Commission (1993) 177 CLR 472; Mann v Mann (1957) 97 CLR 433.
In my view, it was entirely open to the learned Magistrate to treat the video evidence as she did. The video was not taken on the night in question and was a recreation of the circumstances in which the appellant contended he had driven. Recreations of evidence in this way are questionable; Nickisson v R [1963] WAR 114 per Jackson SPJ at 116.
In my view, the grounds of appeal have not been made out and I would therefore dismiss the appeal.