Police v Eiffe - [2007] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v EIFFE
[2007] SASC 178
Judgment of The Honourable Justice Vanstone
17 May 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - STATUTORY PROVISIONS AS TO PRIMA FACIE EVIDENCE - AS TO AVERMENTS AND ALLEGATIONS
Appeal against decision of magistrate dismissing charges under the Road Traffic Act of driving at a dangerous speed and failing to stop after accident in which a person is injured - whether respondent was proved to be driver of vehicle involved in accident - whether respondent's instructions could be inferred from cross-examination of victim - whether evidentiary aid found in s 175(1) Road Traffic Act 1961 assisted the prosecution. Held: insufficient evidence to establish guilt beyond reasonable doubt. Appeal dismissed.
Magistrates Court Act 1991 (SA), s 42; Road Traffic Act 1961 (SA), s 46, s 43(1), s 175(1)(i), referred to.
R v Lander (1989) 52 SASR 424, applied.
R v Robinson [1977] Qd R 387, distinguished.
Ellul v Fauser (1981) 28 SASR 300; Llewellyn v Police (2005) 91 SASR 418, discussed.
R v Wilkes (1948) 77 CLR 511; Thorogood v Warren (1979) 20 SASR 156; Police v Lloyd (1998) 72 SASR 271; Police v A, TG [2006] SASC 299; R v Hush; Ex parte Devanny (1932) 48 CLR 487; Jambajimba v Svikart (1984) 71 FLR 287; Ex parte O'Sullivan; re Craig (1944) 44 SR(NSW) 291, considered.

POLICE v EIFFE
[2007] SASC 178
Magistrates Appeal
VANSTONE J:
Introduction

This is an appeal by the police pursuant to s 42 of the Magistrates Court Act 1991 against an order of a magistrate dismissing a complaint which charged Mr Eiffe with driving at a dangerous speed (s 46 Road Traffic Act 1961, now referred to as “the Act”) and failing to stop after an accident in which a person is injured (s 43(1) of the Act).
There was no dispute that on 7 June 2005 on Angas Street, Adelaide just west of Pulteney Street, a collision occurred between a motor car and a bicycle, causing injury to the cyclist. The primary issue in the trial was one of the identity of the driver of the motor car. The appellant argues that the evidence before the court, combined with the aid to proof provided in s 175(1)(i) of the Act proved beyond reasonable doubt that the respondent was the driver of the vehicle and therefore should have been convicted.
The appeal is in the nature of a rehearing and I am to make up my own mind as to the matter and can interfere with the magistrate’s findings without the necessity of identifying error. However, where, as here, the question is not one of evaluation of evidence, but rather, its sufficiency, there has traditionally been a reluctance to interfere with a magistrate’s finding that there was reasonable doubt: R v Wilkes (1948) 77 CLR 511; Thorogood v Warren (1979) 20 SASR 156 per Zelling J; Police v Lloyd (1998) 72 SASR 271 per Debelle J. (But see Police v A, TG [2006] SASC 299.)
Background
Insofar as the appellant sought to implicate the respondent in the collision, its case was a circumstantial one. In order to review the magistrate’s decision that the relevant inference could not be drawn, it is necessary to summarise the evidence called by the appellant.
The cyclist gave evidence that the incident occurred at about a quarter to nine one weekday morning as he made his way to work. Although there was some initial hesitation in his evidence as to whether it occurred on 6 or 7 June and as to the location of it – being either Wakefield Street or Angas Street – after reflection the cyclist confirmed that it was the street to the south of Wakefield Street and that it occurred in the entrance to a service station on the Pulteney Street corner. Both of those facts established that it was Angas Street. In addition, the cyclist said he reported the incident at the Adelaide Police Station within two hours and the report was shown to have been made on 7 June.
The cyclist described an incident commencing in Pulteney Street. He said he was travelling north in the lane for left, or west, turning traffic when a motor car “lurched” out of the adjacent lane into his path. He had to brake sharply to avoid collision. The traffic lights were red at that point and the vehicle came to a halt in the left turning lane, perhaps third in line. As the cyclist slowly passed the vehicle he “tapped firmly” on the rear left panel adjacent to the rear door of the vehicle to get the driver’s attention and he gestured and shouted to the driver to indicate, in effect, his displeasure at the manoeuvre. The driver shouted back to him. The lights then turned green and the cyclist continued moving, turning left into Angas Street. He then heard a revving engine and felt an impact to his rear wheel which catapulted him from the bicycle. He looked up from the roadway to see “the same car” about 15 to 20 metres from him accelerating away from the point he adjudged to be the point of impact.
A number of persons were nearby, including a witness by the name of Smith, who gave his details to the cyclist. Despite doubt in Mr Smith’s mind about the time and date of the incident, he was plainly describing the same event. It is clear from the evidence that another witness recorded the registration number of the departing motor vehicle, but, inexplicably, that witness was not called at the trial.
Mr Smith was on foot on the south-west corner of the relevant intersection waiting to cross Pulteney Street. He heard a car sounding its horn and looked up to see a vehicle on Pulteney Street following a bicycle as it turned left into Angas Street. The car sounded its horn twice more. He said that the bicycle turned “fairly sharply left” with the car following “directly afterwards”. He saw the car hit the back of the bicycle and then speed off. The cyclist came “flying off his bike”.
The car was described by the cyclist as “black”, “new looking, certainly very clean and shiny”, “a sporty 4-door sedan”. He thought it was a Mazda 3. There was one occupant only. He could not describe him. Mr Smith described the car as “a smaller car”, “a sports car type”, “fairly new” and dark in colour. He could not describe the driver.
On the same day as this incident, the respondent also made a report at the Adelaide Police Station, alleging he was the victim of property damage. That fact was attested to in evidence, second-hand, by a police officer who described himself as a “traffic member”, and to whom both reports were passed. The contents of the respondent’s report were not proved by admissible evidence in the trial. Importantly, there was no proof of the way in which the damage was reportedly sustained.
In investigating the cyclist’s report the officer spoke with the respondent and took photographs of his vehicle (or at least the vehicle he admitted driving on the day). The photographs in evidence show what appears to be a blue, or conceivably a black, 4-door Mazda sedan. No proof of the colour or of the model of this car was tendered. Upon the officer’s inspection there was damage in the form of a dent and scratch on the front passenger door between the handle and the window. It was not clear from the evidence whether the officer checked the remainder of the car for damage.
The following conversation occurred between the officer and the respondent:
Officer:At about 8.50am on 7 June 2005 were you driving a Mazda sedan registered WXC-451 west on Angas Street, Adelaide?
Respondent: Yes.
Officer:At this time was your vehicle involved in a collision with a cyclist on Angas Street, Adelaide?
Respondent: I won’t answer any more questions.
There were no other witnesses called for the prosecution and the respondent did not give evidence.
Analysis
It can be seen that the appellant’s case contained some deficiencies. There was no direct proof that the respondent’s motor vehicle was involved in the incident with the cyclist at all. As to whether such an inference could be drawn, the evidentiary basis was less than robust. For instance, there was no proof that the car driven by the respondent on the day was black. Nor was it shown whether it was a Mazda 3 as the cyclist believed. Then, there was no proof of where on Angas Street the incident in which the respondent was involved occurred, or of what he told police about it.
Although it might seem unlikely that there would be two incidents on Angas Street at about the same time of day, each involving a newish Mazda motor vehicle in good condition, one can understand the magistrate’s hesitance in concluding beyond reasonable doubt that the incidents were one and the same. I would share that reticence. In all probability evidence covering these matters was readily available; it was simply not presented.
Counsel for the appellant sought to supplement the matters of proof so far outlined by pointing to a passage of the cross-examination of the cyclist. Counsel submitted that the respondent’s instructions could be inferred from the content of the questions put in cross-examination. He suggested that from the questions it could be inferred that the respondent admitted being the driver of the motor vehicle involved in the incident with the cyclist. He relied on R v Robinson [1977] Qd R 387. The questions and answers relied on were as follows. They were directed to the cyclist’s description of the part of the incident which occurred in Angas Street.
Q.You would not agree with the proposition that you struck the car in any other way, kicked it with your foot.
A.No, I would not agree with that.
Q.With a fist.
A.No.
Q.You wouldn’t accept that you did anything to the car that might have caused the type of damage that is depicted in the photograph that you looked at earlier MFI #D1.
A.No.
Q.Would you agree or disagree that you came alongside the black car and were screaming and gesticulating at the driver.
A.I would disagree with that.
Q.It’s not the case that you were upset that the driver was so close to the left hand kerb that you couldn’t get past.
A.Oh, no.
Q.Of course because you don’t accept that the traffic was built up, then you wouldn’t agree that your bike might have continued further up Pulteney Street, past the stationery cars that were banked up along that road and you were looking back at the black car still gesticulating towards the driver.
It is true that these questions appear to contain counsel’s instructions, and that at least at this stage of proceedings it seems that counsel expected that the respondent would be giving evidence. It is possible that his attitude changed when he realised that the prosecutor was not calling any evidence clearly implicating his motor vehicle in the collision. Be that as it may, the issue is as to the use that might be made of counsel’s questions.
In Robinson the Queensland Court of Appeal held that a jury was entitled to have regard to discrepancies between the case as put to witnesses by defence counsel, as against the evidence of the person from whom those instructions must be taken to have come, usually the accused. In this case counsel’s submission seeks to add a new dimension to that principle. Here it is suggested that the questions themselves, standing alone, can be taken to amount to the accused’s instructions. That is tantamount to saying that the questions contain admissions by the defendant as to his presence and participation in the incident. I cannot think that is so.
A similar submission was put and rejected by the Court of Criminal Appeal in R v Lander (1989) 52 SASR 424. There the appellant was charged with obtaining money by false pretences. The accused did not give evidence in her defence. The principal evidence against her came from an accomplice and the jury was warned of the danger of convicting on the uncorroborated evidence of that witness. One matter left to the jury as potentially providing such corroboration was inferences which it was suggested could be drawn from questions asked by the accused’s counsel in cross-examination. Those questions contained assertions which, it could be inferred, were based on the accused’s instructions. In separate judgments each member of the Court agreed that the questions put could not be used in the way suggested. King CJ made this observation at 426:
Only evidence can amount to corroboration. Statements contained in counsel’s questions are not evidence and cannot be converted into evidence by a process of inference. Use may legitimately be made of matters occurring in the course of the trial, including the conduct of the accused’s case, in evaluating evidence but inferences drawn from the conduct of the case cannot amount to evidence of facts in issue and cannot therefore amount to corroboration.
I take the critical difference between Robinson’s case on the one hand and Lander and the present case on the other, to be that in the latter instances there was no evidence from the apparent author of the instructions which could be compared with the content of the questions. Accordingly, the questions put to the cyclist have, of themselves, no evidentiary value.
Finally, counsel for the appellant relied on the presumption provided by s 175(1)(i) of the Act. He suggested that the particulars of the charges, coupled with the legislative provision, were sufficient to prove that the respondent was the driver of the car which hit the cyclist. I set out the provision:
175. (1) In proceedings for an offence against this Act, an allegation in a complaint that –
((a)-(h) irrelevant)
(i)a specified person was the owner, operator or person in charge or driver of a specified vehicle,
is proof of the matters so alleged in the absence of proof to the contrary.
(underlining added)
It is hard to see that this provision added anything to the appellant’s case. Here the prosecution had the respondent’s admission that he was indeed driving the motor vehicle WXC-451 at about the time of the collision. But the real question was whether it was that vehicle which collided with the cyclist. Had there been proof of that vehicle being involved and no separate proof of identification of the driver, then the evidentiary aid might have been usefully employed. But whilst counsel for the appellant faintly argued that the evidentiary aid could provide proof, not only of the identity of the driver, but also proof that the specified motor vehicle was the very vehicle involved in the collision, such a use seems to me to be beyond the scope of the section.
Before leaving that topic I mention what might have been a further difficulty facing the prosecution. To have enlivened the evidentiary aid the complaint must have contained an allegation that a “specified person” was driving a “specified vehicle”. This complaint clearly identified the respondent, but referred to him driving a “vehicle namely a motor vehicle”. Both terms are defined in s 5 of the Act. That qualification was effective in restricting the possible class or genre of vehicles to those “built to be propelled by a motor that forms part of the vehicle”, as compared with a “bicycle”. But there is a real question in my mind as to whether the descriptor “motor vehicle” supplied the necessary specification.
I note that in Ellul v Fauser (1981) 28 SASR 300 at 303, Cox J discussed the interpretation of the word “specified” used elsewhere in the Act and referred to a number of authorities ranging beyond the current subject matter. Some of the authorities he referred to required that word to do significant work. His Honour’s conclusion was that the requirements of the word would vary according to the subject matter and the “evident policy of the legislative prescription”.
Speaking generally, I would have expected that where a provision casts an evidentiary burden on a defendant – provided certain preconditions are met – it would be appropriate to interpret those preconditions fairly strictly. See, for example, R v Hush; Ex parte Devanny (1932) 48 CLR 487, 500; Jambajimba v Svikart (1984) 71 FLR 287, 291 ff; Ex parte O’Sullivan; re Craig (1944) 44 SR(NSW) 291, 300 per Jordan CJ. It should not be difficult for the draftsman to adequately describe the motor vehicle allegedly used.
I note that in Llewellyn v Police (2005) 91 SASR 418, 426, in dealing with an offence against s 47B of the Act, Gray J found that, there, the allegation that the vehicle in question was a “motor vehicle” amounted to sufficient specification for the purposes of s 175. As I said, since the appellant fails at an earlier hurdle, it is unnecessary for me to reach any firm view.
Conclusion
In my opinion the magistrate was correct in finding that the evidence identifying the respondent as the driver did not amount to proof beyond reasonable doubt. I consider that neither resort to the evidentiary aid found in s 175 of the Act, nor the content of questions put to the cyclist by the respondent’s counsel added to the prosecution case.
For these reasons I would dismiss the appeal.