Police v Jachmann - [2009] SASC 392

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v JACHMANN
[2009] SASC 392
Judgment of The Honourable Justice Layton
18 December 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - FAILURE TO KEEP PROPER LOOK-OUT
Prosecution appeal - respondent truck driver involved in collision with cyclist - cyclist killed - charge of Aggravated Driving Without Due Care dismissed by Magistrate - Magistrate found reasonable possibility that respsondent would not have been able to avoid collision - whether Magistrate erred in not focussing on issue of respondent's proper look-out - whether Magistrate placed appropriate weight on respondent's admission that he did not see cyclist - whether part of expert evidence beyond area of expertise - whether expert's reasoning as accepted by Magistrate flawed - whether inappropriate reference to certain factors.
Held: Appeal allowed - Magistrate's failure to focus on respondent's look-out was an error - Magistrate did not give proper treatment to respondent's admission - part of expert's evidence beyond area of expertise and inadmissible - reasoning based on unsound assumption leading to erroneous findings of fact - reference to hypotheticals or suppositions - decision of Magistrate quashed - matter remitted to Magistrates Court for rehearing.
Road Traffic Act 1961 (SA) s 45; Magistrates Court Act 1991 (SA) s 42; s 42(5)(b), referred to.
Police v Jachmann (ex tempore judgment of Ms O'Connor SM, Magistrates Court of South Australia, 26 August 2009), discussed.
SA Police v Murphy (unreported judgment of the Supreme Court of South Australia, Debelle J, 9 January 1996); Warren v Coombes (1979) 142 CLR 531; Thorogood v Warren (1979) 20 SASR 156, considered.

POLICE v JACHMANN
[2009] SASC 392
Magistrates Appeal
LAYTON J:

This is a Crown appeal against the dismissal of a complaint against the respondent on a charge of Aggravated Driving Without Due Care, a summary offence under s 45 of the Road Traffic Act 1961 (SA) (“the Act”). The charge arose from a collision which occurred on 22 January 2009 on the Sturt Highway near Yamba between the respondent driving his B-double vehicle and a cyclist. The fact that, tragically, the cyclist was killed, constituted the aggravated circumstance of the charge.
Agreed facts
At trial, the parties agreed certain facts which are summarised by the Magistrate.[1] The collision occurred not long after the respondent had begun the first leg of an expected return journey from Renmark to Goulburn in the performance of his occupation as a truck driver. He had left Renmark at or about 6.45pm and the collision occurred some time between 7.00pm and 7.15pm. It was not dark at that time, with sunset expected at 8.30pm that evening.[2] The respondent was travelling at between 90 and 100 kilometres per hour. Immediately after the collision, the respondent stopped and rendered all possible assistance, although given the nature of the cyclist’s injuries, there was nothing the respondent or anyone else could have done to save the cyclist’s life; the respondent had been helpful and candid in assisting with the subsequent investigation. Road conditions did not play a part in the collision, but the Magistrate added “although in the relevant section of the road, there was a curve of the road which may have played a part”. It is not clear whether this was an agreed fact or whether it was an observation made by the Magistrate during her narration of the agreed facts. I will address this issue later in these reasons.
[1] Police v Jachmann (ex tempore judgment of Ms O'Connor SM, Magistrates Court of South Australia, 26 August 2009) [3].
[2] On appeal before me, it was agreed that sunset at Renmark on that day actually occurred at 8.19pm, although nothing turns on this difference.
Magistrate’s findings
The Magistrate correctly reasoned that to discharge its onus of proving the charge of Driving Without Due Care beyond reasonable doubt, the prosecution had to show that there had been negligence on the part of the respondent. As to what would constitute a breach in the required standard of care, the Magistrate also noted that “a mere lapse from due care or attention and conduct which is plainly blameworthy”[3] was sufficient. Furthermore, in the respondent’s circumstances of driving a B-double at speed, the Magistrate found that not only a measure of defensive driving was required, but also the higher standard of protective driving.[4] However, “the mere fact that the cycle and the truck were on the road is not sufficient to constitute this charge, nor is the fact that impact occurred”.[5]
[3]    Police v Jachmann (ex tempore judgment of Ms O'Connor SM, Magistrates Court of South Australia, 26 August 2009) [9].
[4]    Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [12].
[5]    Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [25].
The Magistrate also commented on the unlikelihood that any cyclist would be riding “on a road to Mildura” at the time of the accident and seemed to take this into account when considering the foreseeability element of negligence.[6]
[6] Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [13].
In determining whether the respondent had departed from the required standard of care, the Magistrate considered the evidence of Police Major Crash Unit (“Crash Unit”) experts, as well as that of a recently retired and very well respected Crash Investigator and Crash Reconstruction Expert, Mr England. There were a number of differences of opinion expressed between the Crash Unit and Mr England. These included where and how impact occurred, and whether the cyclist was riding erratically. Where there was a divergence in opinion, the Magistrate preferred the evidence of Mr England, largely on the basis of his greater experience.
Importantly, Mr England’s conclusion was that only two scenarios could reasonably explain how the respondent collided with the cyclist: either he did not see the cyclist, or he does not remember seeing the cyclist because of the trauma of the accident. The Magistrate accepted this evidence, including that there was a reasonable possibility that the respondent did not remember seeing the cyclist. This acceptance of Mr England’s evidence led the Magistrate to the conclusion that “a driver in the defendant’s position would not have been able to avoid this collision”.[7] On this basis, the Magistrate decided that the prosecution was not able to discharge its onus of proving beyond reasonable doubt that the respondent had been negligent.
[7] Police v Jachmann (ex tempore judgment of Ms O'Connor SM, Magistrates Court of South Australia, 26 August 2009) [23].
Right of appeal
Section 42 of the Magistrates Court Act 1991 (SA) confers a right of appeal on any party to criminal proceedings in the Magistrates Court. This includes the right of the prosecution to appeal against the Magistrate’s decision to acquit. Section 42 provides:
(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(Emphasis added.)
Despite the wide scope of this provision, I take into account the overarching consideration that an appellate court will only interfere with the factual findings of a trial judge where the trial judge is found to have palpably misused or failed to use his/her advantage in assessing the facts and witnesses at first instance.[8] In a case such as the present one, where the DPP is appealing against an acquittal, this consideration has greater force such that the Magistrate’s factual findings would only be interfered with in a “very unusual case”.[9] However, I am also mindful that in such appeals “when there is an error of law, the court might be the more willing to interfere.”[10] Debelle J summarised these considerations in the specific context of s 42 of the Magistrates Court Act as follows:[11]
. . . although s42 of the Magistrates Act provides a right of appeal to the prosecution from an acquittal by a magistrate, appellant courts are reluctant to interfere with a verdict of acquittal which is based upon a reasonable doubt . . . When there is an error of law the court might be the more willing to interfere. When there is an appeal against an acquittal and that acquittal was based upon a reasonable doubt, the appellant court will not interfere except in a very unusual case . . . Plainly, where there is an appeal which involves a question of fact and the issues in the appeal depend on the view taken of conflicting testimony or an impression gained from an observation of witnesses, the appellant tribunal is at a distinct disadvantage.
(Footnotes omitted.)
Issues on appeal
[8] Warren v Coombes (1979) 142 CLR 531.
[9] Thorogood v Warren (1979) 20 SASR 156, 160.
[10] SA Police v Murphy (unreported judgment of the Supreme Court of South Australia, Debelle J, 9 January 1996).
[11] SA Police v Murphy (unreported judgment of the Supreme Court of South Australia, Debelle J, 9 January 1996).
Failure to address central issue
As the argument emerged before me, it became clear that the Crown was relying on alleged errors of the Magistrate, both as to fact and to law. In particular, it was contended that the Magistrate in her reasons for decision demonstrated that she had not addressed the central issue in the case as to the manner in which it was alleged that the respondent had driven without due care, namely, that he had failed to keep a proper look-out for other road users. Instead, the Magistrate approached the culpability of the respondent by posing the question as to whether she could be satisfied that the respondent was able to avoid the collision. In doing so, it was argued that the Magistrate had clearly focussed upon the wrong issue in finding the respondent not guilty of the offence.
In relation to this ground, the DPP relied on a number of statements in the ex tempore reasons given by the learned Magistrate. In particular: [12]
If the [respondent’s] evidence is a reasonable possibility; or if there is a scenario consistent with the [respondent’s] assertion that this was not a case of negligence or inattention as there was nothing that he could do; if he was taking all reasonable steps that there is no moral blameworthiness or otherwise in the way he was driving then he would be entitled to an acquittal.
[12] Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [16].
Further:[13]
Mr England’s evidence and the opinions he expressed leads to the conclusion that in the circumstances, and accepting any reasonable scenario, a driver in the [respondent’s] position would not have been able to avoid this collision.
[13] Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [23].
Further, the learned Magistrate found:[14]
Having preferred Mr England’s evidence my finding is that at the very least it is a reasonable possibility that what occurred could not have been avoided by the [respondent], and the collision was not due to the defendant’s negligence or lack of attention or any departure from the ordinary highway code. As such, prosecution have failed to prove that the defendant departed from a standard of care or skill. Prosecution have not proved beyond reasonable doubt any want of care given there is no allegation of speed or any other type of breaches. In all those circumstances the [respondent] is entitled to an acquittal.
[14] Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [25].
There is no reference in the Magistrate’s reasons to whether or not the respondent was keeping a proper look-out and, further, there was no reference in the Magistrate’s reasons to the respondent admitting on a number of occasions in the course of his initial interviews and when giving his evidence, that he did not see the cyclist prior to collision.[15]
[15] Respondent’s statement to Officer Kerber – T7; Interview by Officer Liebich on 23 January 2008, Exhibit P4, Answers 11, 135, 142 and 200; Respondent’s evidence at T55, 56, 57, 58, 64 and 65.
Prima facie, the learned Magistrate appears to have failed to address the central basis of the prosecution case, namely that the respondent admitted he had not seen the cyclist until there was an impact and his evidence that, even at the time of impact, he did not realise it was a cyclist.[16]
[16] Interview by Officer Liebich on 23 January 2008, Exhibit P4, Answers 141 and 142.
Other errors
However, this failure must also be looked at in the light of other errors which were alleged by the DPP in relation to the Magistrate’s reasoning. These errors concern: first, the inappropriate admission of certain aspects of Mr England’s evidence and reliance upon his conclusion; and secondly, reliance on what appear at best to be hypothetical circumstances or suppositions which may have explained the collision with the cyclist and an erroneous conclusion that the case had not been proved.
As to the first of the alleged errors. A prime argument was put by the prosecution that the Magistrate erred in permitting Mr England to give evidence beyond his expertise, namely on matters related to psychology. The curriculum vitae of Mr England clearly places his expertise in the area of accident reconstruction. He is not a psychologist or psychiatrist. Yet, his evidence relating to the second of the two possible scenarios he proffered to explain the collision, namely that the respondent had seen the cyclist but could not remember having seen him by reason of trauma, is clearly outside his area of expertise. Nevertheless, the Magistrate clearly accepted this evidence when she indicated:[17]
Having accepted Mr England’s evidence in its entirety I accept that although the [respondent] cannot say, there are only two scenarios to explain how he was involved in this tragedy. Either he did not identify at anytime there was a cyclist, he did not see the cyclist or doesn’t remember seeing the cyclist. Mr England’s evidence in relation to those two scenarios in my view is compelling.
[17] Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [24].
In so accepting this, I consider that the Magistrate was in error and this error gives rise to further problems. It leads the Magistrate to reason, as did Mr England, that the position of the respondent’s vehicle on the road, as found by Mr England, was demonstrative that the respondent had actually seen the cyclist and had, without being able to remember afterwards, taken evasive action and gone over the centre line with his right front wheels in order to avoid the collision. The Magistrate then accepts Mr England’s further reasoning, based on studies of which he gave evidence,[18] and bearing in mind the speed at which the truck was moving at the time – namely about 90 to 100 kilometres per hour – that the respondent would not have been able to perceive the danger of closing in on the cyclist (whom he had notionally seen), until some 48.6 metres before he reached the cyclist and hence would have been unable to stop his truck safely, as this would have taken some 83 to 102 metres.[19] This is set out in some detail in the Magistrate’s reasons.[20] It is this which leads the Magistrate to find, as she did, that there was a reasonable possibility that the collision could not have been avoided.[21]
[18] T78.
[19] T75-76.
[20] Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [22].
[21] Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [23].
Mr England’s line of approach that leads to this ultimate finding is flawed. Most importantly, it is flawed because it is based on the unsound underlying assumption that the respondent had seen the cyclist, but no longer remembered it. This assumption not only relies, as I have explained, on an opinion outside of Mr England’s expertise, it is also contrary to the categorical statements made by the respondent on numerous occasions that he had not seen the cyclist. Having adopted this unsound assumption, Mr England goes on to give the evidence that, having seen the cyclist, it was too late for the respondent to stop by the time he had perceived danger. However, this reasoning diverts focus from the more relevant question of whether the respondent was keeping a proper look-out from his position at the crest of the hill 300 metres before impact where he had a clear line of sight along the straight road to the cyclist. This question is not dealt with at all by the Magistrate.
The prosecution case, as indicated in the evidence, was that this collision occurred in daylight on a summer evening between the hours of 7.00pm and 7.15pm.[22] It was prior to sunset, which was agreed before me as occurring at 8.19pm at nearby Renmark.
[22] Police v Jachmann (ex tempore judgment of Ms SE O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [3].
The respondent was driving in an easterly direction and had the sun behind him.[23] The weather conditions were sunny and it was a clear day.[24] The respondent had come to a rise in the road, which was located about 310 metres west of the point of collision.[25] The respondent had an advantage in looking ahead by virtue of his elevated position in the B-double truck.[26]
[23] T57.
[24] T5.
[25] T5; Record of Interview P4 Questions 140, 160, 161, 163 and 193-200.
[26] T60.
Photographs 1 and 2 in Exhibit P5 indicate the direction of travel. It can be seen that vegetation to the northern and southern sides of the road are well back from the road and were relatively low. There was a tree on the northern side of the road, as depicted in the photographs, but this was at a point beyond the point of impact.
It was therefore submitted that on this scenario alone, there was no reason why the cyclist would not have been seen by a person in the respondent’s situation, if he was applying a proper look-out. There is, however, further evidence to be considered. The prosecution also called a Ms Debby Holmes who, at about 7 o’clock, was driving her vehicle in a westerly direction when she saw what clearly was the cyclist who was hit by the respondent. She was driving into the sun and saw the cyclist “quite easily”.[27] She described the manner in which the cyclist was riding as weaving from the verge to the centre of the road and then back again. She described his clothing and the type of bike. This was at a time earlier than the time of collision.
[27] T21-23.
There are two points to make from this evidence. Firstly, it related to a time prior to the collision and there was no evidence as to the behaviour of the cyclist at the time of the collision. Secondly, even if it was assumed that the cyclist was behaving in such an unusual manner on the road, this would have rendered the cyclist to be more visible because of any weaving on the road, as distinct from him being in a position where he was riding in a straight direction. Further, the Magistrate’s emphasis of “how unlikely it was that a cyclist would be in that position at that time of day”[28] does not assist the respondent, but serves only to highlight the defectiveness of his look-out. Whilst a professional truck driver may understandably become accustomed to the “usual” sights on the open road, something “unusual” on the road is more likely to attract attention. Hence, in a general sense, the evidence of Ms Holmes reinforced the fact that a failure by the respondent to have seen the cyclist in advance demonstrated a lack of proper look-out, given his advantage of having the sun behind him.
[28] Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [13].

There are other errors alleged by the DPP, namely, reference to what could only be regarded as hypotheticals or suppositions which the Magistrate then used to potentially explain the collision. For example, the Magistrate says:[29]
Road conditions played no part in the tragedy although in the relevant section of the road, there was a curve of the road, which may have played some part.
[29] Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [3].
In relation to that, the curve was beyond the portion of the road where the accident occurred and the Magistrate does not indicate in what way it “may have played some part”.
Further, the Magistrate sets out a number of factors which support, in her view, the proposition that a driver in the respondent’s position would not have been able to avoid the collision:[30]
There are many factors that have been put forward as relevant to an assessment of the cause of the accident; the shadows, the darkness of the cyclist clothing, the curve of the road, the bushes to the side of the road, the setting sun, the fact that the sun may have been shining behind the truck and shinning into its side mirrors which may have caused the dilution of the driver’s pupils. Mr England’s evidence and the opinions he expressed leads to the conclusion that in the circumstances, and accepting any reasonable scenario, a driver in the [respondent’s] position would not have been able to avoid this collision.
[30] Police v Jachmann (ex tempore judgment of Ms O’Connor SM, Magistrates Court of South Australia, 26 August 2009) [23].
With regard to the shadows this, at best, forms a portion of the respondent’s evidence in which, in the absence of having seen the cyclist, he proffers as being a possibility as to why he did not see the cyclist.[31] There was no evidence from which one could reasonably infer that shadows played any part, bearing in mind where the foliage was, the sun being behind the respondent and that any potential shadows would not be across the road in any meaningful way, particularly on the approach to the point of collision.
[31] T58.
As to the darkness of the cyclist’s clothing, this may have had greater significance, but bearing in mind the colour of bitumen, which is not black, and that Ms Holmes was able to identify the cyclist, albeit from a different direction and potentially illuminated by the sun behind him, the fact that the respondent did not see the cyclist at all prior to collision could not reasonably be blamed on the darkness of the cyclist’s clothing.
As to the curve in the road, this was at a point past the accident. As to the bushes at the side of the road, by virtue of their minimal height and distance from the side of the road, they too could have played very little part. As to the setting of the sun, it was not dark and certainly the respondent in no way suggested that this was an issue.
The potential shining of the sun into the side mirrors was raised by Mr England’s evidence, but again it was sheer supposition and a hypothetical explanation which in no way was substantiated by any claim made by the respondent that on this day at this time there was light shining into his eyes from the side mirror. Therefore, the Magistrate put up factors which were not reasonably founded on the evidence.
Point of impact
An issue which arose in the course of the case was where the point of impact occurred. In the net result, in my view, it does not assist the respondent’s case. In short, the police officers put a point of impact in a place which was 2.35 metres north of the centre line of the road. This point of impact, indicated by markings on the road, was contested by Mr England. He instead concluded that the point of impact was further towards the centre line rather than to the verge and was also at a point earlier than where the debris was situated. He also concluded that the impact was further to the west than that given by the police, but that is of little importance. So far as the point of impact being closer to the centre line, this would suggest that there is even more reason why the respondent should have been able to see a cyclist who was more directly in front of him, than a cyclist who was more towards the verge.
A final point is what part of the cyclist was struck by the vehicle. A particularly sad aspect is that the impact severed the lower part of the right arm of the cyclist, but there was no damage to the bike. This suggests that his right arm was beyond the position of the bike so that it was that portion of his arm which was struck and not, for example, the bike. To the extent that it could be contended that the cyclist somehow suddenly shot out from the side of the verge and was going in a more north-south direction across the path of the vehicle, this does not seem to be a reasonable possibility because one would have anticipated that the bike would have taken the brunt and at least have been damaged as a consequence of a collision with the respondent’s vehicle. Therefore, on the face of it, the evidence suggests that the cyclist was travelling in an east-west direction in the same direction as the respondent.
Conclusion
For these reasons, I consider that the Magistrate erred in both law and fact in relation to her reasoning. Accepting the findings by the Magistrate as to matters of credit of witnesses and acknowledging that the Magistrate had the benefit of going to the scene of the accident, the errors relate to her approach and reasoning as set out above. I have given careful consideration as to whether this is a case which fulfils the “unusual case” characteristic as referred to by Debelle J in Murphy’s case, and have concluded that it does. I do not consider it appropriate to substitute my view, but instead I conclude that the decision should be quashed. I consider it appropriate to remit the matter to the Magistrates Court for re-hearing and I so do pursuant to s 42(5)(b) of the Magistrates Court Act.
I therefore order:
1the appeal is allowed;
2the decision of the Magistrate to dismiss the complaint is quashed; and
3the matter is remitted to the Magistrate’s Court for re-hearing.