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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Jachmann

Details

AGLC: Police v Jachmann [2009] SASC 392
Case: [2009] SASC 392
Decision Date: 18 December 2009

CaseChat Overview and Summary

The case of Police v Jachmann involved a Crown appeal against the decision of a Magistrate in the Magistrates Court of South Australia, who dismissed a complaint against the respondent, a truck driver, on a charge of Aggravated Driving Without Due Care. The charge arose from a fatal collision between the respondent's B-double vehicle and a cyclist on the Sturt Highway near Yamba on 22 January 2009. The central issue in the appeal was whether the Magistrate erred in her approach to determining whether the respondent had driven without due care, specifically by not focusing on the respondent's failure to keep a proper look-out, and whether the Magistrate had appropriately considered the respondent's admission that he did not see the cyclist. The appeal also questioned the admissibility and soundness of certain expert evidence, and whether the Magistrate's findings were based on hypotheticals or suppositions.

The Supreme Court of South Australia considered whether the Magistrate had erred in not focusing on the issue of the respondent's proper look-out, and whether she had appropriately weighed the respondent's admission that he did not see the cyclist. The Court found that the Magistrate's failure to focus on the issue of the respondent's look-out was indeed an error. Furthermore, the Court found that the Magistrate did not give the respondent's admission the proper treatment it deserved. Additionally, the Court found that part of the expert evidence was beyond the expert's area of expertise and therefore inadmissible. The Court also found that the Magistrate's reasoning was based on an unsound assumption, leading to erroneous findings of fact. The Court concluded that the Magistrate's reference to hypotheticals or suppositions was inappropriate and that her decision was therefore flawed.

The Supreme Court of South Australia allowed the appeal, quashed the decision of the Magistrate, and remitted the matter to the Magistrates Court for rehearing. The Court found that the Magistrate's failure to focus on the respondent's look-out was an error, and that the Magistrate did not give the respondent's admission the proper treatment it deserved. The Court also found that part of the expert's evidence was beyond their area of expertise and inadmissible, and that the Magistrate's reasoning was based on an unsound assumption, leading to erroneous findings of fact. The Court concluded that the Magistrate's reference to hypotheticals or suppositions was inappropriate and that her decision was therefore flawed. The Court quashed the decision of the Magistrate and remitted the matter to the Magistrates Court for rehearing.

Orders

Orders of the court

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Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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