Police v MILLARD - [2011] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MILLARD
[2011] SASC 133
Judgment of The Honourable Justice Anderson
19 August 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
Police appeal against dismissal of charge for the offence of driving without due care contrary to s 45 of the Road Traffic Act 1961 (SA) - trailer being towed by respondent's vehicle became detached - aggravating circumstance being death of another driver - whether magistrate erred in concluding that the prosecution case was not proved beyond reasonable doubt.
Held: Appeal dismissed.
Road Traffic Act 1961 (SA) s 45; Road Traffic (Vehicle Standards) Rules 1999 (SA) reg 158(3), referred to.

POLICE v MILLARD
[2011] SASC 133
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

In this matter the police appeal against the decision of a magistrate who dismissed a count of driving without due care contrary to s 45 of the Road Traffic Act 1961 (SA). The offence was aggravated because, as a result of an accident which occurred, a person died.
The accident happened on 23 September 2008 near Naracoorte. At that time the respondent was driving his Toyota utility towing a trailer. The trailer somehow uncoupled from the utility, went onto the wrong side of the road and collided with a motor cyclist who died at the scene of the accident.
The magistrate dismissed the complaint because he was not satisfied beyond reasonable doubt that the prosecution had proved that the uncoupling of the trailer was as a result of a lack of due care by the respondent.
Background
The main witness for the prosecution was a Mr McDonald who was the senior police vehicle examiner. It was accepted that he was an expert witness. After the accident Mr McDonald examined the trailer and its coupling and tested the various components by applying pressure on the coupling mechanism.
There was no damage to the coupling mechanism caused in the accident but there was damage to the device known as a carabiner which was effectively the locking device between the safety chain on the trailer and the towbar of the motor vehicle.
This carabiner was tendered as an exhibit and shows that for whatever reason it broke. The chain itself was still attached to the trailer after the accident but was damaged when the trailer slid across the road. It was not tendered.
The respondent’s evidence was that he followed a regular process when he attached his trailer to his vehicle. He said he had done this hundreds of times and it was his habit to always check the connection between the utility and the trailer and the operation of the trailer lights before he set off on any journey.
On the day in question the respondent said that he had driven the trailer for about 70 kilometres over a number of different road surfaces before the accident occurred. The accident occurred shortly after he crossed a bridge over Mosquito Creek. He said that he heard a noise and looked in his rear vision mirror and saw that the trailer had apparently come loose. He said there was then a second noise which he assumed was the safety chain breaking. He was unable to bring the vehicle and trailer to a halt after the chain broke and the trailer after coming loose then crossed onto the wrong side of the road and collided with the oncoming motor cyclist.
The expert evidence
Mr McDonald concluded from his testing that the only way the trailer could become detached would be because it had not been correctly connected to the vehicle in the first place. The trailer was attached to the vehicle by its coupling device which fitted over the ball attached to the tow bar of the vehicle. The prosecution also alleged that the carabiner was constructed of lightweight aluminium and was not an appropriate device for attaching the safety chain to the vehicle.
The prosecution called no evidence as to the type of metal the carabiner was constructed of. Similarly no evidence was called to establish its suitability for the purpose of acting as the safety device by connecting the safety chain to the towbar. I cannot judge on its suitability given the lack of evidence, but had it not broken the respondent may well have been able to control the vehicle and trailer when the coupling mechanism came undone. Whatever the cause of the initial uncoupling, the safety device did not work.
The magistrate was therefore left with the prosecution evidence of Mr McDonald to assist in relation to the connection of the trailer to the vehicle. This evidence was based on his tests performed in the workshop. It was submitted by defence counsel that the tests conducted by him were limited because they did not involve the ordinary movement of the vehicle and trailer when being towed. The tests were done in a workshop by use of a jack applying upwards pressure to the towbar and trailer to see whether the coupling, if properly connected, could be forced loose. Mr McDonald could not make the coupling uncouple from the ball on the tow bar.
It was acknowledged by Mr McDonald that his tests did not simulate driving conditions. He could not explain the long distance the respondent had travelled without mishap before the accident. He agreed that there were many variables and that his expertise did not extend to answering how those variables may affect towing, including the effect of cross winds and varying road surfaces.
The defence did not raise any question of the accident being caused by a latent mechanical defect either in the coupling device or the carabiner and chain, and likewise did not suggest that there was any intermediate act between the attaching of the trailer to the vehicle and the accident. Very simply the prosecution case relied on Mr McDonald’s view that on the basis of his testing it was impossible for the coupling mechanism of the trailer to separate from the ball if it had been properly connected.
The magistrate’s reasons
The magistrate correctly recited the result of Mr McDonald’s testing. The magistrate concluded that Mr McDonald’s tests were “thorough and painstaking”. He reiterated Mr McDonald’s conclusion that “the only possible cause of the separation was the failure to properly connect the trailer at the commencement of the journey”.
However, the magistrate did not make that finding. He said he had “one lingering doubt”. His Honour said at [24]:
[24]My doubt has to do with the distance travelled by the defendant before the accident. I understand this was some 60 or 70 kilometres over changing road surfaces with a constant load in the trailer. The trailer remained attached to the vehicle for all of that time and did not detach itself until it passed over the bridge at Mosquito Creek where expansion joints and a concave surface may have contributed to a rocking motion between the motor vehicle and the trailer”.
That later theory came from Senior Constable Manning who attended at the scene of the accident. He was not qualified as an expert. This was simply speculation if the magistrate was relying on this theory as expert evidence.
Finally the magistrate came to the following conclusion at [25]:
[25]I pose the question for myself, if the trailer was not properly connected why did it not detach itself earlier and why did this happen only when it crossed the bridge at Mosquito Creek? Mr McDonald agrees his test did not exactly reproduce the road conditions. That is understandable and I do not criticise the test conducted by Mr McDonald. I may only find the charges proved if I am satisfied beyond reasonable doubt and I do have such a doubt. I have a doubt also in relation to the carabiner. The defendant’s opinion the carabiner was constructed of stainless steel was reasonable. It follows my finding must not be proved beyond reasonable doubt.
It seems that the magistrate is saying in his final analysis that he had two doubts, one relating to Mr McDonald’s tests not reproducing the road conditions and the fact that the respondent had already travelled 70 kilometres before the accident and, secondly, in relation to the strength of the carabiner. The latter comments were based on mere speculation. There was no evidence to establish one way or the other whether the carabiner was a suitable device to use to attach the safety chain from the utility to the trailer in the circumstances. I doubt that it was but I cannot make such a finding in the absence of evidence. The magistrate should not have used judicial knowledge based on his own experience.
Arguments on appeal
Mr Keane for the appellant acknowledged the principles relating to prosecution appeals against dismissals of charges, namely, that appellate courts are reluctant to interfere with the decision of a magistrate when a magistrate’s decision rests on an appraisal of witnesses’ conflicting evidence. He submits, however, that where the conclusions of the magistrate were not open to him the appellate court should interfere.
Mr Keane submitted that the question of whether someone was driving without due care must be determined according to objective standards and what a reasonably prudent driver would do in the circumstances.
Mr Keane submitted that the only evidence which the magistrate had as to why the trailer became detached was from Mr McDonald. He had accepted him as an expert, and because his opinion was to the effect that the trailer could only have become detached as a result of a failure to properly attach the trailer in the first place, in the absence of any contradictory evidence the prosecution should have succeeded.
Mr Keane submitted that the respondent’s evidence as to his usual practice in attaching the trailer is irrelevant as to what happened on this occasion. Furthermore he submitted that this evidence of usual practice could not outweigh Mr McDonald’s conclusions as to why the trailer became detached on this occasion.
Ms Annells for the respondent referred in her outline of submissions to the evidence regarding the respondent’s version of events given to the police. This was to the effect that the respondent was travelling at a reasonable speed and was not driving his vehicle in an erratic manner. There was nothing about the respondent’s driving which caused or contributed to the accident. That much is clear.
Ms Annells referred to the magistrate’s finding that the tests which had been performed by Mr McDonald did not explain why the trailer remained attached to the vehicle over 70 kilometres or so and why it suddenly became detached. She submitted that it was on that basis that the magistrate was correct in not being able to conclude beyond reasonable doubt that the trailer had been improperly connected by the respondent.
Likewise Ms Annells pointed to the fact that Mr McDonald’s testing was not performed in a dynamic situation and that it was limited to that extent. Ms Annells pointed to the evidence of both Mr McDonald and the respondent that it is easy to see whether a trailer has been properly coupled with the tow bar of a vehicle upon a visual inspection which the respondent said he carried out on the occasion in question.
Ms Annells submitted it was not a case of strict liability. The prosecution had to prove its case beyond reasonable doubt. Despite the evidence of Mr McDonald, she submitted that the prosecution had not proved that the trailer was improperly or inadequately connected and that the respondent knew or ought to have known it was improperly connected. The respondent said he had properly connected the trailer and inspected it before he commenced his journey. Ms Annells says that those are the actions of a reasonably prudent driver.
Discussion
It is my view that the testing carried out by Mr McDonald, whilst thorough and painstaking as the magistrate found, was limited of necessity because it applied to an artificial static situation as distinct from the dynamics of what was actually happening whilst the trailer was being towed. Had this been a civil case, on the evidence that I have seen the police may have been able to establish on the balance of probabilities that the cause of the trailer coming loose was its ineffective coupling in the first instance and/or the ineffective safety device.
The police should have called evidence as to the metal from which the carabiner was made. Evidence should have been called to establish why the carabiner broke. At the trial it was not suggested by the prosecution that the respondent was in breach of regulation 158(3) of the Road Traffic (Vehicle Standards) Rules 1999 (SA) (“the regulation”). Ms Annells raised the regulation in the appeal.
The regulation provides that a trailer must be connected to the towing vehicle by “at least 1 chain, cable or other flexible device”. The connection according to regulation 158(3) must be built and fitted so:
(a)the trailer is kept in tow if the coupling breaks or accidentally detaches; and
(b)normal angular movement of the coupling is permitted without necessary slack.
No evidence was called as to the use of the particular carabiner in connection with the chain and its suitability for towing the overall weight of the trailer plus the load.
Brevet Sergeant Zilm was an investigator in the Major Crash Investigation section. No attempt was made to qualify him as an expert. He said he thought the carabiner was aluminium but that was not proved. He thought it was “the wrong thing to be using to hold the trailer on”, but this is hardly sufficient evidence.
Mr McDonald was not asked his opinion as to the suitability of the particular carabiner used by the respondent. He merely confirmed that it had broken.
Ms Annells submitted that there was nothing in the regulation to guide users of trailers. The regulation is silent on the type and strength of chain and other connecting device. She submitted that the prosecution had not proved that the connection was in breach of the regulation. Mr Keane submitted in reply that many regulations do not have such specific guidance.
Given that it was not possible to prove how the trailer first uncoupled, the safety devices should have become a key focus for the prosecution. In my view the evidence called on this aspect is deficient.
It is noteworthy that neither the carabiner nor the chain were subject to scientific testing. The chain was not even produced.
Conclusion
The magistrate says that he does have doubts about how the trailer became uncoupled and he states what they were. It cannot be said that his doubts are unreasonable, particularly in relation to the distance travelled without mishap.
In my view it is not the case, as submitted by Mr Keane, that the prosecution had proved its case beyond reasonable doubt simply because the only expert evidence was that of Mr McDonald. The magistrate was entitled on the whole of the evidence to find that there was a reasonable doubt.
I consider there may be reasonable doubts about the use of the carabiner on the whole of the evidence. The magistrate has wrongly used his own knowledge on this topic in the doubts he has expressed. It is a matter, however, which could and should have been the subject of expert evidence.
I therefore do not interfere in the finding of the learned magistrate that the prosecution case has not been proved beyond reasonable doubt. The appeal is dismissed.