PUTLAND v CURSARO - [2004] SASC 322

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PUTLAND v CURSARO
Judgment of The Honourable Justice White
11 October 2004
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - MATTERS RELATING TO DECISION
Plaintiff claimed negligence on part of defendant - Collision between motorbike ridden by plaintiff and car driven by defendant - Each gave different version of events - Each received some support from other witnesses - Plaintiff intended to call a witness who was a quadriplegic - Defence agreed to the tender of a statement to constitute the evidence of that witness - Effect of agreement was not that Magistrate was bound to accept version of events put forward by witness - Magistrate found that collision could not have occurred as described by plaintiff - Magistrate's conclusion not inconsistent with facts incontrovertibly established by other evidence - Magistrate's reasons failed to explicitly state some findings of fact - Magistrate articulated reasons clearly enough - Plaintiff's appeal dismissed.
Magistrates Court Act 1991, s 40; Evidence Act 1929, s 34C, referred to.
Devries v Australian National Railways Commission (1993) 177 CLR 472, applied.
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; Crosthwaite v City of Elizabeth (1989) 51 SASR 105; Pledge v Roads and Traffic Authority (2004) 205 ALR 56; Browne v Dunn (1893) 6 R 67, considered.

PUTLAND v CURSARO
[2004] SASC 322
Magistrates Appeal

WHITE J This is an appeal pursuant to s 40 of the Magistrates Court Act 1991.
The present appellant was the plaintiff in the proceedings before the Magistrate and the respondent, the defendant in those proceedings. It is convenient in these reasons to go on referring to them as plaintiff and defendant respectively.
On 24 February 2000 at about 7.30 pm, a head-on collision occurred between a motorbike ridden by the plaintiff and a car driven by the defendant, near the junction of Elizabeth and Emily Streets, Woodville West. As a result of the collision, the plaintiff sustained serious injuries. The Magistrate dismissed his claim for damages in respect of those injuries finding that the plaintiff was wholly responsible for the collision.
Background Circumstances
The plaintiff was riding his motorbike in a south-westerly direction along Elizabeth Street towards its junction with Emily Street. The defendant was driving his car in a south-easterly direction on Emily Street and performed a left-hand turn into Elizabeth Street so as to travel in a north-easterly direction. Emily Street runs at right angles to Elizabeth Street. It terminates at its south-eastern end at the junction with Elizabeth Street. The junction is a little unusual by reason of the fact that Emily Street meets Elizabeth Street in the middle of a shallow S-bend in Elizabeth Street.
It was common ground that the collision occurred on the left-hand side of Elizabeth Street viewed from the perspective of vehicles travelling in a north-easterly direction. That is to say, the collision occurred on the defendant’s side of the road and on the incorrect side of the road for the plaintiff. I will return to the point of impact later in these reasons.
It is the circumstances by which the vehicles came to be in that position which was the real issue in dispute between the parties at the trial.
Plaintiff’s Case
The plaintiff’s evidence was that he was travelling at a speed of approximately 50-60 km/h, very close to (“a tyre width from”) the centre white line of Elizabeth Street. He was travelling close to the centre white line so as to straighten out, albeit in a permissible way, his line of travel through the S-bend.
The plaintiff said that when he first saw the defendant’s vehicle it was “just on” the incorrect side of the road. He described a manoeuvre by which the defendant had swung wide in the course of his left-hand turn into Elizabeth Street, so that the front two wheels of his vehicle went on to the incorrect side of the road. The plaintiff estimated the defendant’s speed at more than 40 km/h. At the time when he first saw the defendant’s vehicle, the plaintiff said that he was leaning the motorbike into the kerb and therefore could not change his speed. He veered to his right in an attempt to avoid colliding with the defendant. However, at the same time, the defendant straightened his vehicle, moving back on to the correct side of the road. A collision then occurred. Other evidence indicated that the front of the motorbike struck the front left (nearside) of the defendant’s car.
The plaintiff’s version received some support from a written statement from a Mr Forrest which was tendered. Mr Forrest was south-west of the junction. In his written statement, he said that the defendant had swung too far to his right in effecting the left-hand turn into Elizabeth Street and thus had crossed onto the incorrect side of Elizabeth Street. He described a manoeuvre by which the defendant swung back onto his (the defendant’s) correct side of the road but after the plaintiff had already swerved to that side of the road. It will be necessary to say something later of the circumstances in which Mr Forrest’s statement came to be tendered without him being cross-examined.
The plaintiff claimed that not only had the defendant entered onto the incorrect side, he had also commenced the left-hand turn from the incorrect side of Emily Street. This could be a matter of inference only, as there was no direct evidence to support that contention.
Defendant’s Version
The defendant, on the other hand, contended that he had performed his left-hand turn in a conventional way and, in particular, had at all times remained on the correct side of the road. He received some support from the two passengers in his vehicle who were called as witnesses. In addition, the defendant adduced evidence from a Mr Mitton. It was accepted by the plaintiff that Mr Mitton had some expertise in accident reconstruction. The effect of Mr Mitton’s evidence was that the accident was unlikely to have happened in the way suggested by the plaintiff.
On the defence case, the collision occurred because the plaintiff had straightened out his negotiation of the S-bend by crossing onto the incorrect side of the road. He had done this in order to maintain his admitted speed of 50-60 km/h. In short, the defendant’s case was that the plaintiff had been following a “racing line” through the S-bend.
The Magistrate’s Decision
The Magistrate gave an ex tempore judgment in which he rejected the plaintiff’s account. There were two principal reasons for that rejection. In the first place, the Magistrate accepted the evidence of the defendant as to his approach, to and negotiation of, the corner. Secondly, the Magistrate concluded that the collision could not possibly have occurred in the manner described by the plaintiff. The Magistrate said:
“The important thing to understand is that the plaintiff did not move to the wrong side of Elizabeth Street as a desperate evasive manoeuvre. He was on the wrong side of Elizabeth Street to start with, straightening the chicane so that he could negotiate it without deviating from a straight line. He straightened the chicane almost as much as he could without driving on to the western footpath of Elizabeth Street. That’s why the point of impact was where it was.”
Having found that the reason for the collision was the plaintiff’s riding on the incorrect side of the road, the Magistrate rejected the plaintiff’s allegations of negligence against the defendant. Hence the Magistrate dismissed the plaintiff’s claim.
The Appeal
On the appeal, the plaintiff submits that the Magistrate erred in not attaching any or sufficient weight to the statement of Mr Forrest which had been tendered and that the Magistrate’s decision was generally against the weight of the evidence. The appellant also submitted that the Magistrate’s reasons were inadequate.
At 24 February 2000, Mr Forrest was able-bodied. He was on foot in Elizabeth Street and approximately 40 metres away from the junction of Elizabeth Street with Emily Street. However, by the time of the trial, Mr Forrest had himself been involved in an accident as a result of which he had been rendered quadriplegic. There were practical difficulties in him attending at Court to give evidence. Instead, the Magistrate and the parties’ representatives went to the home of Mr Forrest on 1 June 2004 for the purposes of taking his evidence. By this time, the plaintiff had led all his evidence (apart from Mr Forrest) and the defendant had led all his evidence. The issues between the parties were clearly delineated.
Shortly before the Court was to enter Mr Forrest’s home to take his evidence, the defendant’s counsel indicated that he would consent to the Magistrate receiving the written statement without Mr Forrest having to give oral evidence. It appears that the defendant’s counsel was sympathetic to the difficult circumstances (by reason of his health) of Mr Forrest. Although the precise basis on which Mr Forrest’s statement was being admitted was not articulated at trial, it could not, in context, have been because the defendant accepted its accuracy. No concession as to the accuracy of this statement was made. I infer that the statement may have been accepted as coming within s 34C of the Evidence Act or alternatively, that it was accepted that the statement represented the evidence as it would be after both evidence-in-chief and cross-examination. In the events which happened, Mr Forrest was not tested by cross-examination. The weight which could be attached to his statement had to be assessed accordingly.
In these circumstances, it is not accurate to say, as was submitted by the appellant, that Mr Forrest’s statement was “accepted without question”. The absence of cross-examination of Mr Forrest did not mean that the contents of his statement had to be accepted by the Magistrate. Even if the rule in Browne v Dunn[1] was breached, it did not follow that Mr Forrest’s statement had to be accepted as the basis for findings of fact. That statement was one piece of evidence to be considered by the Magistrate along with all the other evidence. The fact that Mr Forrest had not been cross-examined on what he said was one factor to be taken into account by the Magistrate in his assessment of Mr Forrest’s evidence.[2] It is clear enough that the Magistrate did not overlook Mr Forrest’s statement: he referred to it in the course of his brief ex tempore reasons.
[1] (1893) 6 R 67.
[2]See Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 26; Crosthwaite v City of Elizabeth (1989) 51 SASR 105 at 109-110.
A large number of the submissions for the appellant on the appeal were premised on an assumption that either the statement of Mr Forrest had been accepted as accurate by the defendant, or alternatively, that it could not have been rejected by the Magistrate in the absence of cross-examination of Mr Forrest. For the reasons given, neither assumption is valid.
It is evident that the Magistrate has not accepted that the collision occurred in the way described by Mr Forrest. The Magistrate has not stated explicitly his reasons for rejecting the account given by Mr Forrest. It would have been desirable for him to have done so. However, it seems to me that the reasons for the Magistrate’s rejection of Mr Forrest’s account are really the same as his reasons for the rejection of the appellant’s account. I consider that the conclusion by the Magistrate that the collision could not have happened in the manner described by the plaintiff is to be understood as a reference to that account supported as it was by Mr Forrest.
As noted above, the Magistrate accepted the evidence of the defendant as to the manner in which he had negotiated the turn from Emily Street into Elizabeth Street. The Magistrate said that that acceptance was “in addition” to his finding that the collision could not have happened in the manner suggested by the plaintiff. Although the Magistrate did not detail his reasons for his acceptance of the defendant’s evidence, it appears to have been based on his acceptance of the reliability and credibility of the defendant. The plaintiff faces the difficulty on appeal of seeking to overturn a finding based on the Magistrate’s assessment of credibility. The relevant principle was stated by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479:
“A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
See also Deane and Dawson JJ in the same case at 479 and 480.
In addition, the Magistrate had the advantage of a view of the junction of Elizabeth and Emily Streets. Thus, he had the advantage, which this Court does not, of being able to use the view to understand the evidence better.[3]
[3]See in this respect the Magistrate’s reasons at [11]. See also Pledge v Roads and Traffic Authority (2004) 205 ALR 56 per Callinan and Heydon JJ at 69-70 [47]-[49].
Approaching the matter on that basis, it is necessary to consider whether the Magistrate was correct in finding that the accident could not possibly have happened in the manner described by the plaintiff.
The defendant adduced evidence from a Constable Dovi, who was the police officer who attended at the scene of the collision within a half hour or so of its occurrence. It could be concluded from Constable Dovi’s evidence that the impact occurred on Elizabeth Street on the correct side of the road for the defendant, and approximately 10 metres north-east of its junction with Emily Street. This inference could be made because Constable Dovi observed that the defendant’s vehicle was stationary in that position when he arrived at the scene; the plaintiff’s motorcycle was on the same side of Elizabeth Street and a little further to the north-east; and there was a gouge mark on the road surface, immediately in front of the defendant’s vehicle, consistent with having been caused in the impact.
Unfortunately, the Magistrate does not make a specific finding about where the point of impact occurred but he did find “it is quite clear where the point of impact was”. In the context of his other findings, it appears that the Magistrate has accepted that the impact occurred approximately at the point described by Constable Dovi, ie, on Elizabeth Street, approximately 10 metres north-east of the junction and on the incorrect side of the road for the plaintiff.
Once that point of impact be accepted, it becomes very difficult to conclude that the Magistrate’s rejection of the plaintiff’s evidence was inconsistent with the facts incontrovertibly established by other evidence. On the contrary, that point of impact makes the plaintiff’s account quite implausible. It means that for the defendant to have performed the manoeuvre described by the plaintiff, the defendant would, within a distance of no more than 10 metres and at a speed of more than 40 km/h, have travelled so that the front wheels were on the incorrect side of the road and then veered back onto the defendant’s correct side of the road and straightened so as to be parallel with the kerb before impact occurred. It is most unlikely that there would have been either sufficient time, or sufficient distance, in which the defendant could have performed such a manoeuvre. Even if there was sufficient time for that to have occurred there would have nevertheless been insufficient time in which the plaintiff could react and veer his motorbike onto the incorrect side of the road before the defendant veered back to that side. The plaintiff sought to avoid that conclusion by submitting that the defendant had commenced his turn from the incorrect side of Emily Street. This would involve the defendant’s vehicle travelling a longer distance, and therefore a longer time on Elizabeth Street before impact. However, there was no evidence indicating that the defendant had commenced from such a position. In particular, Mr Forrest’s statement was inconsistent with such a manoeuvre.
In my opinion, the Magistrate’s conclusion that the collision could not possibly have occurred in the manner described by the plaintiff was one which was not only open to him, but which seemed the appropriate conclusion on the evidence.
Thus far, I have not referred in any detail to the evidence of Mr Mitton, who gave some opinion evidence involving accident reconstruction. The qualifications of Mr Mitton to give that evidence were accepted. It is not necessary for me to discuss Mr Mitton’s evidence beyond noting that that evidence confirmed the conclusion to which the Magistrate came. I have not however overlooked Mr Mitton’s evidence that if the defendant’s vehicle had been travelling at a speed of 25 km/h, rather than 40 km/h, the plaintiff’s account was possible, but nevertheless unlikely.
Adequacy of Reasons
On the hearing of the appeal, the plaintiff argued that the Magistrate’s reasons were insufficient. This was not a ground contained in the Notice of Appeal, but no objection was taken to this complaint being made on the appeal.
The plaintiff submitted, even allowing for the fact the reasons were delivered ex tempore, that they were overly brief. Mr Hall submitted that the Magistrate had erred in failing to give explicit reasons for his rejection of the account contained in Mr Forrest’s statement; that he had not articulated his reasons for the acceptance of the evidence of the defendant; that he had not referred at all to the evidence of the two passengers in the defendant’s vehicle; that he had not made a precise finding as to the point of impact nor as to the speed of the respondent’s vehicle. In short, the complaint was that the Magistrate’s decision contained conclusions but not the necessary findings of fact, or disclosure of reasoning process which was necessary.
I consider that there is some substance in this submission. As noted above, the Magistrate has not dealt explicitly with his reasons for rejection of the account given by Mr Forrest. Again, given the importance which he placed on it, the Magistrate has not made a finding as to the place where the point of impact occurred. Nor has he made findings as to the speed of the two vehicles. The Magistrate has not made findings about the reliability or credibility of the two passengers in the defendant’s vehicle and, other than saying that he accepts the evidence of the defendant, does not refer to that evidence.
The obligations of a trial Judge or Magistrate to give reasons for a decision are well-known.[4]
[4] Pettit v Dunkley [1971] 1 NSWLR 376 per Asprey JA at 382.
The extent of the reasons required was considered by the New South Wales Court of Appeal in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378. In a passage which was quoted with approval by the Chief Justice in R v Keyte (2000) 78 SASR 68 at 79 [52], Mahoney JA said (at 386):
“This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.”

The question, then, is whether the Magistrate’s reasons are sufficient to explain to the parties why the Magistrate reached the conclusion that he did, and to allow an appellate court to adequately review the reasoning.
Notwithstanding the plaintiff’s criticisms of the Magistrate’s findings, I do not think it should be said that there has been such a lack of proper reasons as to render the decision unsafe. As noted above, the identification of the point of impact was important in the resolution of this case. The Magistrate was very much influenced by this. Although he has not made a precise finding as to where the point of impact occurred, there really was not much dispute as to its location. The plaintiff’s own evidence accepts that the impact occurred on his incorrect side of the road and reasonably close to the Emily Street junction. Constable Dovi’s evidence was important and was not really challenged on this point. It is clear enough from the Magistrate’s decision that he reasoned from the location of the point of impact that the collision could not have happened in the manner described by the plaintiff. The Magistrate has articulated his reasons for that conclusion clearly enough. I conclude therefore that the shortcomings in the reasons which the plaintiff has identified do not require that the appeal be allowed.
Conclusion
Once it be accepted that the point of impact occurred on Elizabeth Street, approximately 10 metres from the junction with Emily Street, and on the correct side of the road for the defendant, it was not only open to, but appropriate for, the Magistrate to accept the defendant’s account as to the manner in which the collision occurred. Acceptance of that account meant that the allegations of negligence by the plaintiff against the defendant were not established. I am not able to detect any error in the Magistrate’s reasoning in this respect. On the contrary, it seems a quite proper conclusion on the evidence.
Accordingly, the appeal should be dismissed.