Rankin v Palmer

[1999] WASCA 201

RANKIN -v- PALMER [1999] WASCA 201

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 201
Case No:	SJA:1047/1999	Heard:	10 AUGUST 1999
Coram:	STEYTLER J	Delivered:	11/10/99
No of pages:	13	Judgment Part:	1 of 1
Result:	Conviction quashedRetrial before a different Magistrate ordered
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Parties:	KANE THOMAS RANKIN NEVILLE JOHN PALMER
Catchwords:	Criminal law Evidence Credibility Turns on own facts Criminal law Jurisdiction Practice and procedure Adjournment Turns on own facts
Legislation:	Road Traffic Act 1974, s 60(1)
Case References:	Nil Foster v The Queen (1982) 61 FLR 440 Hughes v The Queen (1983) 10 A Crim R 125 Knight v The Queen (1992) 175 CLR 495 Myers v Myers [1969] WAR 19 R v Sandford (1994) 33 NSWLR 172 Ex parte Ryan: Re Johnson (1943) 61 WN (NSW) 17 Singh & Anor v The Queen, unreported; FCt SCt of WA; Library No 6002; 18 September 1985 Thompson v The Queen (1992) 8 WAR 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RANKIN -v- PALMER [1999] WASCA 201 CORAM : STEYTLER J HEARD : 10 AUGUST 1999 DELIVERED : 11 OCTOBER 1999 FILE NO/S : SJA 1047 of 1999 BETWEEN : KANE THOMAS RANKIN

Appellant (Defendant)

AND

NEVILLE JOHN PALMER
Respondent (Complainant)

Catchwords:

Criminal law - Evidence - Credibility - Turns on own facts

Criminal law - Jurisdiction - Practice and procedure - Adjournment - Turns on own facts

Legislation:

Road Traffic Act 1974, s 60(1)

Result:

Conviction quashed

Retrial before a different Magistrate ordered

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Representation:

Counsel:

Appellant (Defendant) : Mr A M Dungey
Respondent (Complainant) : Mr N Monahan

Solicitors:

Appellant (Defendant) : Macdonald Rudder
Respondent (Complainant) : State Crown Solicitor

Case(s) referred to in judgment(s):
Nil

Case(s) also cited:

Foster v The Queen (1982) 61 FLR 440
Hughes v The Queen (1983) 10 A Crim R 125
Knight v The Queen (1992) 175 CLR 495
Myers v Myers [1969] WAR 19
R v Sandford (1994) 33 NSWLR 172
Ex parte Ryan: Re Johnson (1943) 61 WN (NSW) 17
Singh & Anor v The Queen, unreported; FCt SCt of WA; Library No 6002; 18 September 1985
Thompson v The Queen (1992) 8 WAR 387

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1 STEYTLER J: This is an appeal against the decision of a Magistrate in the Kalgoorlie Children's Court whereby his Worship found the appellant guilty of reckless driving contrary to s 60(1) of the Road Traffic Act 1974. The appellant also appeals, in case his appeal against conviction should fail, against the sentence imposed upon him in the form of an 18 month disqualification from holding or obtaining a motor driver's licence.

2 The appellant was 17 years old at the time of the commission of the alleged offence. His parents were overseas and he had borrowed his father's car. He had been driving for only about one month. He was still driving pursuant to a learner's permit. He drove down Bates Street in Kalgoorlie. He was on his own. He made a right turn into Colgan Street. He said (although the learned Magistrate did not believe him) that he swerved to avoid a pedestrian and drove, as a consequence, through the garden fence of a house belonging to Mr Andrew Shieler and into an outdoor setting and verandah adjacent to that house. The vehicle then reversed out of the garden, knocking down some trees or shrubs, before again striking the fence. It then went forward again before hitting the house.

3 There was a good deal of conflicting evidence as to the circumstances in which this last manoeuvre occurred. I will refer to that evidence and to other events which occurred during the course of the trial insofar as that evidence and those events are material to the grounds of appeal.

4 The complainant relied primarily upon the evidence of Mr Shieler. He said in the course of his evidence that he heard a bang at the back of his house, jumped out of bed and looked through the back door which is a glass sliding door. There he saw the headlights of a car "driving up underneath the verandah". He ran towards the car. He said that the car then "took off in reverse at pretty high speed". He ran after it. He said that when the car reached the road the vehicle "did a reverse U-turn into the fence, hitting it a second time". Mr Shieler said that he opened the car door and tried to stop the driver from driving off. He went on to say:

"Anyway there was hands flapping like this. He was trying to like flap, trying to keep me away, and then the car took off and I can't honestly tell you how, but I was actually hanging onto the side of the car, and … I was trying really desperately to try and hit the brake pedal, and, yes, I couldn't. I can remember thinking to myself, 'I can't'. You know, 'why can't I hit this brake pedal? Why can't I stop the car?', you know. And the car

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was just sort of like going along pretty fast, so I couldn't let go, and, yeah, I just managed to look up and seeing [sic] the house coming in. I thought, 'Oh, no', so, yes, … managed to sort of duck into the car and just closed my eyes, and, yes, slammed into the house."

5 In the course of cross-examination Mr Shieler said that when he tried to stop the car he "was hanging on with two hands and … [his] foot was the only thing available to … stop the car". He said that it was possible that he was "virtually inside the car" although the door was not closed.

6 The following exchange occurred between Mr Shieler and counsel for the appellant:

"So when the car went into your house, you were in the driver's seat with Mr Rankin here? … ---The --- pretty much I think what happened was the door hit a pole, and that door slammed on me, and it hit my back, because I ended up with cuts and bruises, and it basically rammed me into the seat.

Okay?---I think I was kneeling on the seat, and … [the appellant's] legs were across me.

Is it conceivable that in trying to stop … [ the appellant] - - in making that manoeuvre to try and get in the car … and by shuffling … [the appellant] around in the driver's seat, in fact you caused him to depress the accelerator pedal and cause the car to move off again? Is it possible that the driving onwards from that point was an accident, unintended by you and unintended by … [the appellant]? - - I couldn't tell you honestly. I suppose it's - -

It's in fact likely. It's exactly the sort of thing that might happen in a motor vehicle of that sort, isn't it? That while trying to stop with [the] brake pedal, in fact you pushed … [the appellant] onto the accelerator pedal? - - … can't see how I could push him onto the accelerator pedal.

Why not? - - Because … I was trying to - - well, he was going. He was going before - - his foot was on the accelerator before my attempt to stop the car, I was attempting to stop the car. The car was in motion.

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How do you know that? - - Because I was worried for my life. It was going pretty quickly."

7 It was thereafter put to Mr Shieler that the vehicle had, as he acknowledged, an automatic gear system and that he may have knocked the gear lever. He denied that he did so.

8 Mr Shieler was told that the statement of material facts prepared by the police in respect of the incident read, in part, as follows:

"The defendant has then reversed at high speed and has once again crashed through the fence and has attempted to drive off, but has again lost control and has mounted the kerb and has crashed the car through a bedroom window located at the front of the house. The complainant … has then run to his bedroom and has observed the defendant inside the vehicle and has held him at the scene while police were called."

9 It was put to Mr Shieler that this is what he had originally told the police. He said that he could not recall what he had told the police but that what had been read to him was not a correct statement of what had occurred.

10 There followed a further exchange between Mr Shieler and counsel for the appellant as follows:

"Did you hit any pedal? - - Well … obviously I don't know. I was trying for the brake pedal. I know where a brake pedal is in a car, and I remember … his leg being there, and I can remember like hitting his leg a couple of times, but just could not find the brake pedal. And then, yes, probably tried about, I don't know, half a dozen times or so, stabbing with my foot to try and find that brake pedal, because I knew that, you know, if I just stood on that hard enough, that will bring the car to a stop. But, yes, I couldn't find anything that resembled to [sic] a brake pedal … "

11 He was asked whether it was possible that he had caused the appellant to hit the accelerator pedal and, after some hesitation, said that he did not think it was possible because he "was stabbing".

12 Mr Shieler also said, in the course of cross-examination, that it was "quite surprising" that he had time to open the car door because he had first tried to reach the appellant through the window, which had been

(Page 6)

closed. He said that he thought that the appellant "would be gone before … [he] could open the door". He said that he did not think that he had anything to do with the car taking off. He said that when he opened the door he was "originally trying to get control of the driver", and then once the vehicle was moving, he "was then trying to stop the vehicle, since … [he] couldn't control … the driver." Later in the course of cross-examination he was asked where he was when he pulled himself into the car. He responded by saying, "We were just about to mount the … [kerb]".

13 It was put to Mr Shieler that he might have knocked the appellant into the gear lever but he said that he did not think that he had done so and could not see it as being possible. He also said that while it might have been possible that the appellant banged the gear lever with his arm he would have thought that it was more likely that it would have been banged backwards than forwards and into reverse gear. Mr Shieler acknowledged that he pushed the appellant's shoulder area, causing him to "bend over".

14 At one point during the course of this cross-examination the learned Magistrate interrupted counsel for the appellant who was, at that moment, putting to Mr Shieler that events did not occur in the manner described by Mr Shieler. The following exchange occurred:

"HIS WORSHIP: He told you, Mr Dungey. He said what happened. Look, Mr Shieler did not drive the car into his own house. That's quite clear. He did not do it.

MR DUNGEY: With respect, Sir, that is the defence case.

HIS WORSHIP: Well, I'll hear from the defence in that case."

15 The only other witness called on behalf of the Crown was Constable Palmer, one of two constables who had attended the scene, the other being Constable Rimmer. He was asked who had prepared the statement of material facts which had been put to Mr Shieler in the course of the cross-examination. He said that it had been prepared by Constable Rimmer after the latter had spoken to Mr Shieler.

16 Counsel for the appellant thereupon attempted to tender the statement of material facts. However the learned Magistrate refused to allow him to do so upon the basis that Constable Rimmer, who had prepared it, was unavailable to give evidence.

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17 The appellant thereafter gave evidence. He said, as I have earlier mentioned, that, as he was turning the corner from Bates Street into Colgan Street a pedestrian walked in front of him causing him to swerve. He said that he " … went through a fence, and was in someone's yard" and that he "was pretty freaked out". He said that he tried to put the car into neutral but it "kind of ended up in reverse, and reversed out pretty fast". He then went on to say the following:

"It jolted me a bit, and to slow myself or to stop I put my foot on the brake, and jerked the wheel, and it spun round and came back in and hit the fence … [t]hen I tried to put the car into park, when a person opened the door … and pushed me … into the centre of the car."

18 The appellant said that the car then started moving forward and, because he had been pushed down, he could only see the dashboard. The car, he said, started picking up more speed before colliding with the house.

19 He said, in the course of cross-examination, that when Mr Shieler entered the vehicle he "kind of grabbed … [the appellant] around the back, and pushed … [him] down". He said also that Mr Shieler "was next to … [the appellant], and pushing himself in" and that he was "grabbing" Mr Shieler in an attempt to stop him. He said that he was trying to put the gear lever into the "park" position but that the car started to move off when Mr Shieler "grabbed [him] round the throat". He said that the car did not start moving until after Mr Shieler had jumped into it.

20 In the course of cross-examination the appellant said that reverse gear, in the car which he was driving, was "right above neutral".

21 The appellant said that he later returned to Mr Shieler's house and there apologised for what he had done. Mr Shieler, in his evidence, had recalled a visit by the appellant and his mother at which the appellant had been remorseful but could not recall whether or not an apology had in fact been made. The applicant was supported in this respect by the evidence of his mother.

22 Before closing his case counsel for the appellant sought an adjournment to enable him to subpoena Constable Rimmer with a view to leading evidence from him in respect of what had been said to him by Mr Shieler as regards the events detailed in the statement of material facts. That application (which had been foreshadowed by counsel for the appellant at the close of the prosecution case) was refused by the learned

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Magistrate. His Worship said in that regard that Constable Rimmer could not "add very much … because he … wasn't there until after the incident". His Worship also said that it had been open to the appellant to have subpoenaed Constable Rimmer at the outset, had he wished to ensure that his evidence was led at the trial.

23 The learned Magistrate, in his reasons for decision as regards the merits of the matter, first considered the manner in which the appellant had driven while making the turn into Colgan Street. He said that, although there was "no subjective evidence as to recklessness at that point" he had the "greatest suspicion" that the appellant was driving too fast to negotiate the corner and that this was what caused him to drive into Mr Shieler's fence. He found it most unlikely that there had been any pedestrian present. However, in the concluding paragraph of his reasons the learned Magistrate considered that he had insufficient evidence to make any finding of recklessness at that point.

24 His Worship made a number of findings of fact as regards what had occurred. After doing so he said that he accepted Mr Shieler's evidence in its entirety and rejected the evidence of the appellant. He went on to say:

"[The appellant] did fly into a panic, but nonetheless I have to treat this matter as being one where there is a driver of a motor car. The driver is responsible for his actions, and notwithstanding his inexperience, there was a course of conduct from going at point 1 of the diagram handed up to me by the defence [this having been the point at which, it seems, the appellant had put the car into reverse after driving into Mr Shieler's verandah]. At that point there was recklessness; that is, as soon as he put the car into reverse instead of into park and trying to stop the car, and leaving it stopped, because indeed it was stopped, that was reckless in itself".

25 His Worship then went on to say that the "objective evidence in reversing out and then once again crashing into the fence, and then once again going through the actions of placing the car into gear and driving forward" amounted to a "sustained course of conduct" which was reckless.

26 The appellant relies upon the following grounds of appeal, so far as the appeal against conviction is concerned:

"1.1 The learned Magistrate erred in fact and law and miscarried in exercise [sic] of his discretion when he convicted the applicant (defendant) of reckless driving

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contrary to section 60(1) of the Road Traffic Act, for the following reasons:

(a) he ought to have granted the oral application of the applicant (defendant) made through counsel at the hearing on 8 March 1999 for an adjournment of the proceedings at the closure of the prosecution case, such refusal resulting in an injustice to the applicant (defendant), as follows:

i) The applicant (defendant) was compelled to mount his defence without having any notice of the substance of the complaint against him, despite having asked the respondent (complainant) for a statement of the material facts giving rise to the complaint;

ii) The applicant (defendant) was compelled to prepare his defence under the misapprehension that the statement of material facts served on him by the respondent (complainant) contained the factual substance of the complaint against him;

iii) This misapprehension caused the applicant (defendant) to decide on reasonable grounds not to call a material witness, namely Constable Andrew Rima [sic] the author of a statement of material facts served on the applicant (defendant);

iv) The learned Magistrate's refusal of an adjournment denied the applicant (defendant) an opportunity now to call this material witness.

v) In the learned Magistrate's consideration of the credibility of the applicant (defendant) and the principal witness for the respondent (complainant) Mr Andrew Schiller [sic], the refusal of the adjournment denied the applicant

(Page 10)

(defendant) the benefit of testimony which would very likely have been relevant to that consideration, namely testimony from Constable Rima [sic] (the applicant presumes) that Mr Schiller [sic] had previously given to the respondent (complainant) a version of events different to his sworn testimony at the hearing.

(b) The learned Magistrate failed to state the reasons for his decision, save for his preference for the evidence of Andrew Schiller [sic] over the applicant;

(c) In assessing the credibility of the testimony of the applicant (defendant), the learned Magistrate failed to take into account a material consideration, namely (in the light of Mr Schiller's [sic] denial that he might have caused the applicant's vehicle to collide with his own house) the evidence of Mrs Rankin that Mr Schiller [sic] had subsequently apologised for his conduct and admitted that he bore some responsibility for the collision.

(d) The learned Magistrate pre-judged the complaint by concluding that the applicant's version of events was implausible and not to be believed, before hearing the testimony of the applicant or any defence witness".

27 I will deal first with grounds (a), (b) and (c) of the grounds of appeal.

28 As to ground (a), the statement of material facts to which I have earlier referred was made available to the appellant prior to the hearing. Counsel for the appellant contends that, because that statement did not reflect the evidence ultimately led from Mr Shieler, he was compelled to prepare the defence under the misapprehension that that document contained the "factual substance of the complaint against him" when this was not the case.

29 It will be plain from what I have earlier said that the evidence of Mr Shieler, insofar as it differed from the statement of material facts, accorded much more closely with that of the appellant himself than did

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the events recounted in the statement of material facts. In those circumstances I am not persuaded that there was any real prejudice at all to the appellant arising out of the difference between Mr Shieler's evidence and what was said in the statement of facts.

30 However, counsel for the appellant contended, the misapprehension that Mr Shieler's evidence would accord with the statement of material facts led him not to subpoena Constable Rimmer in circumstances in which he might otherwise have done so. That, in turn, he submitted, should have led to an adjournment being granted to him when he sought it from the learned Magistrate for the purposes of issuing such a subpoena. He contended that, had the learned Magistrate acceded to his application, and if it had transpired that what was said by Constable Rimmer accurately reflected, so far as he was concerned, what was said to him by Mr Shieler, this would have been a material matter in assessing the latter's credibility.

31 While it is, of course, a matter of speculation as regards what it is that Constable Rimmer would have said it seems probable that he would have said that what was written by him in the statement of material facts was a record of his understanding of the effect of what he had been told by Mr Shieler. I have already mentioned, in this respect, that Constable Palmer said in evidence that the statement of material facts had been prepared by Constable Rimmer after he had spoken to Mr Shieler. Constable Rimmer's evidence would consequently have been material to, albeit not necessarily decisive of, any assessment of Mr Shieler's credibility.

32 The appellant was, by virtue of the refusal of the adjournment, denied the opportunity of exploring this avenue. Moreover, it seems from what was said by the learned Magistrate that he was influenced, in refusing the application, by his belief that Constable Rimmer's evidence would have been of little value because he arrived only after the incident. However this, with respect, did not address the appellant's purpose in seeking to call him as a witness, that purpose being, as I have said, solely that of attacking Mr Shieler's credibility.

33 It is no doubt true, as the learned Magistrate also said, that the appellant could have subpoenaed Constable Rimmer in advance of the hearing. However this omission was, in my opinion, not unreasonable in circumstances in which counsel for the appellant had assumed that the prosecution evidence would at least generally accord with the statement of material facts provided by it or, if this was not to be the case, that the

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author of that statement would be called by the prosecution to say what had led to the preparation of that document.

34 The effect of the refusal to grant an adjournment must, in my opinion, be considered together with the fact, dealt with in grounds (b) and (c), that the learned Magistrate made no reference, at all, to the evidence of Mrs Rankin.

35 She gave evidence that she, her husband and the appellant went to Mr Shieler's home some time after the incident in question. She said that the appellant apologised to Mr Shieler. She also said that Mr Shieler then said that he had himself to apologise to the appellant, that he was not normally a violent person and that he wished that he had never entered the car. The only question put to her in cross-examination was whether Mr Shieler might have said that he was sorry that the whole incident happened. Mrs Rankin disputed this. Earlier, in the course of cross-examination, Mr Shieler had denied saying to the three members of the Rankin family that he was not normally a violent person. He denied also that he said to them that he had been trying to get his foot on the brake and get the keys out of the car and that he wished that he had never entered the car as "this would never have happened".

36 None of this evidence was referred to by the learned Magistrate. It is true that if, as Mrs Rankin said, Mr Shieler had said that he was not normally a violent person this very probably had little to do with the material events and was more probably related to his ultimate apprehension of the appellant. It is also true, as regards the alleged comment by Mr Shieler that he had got into the car and tried to pull the keys out and put his foot on the brake, that there was nothing in that which is materially inconsistent with the evidence which Mr Shieler gave. However Mrs Rankin's evidence to the effect that Mr Shieler said that he wished that he had never entered the car is, in my opinion, in a somewhat different category.

37 It is plain, from the evidence to which I have referred, that the central matter in dispute as between Mr Rankin and Mr Shieler was whether Mr Shieler had accidentally caused Mr Rankin to put the car into gear or had accidentally caused the accelerator pedal to be depressed, or both, thus bringing about the final collision with the house. It will be apparent from what I have said that Mr Shieler had undoubtedly pushed the appellant in his efforts to get into the car and put his foot on the brake pedal. It was also not in dispute that he made a number of attempts to put his foot on the brake pedal. Also, I have mentioned that he said that at

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one point he was kneeling on the seat with the appellant's legs across him. While he disputed that he pushed the appellant's foot onto the accelerator pedal or depressed that pedal himself or that he caused the appellant to knock the gear lever the transcript discloses that Mr Shieler had some hesitation, at least, before rejecting the first of those propositions.

38 The apparent failure to take into account what had been said by Mrs Rankin, when coupled with the refusal of the adjournment, seems to me, with due respect to the learned Magistrate, to bring into question his Worship's finding of credibility as regards this critical area of dispute.

39 While it is true that the issue of credibility to which I have referred touches upon matters which occurred after Mr Shieler entered the vehicle, I do not consider that the decision of the learned Magistrate can be sustained by virtue only of his Worship's comment that there was recklessness at the point at which the appellant put the car into reverse instead of into "park". It is not entirely clear, notwithstanding his Worship's comments, that his Worship was satisfied that this, taken on its own, was enough to make out the charge. I have mentioned that his Worship went on to say that it was the appellant's "sustained course of conduct" in reversing, again crashing into the fence and then driving forward and into the house which was reckless.

40 Moreover, it is, I think, difficult to see how the mere act of placing the car into reverse instead of into park could amount to the wilful driving of the motor vehicle in a manner that was inherently dangerous or that was, having regard to all the circumstances of the case, dangerous to the public or to any person (as to which see the provisions of s 60(1) of the Road Traffic Act). I should add, although no point was sought to be made in this regard at the hearing of the appeal, that the complaint was that the appellant drove a motor vehicle "on Colgan Street" in a manner that was, having regard to all the circumstances, dangerous to the public or to any person. The vehicle was not, at the time at which it went into reverse, on Colgan Street.

41 It consequently seems to me that I should, because of the matters to which I have referred (insofar as they are supportable by reference to grounds (a), (b) and (c) of the grounds of appeal), quash the decision of the learned Magistrate and order a retrial before a different Magistrate.

42 This decision makes it unnecessary for me to consider ground (d) of the grounds of appeal against conviction and the appeal against sentence.