Regina v Nicholas Sanders

[2007] NSWDC 325

CITATION:	Regina v Nicholas Sanders [2007] NSWDC 325
HEARING DATE(S):	3 October 2007
JUDGMENT DATE:	3 October 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Conviction set aside.
CATCHWORDS:	Criminal law - Conviction Appeal to District Court - Driving offence - Standard of proof not met
LEGISLATION CITED:	s42(2) Road Transport (Safety and Traffic Management) Act 1999 s20(1)(a) Crimes (Appeal and Review) Act 2001
PARTIES:	Regina Nicholas Sanders
FILE NUMBER(S):	07/52/0329
SOLICITORS:	Ms Mudge for the Respondent Mr Falcomata for the Appellant

JUDGMENT

1. This is a case where I think the events which the prosecution say occurred probably happened. But it is a criminal prosecution and the probability of the events happening is not sufficient for me to be convinced, of course, beyond reasonable doubt. As Ms Mudge said, who appeared for the Respondent, this is a case where there were two different versions of the events.

2. The two prosecution witnesses were public servants working in a building in Armidale. They had a good view of a park across the road. Their evidence was that they saw a car doing what they described as “doughnuts” in the park. I understand doughnuts are a manoeuvre where a car with a combination of breaking and accelerating spins around on an axis. They observed the car doing this in the park on 16 May 2006. Statements were taken from them at the same time, after they reported it to the police. As Ms Mudge said they were sufficiently concerned with the driving of this car that they reported it to police.

3. Although that does not assist me in determining whether the nature of such driving would be driving in a manner dangerous, I accept Ms Mudge’s submission that performance of the manoeuvre involves a degree of loss in control over the car. If the Appellant in this case, Nicholas Sanders, performed this manoeuvre, his own evidence is that he had a passenger with him. In my opinion that passenger’s safety was in danger by such a manoeuvre and it is correctly described as driving in a manner dangerous.

4. That is a relevant question because Mr Sanders, based upon the statements taken by the two witnesses, was charged with driving in a manner dangerous to the public. That is an offence under s42(2) of the Road Transport (Safety and Traffic Management) Act 1999.

5. Mr Sanders’ account is that he was working that day in or near the park. He finished at 4.30, he got in his car to go home. He gave a lift to a co-worker, Mr Devlin. There was some difficulty in the traction of the wheels on the ground when he started but he otherwise left the park without incident and certainly without performing any of the manoeuvres which the prosecution witnesses claim they saw.

6. The strength in the prosecution case, which makes me think that what they say happened probably happened, is that their statements were taken on or about the same day of the events so that their statements which were tendered in evidence are likely to be a more accurate account. Secondly, they maintained observations of the car throughout the relevant periods, and thirdly, there is some concession by the defence witnesses of some spinning of the wheels. The defence witnesses who acknowledge that, and not all of them, tend to downplay it which makes me suspicious.

7. On the other hand, in the defence case the Defendant himself, Mr Nicholas Sanders, gave evidence. He was supported by his passenger, Mr Devlin, and three other persons, Messrs Darcy, Payne and McMillan. Two important observations need to be made about these persons. The first is that most of them met for the first time because they were all working on the same job. Casual labourers were required for this job and at least a number of them had not met before. The second observation is that, on the evidence, a number of them had not had any significant contact since 16 May 2006. They had seen Mr Sanders’ solicitor, Mr Falcomata, who appears for him today, but otherwise had little contact with Mr Sanders or with each other.

8. This is significant because his Honour, in a considered judgment, made findings about the witnesses called by or on behalf of the Defendant. He found them “all to be dutiful and convenient witnesses. They all gave strictly rehearsed evidence in relation to the issue that his driving was not a matter for concern.” Mr Falcomata submits that this is not a finding to which I should attach significant weight. He needs to make that submission because the Court of Appeal has made it clear that I may place weight on findings of a magistrate which depend upon factors available to the magistrate but which are not available to me, such as the demeanour of witnesses.

9. However, I accept Mr Falcomata’s point that the evidence in this case does not enable me to agree with that finding that they gave “dutiful and convenient” evidence which was “strictly rehearsed”. The evidence is of casual workplace acquaintance and little if any acquaintance since the events in question.

10. Whilst I am on his Honour’s reasons, a second reason for his Honour placing less weight on the defence witnesses were inconsistencies in their accounts. Whilst all of them broadly gave evidence to the effect that they observed nothing unusual or unsafe or inappropriate about Mr Sanders’ driving, there were inconsistencies in the accounts they gave about the route taken by Mr Sanders after the driving in question through the park. In this regard I accept Mr Falcomata’s submission that they are inconsistencies which are not surprising given the fact that witnesses giving evidence after some years may well be inconsistent in some detail. I regard the detail in respect of which these inconsistencies arose as not material. In that regard I accept Mr Falcomata’s submission.

11. I will here make some remarks about Ms Mudge’s submissions, which of course I am rejecting in reaching this conclusion. I do not place any weight on the argument that there was a reasonable possibility of a misidentification by the prosecution witnesses. I accept her submission that this was never put to the two prosecution witnesses in the lower court.

FALCOMATA: I apologise for interrupting, your Honour. It was put to one of the witnesses, Ms Bashford, at p 35, your Honour. The question is asked “How can you positively say that the vehicle was the vehicle that left the roundabout?” I apologise for interrupting, your Honour.

HIS HONOUR: Sorry, where’s that?

FALCOMATA: P 35 at line 1, at line 2, your Honour. One would have to read that whole page and the next to put that into context.

12. I correct what I have just said. In respect of one of the witnesses that proposition was not put and I am not prepared to make a conclusion that there was a misidentification. The proposition was put to the other witness, a Ms Bashford, who confirmed in effect that she had kept the vehicle in her sight for the relevant period. This is another point made by Ms Mudge, that the two prosecution witnesses maintained visual eye contact throughout the relevant period. I accept the strength of this which supports my view that the events probably occurred as deposed by those witnesses.

13. I do have reservations about the fact that the witnesses for the Defendant, another point made by Ms Mudge, had given their evidence quite some time after the events in question. There is some question about how they could recollect that day in particular and that particular piece of driving, unremarkable as it was. However, once again I do not understand that that issue was explored with them by the prosecutor at first instance. There was, as Ms Mudge said, a significant time gap but, as she fairly acknowledged, that point has some significance in a submission put by her to me but was not sufficiently explored by the prosecutor at first instance.

14. Finally, Ms Mudge said I should reject a submission that the magistrate appeared to rely upon a pro forma form of judgment which had been used before. I do reject that submission as to its relevance to this case. As Ms Mudge says, what is important is in the learned magistrate’s reasons rather than whether he may have used a pro forma or not.

15. Finally, the learned magistrate rejected the Defendant’s evidence and found that he had been consciously or unconsciously trying to lead the court away from matters that would expose weaknesses in his testimony. I do not share the same view so far as the transcript is concerned and I do not see any other aspect articulated by his Honour which would enable me to say that his Honour was in a better position to make that finding than I am.

16. For the reasons which I have just given I have determined to allow the appeal and in accordance with s20(1)(a) of the Crimes (Appeal and Review) Act 2001 I set aside the conviction.

Now is there anything else, Ms Mudge, on this case?

MUDGE: No, your Honour, sorry your Honour, I’m just--

HIS HONOUR: Yes? Mr Falcomata? Sorry, I’ll stay with one person at a time. Sorry, Ms Mudge.

MUDGE: I’m sorry, I’m just trying to collect my thoughts in regard--

HIS HONOUR: Collect your thoughts, that’s all right.

MUDGE: The conviction has been set aside. The magistrate had made further orders in regards to fines and so forth. I’m just wondering if any - all orders that the Local Court magistrate made in relation to this matter just should be quashed. So if the orders could be set aside. That’s the easiest way.

HIS HONOUR: All right.

17. I also set aside any consequential orders made by the learned magistrate.

Mr Falcomata, nothing else?

FALCOMATA: In effect, your Honour, I was only going to suggest that your Honour use the terminology or phraseology conviction quashed and orders set aside but in effect your Honour has done that.

HIS HONOUR: I’ve got to use the words of the statute. I’m not convinced the last order was in the terms of the statute but it seems to make sense.

oOo