Robey v Police

[1993] SASC 4183

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Vehicles and traffic - offences - Traffic offences - intentionally causing damage to another vehicle (Criminal Law Consolidation Act s.85) and failing to stop after an accident (Road Traffic Act s.43) - appellant, upset over real or supposed competition for a parking space, deliberately reversed sharply into other vehicle causing appreciable damage, and then drove off without stopping - convictions justified by evidence, and fine of $700 with six weeks' disqualification upheld. Summary Procedure Acts.181 - failure to state all ingredients of offence in complaint under s.85(3) of Criminal LawConsolidation Act - defect of substance but did not cause any prejudice to defendant - conviction amended on appeal.

HRNG ADELAIDE, 10 September 1993 #DATE 17:9:1993
Counsel for appellant:     Mr G Stathopoulos
Solicitors for appellant:    Zacharoyannis Luppino
   and Eckermann
Counsel for respondent:     Mr M A Stevens
Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 COX J The appellant was involved in a dispute with another motorist over a parking spot on Jetty Road, Glenelg as a result of which he was charged with two offences - damaging another person's property (Criminal Law Consolidation Act s.85) and failing to stop after an accident (Road Traffic Act s.43). He pleaded not guilty to both counts and the matter was tried by a stipendiary magistrate. There was a sharp conflict between the prosecution and defence witnesses about what happened. The appellant was convicted. The Magistrate imposed a global fine of $700, with court fees $82 and levies $40, and the appellant was ordered to pay $300 prosecution costs and $250 witness fees - a total of $1,372. He was also ordered to pay $199.36 for the cost of repairing the other driver's car. He was disqualified from holding or obtaining a driver's licence for six weeks. He says that the evidence did not justify his conviction and that the learned Magistrate approached the evidence in the wrong way; furthermore, the penalty was excessive. 2. The other driver, Ms Pyle, said in evidence that she was driving her friend's Sigma sedan west along Jetty Road, Glenelg early in the afternoon of Sunday, 30 August, 1992 looking for a place to park. She saw a free space on the opposite side of the road, immediately west of a small side street, and so made a U-turn and backed her car into the parking space. She had just stopped when she noticed a Commodore sedan immediately in front of her car. It was reversing and it came to a stop very close to the front of the Sigma. It is common ground that the appellant was the driver of the Commodore. According to Ms Pyle the appellant, after an exchange of words, then drove forward a few metres, stopped, and reversed sharply into the front of her car. It collided with a "huge bang" which attracted the attention of nearby pedestrians. The defendant then drove off at great speed. Afterwards Ms Pyle saw that the plastic grille at the front of the Sigma was cracked. Her account of the incident was supported in substance by her passenger, Ms Hampson (the owner of the car), and by a bystander, Ms Sesr, who was so incensed by what she saw (including the driver's laughing as he drove away) that she spoke to Ms Pyle and said that she would be a witness for her. The account given by the appellant in the witness box was quite different. He said that he was driving east along Jetty Road, looking for a parking space, when he saw the empty spot just west of the side street. He swung into and then a little way beyond it, and had reversed to the extent that a quarter of his car was occupying the car space when Ms Pyle came up from behind him and tried to steal his place by driving directly - not in reverse - into it. He braked and so did Ms Pyle. There was an exchange of calls or shouts and the appellant conceded defeat and drove off. There was no collision at all between the two vehicles. The appellant was supported by his fiancee-passenger, Ms Stephens. During the course of the appellant's evidence the learned Magistrate had a view of the scene with the two vehicles close together. Measurements were taken, particularly to show the height above the road of the appellant's tow bar and its alignment relative to the front of the Sigma. It was the appellant's case that the discrepancy between the two measurements demonstrated that his tow bar could not possibly have caused the damage to the other car. 3. The learned Magistrate reserved her decision. Subsequently she convicted the appellant. She believed the prosecution witnesses and disbelieved the appellant and Ms Stephens. 4. Before considering the grounds of appeal I should say something about the form of the first count. Section 85(3) of the Criminal Law Consolidation Act reads -
    "Where a person -
     (a) intending to damage property of another, or being
    recklessly indifferent as to whether property of another is
    damaged; and
     (b) without lawful authority to do so, and knowing that no
    such lawful authority exists, damages, or attempts to damage,
    property of another, the person shall be guilty of an offence." 5. This is one of the sections relating to arson and other forms of property damage that were refashioned extensively in 1986. 6. The charge that was laid against the appellant reads -
    "On the 30th day of August 1992 at Glenelg in the said
    State without lawful authority damaged the front of a motor
    vehicle the property of Carol Joan Hampson. Section 85 of the
    Criminal Law Consolidation Act, 1935. This offence is
designated as a summary offence." 7. In my opinion, this was a deficient complaint, whether it was technically correct or not. It said nothing about the defendant's state of mind. It is obvious that par.(a) of sub-s.(3) states an essential part of the offence. Unless the damage is caused intentionally or as a result of reckless indifference, a person will not be guilty of an offence under this sub-section. It is not as though the alternative states of mind described in the paragraph exhaust all the possibilities. There is no mention of damage caused by mere carelessness, unintentionally and with no thought for the possible consequences - a very common accompaniment of acts causing damage to property on the highway and elsewhere. No layman who simply read the complaint that was made in this case would have had any idea that proof of the offence depended upon proof of a particular state of mind. True it is that the complaint referred the appellant to s.85 of the Criminal Law ConsolidationAct. Had he read that section it would have been obvious to him that he was being prosecuted under sub-s.(3) not sub-s.(1) (which deals with damage by fire or explosives) though it would have been better had the complaint said as much. In some circumstances a reference to the Act and section relied upon, instead of setting out the necessary ingredients of the offence in the usual way, will save a complaint from being adjudged defective - see Cook's Hotel Pty Ltd v. Pope (1983) 34 SASR 292 - but it would be wrong, in my opinion, to regard this as a generally desirable practice. It is not difficult to imagine cases in which a charge in this form would be seriously misleading, and that is a pretty good indication that the drafting is bad. 8. So the complaint, in my view, was unsatisfactory. It should have alleged one or other, or both in the alternative, of the states of mind specified in par.(a) of s.84(3) of the Act. I have little doubt that until recently the charge would have been characterized as defective in substance within the meaning of the summary procedure legislation. (Cf. McVitie (1960) 44 Cr App R
201 where the omission of "knowingly" from an indictment made it defective though not bad in law; but the rules in this respect in the Magistrates Court and at a trial on indictment will not necessarily be the same.) I think it probably still is defective - s.181 of the Summary Procedure Act, in stating that an information or complaint is not invalid because of a defect of substance or of form, implies the continuation of the old categories - but the procedural sections were radically altered recently and I do not stay to analyse them. It is unnecessary to do so in order to dispose of this appeal. 9. It is plain that the appellant has not been prejudiced, let alone substantially prejudiced (see s.181), by the defect in the complaint. He was interviewed by the police about the incident. He was represented by a solicitor in the Magistrates Court. No point was taken there about the form of the charge. Everyone understood clearly that the police were alleging that the appellant deliberately reversed the Commodore into the front of the other car. Had an application been made to amend the charge it would no doubt have been granted. The point was not taken in the notice of appeal. Amendments of this sort are less common at the appeal stage but by no means rare. See, for example, Hayward v. Whitbread (1966) SASR 1, where Mitchell J allowed an amendment in similar circumstances to these. Cf. McVitie. Again, there is no evidence of any prejudice. Mr Stathopoulos for the appellant conceded that the point would not have been mentioned had I not myself raised it with counsel. I think it proper in the circumstances to amend the complaint and also the conviction by adding the word "intentionally" in each document before the word "damaged". 10. I turn to the merits of the appeal. Mr Stathopoulos's chief submission was that the claim by the prosecution witnesses, that the back of the Commodore collided violently with the front of the Sigma and caused the damage to the Sigma that was noticed afterwards, is contradicted by the measurements taken on the view. (I call it a view, but there were elements of a demonstration about it as well.) The rearmost part of the Commodore was its tow bar which had the common ball component with a short horizontal member projecting rearward from the base of the ball. The damage to the Sigma consisted of a verticle fracture of the plastic grille below the front bumper bar and number plate. The damage was not very prominent and the defendant argued that it must have been caused on some earlier occasion and passed unnoticed until this day. The owner and Ms Pyle (who often drove the car) insisted that the car was undamaged before this incident. Indeed, the owner said that she saw a small piece of matching plastic material on the bitumen after the collision. 11. It was obviously the Magistrate's view, and it is mine, that the measurements and photographs are not inconsistent with the prosecution case. It is unnecessary to go into the matter in detail but it is noteworthy that the measurements were taken when both cars were empty, and that the towbar could easily have brushed against the free bottom edge of the Sigma number plate and struck the plastic grille. The grille appears to have been of a rigid plastic open-work construction. One would need to be an expert to draw from the nature of verticle fracture any conclusion about the precise point of impact. There was no expert evidence. 12. Mr Stathopoulos argued that the photographs of the damage and the measurements gave rise to a reasonable inference that the appellant's car could not have caused the damage, and that it was encumbent on the prosecution to negative the inference beyond reasonable doubt. In my opinion, that misstates the issue. The most that could be said is that one might have expected the damage to be a little higher. It was then a matter of taking that expectation, as it were, into account with the oral evidence and deciding whether the prosecution had proved its case beyond reasonable doubt. It is erroneous to regard the photographs and the view, which did not completely match the circumstances at the time and was not the subject of any expert evidence, as a sort of knock-out blow. 13. The learned magistrate was impressed by the prosecution witnesses, notwithstanding some minor inconsistencies or errors. She was unimpressed by the appellant and his passenger. 14. It is important to remember that the prosecution witnesses spoke of a loud bang while the defence witnesses said that there was simply no contact. Pretty obviously one group was lying. Having read the evidence I can well understand the learned Magistrate's conclusion that it was not the prosecution witnesses. I did wonder at first whether her Honour might not have erred in assessing the individual witnesses independently of the evidence about damage - that it was lower on the Sigma than one might have expected - but on further consideration I do not think that the reasons for judgement give insufficient weight to that subject or fail to confront the prosecution case with the physical evidence that might be thought to tend the other way. Her Honour assessed the effect of the view before setting out her findings. They were amply supported by the evidence. The attack on the conviction must fail. 15. The penalty submission concentrated on the appellant's disqualification for six weeks. He is a young man of 26 who uses his car in his retail business. Being unable to drive will cause him considerable hardship. Her Honour took that into account. The appellant had a previous conviction for a drink-driving offence, so he has managed to collect some serious convictions in his few years of driving. It was an appropriate case for the use of the general disqualification power given by s.168 of the Road Traffic Act. On the evidence of the prosecution witnesses, the appellant probably had no justification at all for believing (if he did) that he had some prior claim to the parking space but, even if it were otherwise, that could not possibly excuse his irresponsible behaviour. Contests or irritations about parking spaces are commonplace. The way the appellant dealt with this particular test of his maturity as a motorist was quite outrageous. He deliberately drove into the other car, hard enough to make a loud impact and cause substantial damage, and then drove off laughing. As the Magistrate found, he was well aware that he had collided with the Sigma and he must at the very least have been recklessly indifferent as to whether the Sigma had been damaged. A fine of $700 and disqualification for six weeks for the two offences was quite moderate. 16. The appeal is dismissed.