Sassine v Ray & Sons Construction Pty Ltd

[2012] NSWSC 307

Supreme Court

New South Wales

Medium Neutral Citation:	Kalathas v State of New South Wales [2012] NSWSC 307
Hearing dates:	29 March 2012
Decision date:	04 April 2012
Jurisdiction:	Common Law
Before:	Grove AJ
Decision:	Summons dismissed with costs
Catchwords:	Appeal from Local Court - no error of law established
Legislation Cited:	Evidence Act
Cases Cited:	Murphy v McMillan [2012] NSWSC 186 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Category:	Principal judgment
Parties:	Nicolas Kalathas - Plaintiff State of New South Wales - Defendant
Representation:	Counsel: P Taylor SC with F De Greenlaw - Plaintiff R Bartlett SC - Defendant Solicitors: Gerard Malouf & Partners - Plaintiff David McLachlan - Defendant
File Number(s):	2011/64924

Judgment

1. HIS HONOUR: This is an appeal against the decision of the presiding magistrate at Downing Centre Local Court where his Honour entered judgment for the State of New South Wales for the costs of repair to a police vehicle following damage caused to it by collision with a Harley Davidson motorcycle ridden by Nicolas Kalathas which occurred at about 5 am on 15 June 2008. In the court below the parties were plaintiff and defendant respectively and, although Mr Kalathas is the plaintiff on the summons in this Court, it will avoid confusion if I continue to refer to them as they were in the Local Court.

1. An appeal to this Court is limited to questions of law or, by leave, to questions of mixed fact and law. Application for such leave was not made. The summons originating the appeal set out six grounds of appeal but at the hearing only grounds numbered 3 and 5 were pressed namely:

(3)The learned magistrate erred on a question of law in that he relied upon unrelated evidence to drew (sic) an inference as to the direction and location of the plaintiff's riding, and

(5)The learned magistrate erred on a question of law in that he failed to give adequate reasons.

1. The reasons for judgment were delivered extempore. The issue of damages had been agreed and the matter for determination was liability for the collision and in that regard the magistrate had been presented with conflicting versions of how it occurred. It is necessary to sketch some background from the evidence in order to appreciate some of the references in his Honour's reasons.

1. Constables Gunn and Marwick were patrolling in a police vehicle (KX 405) other than the one eventually involved in the collision, and after some exchange of words with the defendant near an establishment in Kings Cross, they saw him mount a Harley Davidson motorcycle and ride off. By the time of hearing Constable Marwick had left the police force and moved to live overseas. The manner in which the motorcycle was ridden caused them to follow it and they activated lights and sirens directing the defendant to stop. There followed what the learned magistrate described as silliness as the defendant stopped and started, and in course of what might be described as a chase, the defendant was seen to disobey traffic control signals, move among traffic and stationary cars and to cross diagonally multiple traffic lanes. He travelled at various speeds upon what were, of course, public roads. KX 405 was directed by radio to cease pursuit and they complied, deactivating the lights and sirens.

1. Although for a time these officers had lost sight of the defendant, they sighted him again when, stopped in obedience to traffic signals at the intersection of Victoria and Burton Streets Darlinghurst, they observed him proceed through the intersection. This sighting was reported on radio.

1. Thereafter Constable Beck, driving another police vehicle (KX 15) reported that he had seen what he took to be the vehicle earlier followed by KX 405. Constable Shakespeare was travelling as an observer in KX 15. Constable Beck not long after that report transmitted on radio that the motorbike had "crashed into us". Constable Beck had also left the police force by the time of hearing and the defendant had been unable to effect service of a subpoena on him.

1. The collision occurred at the intersection of Liverpool Street and Hardie Street Darlinghurst. Liverpool Street lies generally on an east/west axis and Hardie Street lies on a north/south axis, however south of the intersection with Liverpool Street, it is a one way street for southbound traffic only, but north of the intersection it is a one way street for northbound traffic only. East of the intersection, running off Liverpool Street to the north is a dead end carriageway called Hayden Lane.

1. It will also assist in dealing with the grounds of appeal to record in brief the stark contrast in the contest between the parties about how the collision took place.

1. The defendant's version was that he came south in Victoria Street and at the intersection of that street and Liverpool Street, he turned right into the latter to travel west in it, his intention being to turn right (to the north) into Hayden Lane. However, he missed the entrance which was obscured by parked cars and he stopped about 10 metres short of the intersection of Liverpool Street and Hardie Street. He took some time, about 20 seconds, to ascertain the Hayden Lane entry but, after he did, he observed the road was clear and he commenced to perform a U turn to go back to the entry in the course of doing which he heard a motor come towards him and then he was struck on his right hand side. Presumably based upon his observation of a clear road, he alleged that KX 15 was travelling without its headlights illuminated.

1. In contrast, part of the statement by former Constable Beck was admitted. Relevantly it read:

"At the intersection of Liverpool Street and Hardie Street, Darlinghurst, I observed the vehicle of interest approach at approximately 90 km/h from Hardie Street and attempt to punch through the intersection, the vehicle of interest travelling at speed contrary to the direction of travel. Hardie Street between Liverpool and Burton Street one way, one land (sic) south bound only."

1. Constable Shakespeare's statement contained the following description (having noted that KX 15 was travelling west in Liverpool Street, a fact which was not in dispute) and she was hearing radio communication between Constables Beck and Gunn:

"As Constable Gunn was saying this I looked to my left. At this point we were approximately five metres away from the intersection of Liverpool Street and Hardie Street, Darlinghurst. Hardie Street is a one way street that runs southbound off Liverpool Street. As I looked to my left I saw a motorbike travelling the wrong way (northbound) up Hardie Street and towards our police vehicle. I would estimate the speed of this motorbike to have been approximately one hundred kilometres per hour.

Within about one second I saw the motorbike travel directly in front of our police vehicle. When the motorbike was directly in front of our police vehicle we impacted with the right side of the motorbike."

1. In support of ground 3 it was contended that the learned magistrate erred in law by misusing the evidence of the antecedent riding of the motorcycle by the defendant (as substantially described in the evidence of Constable Gunn) as demonstrating tendency or coincidence in a manner of riding so as to conclude that the defendant was therefore riding in a negligent manner which was causative of the collision. It was common ground that no notice that the defendant intended to rely upon evidence to be used in that way was given in accordance with the requirements of the Evidence Act. Indeed, no such proposition was raised in the Local Court at all nor in the written submissions filed in this Court and it seems to have been raised for the first time in the oral submissions.

1. However, it was submitted that legal error by the magistrate could be detected in his having preferred the case of the plaintiff because of the preceding "erratic, illogical, silly" riding of the motorcycle by the defendant.

1. As I understood the submissions, they relied principally upon these two passages which can be extracted from his Honour's reasons:

"The uncontested evidence of that previous driving is given by Officer Gunn and even taking into account those matters which are put in dispute by the evidence of the defendant, and thus excluding them from consideration, the pattern of driving up to the point of impact in the half an hour or so before that point of impact is significant and problematic for the defence. I say that because if, as I indicated during the submissions of the defence, if a person is behaving and driving in a manner which is irrational and against the road rules and playing what can only be described as a bit of a game with the police of pulling over, stopping, pulling over, stopping, I think on three occasions and perhaps more in this case, then that gives rise to a reasonable inference or at least it discounts an inherent improbability that they will continue in driving in an irrational or erratic manner."

1. And:

"Having made those comments on the evidence, I am now going to indicate my findings. For the reasons that I have given, I am satisfied on the balance of probabilities that the evidence of Officer Shakespear (sic) ought to be accepted. The basis of that is that there is the driving beforehand by the defendant, is consistent with erratic, illogical, silly driving, as described. Secondly, she gave evidence that I believed that she did not see and was in a position to see the U-turn and she gave evidence that completely denied that.

It would have been, the motorcycle would have been in her view for a considerable period of time, whichever way she was looking if the defendant's evidence was to be accepted and he was sitting by the side of the road for twenty seconds, checking to see whether there were any vehicles. I accept on the balance of probabilities that the lights were on and that the vehicle, that is the defendant's vehicle, came out of Hardy Street at a speed that did not enable the police vehicle to stop before contacting with it. The defence version is improbable."

1. His Honour's statement of reasons does not demonstrate that he was relying on tendency, coincidence or any other form of similar fact finding. There is no finding that because of the antecedent riding the defendant was therefore acting in a similar way on this occasion. What he found was that the credibility of the defendant's version was unsustained and, for the reasons given, Constable Shakespeare's evidence was accepted.

1. I comment that it would not have been insignificant on the issue of the defendant's credibility that he had been convicted in the District Court of stealing the Harley Davidson motorcycle although he asserted that at the time there was an appeal pending. The learned magistrate noted that the defendant attended court from custody (whether in respect of that offence was not stated) but rather in the defendant's favour he said "just because people are in custody on one matter does not make them more or less believable on others".

1. The vast bulk of the defendant's written submissions analyses the evidence but I have no fact finding jurisdiction although this is not to imply that I consider that the learned magistrate's decision appears to have been wrong. Much stress was laid upon the rejection of the speed estimate by Constables Beck and Shakespeare in the light of reconstruction by the two experts who had reported on the incident. As always, such opinions must be largely dependant upon the validity of information supplied which may or may not be of exact accuracy. If the defendant's cycle came into the intersection travelling the "wrong way" in a one way street, it would be hardly surprising if its sudden, and obviously unexpected appearance inspired estimates of high speed.

1. This ground is not made out.

1. Ground 5 challenges the sufficiency of the reasons given by the learned magistrate. There is ample authority that the essential grounds upon which a decision rests must be articulated, for example: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. The situation of busy magistrates must, nevertheless, be borne in mind although that does not mean that its suffice simply to identify contesting cases and assert a preference: See Murphy v McMillan [2012] NSWSC 186 at [67].

1. The reasons given do not fail to comply with what is required. This was a case of bare factual dispute in which it was simply necessary for the Tribunal to reach a conclusion and express reasons for reaching that conclusion. This was done. A reading of the whole of the judgment shows accumulating reasons for rejecting the credibility of the defendant's version. It was not irrelevant to the assessment of credibility, as his Honour noted, that the defendant's proposition that he was run down by KX 15 moving without lights was something not even put to Constable Shakespeare who, if that were the fact, would have had to have been aware of it.

1. No error of law has been demonstrated.

1. The summons is dismissed with costs.

**********

Decision last updated: 04 April 2012