Scylla v Police - [2022] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
SCYLLA v POLICE
[2022] SASC 42
Judgment of the Honourable Justice McDonald
6 May 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER MATTERS
Appeal against conviction imposed by a Magistrate.
The appellant was convicted by a Magistrate of the offence of driving without due care contrary to s 45(1) of the Road Traffic Act 1961 (SA). The charge arose out of an incident on 12 July 2020 when the appellant driving his Mitsubishi Magna on Bondleigh Road, Rockleigh, lost control of his vehicle and drove through a fence and into a farming property. It was the appellant’s evidence that it was not his vehicle that was involved in the accident. The appellant appeared unrepresented at trial and at the appeal. The appellant’s grounds of appeal could be distilled into three points:
1. That the Magistrate had placed disproportionate weight on the evidence of the witnesses called by the prosecution;
2. That the Magistrate failed to place sufficient weight on the appellant’s argument that his car would have suffered more damage had it been involved in the collision; and
3. That the police investigation was inadequate and that the Magistrate had placed insufficient weight on that aspect of the evidence. The effect of these complaints was that the verdict was unreasonable and was not supported by the evidence.
Held, dismissing the appeal:
1. None of the grounds of appeal are made out. The appeal is dismissed.
Road Traffic Act 1961 (SA) s 45(1), referred to.
Dansie v The Queen [2020] SASCFC 103, applied.
Penney v R (1998) 155 ALR 605, discussed.
R v Becirovic [2017] SASCFC 156; R v Schueard (1972) 4 SASR 36; R v Weetra (2004) 236 LSJS 328; M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Libke v The Queen (2007) 230 CLR 559; R v Jeisman [2008] SASC 266; Chidiac v The Queen (1991) 171 CLR 432, considered.

SCYLLA v POLICE
[2022] SASC 42
Magistrates Appeal: Criminal
McDONALD J.

This is an appeal against the conviction by a Magistrate on 5 October 2021 for the offence of driving without due care contrary to s 45(1) of the Road Traffic Act 1961 (SA). The offending occurred on a quiet country road on 12 July 2020.
Introduction
At the trial and on appeal the appellant was self-represented. In the Notice of Appeal filed on 25 October 2021, the appellant set out the grounds of appeal in the following terms:
There is a massive ‘Reasonable Doubt’ here. – And as a self-defender, the judge would not here my defence properly.
1.There is “reasonable doubt”.
2.As a self-defender the whole process was unfair and bias.[1]
[1] In this judgment the appellant’s grounds and submissions have been cited without grammatical or spelling corrections.
The appellant did not provide any written submissions detailing the basis of the grounds of his appeal. In order to assist, the respondent in their written submissions attempted to identify what appear to be the central issues in the appeal. They did so in the following terms:
3.1.the Magistrate erring in finding that the prosecution had established beyond reasonable doubt that the appellant was driving the vehicle which was involved in the incident (the Factual Finding Ground);
3.2.the appellant not being afforded procedural fairness during the trial (the Procedural Fairness Ground); and
3.3.the Magistrate having brought a biased mind to the exercise of considering the evidence (the Bias Ground).
On Monday 17 January 2022 the matter was called on for a directions hearing in order to ensure that the parties, and in particular, the appellant were ready to proceed with the appeal. On that occasion I indicated to the appellant that although I did not require him to file any written submissions, it would be of assistance if he could turn his mind to the grounds suggested by the respondent and indicate whether or not he agreed that they fairly reflected the grounds of appeal upon which he sought to rely. On that occasion the appellant indicated that, generally speaking, the grounds reflected his complaints.
On 20 January 2022 at the outset of submissions on the appeal the appellant raised the issue of the grounds of appeal. He indicated at that stage, that upon reflection, he no longer sought to pursue the bias ground.[2] The appellant emphasised that at the centre of his complaint was his view that the Magistrate had placed too much weight on the witness statements and insufficient weight on the evidence about the condition of his car and the inadequacies of the police investigation. It was on that basis that the appellant sought to appeal the decision in the Magistrates Court.
[2] As the matter progressed it became apparent that the appellant also abandoned the procedural fairness ground.
The trial
The trial had proceeded in the Murray Bridge Magistrates Court before Magistrate Millard on 18 August 2021. It was a very straightforward case that involved the calling of five witnesses for the prosecution. The appellant also gave evidence. The trial was completed within one day.
In summary, it was the prosecution case that the appellant was driving his Mitsubishi Magna on Bondleigh Road, Rockleigh, when he lost control of his car and drove through a fence and into a paddock of a farming property owned by Mr Vincent Critchley. The prosecution alleged that the appellant then drove out of the paddock, back onto Bondleigh Road, then onto Range Road where he initially pulled over and parked on the left side of that road for a short period of time (‘Stop 1’), before continuing on to the end of Range Road where he again parked his vehicle (‘Stop 2’).
The evidence
The prosecution case
It was alleged that at about 10.35 am on Sunday, 12 July 2020, the appellant was driving his motor vehicle along Bondleigh Road. The road surface was wet and the road encompassed bends and sharp curves leading up to the crash site. The road had good signage to alert drivers of the tight bends, encouraging them to slow down. It was the prosecution case that the appellant crossed onto the incorrect side of the road into a blind corner without exercising effective control of his vehicle, consequently crashing through a farming fence.
This incident was observed by the main prosecution witness, Ms Alpha Schofer. Ms Schofer gave evidence that she was present at an adjacent property about 360 metres away from where the incident occurred.[3] It was her evidence that she was working in her stables when she heard tyres screeching and a “massive bang”.[4] This caused her to look immediately in the direction of where the car had entered the paddock. Ms Schofer had a clear line of sight from where she was standing across to Bondleigh Road and the Critchley property. She saw a silver Magna sedan drive a loop in the Critchley’s paddock before exiting and continuing in a northerly direction up Bondleigh Road.[5]
[3]     Ms Schofer gave evidence that she measured the distance with a measuring wheel and an app called “Go Maps”, Transcript of Proceedings, Police v Scylla (Magistrates Court, MCMUB-20-1427, Magistrate Millard, 18 August 2021), (“Trial Transcript”) 6.
[4]     Trial Transcript 4.
[5]     Ms Schofer gave evidence that she had some significant knowledge about cars. It was her evidence that her father was a mechanic and as a consequence she had grown up in workshops. Her family had owned service stations in different locations in Adelaide and she grew up pumping people’s petrol and doing car part runs. She said that this silver Magna was a slightly older style car, Trial Transcript 10.
Upon making these observations Ms Schofer immediately got into her own vehicle and drove to where the car had entered the paddock. She observed that approximately 50 metres of fencing appeared to have been ripped out. She then followed the route that the Magna had taken. Ms Schofer was assisted in her pursuit of the car by an oil trail that appeared to come from where the car had vacated the property onto the road. There also appeared to be tyre marks that corresponded with the oil trail. She followed the tyre marks up Bondleigh Road which then continued into Range Road. There she saw the same car pulled over on the left with the bonnet up in the vicinity of Steep Hill Road at Stop 1. She observed a man next to the car who appeared to be urinating into the bushes with his back towards the road.
Significantly, at no time during Ms Schofer’s pursuit of the Magna, or during her other activities in that location, did she see any other motor vehicle.[6] It was Ms Schofer’s evidence that as she followed the Magna she had telephoned the police and remained on the telephone as she drove up to the vehicle. As a consequence, as Ms Schofer approached the vehicle she was able to provide the police with the registration number. There was no dispute that this was the appellant’s vehicle and he was the man standing alongside it.
[6] Trial Transcript 19.
Ms Schofer then conducted a U-turn whilst still on the phone with police and drove back down the road to the area where the car had collided with the fence to make sure that no cattle escaped. Later she drove up to where she had seen the appellant and his vehicle at Stop 1 and observed a large pool of oil where the vehicle had been parked.
As a consequence of Ms Schofer’s call to the police, two police officers attended at the scene. These police officers were Senior Constable Scott Bau and Constable Rhianna Dabinett. Both of these witnesses were called by the prosecution. The combined effect of their evidence was that they arrived at the scene approximately 45 minutes after Ms Schofer’s telephone call. They initially attended at the accident scene where they met and spoke with Ms Schofer. It was the evidence of Senior Constable Bau that at the accident scene there were “obvious bits and pieces of car”.[7] Constable Dabinett described them as “parts from what appeared to be from underneath a vehicle”.[8] After they obtained Ms Schofer’s details, the police proceeded further up Bondleigh Road in case the car had continued onwards. They drove for approximately one and a half kilometres before locating the appellant and his vehicle at Stop 2. It is worth noting that during the time that the police officers were driving up Bondleigh Road they too observed no other vehicles.
[7] Trial Transcript 46.
[8] Trial Transcript 62.
When the police arrived at this location, the appellant was seated in the driver’s seat of the vehicle. On their arrival the appellant got out of the car and had a conversation with the police. This interaction was captured on the body worn camera of Senior Constable Bau. Unfortunately the wind was such that there is little that can be heard of the conversation.
Whilst at Stop 2, Senior Constable Bau made some observations of the condition of the appellant’s car. He described it in the following way:[9]
… From that conversation I could see on the vehicle that there was large clumps of mud on the tyres and underneath the carriage of the vehicle. One of his tyres was damaged and there was also scratch marks on the bonnet and top of the roof which were relatively consistent with going through a fence. …
[9] Trial Transcript 47-48.
Constable Dabinett also gave evidence about her observations of the appellant’s vehicle. She described noticing damage to the front of the car. She said there were scratches on the bonnet and a significant amount of dirt amongst the tyres and under the bumper.
The prosecution also called Mr Vincent Critchley, the owner of the property. He gave evidence that on the day of the accident he received a telephone call from a neighbour, Ms Schofer, telling him that someone had driven through his fence and let all of his cows out. He told the Court that he then proceeded to the paddocks with his children intending to replace the fencing. Once there, he noticed oil on some of the rocks in the paddock. Mr Critchley then followed the oil trail which led him to the appellant’s Magna at Stop 2. At the time the appellant was standing alongside his car.
Mr Critchley gave evidence that once he saw the Magna he pulled up alongside the appellant and said “I think you might have run into my fence”. Mr Critchley described the appellant as being quite agitated. He said that the appellant responded to him by saying “don’t worry about this, I play with these ‘pigs’ or whatever it was all the time”. Mr Critchley said that after this he observed a police car parked further up the road and he went and spoke briefly to the police before returning to his property. It was Mr Critchley’s evidence that some time after this, as he was repairing his fence, the appellant came walking down the road and said to him “oh this was my car, I did do it”. Mr Critchley said that he responded by saying “well what is your name, you’ve done all of this, I said it is $1,500 worth of damage to my fence”. He said the appellant responded by saying, “Oh, I will fix you up, I will fix you up”.
The final witness to be called by the prosecution was another neighbour, Travis Moore. Mr Moore lived at 223 Bondleigh Road, Rockleigh. He gave evidence about an incident that occurred about one week after the collision on 18 July 2020. It was his evidence that on that date a silver or grey Mitsubishi Magna pulled up at his property. He said that the man driving that vehicle said he was trying to get hold of the person who owned the fence because he wanted to speak to him. Mr Moore said that the man said that he had money that he wanted to give to the owner of the fence to help compensate for the damage that he had caused. Significantly, he also said that the man said:[10]
… the weekend beforehand he had been driving through our area and was enjoying it, it was a nice day and he was admiring the view so much that he accidently drove off the road and through a fence.
[10] Trial Transcript 41.
Mr Moore provided the man with an envelope to put the money in. He said the man placed the money into the envelope and then wrote his name and number on it. Mr Moore later passed that envelope on to the caretaker of the Critchley property. It was Mr Critchley’s evidence that the envelope contained $150. The appellant did not dispute that he was the person who had attended at Mr Moore’s property and handed over the money. His explanation was that he had done so on the basis to compensate for the destruction of the fence by his friend.
The defence case
The appellant gave evidence. His evidence was that whilst he was in the near vicinity on the day of the accident, he did not go through the fence. He said it was in fact a friend of his who caused the damage. It was the appellant’s evidence that on this occasion he was travelling in convoy with two friends who were in their own vehicles. He described one as a charcoal car and the other as a silver car. He said that shortly prior to the accident he and his friends had split up, with him taking an alternative route up Steep Hill Road which did not involve him driving past the Critchley property. His friends took the Bondleigh Hill route. It was the appellant’s evidence that once at the top of Steep Hill Road his car started overheating. He said that he waited in that location for his friends to come up the hill. He said that when the two vehicles with his friends approached him, he observed “they had a damaged car, crack windshield, smashed up grill, the front spoiler thing under the car was sort of cracked”.[11] It was the appellant’s evidence that he spoke to his friends about the damage to the vehicle and during that conversation they made an admission that there had been a tight corner which had caused a vehicle to go through the fence. He said that they told him that they were not hanging around and that they were going to head up a fire trail nearby to “get out of there”. It was the appellant’s evidence that shortly after that Ms Schofer approached his vehicle as he was urinating. He said he saw Ms Schofer drive past him and continue further up Range Road.
[11] Trial Transcript 71.
It was the appellant’s evidence that after he saw Ms Schofer, the police and then Mr Critchley arrived where he was parked. The appellant denied that he had made admissions to Mr Critchley about having caused the damage to the fence. His account of the conversation was that he said, “are you the owner of the fence we just went through”. He explained that he used the word “we” on the basis that he was taking responsibility for the actions of his friends. He admitted that he told Mr Critchley that he would “fix him up” for the damage. By that, it was clear he meant that he would compensate him. The appellant admitted that he subsequently provided $150 by way of compensation.
At the centre of the appellant’s case was his evidence that at the time of the police attendance his vehicle was not particularly dirty and had not suffered the damage that you would expect had it been involved in the collision with a fence.
The appellant’s case is encapsulated in the following passage of his evidence:[12]
There is no way I can off an embankment, hit logs and not have a damaged car. That is my main evidence and the fact that the cop the police officer Bau, did not match the pieces of mouldings and plastic on the paddock to my car. My car wasn’t missing anything. He could have exonerated me. Everyone is assuming it was me. No one saw me go off the paddock, they saw a car. I don’t even think they knew it was a – they’re saying it was a Mitsubishi Magna. They knew it was a Magna when they went to me on Steep hill Road and saw my number that is when they knew it was a Magna. Then they told everyone it’s a Magna, it’s a Magna, it’s a Magna, everyone knew it was a Magna. The witness is way too far away to identify a car going crashing through a fence and the car that went through the fence is not a Manga but it is sort of look similar. A lot of silver cars now days. I need the benefit of the doubt here I believe because my car was not smashed up. If my grill was smashed up is something glass headlights was broken, something. I’ve got photos in there of my car doing dirt track work in 2020. It looks the same. There is dirt on it from dirt roads. You saw how good my car was. The cop car was actually dirtier. Thank you your honour, I rest my case.
[12] Trial Transcript 77.
At both trial and on appeal the appellant relied very heavily on the footage taken by Senior Constable Bau’s body worn camera. He said that this was objective evidence that supported his account that his car had not suffered the type of damage that would be expected if it had gone through the fence.
The verdict
On 5 October 2021 the Magistrate found the appellant guilty of one count of driving without due care. In doing so the Magistrate rejected the appellant’s account. The Magistrate rejected the appellant’s evidence that he had not been involved in the collision. He found that “the defendant’s evidence is marked with significant anomalies and frankly does not make logical sense”.[13] Having done so however, he correctly identified that such a finding did not end the matter. It was for the prosecution to prove their case.
[13] Police v Scylla (Magistrates Court of South Australia, Magistrate Millard, 5 October 2021) (“Reasons”) 10 at [69].

In contrast to the evidence of the appellant, the Magistrate found the evidence of Ms Schofer to have “all hallmarks of honesty, reliability, and absolute sense”.[14] The Magistrate found that it would have been impossible for Ms Schofer to have missed seeing the two vehicles that the appellant had alleged had been involved in the collision. On that basis, he found that those two vehicles simply did not exist and that the only vehicle that was in the vicinity on that day was the appellant’s.
[14] Reasons at [70].
Further to that, the Magistrate found that the absence of more significant damage to the appellant’s car did not cause him to harbour any reasonable doubt over the appellant’s guilt.
The grounds of appeal
As set out previously, the appellant was again unrepresented at the appeal and at the outset he indicated that he no longer persisted with any argument suggesting that the Magistrate had been bias or unfair. He said, “I don’t want to accuse the Murray Bridge judge of being biased and unfair, that’s a huge insult for a judge, thinking about it”. He went on to say “I do think he erred on not putting enough weight on the reasonable doubt with regards to collecting of evidence on the site and stuff, the lack of it. So I don’t say he was unfair or biased, in fact he was very fair, …”.
As the appeal progressed it became apparent that the appellant’s complaints could be distilled down into three points:
1.That the Magistrate had placed disproportionate weight on the evidence of the witnesses called by the prosecution;
2.That the Magistrate failed to place sufficient weight on the appellant’s argument that his car would have suffered more damage had it been involved in the collision; and
3.That the police investigation was inadequate and that the Magistrate had placed insufficient weight on that aspect of the evidence.
The effect of these complaints was that the verdict was unreasonable and could not be supported by the evidence.
Unreasonable verdicts – principles
The principles to be applied in determining a ground of appeal which challenges the sufficiency of the evidence in support of a conviction are well established.
The leading High Court statements outlining these principles have recently been summarised at some length by the Full Court, in the context of an appeal from a judge sitting without a jury, in Dansie v The Queen.[15]
[15] [2020] SASCFC 103.
In outlining the governing principles, Nicholson J and Livesey J reiterated the findings in R v Becirovic[16] that the principles developed under this ambit in the context of a trial by jury are equally applicable to a trial by judge alone.[17]
[16] [2017] SASCFC 156.
[17] Dansie v The Queen [2020] SASCFC 103 at [294] and [420].
To establish that a verdict is unreasonable, or that it cannot be supported by the evidence, it is not enough for the appellant to show that the evidence is open to criticism.[18]
[18] R v Schueard (1972) 4 SASR 36 at 39; R v Weetra (2004) 236 LSJS 328 at [38].
This Court must ask whether on the whole of the evidence it was open to the Magistrate to be satisfied beyond reasonable doubt of the appellant’s guilt.[19] That is whether the Magistrate must, as distinct from might, have entertained a reasonable doubt. It is not sufficient to show that there was material which might have been taken by the Magistrate to preclude satisfaction of guilt beyond reasonable doubt.[20]
[19] M v The Queen (1994) 181 CLR 487 at 492-493; Jones v The Queen (1997) 191 CLR 439 at 450-451.
[20] Libke v The Queen (2007) 230 CLR 559 at [113]; R v Jeisman [2008] SASC 266 at [41].
This Court must not disregard or discount the consideration that the Magistrates Court is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the Magistrate had the benefit of seeing and hearing the witnesses.[21]
[21] M v The Queen (1994) 181 CLR 487 at 492-493; Jones v The Queen (1997) 191 CLR 439 at 450-451.
Circumstances in which it will be necessary to set aside a verdict as unsafe will be infrequent, recognising that the credibility and reliability of witnesses are ordinarily matters for the Magistrate. That is not to say that there will not be cases where the evidence of a witness is so wanting, that to allow a conviction to stand based upon it would be unsafe and unsatisfactory.[22]
[22] Chidiac v The Queen (1991) 171 CLR 432 at 446.
The issues raised by the appellant
The Magistrate placed disproportionate weight on the evidence of the witnesses called by the prosecution
The appellant’s argument on this ground can be summarised in the following passage of his submissions:[23]
I just think you erred in this complicated sort of - there’s a few nuances here with the roads and stuff and I think he order and put too much weight on the witness statements which were all about, yeah, we think this happened, or, we saw this car go through a fence. No-one saw me drive a car that day, not even cops when they pulled me over, I was sitting in my car. No-one saw me drive a car.
[23] Transcript of Proceedings, Scylla v Police (Supreme Court of South Australia, SCCRM-21-418, McDonald J, 20 January 2022) (“Appeal Transcript”) 2.
In his reasons for the verdict the Magistrate canvassed in some detail all of the evidence led at trial. In considering the evidence of each of the witnesses called by the prosecution, the Magistrate considered those matters that had been raised by the appellant. In particular, in relation to Ms Schofer, the Magistrate considered the appellant’s argument that she would not have been in a position to make the observations that she said that she did. The Magistrate rejected that submission and found that Ms Schofer had the opportunity to witness not only the vehicle entering and leaving the paddock, but also as it drove closer to her position while travelling north. The Magistrate also found Ms Schofer’s evidence about following the oil trail and tyre marks to where the appellant’s vehicle was parked compelling. He expressed the view that it was significant that this evidence was corroborated by Mr Critchley’s evidence about following the trail of oil.[24] Those findings were well open on the evidence.
[24] Reasons at [77].
The Magistrate also had the advantage of observing the witnesses give their evidence, in particular he was best placed to make an assessment of their evidence being tested under cross‑examination.
The Magistrate failed to place sufficient weight on the appellant’s argument that his car would have suffered more damage had it been involved in the collision
In relation to this ground the appellant said the following:[25]
Well, my case of reasonable doubt is based on the car is undamaged, I’m undamaged, mainly the car was undamaged, but the policeman had the opportunity there to do a proper inspection of the car with the bodycam on, I presume that he didn’t inspect it afterwards, and this is a key point, the car, if you look at photos of the crash site, the car has gone off an embankment, through a fence, there is no damage to the car.
[25] Appeal Transcript 20.
Central to the appellant’s argument was his submission that the appearance of his vehicle at a time shortly after the collision was objective support for his case. The difficulty with that submission is that there was evidence that his vehicle was damaged. There was no dispute that at the time the police came across the appellant and his vehicle the bonnet was open because it was overheating and it was leaking oil. Senior Constable Bau gave evidence that the Magna was very dirty. He noted mud under the front end, on the side walls of the tyres and on the undercarriage. Constable Dabinett also made some observations of the Magna. She said that she saw some scratches on the bonnet and underneath the bumper, but what she particularly noted was a lot of mud under the front end of the car and on the tyres.
The appellant placed much weight on those aspects of the body worn camera footage that showed his car. It is unfortunate that the nature of that footage is such that there are only relatively brief glimpses of some aspects of the car taken at such an angle and distance that it affords little opportunity to make any proper assessment of its condition.
As well as this there was also uncontested evidence that the appellant had asked both Mr Critchley and the police for a lift away from the scene. An inference can be drawn from this evidence that at that time the appellant’s vehicle was not in a condition to be driven.
In his reasons for the verdict the Magistrate considered the submission by the appellant that the condition of his car negated any suggestion that he had been involved in the collision. The Magistrate rejected that submission. In doing so he made the following observation:[26]
In my view the contention made by the defendant that there would have been observable damage to the front of the car that went through the fence line is no basis to determine the matter. The point where the impact occurred can be seen in photograph number 7 of exhibit P3.
The fence itself does not appear to be of significant solid foundation. It was a post and strand fence. Exhibit P4 shows that it would be possible for a car to slide off the edge and through the fence line without contacting a post. There is no reason why a vehicle would not have fitted between the gap of the existing posts (see photograph number 3 of bundle of photographs contained in exhibit P4).
I bear in mind the ground at the point of the fence line is soft. If it is only the wire that came into contact with the car, the wires could easily have been pushed forward and the tension sufficient to uproot the posts before the wire was then broken – or that there being any significant damage to the vehicle.
As Ms Schofer identified, any damage to the underbody section of the car could easily have occurred as the car came down the gravel slope but once the car reached the flat level of the gras verge before the fence line and then went through the fence line, it can be seen that the area is relatively flat soft soil – see photograph number 5 of exhibit P3.
[26] Reasons at [73]-[76].
It was open on the evidence for the Magistrate to make these findings.
The police investigation was inadequate and the Magistrate placed insufficient weight on that aspect of the evidence
In relation to this ground the appellant said:[27]
The officer indicated he is going back to the crash site to do an investigation, that investigation did not include picking up bits of debris from the paddock, which he writes in a statement somewhere, it is written down somewhere that he saw stuff in the paddock, apparently, pick them up, by not picking them up, knowing that my car is not missing parts, by not picking up the evidence that doesn’t mean his case is stronger, that means there is reasonable doubt.
[27] Appeal Transcript 20.
It was apparent during submissions that the appellant is highly aggrieved that the police did not collect what appeared to be vehicle parts located in close proximity to the collision site. It was suggested by the appellant that if that had been done then those parts could be compared with the appellant’s vehicle in order to determine whether or not they had come from that vehicle. It was submitted that such an examination would have established that the items located in the paddock had not come from his car and would have at least created a doubt about the appellant’s guilt.
In his reasons for verdict the Magistrate considered the submission by the appellant about the inadequacy of the investigation, and in particular, the failure by police to seize what is described as several smaller pieces of plastic and one larger piece that was about 30 centimetres in length.
In Penney v R[28] the High Court considered the impact of an inadequate police investigation on a successful prosecution. In that matter it was accepted by the Court that the investigation had been inadequate however it was significant that those flaws would have been apparent to the jury. The Court went on to make a general observation:[29]
… even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case.
[28] (1998) 155 ALR 605.
[29] Penney v R (1998) 155 ALR 605 at [18].
No doubt in an ideal world with infinite police resources the gold standard would have been for police to seize the items and have an independent forensic examination conducted of those vehicle parts as compared with the appellant’s vehicle. Unfortunately, we do not live in that world. In the context of investigating incidents of a relatively minor nature such as this, it is regrettable but not surprising that the police did not seize these exhibits. It is unknown whether such an exercise would have inculpated or exculpated the appellant. What is important is that the Magistrate was aware that those items had been present at the scene and no comparison had been undertaken. The failure of the police to embark on such an exercise did not cause the Magistrate to hold any doubt in relation to the appellant’s guilt in relation to this offence. That conclusion was well open on the evidence.
Conclusion
For the reasons set out I do not consider that any of the grounds of appeal relied upon by Mr Scylla have been made out.
Orders
The appeal is dismissed.