Simmonette v Police - [2010] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SIMMONETTE v POLICE
[2010] SASC 130
Judgment of The Honourable Justice Gray
7 May 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY
Appeal against conviction - defendant found guilty at trial by Magistrate of breaching rule 62(c) of the Australia Road Rules: failure to give way to an oncoming vehicle - mistake made in original complaint as to which roads the offence occurred on - whether the form of the original complaint gave rise to any unfairness or misunderstanding - notice of appeal filed out of time.
Held: refuse extension of time to appeal - no substance to the complaint advanced on the appeal - no unfairness or misunderstanding disclosed - the evidence supports the conviction recorded by the Magistrate.
Australian Road Rules r 62(c) and r 10(1); Supreme Court Civil Rules 2006 (SA) r 290(1)(a); Road Traffic Act 1961 (SA) s 176(1); Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 (SA) reg 50(1), referred to.
R v O’Neill (2002) 81 SASR 359; R v Jones (1998) 72 SASR 281; R v Rigney (1998) 48 SASR 72; Fox v Percy (2003) 214 CLR 118; Police v Cadd (1997) 69 SASR 150; Police v Eiffe (2007) 98 SASR 79; Tims v Police [2008] SASC 141; Tazroo v Police [2002] SASC 155; Police v A, TG [2006] SASC 299; Rucioch v Police (2004) 88 SASR 326; Osman v Police [2007] SASC 317, considered.

SIMMONETTE v POLICE
[2010] SASC 130
Magistrates Appeal
GRAY J
Introduction

This is an appeal against conviction.
On 7 December 2009, following a trial by a Magistrate, the defendant and appellant, Diane Simmonette, was convicted of breaching rule 62(c) of the Australian Road Rules. The Magistrate recorded a conviction for that offence, but imposed no fine. The defendant was required to pay costs and levies.
The defendant appeared unrepresented before the Magistrate. The complaint on which the trial proceeded alleged that:
On the 31^stday of March, 2009 at Salisbury Downs in the said State [the defendant] being the driver of a vehicle namely a motor vehicle on a road namely Kings Road, who was turning right into Salisbury Highway at the intersection of Salisbury Highway and Kings Road with traffic lights, [the defendant] did not give way to an oncoming vehicle that was going straight ahead at the intersection.
Rule 62(c) of the Australian Road Rules.
This is a summary offence.
The complaint had been amended at trial with the consent of the defendant. The amendment altered the names of the roads on the charge such that Kings Road and Salisbury Highway were substituted each in the place of the other. The defendant entered a plea of not guilty to the amended charge.
At trial, the prosecution called three witnesses: George Fairclough, the driver of the vehicle with which the defendant collided; Dorothy Fairclough, a passenger of that vehicle; and Senior Constable Houston, who attended at the scene of the collision. The prosecutor also tendered two documents without objection, an expiation notice issued to the defendant and a statement of Vanessa Volar, a witness to the collision. The defendant gave oral evidence and tendered a further statement of Ms Volar.
Prior to the conclusion of the trial, the defendant, having through evidence-in-chief presented her version of the incident, left the courtroom before the prosecutor had an opportunity to cross-examine, and before the making of closing submissions. The defendant did not return. The decision of the defendant to leave the trial before its conclusion did not vitiate the trial. Nor did it occasion her any demonstrated prejudice. The transcript discloses that the defendant apparently grew frustrated with the process of giving evidence and stated before leaving the precinct of the Court that she was going as she had “had enough”. While as a matter of course the defendant has a right to be present throughout their trial that right may be waived.[1] On appeal the defendant did not criticise the manner in which the Magistrate conducted the trial.
[1] R v O’Neill (2002) 81 SASR 359 at [43]-[46] (Martin J); R v Jones (1998) 72 SASR 281; R v Rigney (1998) 48 SASR 72 at 77 (Perry J).
In his reasons the Magistrate specifically addressed the defendant’s withdrawal from the trial, and assessed that the defendant had little more to add to her evidence, noting that she had no other witnesses. The Magistrate waited for some hours before proceeding to deliver judgment and finding the charge proved beyond reasonable doubt.
The appeal notice has been filed out of time. This Court may extend the time for commencing an appeal.[2] The application for an extension of time was opposed by the prosecution on the basis that the appeal is without merit. Furthermore, it is relevant to that application to extend time that the defendant seeks to appeal notwithstanding the fact that she left her trial voluntarily and without explanation. However, in the circumstances it is appropriate that the matter of the extension of time and the appeal be heard together.
[2] Supreme Court Civil Rules 2006, rule 290(1)(a).
The Appeal
The defendant appeared unrepresented at the appeal. During the hearing of the appeal and while in the course of her submissions, the defendant withdrew from the hearing. This occurred at a time when I was explaining to the defendant the nature of the appellate process and in particular the relevant procedures. I have decided not to treat the defendant’s withdrawal as an abandonment of the appeal.
An appeal against conviction is in the nature of a rehearing.[3] When rehearing a case, the appellate court must reach its own conclusion, after giving due weight to the Magistrate’s advantage in seeing and hearing the witnesses, and after giving weight to any findings on credibility which depend largely or in part on demeanour.[4]
[3] Fox v Percy (2003) 214 CLR 118 at [22]; Police v Cadd (1997) 69 SASR 150 at 188-189, Police v Eiffe (2007) 98 SASR 79; Tims v Police [2008] SASC 141.
[4] Tazroo v Police [2002] SASC 155 at [17]-[19]; Police v A, TG [2006] SASC 299 at [15].
The submission of the defendant at the hearing of the appeal was that the confusion as to the roads the subject of the amendment to the complaint occasioned her prejudice and undermined the basis of the conviction. The Notice of Appeal filed by the defendant asserted that:
Police officer/prosecution mixed up roads (where collision occured [sic]) and this has greatly affected the whole matter. It wasn’t until after trial that I realised why there was so much confusion (police based testomy [sic] with roads wrong way around).
Australian Road Rule 62(c), which is headed “giving way when turning at an intersection with traffic lights”, provides that:
A driver turning at an intersection with traffic lights must give way to:
…
if the driver is turning right — any oncoming vehicle that is going straight ahead or turning left at the intersection (except a vehicle turning left using a slip lane).
…
A breach of this rule is an offence by force of the combined operation of section 176(1) of the Road Traffic Act 1961 (SA),[5] rule 10(1) of the Australian Road Rules,[6] and regulation 50(1) of the Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 (SA).[7]
[5] Section 176(1) of the Road Traffic Act 1961 (SA) provides:
The Governor may make such regulations and rules as are contemplated by, or necessary or expedient for the purposes of, this Act.
(1a) The regulations or rules may—.
…
(i) impose penalties, not exceeding $2 500, for offences against the regulations
or rules,...
[6] Rule 10(1) of the Australian Road Rules provides:
The words "Offence provision" in a rule of the Australian Road Rules (or, if the rule has 2 or more subrules, in a subrule) indicates that a contravention of the rule (or subrule) is an offence.
The penalty for an offence is the penalty applying to the offence under another law of this jurisdiction.
[7] Regulation 50(1) of the Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 (SA) provides:
A person who is guilty of an offence against a provision of the Rules, other than a provision of Part 12 (Restrictions on stopping and parking), is liable to a penalty not exceeding $2 500.
In Rucioch,[8] Doyle CJ identified the elements of the offence of failing to give way:
In the present case the elements of the offence of failing to give way (to express it briefly) involved proof that [the appellant] entered an intersection with traffic lights, that he turned right at that intersection, that at that time there were oncoming vehicles that were going straight ahead, and that he failed to give way to one of those vehicles. Failure to give way would require proof that the oncoming vehicles were sufficiently close to the intersection for [the appellant’s] conduct to amount to a failure to give way.
[8] Rucioch v Police (2004) 88 SASR 326 at [28].
As a consequence, for the defendant in the present proceeding to be convicted of the offence charged, it was necessary for the prosecution to establish that the defendant entered an intersection with traffic lights, that she turned right at the intersection, that at the time there was an oncoming vehicle proceeding straight through the intersection and that she failed to give way to that vehicle.
The evidence of Mr and Mrs Fairclough was that they were travelling on Kings Road and entered its intersection with Salisbury Highway, intending to pass through the intersection to continue on Kings Road. Their evidence was that their vehicle entered the intersection on a green light, travelling at approximately 55 kilometres per hour. As the Fairclough vehicle passed through the intersection, the defendant’s vehicle, also on King’s Road, but travelling in the opposite direction to the Fairclough’s vehicle, was waiting to execute a right-hand turn. Mr and Mrs Fairclough gave evidence that the defendant’s vehicle turned before the Fairclough vehicle had passed, causing a collision. This evidence was both clear and consistent and was accepted by the Magistrate:
I accept the Faircloughs as truthful witnesses. They were not challenged in cross-examination.
…
…I consider the defendant’s evidence to be unconvincing, and where her evidence conflicts with that of the Faircloughs I prefer the evidence of the Faircloughs.
Senior Constable Houston gave evidence concerning the light sequences at the intersection of Kings Road and Salisbury Highway. He gave evidence that if the defendant had a green arrow illuminated to allow her to turn right from Kings Road to travel along Salisbury Highway, then all traffic travelling along Kings Road would face a red light, including the traffic travelling in the direction that the Faircloughs were travelling. The evidence as to the sequence of the traffic lights at the intersection was accepted. The defendant’s contention that Senior Constable Houston was incompetent was rejected.
Senior Constable Houston gave further evidence without objection, that he had contacted the unit that controlled the relevant speed and red-light camera in operation at the intersection of Kings Road and Salisbury Highway. Senior Constable Houston had been informed that no expiation notices had been issued to Mr Fairclough. Senior Constable Houston’s evidence was that the camera would have been activated if Mr Fairclough’s vehicle was speeding or if it had entered the intersection against a red light. The relevant inference from this evidence was that Mr Fairclough’s vehicle entered the intersection facing either a green light or an amber light and was not travelling at an excessive speed.
The defendant’s case was that she could not be convicted of the offence on the basis that she had right of way. According to the defendant, she turned right on a green turn-right arrow which changed to amber as she proceeded through the intersection. She said that Mr Fairclough entered the intersection against a red light at some speed. The further statement of Ms Volar was tendered in suggested support of this version of the collision.
The statements of Ms Volar tendered in evidence, suggested that Mr Fairclough had entered the intersection when the light was amber. Even though this evidence differed from that of Mr and Mrs Fairclough, on either account their driving was lawful.[9] Even when entering the intersection on an amber light, Mr Fairclough had right of way. Ms Volar’s statements were inconsistent with the defendant’s account that she entered the intersection on a green turn-right arrow. Although the second statement of Ms Volar suggested that Mr Fairclough was travelling at some speed in order to “beat the red light”, this contention was rebutted by the evidence given by Senior Constable Houston regarding the speed and red-light camera in operation at the intersection.
[9] Osman v Police [2007] SASC 317 [11]-[12] (Duggan J).
The Magistrate made the following observations with respect to the evidence of Ms Volar and Senior Constable Houston:
…I also accept Senior Constable Houston as an honest witness. He was not a witness to the accident, but his evidence concerning the sequence of the lights and his enquiries with the expiation notice section were most useful.
The statements of Ms Volar each refer to the defendant being stationary at the intersection under a green light and how she saw the lights turn to amber at which time the defendant commenced her turn. This evidence does not support the defendant’s evidence that she was turning on a green arrow which then turned amber. Rather Ms Volar’s statements suggest there was no arrow operating at the time. The suggestion in Ms Volar’s second statement that Mr Fairclough was speeding is contrary to the evidence of Senior Constable Houston, and where there is a conflict between the evidence of Senior Constable Houston and Ms Volar’s statement on this point I prefer the evidence of the senior constable.
I do not think Ms Volar’s statements help the defendant, rather I think the statements contradict her claim she entered the intersection under a green right-turn arrow. …
On the basis of the evidence as outlined, the Magistrate found the charge proved beyond reasonable doubt.
As earlier observed, the arguments articulated on the notice of appeal suggest that confusion was created by the error made in relation to the roads on the original complaint. It was said in particular, that the mix-up with the roads undermined Senior Constable Houston’s evidence, and caused the defendant significant prejudice such that the conviction should be set aside as being unsafe.
The evidence of the witnesses disclosed no confusion about the circumstances of the collision or the events preceding it. Although the complaint was originally drawn with the roads incorrectly named, that confusion did not infect the evidence of the witnesses at trial. The evidence of Mr and Mrs Fairclough in addition to that of Ms Volar and that of the defendant, clearly indicated a correct understanding of the orientation of the road. It is to be observed that the misnaming of the roads on the complaint did not undermine Senior Constable Houston’s evidence, particularly that relating to the sequence of the traffic lights and the operation of the speed and red-light camera at the intersection.
The original form of the complaint did not give rise to any unfairness. The complaint had been amended, as was appropriate. The defendant consented to the amendment.
There was ample evidence for the Magistrate to find beyond reasonable doubt that the defendant failed to give way and to convict the defendant accordingly. Where there were inconsistencies between the evidence of the witnesses it was open to the Magistrate to accept the evidence of one witness over that of another. The approach of the Magistrate in this regard, as set out earlier in these reasons, was entirely appropriate. The evidence as outlined supports the conviction recorded by the Magistrate.
Conclusion
In my view there is no substance to the complaint advanced on the appeal. No explanation has been advanced to explain the delay in lodging the appeal. In these circumstances, as the appeal was without any substantive merit, I would refuse an extension of time to appeal.