SPOCTER v Devilee - [2003] WASCA 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: SPOCTER -v- DEVILEE [2003] WASCA 60

CORAM: SCOTT J

HEARD: 13 MARCH 2003

DELIVERED : 26 MARCH 2003

FILE NO/S: SJA 1006 of 2002

BETWEEN: ROBYN SUZANNE SPOCTER
Appellant
AND
MICHAEL DEVILEE
Respondent

Catchwords:

Traffic law - Offences - Dangerous Driving - Appeal - Admissibility of hearsay evidence - Contention by appellant that passenger admitted responsibility for accident - Passenger not called as witness by prosecution or defence - Evidence inadmissible if given to establish truth - No evidence to support contention of appellant

Legislation:

Road Traffic Act 1974, s 59(1)

Result:

Extension of time granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr I D Hope
Respondent: Ms S M De Maio

Solicitors:

Appellant: Ian Hope
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Button v The Queen (2002) 25 WAR 382
Hemsley v McLean (1995) 22 MVR 33
Kaighin v The Queen (1990) 1 WAR 390
Mickelberg v The Queen (1989) 167 CLR 259
Moore v Moore [2001] WASCA 126
Ratten v The Queen (1974) 131 CLR 510
Richardson v The Queen (1974) 131 CLR 116
Skubevski v The Queen [1977] WAR 129 at 137
Subramaniam v Public Prosecutor [1956] 1 WLR 965

Case(s) also cited:

Nil

SCOTT J: The appellant was charged on complaint that on 16 January 2001 at Pearsall she drove a motor vehicle registered number 1ATE‑341 on a road, namely, Wanneroo Road, in a manner that was, having regard to all the circumstances, dangerous to the public or to any person and thereby caused grievous bodily harm to one Mirsad Krijestorac.
The appellant pleaded not guilty to that charge and, following a trial in the Court of Petty Sessions which commenced on 30 October 2001 and concluded on 6 December 2001, she was convicted.
The charges arose out of an accident on Wanneroo Road in Pearsall. The appellant had been driving the vehicle identified in the complaint in a southerly direction on Wanneroo Road. The time was between 3.30 and 4 pm. In the vehicle, apart from the appellant, was a passenger in the front seat, Mirsad Krijestorac ("Mr Krijestorac"), the person referred to in the complaint, and in the rear of the vehicle, a second passenger, Bianca Panasuik, and the appellant's son Thomas in a child's seat. Ms Panasuik was behind the driver.
The appellant was driving the vehicle to Hillarys for the purpose of catching a ferry to Rottnest.
It is common ground that the accident occurred when the appellant attempted to put on her sunglasses which had been resting on her lap. In the course of attempting to put the sunglasses on her head the appellant dropped them back onto her lap. The appellant then reached and looked down for the purpose of recovering the sunglasses. The appellant managed to pick the sunglasses up and, as she lifted her head, the vehicle swerved. The appellant muttered an expletive and Mr Krijestorac told her to put the brake on. The appellant momentarily corrected the course of the vehicle, then lost control of it again and the vehicle left the road and collided with a telegraph pole. It was not in dispute that the collision caused Mr Krijestorac grievous bodily harm.
The grounds of appeal are:
1.The learned Magistrate erred in convicting the applicant of the charge taking into account a deficiency of evidence supporting the proposal that the accused caused the accident the subject of the charge.
2.The learned Magistrate erred in convicting the applicant notwithstanding the existence of a reasonably based explanation available on the evidence as to the cause of the accident the subject of the charge.
The application for leave to appeal was substantially out of time and in support of the application to extend time the appellant relies upon the affidavit of Michael John Aulfrey sworn 28 October 2002 explaining the reason for the delay. Primarily the reason was because the appellant had sought legal aid and was unable to fund the appeal and the cost of transcript until legal aid was granted.
In developing the submissions in support of the appeal, counsel for the appellant pointed to evidence given by the appellant which he said supported the proposition that the accident was caused when Mr Krijestorac grabbed the steering wheel. As counsel for the appellant pointed out, the evidence supports the conclusion that the vehicle veered when the appellant bent down to pick up the sunglasses but that the swerve was corrected. The vehicle then swerved again and it was the second swerve which caused the loss of control and the collision. Counsel for the appellant contended that there was evidence which raised a reasonable doubt that the appellant was responsible for the second swerve. In that respect he referred to the evidence of the appellant in the following passage:
"MR HOPE:   Miss Spoctor, you mentioned that after the accident Mersad Krijestorac had attended to your premises. Is that right?---Yes, it is.
HIS WORSHIP:   Sorry. I think you said a date. When was that?---There was no date. It was between September and October. Or the September, sorry. It was about 6 weeks before the first appearance. That's when his mother was away.
Yes, okay.
MR HOPE:   Thank you, sir.
Roughly 6 weeks before the first court appearance?---Correct.
And when at your place - - I think your evidence was you were discussing the trial. Did Mr Krijestorac say anything to you about his role, if any, in this incident?---He asked me exactly what happened and I said to him - - I ran through what I've repeated already today. Then he asked what happened next, and I said it looks like you've grabbed the wheel. He said to me, 'I probably did.' I haven't known what to say to him about that, and that's when I've relayed that to you, when I … (indistinct) …
Yes?---Present was also my friend, Natalie. She was there, too.
So he - - so you asked him whether he had grabbed the wheel. The essence of that is, and his answer was he probably did grab at the wheel?---Yeah. I said it looked like that's what had happened."
In cross‑examination the appellant was asked about the events giving rise to the accident and agreed that she had dropped the sunglasses while she was trying to put them on her head. The sunglasses fell back in her lap because she had not put them on correctly. Her evidence was that she looked down and that when she looked back, because the car had power steering, she was swerving. The appellant agreed that the swerving was caused by her dropping her sunglasses and taking her eyes off the road.
In cross‑examination the appellant was asked about the conversation with Mr Krijestorac and said that she was the one who put to him the proposition that he grabbed the wheel and that he had agreed. The appellant said that she had no recollection of Mr Krijestorac grabbing the wheel, but she made that assumption because, she said, "I know what he's like." The appellant also said, "I know that I'm a good driver like that, and that was the only other explanation viable to me that I could consider."
The appellant agreed that she had no knowledge that Mr Krijestorac grabbed the steering wheel because she could not remember. She said that she was knocked unconscious.
The first thing to be noted about the appellant's evidence concerning the statement said to have been made by Mr Krijestorac is that it was hearsay. Counsel for the appellant submitted that the statement said to have been made by Mr Krijestorac to the appellant was admissible because it fell within the exception to the hearsay rule identified in Subramaniam v Public Prosecutor [1956] 1 WLR 965. That case is an important decision identifying the ambit of the hearsay rule. The case concerned an appeal to the Privy Council by the appellant who had been tried on a charge of being in possession of ammunition contrary to a regulation of the Federation of Malaya. The appellant had been captured by terrorists and sought to give evidence as to his capture and what the terrorists had said to him. At trial evidence as to what the terrorists had said to him was ruled to be inadmissible as hearsay in the absence of evidence from the terrorists. The appellant had sought to adduce the evidence as to what the terrorists had said to him to support a defence of duress.
In considering Subramaniam's case, it is important to note that in that case the evidence sought to be adduced was not sought to be adduced to prove the truth of what was then said. In the context of the case, it did not matter whether what the terrorists said was true or not. The evidence was led to show the effect upon the mind of the appellant of the statements made. Those statements, if accepted, constituted justification for the appellant having the ammunition in his possession. Lord Radcliffe delivered the advice of their Lordships and said at 970:
"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes.
In the rest of the evidence given by the appellant statements made to him by the terrorists appear now and again to have been permitted, probably inadvertently, to go in. But, a complete, or substantially complete, version according to the appellant of what was said to him by the terrorists and by him to them has been shut out. This version, if believed, could and might have afforded cogent evidence of duress brought to bear upon the appellant. Its admission would also have meant that the complete story of the appellant would have been before the trial judge and assessors and enabled them more effectively to have come to a correct conclusion as to the truth or otherwise of the appellant's story."
The distinction made in Subramaniam's case is important in this case. The evidence sought to be led at trial by the appellant was, in my view, undoubtedly hearsay. The appellant purported to give evidence of an admission made by Mr Krijestorac for the purpose of establishing that he, Mr Krijestorac, had grabbed the steering wheel and thereby caused the accident. In other words, the appellant sought to use the evidence not for the purpose of proving the fact that it was said, but for the purpose of proving the truth of what was then said. As such, in my opinion, the evidence sought to be adduced was clearly hearsay and should not have been admitted.
Had the hearsay evidence been excluded, as, in my view, it should have been, then the only evidence of the cause of the accident was the appellant's loss of control of the vehicle following her attempt to retrieve her sunglasses. In that respect, his Worship's finding was:
"Now, the initial cause that was the swerving because the glasses and the time and the distance which was involved which followed immediately after that until the crash, and there [has] not even been a clear admission from anybody that there had been an interference even if that was hearsay, while strongly points to there being the one continuous episode and no brake, that there really was no interference. My conclusion is it was a continuous event and therefore that certainly amounts to dangerous driving."
On his Worship's finding of fact, the appellant had been responsible for a momentary lapse of attention whilst attempting to retrieve her sunglasses. That had caused the car to swerve and ultimately the appellant lost control, causing the accident. A momentary lapse of attention may constitute dangerous driving: Kaighin v The Queen (1990) 1 WAR 390; Moore v Moore [2001] WASCA 126 per McKechnie J.
As Walsh J said in Hemsley v McLean (1995) 22 MVR 33:
"For a defendant to be guilty of dangerous driving under s 59(1)or 59A(1), there must be some degree of fault or error on the part of the driver. See: Butler v Grey (1944) WALR 91."
With that observation I respectfully agree. The test is: did the appellant's driving, considered objectively, create a dangerous situation to the public or to any person. As that principle was expressed in Kaighin v The Queen (supra), the issue is whether the driving was "in reality, and not speculatively, actually or potentially dangerous to the public or another person".
In his findings, his Worship concluded that the accident was caused by the initial swerving of the vehicle by the appellant brought about by her attempt to retrieve her sunglasses and his Worship concluded that, although there were two separate movements of the vehicle, that is, two separate acts of swerving, there was really the one continuous episode with no braking. His Worship said:
"My conclusion is that it was a continuous event and therefore that certainly amounts to dangerous driving."
In my view, his Worship was in error in allowing into evidence the hearsay evidence given by the appellant. Had the appellant sought to establish that Mr Krijestorac grabbed the steering wheel, then admissible evidence to establish that fact had to be placed before the Court. The appellant could have called Mr Krijestorac as a witness for the defence, but did not do so. On that issue, counsel for the appellant says that Mr Krijestorac was not called because he was not interviewed by defence counsel. He was not interviewed because he was considered to be a witness for the Crown. The prosecutor, on the other hand, told the learned Magistrate that he did not call Mr Krijestorac because his information was that Mr Krijestorac had no recollection of the incident. No application was made by or on behalf of the appellant to have the prosecution call Mr Krijestorac. Similarly, there was no application to the learned Magistrate requesting an adjournment or to make an order to compel the prosecution to call the witness. In any event, it is doubtful that the Magistrate had power to compel the prosecution to call the witness: Skubevski v The Queen [1977] WAR 129 at 137.
It was for the prosecution to decide what evidence to call, bearing in mind the lawful responsibilities of the prosecution in that regard: Richardson v The Queen (1974) 131 CLR 116 at 119.
The appellant has not provided to this Court any statement, affidavit or other material to establish what evidence Mr Krijestorac would have given had he been called: Ratten v The Queen (1974) 131 CLR 510; Button v The Queen (2002) 25 WAR 382 at 391 ‑ 392; Mickelberg v The Queen (1989) 167 CLR 259 at 273.
Regardless of the reason why Mr Krijestorac was not called, in the end result there was no admissible evidence other than that the accident was caused by the appellant's driving in the manner that I have described.
In my view, neither of the grounds of appeal has been made out and, whilst I would grant the extension of time sought by the appellant, the appeal will be dismissed.