Staley v Lopes
[2005] WASCA 75
•18 APRIL 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: STALEY -v- LOPES [2005] WASCA 75
CORAM: JOHNSON J
HEARD: 8 APRIL 2004
DELIVERED : 18 APRIL 2005
FILE NO/S: SJA 1133 of 2003
BETWEEN: DAVID STALEY
Appellant
AND
PAULO LOPES
Respondent
Catchwords:
Criminal law - Appeal against conviction - Failing to report an accident - Evidence
Criminal law - Appeal against sentence - Failing to stop after an accident - Whether sentence of 3 months' disqualification excessive
Legislation:
Road Traffic Act 1974 (WA), s 54(1), s 54(5), s 55(1)
Sentencing Act 1995 (WA), s 8(4)
Result:
Appeal against conviction dismissed
Appeal against sentence dismissed
Category: B
Representation:
Counsel:
Appellant: Mr E Carlose
Respondent: Mr S Murphy
Solicitors:
Appellant: Eapon Carlose
Respondent: State Solicitor
Case(s) referred to in judgment(s):
Aitken v Weary (1985) 2 MVR 378
Bromley v Bembridge [2002] WASCA 192
Carew v Carone (1991) 5 WAR 1
Illich v Garvey [2001] WASCA 236
Mano v Iriks [1999] WASCA 180
Moulds v R, unreported; CCA of SCt of WA; Library No 980147; 4 March 1998
Myers v Myers [1969] WAR 19
R v Kingston [1986] 2 Qd R 114
Scarce v Killalea [2003] WASCA 81
The Royal Society For The Prevention Of Cruelty To Animals Western Australia Inc v Hammarquist & Anor [2003] WASCA 35
Case(s) also cited:
Bryant v Drexel, unreported; SCt of WA; Library No 980239; 29 April 1998
Fabre v Arenales (1992) 27 NSWLR 437
Jones v Dunkel (1959) 101 CLR 298
Mical v Ward (2003) WASCA 149
R v De Simoni (1981) 147 CLR 383
R v O'Grady (2003) QCA 137
R v Osborne (2002) VSCA 156
R v Sessions (1997) 95 A Crim R 151
R v Teremoana (1990) 54 SASR 30
Wade v The Queen (2001) WASCA 252
Walsh v The Queen (1996) 6 Tas R 70
WK v The Queen (2002) WASCA 176
JOHNSON J: The appellant appeals the decision of a Magistrate given in the Court of Petty Sessions at Joondalup on 26 November 2003. The appellant was charged under s 54(1) of the Road Traffic Act 1974 (WA) ("RTA") with failing to stop immediately after the occurrence of an accident. The appellant pleaded guilty to this offence. The penalty imposed included a 3‑month period of disqualification of his driver's licence.
In the grounds of appeal against sentence the appellant raises the following three issues:
(i)that the period of suspension was manifestly excessive;
(ii)that the Magistrate took into account irrelevant considerations and failed to consider the appellant's mitigating circumstances; and
(iii)that the Magistrate took into account matters he found proved in the further charge brought against the appellant.
The transcript reveals that the appellant had on an earlier occasion pleaded guilty to the offence of failing to stop but the matter was adjourned for "a hearing as to the facts". At the commencement of the hearing on 26 November 2003, counsel for the appellant agreed that the listing on that date was for the dual purpose of determining the facts on the charge under s 54(1) and conducting a defended hearing of a further charge.
The further charge was laid under s 55(1) of the RTA and alleged that the appellant failed to report an accident. The appellant pleaded not guilty to that charge but was convicted after trial. The appellant's grounds of appeal against conviction in relation to this charge are fourfold:
"(iv)that the Magistrate refused an application for an adjournment in circumstances where the prosecution did not provide full disclosure;
(v)that the Magistrate took judicial notice of the value of the damage to the vehicle;
(vi)there was no cogent probative evidence of the value of the damage;
(vii)that the Magistrate failed to draw an adverse inference against the prosecution when evidence to prove or corroborate the value of the damage was available but was not adduced into evidence."
The circumstances of the accident
On 7 March 2003 the appellant, whilst driving his Toyota Land Cruiser in Kingsley, was involved in a collision with a Toyota Corolla vehicle driven by Brooke Margaret Quinn. The collision occurred at the intersection of Dalmain Street and Carlton Court. Both vehicles sustained damage. The appellant failed to stop after the accident and did not report the accident to the police until 25 May 2003.
At the hearing, Ms Quinn gave evidence that the appellant pulled out of the driveway of the Kingsley Tavern and was driving ahead of her in an erratic manner, including driving up the kerb. She lost sight of the car for a short time. As she turned left into Dalmain Street, she again saw the appellant's vehicle which was stationary and parked in a parking bay at the local primary school. As she drove past, the appellant's vehicle pulled out and collided with Ms Quinn's vehicle. The appellant then drove off.
Ms Quinn stated that the entire left side of her car was damaged, preventing both doors on the left‑hand side of her vehicle from opening. In addition, her front windscreen was smashed on the left‑hand side. Ms Quinn also gave evidence that the damage was such that, rather than repair the car, which was insured, it was sent to the wreckers. There was also some damage to the appellant's vehicle; a small dent in the door and some damage to the bull bar. As a result of the accident, Ms Quinn suffered moderate personal injury. Following the accident, Ms Quinn attended the Joondalup Police Station and made a report. Under cross‑examination she indicated that she purchased the car for $1500. It was suggested to her that only the front left corner of her vehicle was damaged and the damage was slight. She rejected both propositions. Ms Quinn was not cross‑examined on her evidence that the appellant immediately drove off after the accident without stopping. Neither was she cross‑examined on her allegation that she sustained personal injury. In re‑examination Ms Quinn was questioned about the condition of her car. She said that there was some problem with the back of the car from a previous accident but she had that fixed immediately after purchase. The only other witness called was the investigating police officer who identified the appellant as the owner of the other car involved in the accident. He gave no other relevant evidence.
The prosecution attempted to adduce from both Ms Quinn and the investigating police officer evidence of the value of the damage. Ms Quinn was to produce a copy of the repair quote. The investigating officer attempted to give evidence of what he had been told by Ms Quinn as to the value of the damage. That evidence was rejected, in my view correctly, on the basis that it was hearsay.
At the conclusion of the prosecution case a submission was made on behalf of the appellant that there was no case to answer in that there was no cogent evidence of the cost of repairs. However, there was, as the Magistrate rightly noted, evidence of the cost of the vehicle. There was also evidence that the vehicle had been "written off"; that is, that the cost of repairs exceeded or so closely approximated the value of the vehicle that repairing the vehicle was not considered an appropriate option. There was, therefore, evidence from which an inference could be drawn that the value of the damage exceeded $1000. For this reason, but primarily for another reason to which I will later refer, the Magistrate rejected the submission of no case to answer. The appellant elected not to adduce evidence and the Magistrate determined the matter on the prosecution evidence. He accepted the evidence of Ms Quinn and convicted the appellant.
Appeal against conviction
I propose to deal with the appeal against conviction on the charge of failing to report an accident before addressing the sentence imposed on the offence of failing to stop after an accident.
Ground (iv): The refusal of the adjournment application
At the commencement of the hearing, counsel for the appellant advised the Court that despite a request made two months before the hearing for disclosure of a list of witnesses, exhibits, and copies of witness statements and reports, the request was not complied with until the afternoon prior to the hearing and not seen by the appellant's counsel until 5 pm. The material provided was the statement of Ms Quinn, a statement from a police officer and a statement of material facts. Counsel argued that, as a result of the late disclosure, he was not prepared for cross‑examination of the witnesses. Counsel further submitted that the only issue at trial was the question of the damage to the car, and the late disclosure left him in the position of not being able to decide whether to call witnesses, including expert testimony as to the repairs to the car. The Magistrate correctly noted that the defence had been on notice since the appellant was charged that the value of the damage was alleged to be in excess of $1000. However, the appellant's counsel argued that he was not in a position to obtain particulars of the damage, such information being in the possession of the police.
The prosecution, in reply, noted that the basis of the prosecution case was that the appellant failed to stop and could not, therefore, have a reasonable belief that the damage was less than $1000.
The Magistrate accepted the submission that disclosure should have occurred at an earlier time. However, on the basis that the complaint identified the amount of damage as being in excess of $1000 and that counsel would already be in receipt of instructions as to the circumstances of the accident, the Magistrate held that there was an insufficient basis to adjourn the hearing. The Magistrate did offer counsel for the appellant the opportunity to renew his application at the close of the prosecution case and to adjourn the hearing, part‑heard, if a renewed application was successful. No further application to adjourn was made.
For disclosure to serve the purpose for which it is intended, it must be given in a timely fashion. The afternoon of the day prior to a hearing cannot, in my view, be described as timely. However, it does not follow that failure to provide timely disclosure will lead to the grant of an adjournment. The grant or refusal of an adjournment is discretionary. However, where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless, in turn, this would mean serious injustice to the other party: Myers v Myers [1969] WAR 19 at [21]. In exercising the discretion, consideration must be given to the public interest in the orderly and expeditious disposition of cases in busy courts such as the Courts of Petty Sessions: Mano v Iriks [1999] WASCA 180 at [15].
Central to the resolution of an adjournment application based on a failure to provide witness statements in a timely fashion, is the fact that there is no obligation to make full disclosure in a summary court. In Carew v Carone (1991) 5 WAR 1 at [8], Murray J held that:
"In relation to simple offences, there is no statutory requirement for pre-trial disclosure in any form and it quite lawfully may be the case that the first a defendant knows of the content of the case against him and how it is to be presented and by which witnesses, will be upon the trial."
The same conclusion was reached by Roberts‑Smith J in Bromley v Bembridge [2002] WASCA 192 at [52] and by Miller J in The Royal Society For The Prevention Of Cruelty To Animals Western Australia Inc v Hammarquist & Anor [2003] WASCA 35at [58]. There being no obligation on the prosecution to disclose witness statements, and no power in the Court to order such disclosure other than in relation to prior inconsistent statements of a witness (see R v Kingston [1986] 2 Qd R 114), an application to adjourn based on a failure to disclose is an application which is unlikely to succeed. Consequently, counsel who is unable to test evidence presented by the prosecution without being provided with copies of witness statements some time before trial, should question whether it is appropriate to appear in a summary court.
In the course of submissions at the hearing of this appeal, counsel for the appellant identified the issue of the injuries to the plaintiff as an issue he was unable to address because of late disclosure. This factor was not relied upon by counsel for the appellant in making the application to adjourn, notwithstanding that he was made aware by receipt of Ms Quinn's witness statement that she was alleging personal injury. Neither did counsel advise the court of any discrepancy between Ms Quinn's statement and the contents of the statement of material facts on the issue of personal injury, another factor upon which counsel for the appellant relied at the hearing of the appeal. Further, no questions were asked of Ms Quinn in relation to this issue. Counsel for the appellant submitted that this supports his argument that he was, by reason of late disclosure, not in a position to proceed with a hearing. I do not accept that counsel could not marshal a basic set of questions designed to address this issue in the time made available in this case. In my view, not having raised the issue of personal injury at the time of the adjournment application, the issue of damage is the only issue on which the appellant can rely in this appeal as the basis of prejudice to him by virtue of late disclosure. For the reasons to which I have already referred, there was no requirement on the prosecution to provide disclosure and hence no injustice can arise from late disclosure on any issue.
Further, insofar as the application to adjourn was based on the need to obtain evidence in relation to the value of the damage, it cannot be said that any injustice resulted from the dismissal of the adjournment application. For the reasons given in relation to the next ground of appeal, an adjournment could not have assisted the appellant as the evidence counsel intended to obtain was irrelevant.
Ground (v): Judicial notice of the value of the damage
In the course of an objection taken to Ms Quinn's evidence of the value of the damage to her vehicle, the Magistrate made the following comment:
"She's given evidence about what the damage to the vehicle was and from all accounts there's substantial damage … The whole of the left side of the car and the damage to the windscreen. Perhaps I am able to take judicial notice of the fact that damage of that type, including a windscreen would be worth reasonably a considerable amount of money."
This comment appears to be the foundation for this ground of appeal. The answer to this ground, indeed all the grounds of appeal against conviction, lies in an understanding of the elements of the offence of failing to report an accident. Section 55(1) of the RTA is in the following terms:
"Where, in the course of the use of any vehicle on a road, an accident occurs whereby damage is caused to any property the driver or person in charge of the vehicle shall (unless disabled by personal injury himself) report the accident forthwith to the officer in charge of the nearest police station unless the driver or person in charge of the vehicle has reasonable cause for believing that the damage so caused does not exceed, in the aggregate, an amount of $1000 and the owner, in each case, of any property damaged is then or immediately thereafter, present or represented at the place where the accident occurred."
In Scarce v Killalea [2003] WASCA 81 at [8] McLure J identified the six elements of the offence which are to be established by the prosecution on a charge under s 55(1) of the RTA. In summary those elements are that:
"(a)the defendant was the driver or person in charge of a vehicle;
(b)the vehicle was being used on a road;
(c)in the course of the use in (b) an accident occurred whereby damage was caused to property (including that vehicle);
(d)the defendant, not being disabled by personal injury, failed to report the accident forthwith to the officer in charge of the nearest police station;
(e)the defendant had no reasonable cause for believing that the damage did not exceed in the aggregate $1000;
(f)the owner of any property damaged was not present or represented at the place of the accident."
The belief to which reference is made in s 55 is an objective one, as the requirement of reasonable cause denotes, but whether a driver has such a belief is a question of fact: Aitken v Weary (1985) 2 MVR 378. Further, in Illich v Garvey [2001] WASCA 236 at [26], White AUJ held that the fact that the respondent failed properly to examine the damage before departing is sufficient to establish that he had no reasonable cause for believing that the damage did not exceed $1000.
In the course of his closing submissions, counsel for the appellant stated that "[o]ne of the elements of the offence is the damage". It can be seen from the foregoing summary of the law that is not in fact the case.
It is not necessary to answer the question of whether it was appropriate for the Magistrate to take judicial notice of the value of the damage because he did not do so. In the course of the Magistrate's reasons for conviction the following comments were made:
"… there was a collision between the two vehicles and there was substantial damage to the left side of her car and the windscreen and minor damage to the other car, the Toyota Land Cruiser.
Her car cost $1500. The car was written off and given to the wreckers. There was an accident, there was damage, the defendant didn't stop, the defendant drove off and there's no indication whatsoever of any personal injuries as a result of his action, he simply failed to stop and drove away. He therefore made no assessment whatsoever of whether there was any damage because he failed to stop and drove off.
So in respect of the charge which has been the charge … the prosecution are not required to prove strictly the amount of the damage of being more than $1000."
It can be seen that the submission of no case to answer was decided on the basis that the only element of the offence relating to damage which the prosecution was required to prove was that "the defendant had no reasonable cause for believing that damage did not exceed in the aggregate of $1000". Ms Quinn's evidence that the appellant did not stop after the accident was not called into question by the defence. The appellant did not give a different version of events. The Magistrate held, taking the prosecution case at its highest, that since the appellant did not stop, he could not have held such a belief and on that basis there was a case to answer. In my view, the conclusion that the appellant could not have formed a reasonable belief as to the value of the damage was inevitable.
Ground (vi): The absence of probative evidence of the value of the damage
It is not correct to say that there was no probative evidence of the value of the damage. There was evidence of the value of Ms Quinn's vehicle, the extent of the damage to both vehicles and the fact that Ms Quinn's vehicle had been "written off". There was then evidence from which an inference could be drawn as to whether the combined value of the damage exceeded $1000. However, as I have already stated, the absence of cogent probative evidence of the value of the damage could not, in any event, affect the outcome of the trial.
Ground (vii): The failure to draw an adverse inference against the prosecution for not adducing evidence of the value of the damage
Similarly, there was no basis upon which any inference adverse to the prosecution could or should have been drawn by reason of its failure to adduce direct evidence of the value of the damage to the vehicles. The prosecution simply was not required to prove actual value. The fact that it had unsuccessfully attempted to do so is quite irrelevant.
For these reasons, I would dismiss the appeal against conviction.
Appeal against sentence
In relation to the offence of failing to report an accident, the appellant was fined $100. There is no appeal against that sentence. In relation to the offence of failing to stop, the appellant was fined $400 and was disqualified from holding a driver's licence for a period of 3 months. The appeal lies only in relation to the imposition of the licence disqualification.
The power to disqualify a person from holding a driver's licence for the offence of failing to stop after an accident appears in subs (5) of s 54 of the RTA. Section 54(5) provides that, if in the opinion of the court, an offence under subs (1) is of a serious nature the court may make an order disqualifying the offender from holding or obtaining a driver's licence for such period as it thinks fit.
The appellant was 20 years old at the time of the offence. He was in full‑time employment as a plumbing apprentice and required a licence for his employment. Counsel for the appellant asserted that this was his first offence and, despite referring to some minor traffic matters on his record, the prosecution did not take issue with that assertion. It was also said on behalf of the appellant that "he assures the court that he will not do it again".
Counsel for the appellant further submitted that the offences were not serious in that the appellant was not charged with careless driving. As to this last submission, it does not automatically follow from the fact that a person was not charged with a more serious offence that the offence for which he was charged was not serious. There are degrees of seriousness of motor vehicle offences, any one of which may attract a period of licence suspension.
It is alleged on behalf of the appellant that the period of disqualification was excessive, that the Magistrate took into account irrelevant considerations and failed to consider the appellant's mitigating circumstances. It is further alleged that the Magistrate took into account matters he found proved in the further charge brought against the appellant of failing to stop after an accident. I will deal with these grounds of appeal in reverse order.
Ground (iii): The Magistrate took into account matters he found proved in the further charge
The Magistrate expressed his conclusion that the circumstances of the offence were serious in the following way:
"There's been a substantial collision between your large motor vehicle and her small motor vehicle. You haven't stopped and you've driven off, which is an outrageous thing to do, and clearly I view that failure to stop in these circumstances as being of a serious nature."
It can be seen that the extent of the damage was a factor taken into account in concluding that the offence was serious. That evidence was given before the Magistrate at the hearing on 26 November. In my view, the Magistrate was entitled to use that evidence in forming his opinion of the nature of the offence for the purposes of subs (5). As I have previously noted, the record shows, and counsel for the appellant agreed, that the purpose of the hearing on 26 November was to hear the charge to which the appellant had pleaded guilty and to determine the facts for the purpose of sentencing on the offence to which he had pleaded guilty. There is no reason why both those matters could not be dealt with at the same time.
In any event, the Magistrate convicted the appellant of the charge of failing to report before sentencing him in relation to both offences. As such, he was quite entitled to take into account the uncontroverted evidence accepted by him in convicting the appellant of the other charge, provided of course that the appellant is not twice punished for the same conduct. There is nothing in the comments made by the Magistrate or the sentences imposed which would support such a conclusion.
Ground (ii): Taking into account irrelevant considerations and failing to consider the appellant's mitigating circumstances
This ground of appeal is said to be based on the following comments made by the Magistrate: "It would appear to have been your fault" and "… this woman, as it turned out, had some neck injuries for which she received treatment for some time ... this is not an element of this charge, that came out of her evidence".
Taking these statements in the context of the reasons for sentence as a whole, and considering that the reasons were given extempore, in my view, the reference to the issue of fault is made more in the way of an observation rather than a finding of fact. The obligation to stop applies to all those involved in a motor vehicle accident, irrespective of who is at fault. I do not consider this ground of appeal to have substance insofar as it is based on the reference to the issue of fault.
In making reference to Ms Quinn's injuries, the Magistrate expressly stated that injury was not an element of the offence. On my understanding of the Magistrate's reasons, the reference to personal injury was designed to indicate the seriousness of the offence generally by reference to the potential consequences of engaging in the impugned conduct. If a driver fails to stop after an accident, his conduct precludes him from offering assistance to any person who may be injured or from notifying the emergency services to provide assistance. However, in this case, there is no suggestion that Ms Quinn suffered an injury requiring immediate medical attention. Indeed, on her evidence, the injury did not manifest itself until a later time.
It is also relevant to note that counsel for the appellant elected not to test the evidence of Ms Quinn that she suffered injury and did not object to the admissibility of that evidence as being irrelevant to conviction or sentence. Although preparation time may have been limited, counsel for the appellant was at least on notice that the prosecution proposed to lead that evidence. As such, counsel for the appellant had sufficient time to decide whether to object to it or not. That he did not do so is inconsistent with his assertion on appeal that the issue was irrelevant to the sentence imposed.
Having considered the Magistrate's reasons for decision and the way in which the issue of personal injury was dealt with in the context of those reasons, I am unpersuaded that the Magistrate relied upon Ms Quinn's injuries as an aggravating factor.
It was further submitted on behalf of the appellant that the Magistrate failed to take into account the appellant's youth, lack of prior convictions and his assurance that the conduct would not be repeated. Certainly there is no reference to these factors in the Magistrate's reasons for sentence.
Section 8(4) of the Sentencing Act1995 (WA)is in the following terms:
"If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."
The submission made on behalf of the appellant is that the Magistrate made no reference to the appellant's age or his assurance that the offence would not be repeated. As to the latter, such assurances are commonly given but are of little import other than insofar as they can be taken as an indication of remorse.
I do not accept that the effect of s 8 of the Sentencing Act is that there must be a specific reference to every matter personal to an offender or every circumstances of the offence, however minor, that assists in determining an appropriate penalty. The provision in s 8(4) is a reflection of public policy laid down by Parliament to facilitate the understanding by persons who are sentenced how the sentence has been arrived at. However, as Malcolm CJ observed in Moulds v R, unreported; CCA of SCt of WA; Library No 980147; 4 March 1998 in relation to s 8(4) of the Sentencing Act, an error on the part of the sentencing Judge to state in open court that certain mitigating factors were taken into account does not invalidate the sentence where there is no doubt that they were taken into account.
It is the case that the Magistrate did not conform to the requirements of s 8(4) in relation to the appellant's age, his antecedents and his expression of remorse. As I have indicated, that is not an error which automatically invalidates the sentence. One must look at the circumstances at the time of sentencing, including the reasons given by the Magistrate, the sentence itself and the available sentencing range. In this case, it must be kept in mind that all the matters personal to the appellant were specifically referred to by the appellant's counsel just prior to the imposition of the sentence. The Magistrate would have been well aware that he was dealing with a 20‑year‑old offender with no relevant prior convictions who had, through his counsel, made an expression of remorse. Further, the relevance to sentence of matters personal to a defendant is so well entrenched in sentencing process that it is difficult to accept that an experienced Magistrate would ignore them. Further, in relation to the sentence imposed, it must be kept in mind that the maximum financial penalty for failing to stop after an accident is $1500. The period of licence disqualification is entirely discretionary and, theoretically, includes a lifetime suspension. In this case, the appellant was fine $400 and disqualified from holding a driver's licence for 3 months. Mitigating factors may be reflected in the fine, the period of disqualification, or both. It is clear that the sentence imposed was tailored to fit circumstances well below the most serious case committed by a seasoned offender.
Taking all these matters into account, I am unpersuaded that the appellant's antecedents and expression of remorse were not taken into account simply because there was no specific reference to them.
Ground (i): The period of suspension was manifestly excessive
In my view, failing to stop after a significant collision such as occurred in this case is unquestionably serious and properly attracts a period of licence suspension. In my view, the Magistrate's description of the appellant's conduct as outrageous was entirely accurate. Whilst there may be cases in which a driver who fails to stop after a collision should not be deprived of the privilege of his driver's licence for a period of time, such cases should be the exception rather than the rule. Specific and general deterrence must be the primary considerations in the sentencing process in cases of this type.
Once the decision to suspend is made and notwithstanding the matters personal to the appellant, a period of 3 months' disqualification from holding a driver's licence cannot be said to be inappropriate, irrespective of whether the driver of the other vehicle suffered injury.
In my view, the appellant has failed to disclose any error in the reasoning of the Magistrate nor established that the period of licence suspension was outside the range of appropriate sentencing outcomes for an offence of this type.
I would also dismiss the appeal against sentence.
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