YUAN v Police - [2012] SASC 221

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
YUAN v POLICE
[2012] SASC 221
Judgment of The Honourable Justice Sulan (ex tempore)
4 December 2012
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
Appeal against a decision of a Magistrate that appellant failed to keep a safe distance from a vehicle in contravention of r 126 of the Australian Road Rules.
Whether the Magistrate was in error in accepting the evidence of the police officers.
Held: Appeal against conviction dismissed - no basis exists to conclude that the Magistrate was in error in assessing the witnesses.
Appeal against sentence allowed - the costs order in the Magistrates Court is to be set aside - the fine is to be reduced to the amount of the expiation notice.
Magistrates Court Act 1991 (SA) s 42, referred to.
Tazroo v Police [2002] SASC 155, applied.

YUAN v POLICE
[2012] SASC 221
Magistrates Appeal: Criminal

SULAN J: The appellant and defendant has appealed against a decision of a magistrate in which the defendant was convicted of failing to keep a safe distance from a vehicle on 26 October 2010 contrary to rule 126 of the Australian Road Rules. Rule 126 provides that a driver must drive a sufficient distance behind a vehicle travelling in front of the driver so that the driver can if necessary stop safely to avoid a collision with the vehicle. The maximum penalty for the offence is a fine of $2,500.00.
The defendant appeals against the conviction. He contends that the Magistrate was in error in accepting the evidence of two police officers who gave evidence in the matter.
Background
Constable Stewart gave evidence that he was travelling in a police vehicle at about 10.35 pm on 26 October 2010 along Marion Road. He was driving at about 55 km per hour when he observed a vehicle behind him. The vehicle appeared to be very close to the police vehicle. When he looked into the rear vision mirror he could not see the headlights nor the bonnet of that vehicle. He pointed out the problem to Constable Elletson who was in the front passenger seat of the police car. She gave evidence that she saw the defendant’s vehicle in the side mirror of the police car. She confirmed that it was about two to five metres to the rear of the police car.
Constable Stewart said that he then put his foot on the brake and gradually slowed his vehicle until he eventually stopped. He said that he had travelled about 500 metres prior to slowing down. He said that as he slowed down the car behind him remained very close to the rear of the police car. He stopped the police car and the other car then overtook. He activated the police warning lights on his vehicle and stopped the other vehicle.
He spoke to the defendant, who was driving the car. The defendant was breath-tested. Constable Stewart then gave the defendant an expiation notice alleging an offence contrary to rule 126 of the Australian Road Rules. The defendant denied that he had been travelling too close and said that when he drives to work everybody is about one metre apart.
Constable Elletson replied that one metre is not safe and that if they had to brake suddenly he would have hit the back of their car. The defendant denied that he had been travelling too close to the police car and said that he wanted to speak to someone about it.
The defendant gave evidence. He denied that he had been travelling too close to the police car. He said that as he approached the car he realised it was a police car and he braked gently. He said the car in front of him was stationary but he noticed as he moved closer to it that it was moving slowly. He said that he remained behind the police car for a short time and then overtook it. He denied the version given by the police officers.
The Magistrate summarised the evidence. He made an assessment of the witnesses. He concluded that he was satisfied beyond reasonable doubt that the police officers’ evidence was accurate. He did not accept the defendant’s version. In arriving at his decision, he referred to the demeanour of each witness. He concluded that the evidence of the police officers was accurate and honest and he was satisfied beyond reasonable doubt of their versions.
The Magistrate was satisfied beyond reasonable doubt that the defendant had not driven a safe distance behind the police car. He observed that, if it had been necessary for the police car to stop suddenly, the defendant could not have avoided a collision.
He found the charge proved beyond reasonable doubt. He imposed a fine of $400 and ordered the defendant to pay $300 costs and the victims of crime levy.
The appeal
The defendant contends that the Magistrate made errors. He was unable to identify any specific error. He contends that his evidence should have been accepted and that the Magistrate was in error in relying upon the evidence of the police officers. He could not point to any specific matters where the Magistrate had made errors.
Appeals to this Court from the Criminal Division of the Magistrates Court are pursuant to s 42 of the Magistrates Court Act 1991 (SA). The appeal is by way of rehearing.
I am required to review and reconsider the evidence. I am required to make up my mind but, in so doing, I should give due weight to the Magistrate’s assessment of witnesses.[1] I observe that the Magistrate had the advantage of hearing and seeing the witnesses. In this case, the decision depended solely on the assessment of the credibility of the witnesses. There was no independent evidence. The only evidence in the case was that of the police officers and the defendant.
[1] Tazroo v Police [2002] SASC 155.
The Magistrate, in a carefully considered judgment, preferred the evidence of the police officers. Nothing that has been put to me identifies any error made by the Magistrate in his assessment of the witnesses. I have reviewed the evidence. I am satisfied that the two police officers gave both an honest and accurate account of their observations.
The defendant, who requires the assistance of an interpreter, gave evidence. I have had regard to the difficulties of a person who speaks very little English, and who is reliant on an interpreter in giving his evidence. He attempted, at times throughout the appeal, to make submissions in English. The defendant has a very poor command of English. Even making allowances for the language problem, the defendant’s evidence was unconvincing.
There is no basis to conclude that the Magistrate was in error in his assessment of the witnesses. The appeal against conviction is dismissed.
During submissions, the defendant stated that he was unemployed and that the amount of the fine and costs had caused severe hardship. I dealt with his submission as an appeal against sentence. Counsel for the respondent quite properly, in the circumstances, did not object to that course being adopted. I am satisfied that the defendant honestly believes that he should not have been convicted. I have also considered that the defendant suffers from a language difficulty. His comprehension of English is such that it would be difficult for him to put his case. He has a very limited understanding of the Court system. I am satisfied that one reason for him contesting the charge was his belief that a conviction would mark him as a criminal.
Counsel for the respondent accepted that it would not be inappropriate for me to reduce the fine and the costs awarded against the respondent in the Magistrates Court. Counsel did not seek costs of the appeal.
In the circumstances, the fine should be reduced to the amount of the expiation notice, being $225.
For the reasons I have given, I would dismiss the appeal against conviction. However, I reduce the fine to $225. I order that the costs order in the Magistrates Court of $300 be set aside. Having regard to the defendant’s lack of understanding, I consider that a fine without conviction in the same amount as the expiation notice is appropriate.
The orders of the Court are that the appeal against conviction is dismissed. The conviction, fine and costs orders are set aside. The Court orders that, without conviction, the defendant pay a fine of $225, plus the victims of crime levy.