Zahran v Harlin

[2010] WASC 292

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   ZAHRAN -v- HARLIN [2010] WASC 292

CORAM:   McKECHNIE J

HEARD:   12 OCTOBER 2010

DELIVERED          :   22 OCTOBER 2010

FILE NO/S:   SJA 1073 of 2010

BETWEEN:   MOHAMMED BAKR ZAHRAN

Appellant

AND

NICHOLAS ROBERT HARLIN
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE G N CALDER

File No  :PE 44969 of 2010

Catchwords:

Road traffic - Dangerous driving - Whether bus cut off motor scooter - No new principles

Legislation:

Nil

Result:

Appeal allowed
Conviction quashed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Ms L A Eddy

Solicitors:

Appellant:     In person

Respondent:     State Solicitor for Western Australia

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

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

McKECHNIE J:

How this matter comes to court

1. The appellant is a bus driver.  He was on the morning run into Perth, down Beaufort Street, on 18 May 2009 when a motor scooter came out of a side street.  The appellant and the scooter rider exchanged unpleasantries.  Shortly after, somewhere past Central Avenue, the scooter rider said that the appellant deliberately cut the scooter off by changing lanes causing the scooter to drive off the road and brake.  As a result the appellant was charged with reckless driving.

2. The event happened very quickly, within seconds.  I wish I could say the same for the trial; it ran for three days.  The event was partially recorded on the surveillance cameras in the bus and a number of witnesses on both sides gave evidence.  The magistrate dismissed the charge of reckless driving but convicted the appellant of dangerous driving.  He found the appellant moved the bus into the left lane at a time when he was, or should have been, aware of the presence of the scooter and that that manoeuvre was unsafe because he did not allow sufficient room for the bus to get into the left lane without interrupting the passage of the motor scooter.

The issue

1. While there are many issues that might arise, including the nature of dangerous driving, there are two pivotal issues:

   •Did the appellant start to change lanes before completely passing the scooter?  Yes

   •Was this unsafe to the scooter's passage?  No

The evidence

1. There was much evidence led at trial but in the end the magistrate accepted part of the evidence of the scooter driver and his passenger and some of the evidence of a bus passenger.  He also took careful note of the surveillance footage.

2. Crucially, the magistrate accepted that the scooter was slower than the bus.

3. The magistrate was unable to draw conclusions as to how much turn of the wheel it takes to move a bus three or four metres into the lane but did not accept that the appellant swerved the bus in the sense that there was a sudden movement.  The bus passenger said in effect that the bus cut the motor scooter off, although she could not see out of the back of the bus and she did not see what happened afterwards.  The magistrate said that her evidence substantially corroborated the scooter rider and his passenger.  The rider said he had to apply full brake.  He had no option but to leave the road, the carriageway, and drive up onto the footpath.  Fortuitously, he said there was a driveway there and he said he stopped for about a minute and then took off again.

4. The assessment of the credibility of the witnesses was a matter for the magistrate and there was nothing to show he misused the advantage he had.  However, the footage on the surveillance cameras is something upon which I can and have formed an opinion.

The surveillance footage

1. I should say something about the cameras.  There are four of them.  One showing the driver, one showing a general view down the bus, one looking towards the right rear and one looking towards the left rear of the bus.  I have been able to watch the footage at a speed of one‑eighth of a second on a full computer screen.  I have watched the footage many times.  The events all occurred at 7.55 am and some seconds.  The footage between 7.55 and 7.56 am is attached and can be viewed on the Supreme Court judgments' website.  At 5.19 the scooter is level with the bus doors and then level with the front passenger seat.  At 5.20 the scooter is level with the fourth seat from the rear.  At 5.21 it is level with the third seat from the rear and then the rear seat.  At 5.22 it is out of view of the rear camera and at 5.23 what I find to be the front wheel of the scooter is visible behind the bus.

2. Footage of the driver indicates that the driver starts to turn left at 5.20 at a time when the scooter is level with the fourth seat from the rear.  The bus does not complete the manoeuvre into the left lane until sometime after 5.25.

3. The conclusion I draw from the surveillance video is that while the bus did start to pull into the left lane while still passing the scooter, because of its greater speed it passed the scooter before the opportunity to interfere with the scooter's safe passage arose.  This is seen by the position of the scooter at 5.23.

4. The magistrate did not refer to the presence of the scooter at 5.23.  The appellant pointed it out on the appeal.  Ms Eddy for the respondent said that the evidence had to be incontrovertible, a test propounded in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. Whether or not the test is so high can be left for another day. Having viewed the footage I am quite satisfied that the wheel shown is the wheel of the scooter. In the shortness of time there is nothing else it could be. The bus passenger did not see what happened to the scooter. The magistrate was concerned about aspects of the scooter rider's evidence and did not think he was telling the truth on all occasions (although he did accept his evidence on this). However, the position of the scooter at 5.23 makes the evidence of the scooter driver and passenger unsafe.

The result

1. Based on the evidence of the surveillance footage, the conviction is unsafe.  It places the scooter in a different position from that asserted by the driver at a point where the independent bus passenger testified she was unable to see where it went.

2. The conviction is quashed.