Zlatar v Cooper
[2009] WASC 278
•11 SEPTEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ZLATAR -v- COOPER [2009] WASC 278
CORAM: HASLUCK J
HEARD: 11 SEPTEMBER 2009
DELIVERED : 11 SEPTEMBER 2009
FILE NO/S: SJA 1048 of 2009
BETWEEN: BOGDAN ZLATAR
Appellant
AND
MARK ANDREW COOPER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE S R MALLEY
File No :PE 4049 of 2009
Catchwords:
Criminal law - Practice and procedure - Driving offence - Appeal from magistrate - Appeal against conviction on charge of failing to stop - Evidence - Matters relating to proof - Turns on own facts - Finding that magistrate made no error of law or fact - Leave to appeal refused and appeal dismissed
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 14, s 40(1)(e)
Road Traffic Code 2000 (WA), reg 50(2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr D S McDonnell
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Devries v Australian National Railways Commission (1993) 177 CLR 472
Skerritt v O'Keefe [1999] WASCA 183
HASLUCK J:
Introduction
The appellant, Bogdan Zlatar, was charged that on 12 January 2008 at Wembley he infringed reg 50(2)(a) of the Road Traffic Code 2000 (WA) by failing to stop his vehicle at a stop sign.
The regulation in question provides that a driver approaching or at an intersection with a stop sign or stop line shall stop 'at' the stop line. The regulation applies to stopping and giving way at a stop sign or stop line at an intersection.
By reg 3 the term, 'stop', in relation to a vehicle means to stop the vehicle and permit it to remain stationary. The term, 'stop line', means a line marked across or partly across a carriageway near a traffic control signal or stop sign.
The appellant pleaded not guilty to the charge and on 21 April 2009 the matter was heard in the Perth Magistrates Court.
The hearing
At trial the respondent, Mark Andrew Cooper, being at that time a senior constable attached to the Traffic Enforcement Group, said that on the day in question he was on Herdsman Parade in Wembley monitoring traffic turning left out of Marlow Street.
Senior Constable Cooper produced in evidence various photographs to underpin his evidence that there was a stop sign and stop line governing the point of entry for traffic on Marlow Street seeking to turn left in Herdsman Parade. On his evidence he was about 30 to 40 metres from the stop sign.
Senior Constable Cooper said that he saw a white Holden utility approach the stop line, slow down to approximately 10 to 15 kilometres per hour and make a left turn without coming to a complete stop. Senior Constable Cooper then flagged down the vehicle with the registration number 1ASZ 976 and spoke to the occupant, who produced an expired West Australian driver's licence in the name of Bogdan Zlatar.
The driver was then issued with a traffic infringement notice. In the course of their conversation, when asked why he failed to come to a complete stop, the driver said, according to Senior Constable Cooper: 'I slowed down. There was no cars coming'.
The appellant was acting on his own behalf at the hearing before the magistrate. In the course of cross‑examination the appellant put it to Senior Constable Cooper that he (the appellant) had stopped the car one metre before the stop line, but this was denied.
The appellant then gave evidence on his own behalf. He acknowledged that he was driving down Marlow Street at about midday on the day in question; that is, 12 January 2008. The appellant said that he had followed this route for the last six years every Saturday. He said in evidence that he stopped the car, 'Near the white line and actually I stopped the car. Could be two metres, could be one metre. I can't remember'.
The appellant said in evidence that when he stopped he could not see a police officer. On the appellant's evidence he did not say to the police officer that he had slowed down or that there were no cars coming.
Under cross‑examination the appellant said that there was no car behind him, in front of him or on Herdsman Parade. He denied that he rolled over the white line. He denied saying to the police officer that there were no cars and he slowed down.
Reasons for decision
It appears from the transcript of the hearing that the magistrate gave brief reasons for decision. His Honour was of the opinion that Senior Constable Cooper was a relatively short distance away from the stop sign and related line and had a clear view of what took place. For that reason the magistrate was minded to prefer the evidence of the prosecution witness, Senior Constable Cooper.
The magistrate said also that in any event the evidence given by the appellant was not sufficient to excuse him from liability because on the appellant's own admission he had not stopped at the stop line but had stopped one or two metres back from it.
The magistrate then recorded a conviction. He proceeded to impose a fine of $250 with costs of $114.20 giving rise to a total liability of $364.20 payable by the appellant.
Appeal notice
The appellant filed an appeal notice dated 26 May 2009 in which six grounds of appeal are set out as follows:
1.The Magistrates court made error of law and error of fact.
2.I stopped on the line of a stop sign with my right wheel, and my left wheel I stopped before the line half m, because the line is crooked and half missing.
3.A policeman was far of me 70 m. and there were two big trees and two electricity poles and big hedge fences from nearby apartments, so the policeman was not able to determine if I stopped or no.
4.The weather was cloudy.
5.It was on Marlow and Herdsman parade Wembley.
6.Why a policeman was laughing when I began to drive again? I saw it on my the rear mirror.
On 29 June 2009 McKechnie J made various orders concerning the appeal including that there was to be an extension of time if leave to appeal was subsequently determined to have merit. Leave to appeal and the appeal in respect of the grounds specified in the appeal notice were to be heard at the same time.
Statutory provisions
By s 9(2) of the Criminal Appeals Act 2004 (WA) leave to appeal is not to be granted unless the court is satisfied that the particular ground has a reasonable prospect of succeeding; that is, that it has a real prospect of success.
By s 14 of the Act, the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing.
Further, if the court considers that no substantial miscarriage of justice has occurred it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.
I must now turn to some important principles concerning an appeal of this kind.
Legal principles
A magistrate is generally required to set out the relevant findings of fact and the reasons for his decision. However, in the case of a busy court it is not always practicable or necessary for a full or detailed statement of reasons to be given. In essence, a court must set out the reasoning which leads to the conclusion: Skerritt v O'Keefe [1999] WASCA 183 at [146].
Generally an appellate court will refrain from interfering with findings of fact based upon the credibility of witnesses unless it appears that the judicial officer has failed to use or misused the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts clearly established by the evidence or which was clearly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
Other matters
On the hearing of the appeal I admitted by consent some extra photographs of the scene tendered by the appellant. I did so pursuant to the power allowed to me in s 40(1)(e) of the Criminal Appeals Act.
These extra photographs were relied on to support an argument by the appellant that the police officer did not have a clear view of the stop line because he was too far away and behind a telegraph pole.
This was not a matter directly raised before the magistrate at the hearing although the appellant did assert in evidence that he could not see the police officer. This latter assertion meant that the magistrate had an opportunity to weigh up an allegation of the kind contended for by the appellant in determining whether or not Senior Constable Cooper had a clear view and as to whether Senior Constable Cooper gave evidence that could be relied upon.
I note in passing that the extra photographs show that a view of the line of the stop line, and of a vehicle approaching that line, could be obtained from where the police officer was positioned, provided he was not behind the telegraph pole.
It was not established by the evidence at the hearing before the magistrate that the police officer was behind the pole or otherwise could not see the stop line, and the evidence as a whole does not provide a basis for the drawing of an inference to that effect. This aspect of the matter can only be characterised as speculation.
Conclusion
In the present case, as I review the materials before me on the appeal, I must take account of the fact that the respondent, Senior Constable Cooper was not shaken in cross‑examination and his evidence was essentially uncontradicted.
There was evidence before the court from Senior Constable Cooper that he had a clear view and had positioned himself for the specific purpose of monitoring traffic entering Herdsman Parade from Marlow Street. It emerges from the principles I have quoted that an appeal court is generally slow to interfere with findings made by a magistrate in the court of first instance who had the advantage of seeing and hearing the witnesses.
In my view, the appellant in his evidence or in the extra photographs admitted on the appeal did not raise any persuasive or sufficient matter that might be regarded as enough to create a reasonable doubt as to the reliability of Senior Constable Cooper's evidence.
Indeed, as the magistrate observed in the course of his reasons for decision, the evidence given by the appellant included an admission that the appellant had failed to stop in the manner required by the regulations. The six grounds of appeal are essentially directed to the central issue as to whether the evidence given by Senior Constable Cooper could be relied upon. Having regard to the matters I have just mentioned I do not consider that the magistrate erred in law or in fact in acting upon the evidence before him in order to convict the appellant.
Further, and in any event, even if it be thought that the magistrate did not give sufficient weight to matters raised by the appellant, I am of the view that no substantial miscarriage of justice has occurred with the result that the appeal must be dismissed.
In summary, leave to appeal will be refused and the appeal will be dismissed.
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