Zohar v Lassau
[2011] WASC 334
•2 DECEMBER 2011
ZOHAR -v- LASSAU [2011] WASC 334
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 334 | |
| Case No: | SJA:1049/2011 | 19 OCTOBER 2011 | |
| Coram: | McKECHNIE J | 2/12/11 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAVID ALLAN ZOHAR ANDREW PAUL LASSAU |
Catchwords: | Road traffic Failure to stop and report Evidence Whether identification evidence Whether warning required Expert evidence Whether open to magistrate to reject Whether verdict unreasonable or unsupported |
Legislation: | Nil |
Case References: | Festa v The Queen (2001) 208 CLR 593 Fox v Percy (2003) 214 CLR 118 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ANDREW PAUL LASSAU
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE BAYLY
File No : PE 54974 of 2010, PE 54975 of 2010
Catchwords:
Road traffic - Failure to stop and report - Evidence - Whether identification evidence - Whether warning required - Expert evidence - Whether open to magistrate to reject - Whether verdict unreasonable or unsupported
Legislation:
Nil
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Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr M Seaman
Solicitors:
Appellant : Clavey Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Festa v The Queen (2001) 208 CLR 593
Fox v Percy (2003) 214 CLR 118
(Page 3)
- McKECHNIE J:
What this appeal is about
1 It is frustrating when somebody parks in your reserved parking bay and you have to park behind them. Such a thing happened to Mr Travers, a manager with the ANZ Bank at 1275 Hay Street, West Perth. What is even more aggravating however is when 'the someone' rams your car out of the way, damaging it in the process. If they drive away and do not report the damage, the aggravation is compounded. This also happened to Mr Travers.
2 The magistrate found that Mr Zohar was the person who first parked in Mr Travers bay then damaged his car and failed to report it.
3 Mr Zohar says that the magistrate was wrong and the damage to Mr Travers' car was not caused by his Volvo. Mr Zohar was not positively identified as the driver.
The issues
4 It is not in issue that Mr Travers' car was damaged. The sole issue is whether Mr Zohar was the driver of the car which caused the damage.
5 The magistrate found that Mr Zohar was the driver. Was he correct to do so? Yes.
6 The magistrate found that he could not rely on an expert opinion that Mr Zohar's Volvo could not have caused the damage to Mr Travers' Hyundai. Was it open for him to do so? Yes.
Overview of the evidence at trial
7 The trial took place over two days, 11 - 12 April 2011 and the magistrate reserved his decision.
8 Mr Travers is a senior relationship manager with the ANZ Bank. He owns a Hyundai i30 station wagon, three months old, in the same condition as when it came out of the showroom with stock standard tyres and suspension.
9 At about 1.45 pm on Wednesday 24 February 2010, he drove his car into the underground parking bay, intending to park in the eighth bay along, marked with a sign 'Reserved ANZ relationship manager'. He was unable to park in his car bay because a white Volvo station wagon was parked in the bay nose first. Instead he parked 'perpendicular' as he
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- described it because all the other bays were full. He parked about 50 cm from the passenger's side of the Volvo. He did not take a note of the Volvo's registration number but put a business card on the windscreen of the Volvo and wrote 'If you would like your vehicle moved, please phone this number'. Mr Travers took note of the make and model: 'I always - mentally, if somebody parks in my bay, I always pay some attention in case somebody wants to do something stupid'. Shown a photograph, he identified a white Volvo station wagon identical to the vehicle he saw. 'So I'm not familiar with the exact models, but that was the car that I saw', 'that's my recollection'. He was 100% certain it was a white Volvo station wagon.
10 Mr Travers returned to work. At about 2.15 pm Cameron Jansen, a fellow employee, alerted him and he went back to the car park where he found his car pushed five metres from where he had parked it:
It had been actually moved from where it had been parked and about sort of 50 centimetres from the rear of the Volvo and perpendicular. It had been actually pushed across. It was on an angle and it was not far short of - I would probably say about 30 centimetres short of hitting the car that parks over opposite my bay, and all the front - or the right-hand side of my vehicle was damaged, so the right front wheel arch, the right driver's door. It was slightly damaged on the right passenger door, and the wheels were actually bent as well (ts 12)
11 He reported the incident to police
12 On 24 February 2010, Ms Alessandra Cesca worked at a café in West Perth, near the ANZ Bank. She was walking back from the Commonwealth Bank, turning the corner into the ANZ garage entrance because her car was at the back. She walked past the entrance and heard:
[A] big screeching noise, like sort of revving and - like if someone is doing a wheelie, - - -. Then I heard alarms go off, a car alarm.
...
So I walked back, had a look, and there was - I could see a blue car down -and the lights were going - like, the alarm lights, so - - - (ts 24).
13 She started walking and a few steps on she heard a big bang:
That's when I could see a white car.
That's when I saw that the blue car was not in the same position that it was before, it had actually been moved, but further to the left (ts 25).
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- [T]hat's when I noticed there was a white car inside, which the blue car was parked in front if it, and that's when I noticed the lights were on, of the back of the white car.
Well, there was lots of noise. It was all kind of slow motion, and then the white car came flying out. I don't know in which order. At the same time the other car drove in at some stage, and the white car ended up on the other side where the last car is parked on the far corner, and just about hit that car, and the car that just drove in, too, was tooting (ts 26).
You said it went backwards and forward twice. What did you think it was trying to do?---Well, that’s when I realised that that car was trying to come out … that's the other thing I realised: that there was no-one in the blue car. There was no-one driving the blue car … There's no-one in the blue car like I initially thought.
Where did it hit initially, did you say?---Probably more in the middle of it.
More in the middle of the – which door, do you think?---Probably the drivers because it - - -
Then did it move forward after that?---Yes.
Then what did it do after it moved?---It moved forward and then moved backwards again, and then it did a real big one and – backwards, hit the car, but then went flying onto the – right on the opposite side of the corner.
Backwards - - - like foot down.
[t]he white car moved at speed?---Definitely.
[t]here was a car that had driven into the car park and tooted its horn? ---Tooted its horn to try to stop - - -
Is that the car we can see on the left-hand side picture there?---Yes, to try and stop that car from smashing into the other cars.
So that car had driven in and tooted as well. What happened then, after the white car had gone across to the other side of the car park and the other one had tooted – but we're talking about the white car? What happened after the white car did that?---Nothing. He just drove out very calmly. (ts 29, 30).
14 Ms Cesca described the driver of the car as a stocky man, big eye lids, quite heavy. Approximately 60 or 65 years of age. 'Just not much hair, I thought grey-ie really, maybe, yeah.' He was wearing a suit: 'I think it was a white shirt, tie - but I can't remember exactly now actually.'
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15 Ms Cesca memorised the registration of the car:
And then I didn't have a pen, so I went up to the driver of the other car and asked him if he had a pen.
Wrote it on my hand straightaway, and told that guy down the back. I asked him if he had a pen and paper and he wrote it down and wrote down my details.
I wrote it on my hand.
[T]he driver of the other car to write it on a piece of paper.
There was another person in the car, too. There was another man (ts 31).
16 In cross-examination she said the white car:
It couldn't have gone forward because it would have hit the wall.
So there's no way it could go forward. It was parked when I saw it.
Moved backwards. It wasn't a gentle reversing. There's no way it could come out otherwise. The blue car moved just a tiny bit. (ts 36)
As the white Volvo was leaving - was driving out, I moved. I looked at his face when he was driving out and when he drove away I looked at the numberplate but I can't tell you whether there was any damage.
[G]ot a good look at the registration number. That's all I looked at on the way out.
I don't know what the car damage was because I didn't look at the car. I looked at the car on the way out, of the make of the car, and the face.
When I was looking I was actually in the middle of the car. I was looking at the driver. And it was a bright day.
I was on the passenger side and the driver was on the other side. There was somebody else in the car.
[C]an't remember what I wrote down. (ts 42)
I read from my wrist and the other man wrote it down. We wrote it together and it was correct.
17 Ms Cesca was cross-examined about her description of the driver:
He had a little bit of hair. It was just on the thing there.
Just not much hair. But he had hair some - yeah. (ts 43).
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- At what point did you first see the driver of the car? How close was he?---Only when he was driving - well, I could see him far away but I couldn't see what he looked like then (ts 43).
I could see him the whole time, but because the light - as the closer he came, the light was clearer.
I got a good look. His complexion was fair.
I always said possibly grey or reddy, a reddy colour hair.
The car was a Volvo, a heavy Volvo.
It was just a four door car (ts 44).
18 Her statement to police did not refer to a Volvo.
19 Mr Cameron Jansen was employed as a commercial banker with ANZ. It was he who drove into the underground car park as described by Ms Cesca. He described what he saw:
I saw a white station wagon, Volvo station wagon, reversing - and reversing out almost to hit a Holden Commodore of one of our colleagues, Vern Chratis.
The car was in a reserved bay of Tanwyn.
I saw Tanwyn's car, the blue Hyundai - obviously off to an angle.
The reversing car was a white Volvo station wagon, sort of around sort of 2003, 2005 model.
MFI 1 fits the description (ts 48 - 50).
Basically what's happened is that the car is - the Volvo car is reversing out. It's almost within a few centimetres hit the Commodore of Vern's and at that stage I've put the horn on to basically say, well, what's going on here is getting very, very close to hitting that car (ts 50).
I can recall the box-like nature of the car, the station wagon aspect of it, and particularly with that box kind - I mean obviously it points towards - well, I think it points towards sort of a Volvo (ts 50).
20 He described the driver:
I saw a man driving the car of - sort of middle-aged man, sort of 50s, bald, short, stocky, roundish face.
I don't remember what he was wearing.
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- Could you identify that man again if you saw him again?---I couldn't be a hundred per cent sure (ts 51).
Alex [Cesca] conveyed to me me the registration details of the car.
I had a Post-it note and wrote it down.
It says 'Alex 1COV-405, a white Volvo station wagon Café Express'.
I did not see the registration number (ts 51).
21 In cross-examination he described the car park as dimly lit:
When you're driving down the ramp you need to be careful about doing that, don't you, in case other cars are pulling out. You don’t go in quickly. (ts 52)
It was a normal day.
I would say for the nature of the carpark he was moving faster than usual (ts 52).
He had not seen the white car before. He couldn't recall whether it was showing brake lights.
And then the white car was able to turn and drive straight out of the carpark or did it have to manoeuvre further within the car bays?---No, as he did turn, try to reverse out, obviously he was gaining some space to drive away (ts 53).
It all unfolded very quickly.
He saw two people driving out in the white car.
Did you get a good look at the driver?---What I saw was a man - a middle-aged man, almost bald man.
He had hair, didn't he, the man you saw?---The predominant thing I did see was he was bald.
He wasn't completely bald, though, was he? He had hair?---I do remember some sort of hair, but as again I said, it was almost predominantly bald (ts 53).
Tanned, I'd say a tanned complexion.
I do remember having a conversation which pointed towards us confirming the details (ts 54).
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22 In cross-examination he was taken to his efforts at a digiboard identification. The process was filmed and the film played to the magistrate:
It's true that you weren't able to positively identify the driver from these photographs?---That's correct (ts 55).
Well, as I said there, I'm not 100 per cent confident (ts 57).
23 I have also viewed the film several times. It shows the board was handed to Mr Jansen and over two minutes later he indicated that he could not recognise anyone:
The quick second that I got a look at him I couldn't think that it would be any of these twelve.
24 The police officer responded:
All right. So you can't pick any of them.
25 And shortly after he said:
The features are more sort of like number twelve but um, I couldn't say I'd pick number twelve as definitely that's the guy.
26 He agreed with the police officer that he discounted the other photos completely. The digiboard included a photo of Mr Zohar. He was asked on a scale of one to ten where he would place number twelve and he said:
Oh four to five. Just simply because the short balding hair, just the complexion and sort of the chubbiness of the face. But in saying that I thought he would have had a sort of rounder sort of face.
27 Constable Lassau was the investigating officer. He searched the incident management system database and ascertained that 1COV-405 was registered to a white Nissan 300ZX coupe.
28 Based on the appearance of the 300ZX being significantly different to the Volvo he conducted additional enquiries on the police database. From the result there were two possibilities. One was a white Volvo V70 station wagon registration number 1COV-045. The other was a white Volvo wagon registration number 1COV-028.
29 I interpose to note that the driver of this Volvo, Ms Alvarenga, lives in Rockingham. She is the wife of the owner of Volvo station wagon, 1COV-028. She gave evidence that she never drives the car to Perth.
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30 To return to Constable Lassau: On 26 April 2010, he went to 160 Crawford Avenue, Inglewood, Mr Zohar's home. Mr Zohar was reversing from the driveway in the white Volvo. He had a conversation with Mr Zohar and cautioned him:
I just asked the accused if he had any knowledge of the incident, to which he said that he did not (ts 62).
I asked the accused whether any other people drove his car and on that occasion he explained to me that he was the only person that drove the car.
He further clarified that by saying he'd had some panel repairs done around that period. The repairs were in relation to some passenger-side damage, and that a male person by the name of Ali may have provided a quote.
I visually inspected the vehicle, and took a series of photographs on that day (ts 63).
31 On 11 June 2010, Constable Lassau returned to Crawford Avenue and on this occasion noticed the rear driver's side tail light and a piece of putty that filled in a crack in the light cover (exhibit 10A and 10B).
32 In cross-examination, Constable Lassau conceded he did not do a search with a 1CQV in the parameters. He obtained copies of Mr Zohar's bank records which do not show any transactions conducted at the ANZ Bank or Bankwest, on the day of the incident.
33 Mr Bradley Smith is an assessor for RAC Insurance group. On 2 February 2010 (that is before the incident in the car park) he went to K & M Auto Body Repairers to conduct an assessment of the Volvo V70 wagon 1COV-045. He observed damage was to the left hand driver's side front door and left hand rear door. He took a series of photographs which became exhibit 12, and his report exhibit 13.
34 In cross-examination he said he had done a four year apprenticeship as a panel beater and then trained on the job as a motor vehicle assessor for five years with 15 years of motor vehicle experience. Four years apprenticeship and ten years in the automotive industry repairing vehicles, now working with the RAC.
35 He had quite a bit of experience with Volvo V70s. As to the tail light glass:
It would have to be a very hard knock to make them shatter. They are quite a resilient light. Volvos are very strong vehicles.
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- So if you applied your foot to the tail-light and pushed really hard, that would cause it to shatter?---No, it wouldn't shatter. It might crack, but it would have to be quite extensive force. (ts 90 - 91).
36 The Volvo has a plastic bumper:
It takes quite a considerable amount of damage to make a plastic bumper go out of shape, actually, because plastic flexes quite substantially (ts 91).
So if it was involved in a traffic accident involving a hard knock, what would you expect to find on it?---The bumper should stay intact. It will flex in, then just come back out to its original shape.
The damage would actually be behind the rear bumper but the rear bumper is plastic. (ts 92).
37 Mr Sandro Parente is the co-owner of K & M Auto Body Repair Centre now trading as Star Panel and Paint. He has worked on most of the cars in the Zohar family.
38 On 27 January 2010, that is before the car park incident, he provided a quote for repairs on Mr Zohar's car 1COV-045 and booked it for repair on 8 March 2010. When Mr Zohar came in with the car:
Asked me just to do a bit of work on the rear bumper.
I did that work.
Relatively minor damage. Had a small dent in the rear bumper.
Probably the size of a tennis ball, if that, and the rear bumper moulding had dislodged itself and the rear tail-light had a slight crack in the lens in the right hand side (ts 94).
On the impact it had put a slight dent in it and it bowed (ts 95).
Impact here which actually bowed this corner and forced that moulding to pop off (ts 95).
There were scratch marks around here, a couple - a few scuff marks on this bumper here (ts 95).
The scratches were actually black but the primer from underneath the bumper had exposed itself (ts 96).
I would have sealed it up just up to stop water getting in.
To correct the damage - being a plastic bumper, I heated the particular corner up just to soften the plastic, to push out the dent.
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- Clipped the moulding back on, and that was pretty well all I did.
It wasn't a full respray of the bumper. It was just a spot up. It was a quick fix basically, a hundred - about an hours work. He ... I didn't charge Mr Zohar for it (ts 97).
39 In cross-examination he said:
Well, being a plastic bumper, it wouldn't take much damage to put a sort of - an indentation like what was on Mr Zohar's vehicle.
If Mr Zohar's car had been reversed into another car four times, would you have expected to find one dent?---No.
[W]hat sort of damage would you expect to find, with reasonably hard impacts?---Well, the support brackets would be bent, for starters. The impact wouldn't be in one specific area. It will be - it would damage the headlight - oh, the tail-light. The tailgate would have had some damage applied to it.
The taillight wouldn't disintegrate, but it would smash the lens, the base. Mind you, they're all plastic, so it wouldn't take much to damage them.
The damage he saw to Mr Zohar's bumper and the crack in the tail-light, was not consistent with a repeated impact against something (ts 99).
40 Mr Parente said that he never inspected the brackets.
41 Mr Parente said that he performed this work around Valentines Day but the magistrate did not accept this evidence of the date of the work.
42 The defence called a number of witnesses. Mr Zohar did not give evidence.
43 Mr Brynmor Gifford is a panel beater and owner of K & L Panel and Paint. He received instructions to repair Mr Travers' Hyundai on instructions from the RAC. He examined the vehicle; made note and took pictures of the damage: Exhibit 14A - P. The wheel alignment was fine. A report from Mr Wilkinson to that effect was also was tendered: Exhibit 15.
44 Mr Gifford was asked:
Was there any need to replace any supports or other brackets in the engine area?---After we stripped it there was. The corner of the radiator support, being plastic, was broken.
It was only broken on the right-hand corner (ts 5).
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45 He was asked about exhibit 14A and he said:
The tyre is a strong area, but the panel side of it is quite weak. There's nothing really there. It's a thin panel, with a plastic liner, and the door panel is quite weak as well, really.
The modern car is not very strong, really. It wouldn't be more than four or five kilometres per hour; it couldn't be but I'm guessing, right?
It wouldn't want to be any more. Then there would be a lot more damage (ts 6, 7).
It's hard to say, but something has come along beside of it and it would have ridden up over the tyre being that the tyre would have been quite strong and put up a lot of resistance.
So whatever, it's just come along the side there and just gone up over the tyre, that's why it's pushed in as it is up around there and it's stopped around the door (ts 8).
46 A scenario was put to him:
Well, the car reversing would have come up a bit, obviously as a reversing, and it would have ridden over the tyre. The tyre would have offered high resistance, so whatever hit it, the tyre - and that's why I was quite surprised the wheel alignment wasn't damaged because if it was an actual accident on the road, normally that suspension would have been bent.
So it's ridden across the top of the tyre and it's actually got the shape there as it's come across the wheel arch and sort of stopped around the door area, there, so it doesn't take much to do that, really.
Is the damage consistent with the car pushing it out of the way?---Yes. Once it's hit all the reinforcements on the skirt it would sit there and stop there so it would have kept on going if there was any force and wouldn't have done more damage to what's there, so you could have pushed it, yes (ts 8, 9).
47 The witness said he had had experience on Volvos such as exhibit 1. The bumpers are high impact.
48 He was asked about rear bumpers:
Volvo's sale is a strong vehicle. Their bumpers have to stand a certain amount of impact, especially in the US - I think it's the same in Australia, so they're quite strong, but having said that, any bumper in this corner here, if you're going to hit any car with that sort of area of the bumper through the panels, you're going to do some damage because the panels are weak.
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- I've seen cars that the bumpers have hit vehicles and done no damage to the bumper but caved in the panels in the car.
And as I said again, it would have ridden up over the wheels. It would have pushed the car up and ridden over the wheel onto the bodywork which is very weak.
And what damage would you expect to have seen on the Volvo then?---Well, I would like to see - I would expect to see damage to the bumper. It may have ripped it, it may not, but it would definitely have paint missing and maybe some indentation.
The back bumper has got a very strong reinforcement in it that runs the full length of the rear bumper and I think they've got absorbing brackets on the actual brackets (ts 10, 11).
When I repaired the blue car there was a lot of white paint on it as the picture showed (ts 11).
49 In re-examination:
I want to tell you something here. This car was not hit on the tyre.
It scraped the hub cap which had to be replaced, being a brand-new vehicle.
I can say they were very lucky that whatever hit it ran over the top of the tyre, because the Volvo would have raised it at the back higher than its normal level as it accelerated backwards.
All cars raise as soon as you back up or move up - every single car. And again, the tyre would have made it raise over the top of it.
There are some marks on the tyre, if you look at the photos. Scuff marks (ts 12, 13).
50 Central to the defence was the opinion of Mr Martin Simms. The rejection of his evidence is a ground of appeal (3A). Mr Simms is a chartered consulting engineer who is an expert in damaged motor vehicles. He had sat through the evidence in relation to the damage on the various vehicles.
51 Part of his expertise involves structural testing of vehicle bodies, including side intrusion testing. A large proportion of his practice for the last 15 years has been accident investigation, crash analysis, assessment of vehicles involved in collisions for insurance and legal purposes.
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52 He inspected Mr Zohar's Volvo V70 and concluded:
There was no evidence of damage to the door or boot lid (ts 17).
53 He took measurements of the vehicle and lay underneath the vehicle, to inspect behind the bumper:
I saw nothing untoward under the bumper itself.
[N]o signs of deformation or damage (ts 18).
54 His examinations took place on 22 March 2011, over a year after Mr Zohar's car had been repaired by Mr Parente. However, his report assumed the Volvo had not been repaired. He made measurements of the vehicle and attended Melville Hyundai where he made measurements of a Hyundai i30 wagon similar to Mr Travers' car. He also inspected a Volvo XC60 and XC90 taking measurements. The bumper shape on those two vehicles differs from the V70 in that the bumper is shallower and has a sloping underside. He set out the variation in measurement and between the three Volvos (ts 21).
55 On examination of the Hyundai photographs he said:
It tells me that some object has scored the wing above wheel level and has caused approximately a V-shaped indentation in the panel metal. That object has either been a long, straight, sharp edge or it's been a single point that's run along, forming an indent as it went (ts 23).
56 The indentation flat band is somewhere around 740 millimetres above ground level.
57 In his view the photograph is consistent with multiple impact:
Looking at the shape of them, it would be my view that they're more likely to be direct impacts than glancing blows. Having said that, without having seen the actual vehicle and its state immediately after the accident, that's a little difficult to say (ts 25).
58 He also observed:
I can see no evidence of damage to the plastic wheel trim, which is a particularly thin fragile piece of plastic, and there's no obvious evidence of damage to the tyre itself - not that you'd necessarily be able to conclude that there isn't from these photographs, because they're not particularly good (ts 25).
If you look in this whole area here, there appears to be areas where the paint has been removed almost back to the metal, and those areas appear to
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- me to be rusty. I would need to see the digital originals. They seem to be rusted, which struck me as being somewhat curious that it would go rusty in that period of time.
The possibility that there was some pre-existing damage did occur to me, your Honour.
Photograph 14C - it tells me that the indentation of the right front wing has been such that whatever indented it passed completely over the top of the tyre and pushed the wing in and under, so whatever has done it has penetrated beyond the top of the tyre to expose the top of the tyre. I would estimate it's a good six inches or 150 millimetres of tyre fully exposed by the wing being pushed in.
[I]t tells me that the impact was fairly aggressive. It wasn't a small nudge. ... whatever did it passed over the top of the tyre (ts 26).
I would certainly expect to see that trim cracked. They're not very strong. They're quite thin. They're not made of high-impact plastic. They're just a think cosmetic trim. I'd certainly expect to see some damage to that (ts 27).
59 As to the Volvo he said:
Insofar as it's possible to tell from these photographs, there appears to be little or no damage to the right rear quarter of the Volvo. The tail lamp assembly has a crack up its right-hand side and there was a piece of black putty in one of the other photographs.
In the context of this matter the tail lamp itself is quite a flat, broad plastic element and, as such, won't be as structurally strong as a curved profiled plastic tail lamp.
I could see no damage when I inspected the tail lamp. I could see no damage indicative of it having applied a significant force to anything or having had a significant force applied to it.
There was a crack, which in itself is not that remarkable (ts 27).
The damage on the Hyundai was consistent with the types of impacts described by Ms Cesca (ts 29).
As to the dent given in Mr Parente's evidence, there is nothing in that area that would cause a discrete dent.
60 In relation to the Volvo:
I would expect scratching of the paint of the bumper at the very least in crazing the paint. Crazing is a very common consequence of the plastic being flakes because the plastic, although it's, if you like, good quality plastic, is still nonetheless thin plastic and it does flake. You can actually
(Page 17)
- flex it with the palm of your hand. I would also expect this black protection strip which is simply glued on to have suffered some damage along its edge as well, and I saw no damage (ts 30).
I couldn't see anything that would produce that in the damage to the i30.
I saw no damage consistent with the bumper having ridden up over the tyre of the Hyundai.
61 In relation to Mr Gifford's evidence:
He's correct insofar as all cars tend to lift slightly when they're reversed. They lift at the back when they're reversed and they lift at the front when they accelerate forwards.
We're talking about 300 millimetres. It's an impossibility that the vehicle could have risen up 300 millimetres, done this damage and then come back done without touching the tyre. It's in my view an impossibility that it would raise up that far in the first place (ts 32).
What I'm saying, your Honour, is that the shape of the bumper of the V70 is such that it would impact on the wheel of the car, even under acceleration, and bearing in mind it couldn't have accelerated more than 500-odd millimetres or 50 centimetres, it wouldn't have raised up far enough to clear the wheel and cause that damage. Even if it had, the nature of the damage isn't consistent with the damage, as I understand it, to the Volvo bumper. It's my view that it couldn't raise up that far, so it would have had to have impacted the wheel first and there's no evidence that the wheel has suffered any exposure to force (ts 33).
62 His opinion:
My view is that the shape of the bumper on his car is such that I don't believe it could have ridden over the tyre because it would have to rise up such a large distance to clear the tyre. If it had been done, by some mechanism, the underside of the bumper would have been damaged by coming back down off the tyre because after the impact, as soon as it tries to come back down, the back of the vehicle would tend to drop. It would come down on the top of the tyre - the tyre is well exposed - and there was no damage in that area. ... [I]ts my view that the Volvo, as I saw it and as depicted in these photographs, couldn't have done the damage to the Hyundai without sustaining more obvious damage to itself (ts 34).
So the description of damage given by Mr Parente is inconsistent with a vehicle being involved in the impact with the Hyundai on 24 February 2010?---Yes, that's in my view.
63 In cross-examination he said that he used to own a Volvo 850 which was the precursor to the Volvo V70 but he cannot recall specifically
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- looking at another Volvo of that type. He was taken to his opinion about the vehicle having to raise 300 millimetres. He conceded that:
[T]o the highest point of the bumper does not have to raise 300 millimetres to make the highest point damage on the Hyundai, does it?---No (ts 37).
The damage is focused directly above the wheel. In other words, the epicentre of the damage is directly above the wheel. Regardless of how the Volvo contacted the i30, the only part of the Volvo that could do that damage would be the bumper, regardless of what angle it impinges at; and to do that, the bumper would - the lower part would either have to raise up 300 millimetres or be deformed inwards by 150 millimetres (ts 37).
I can tell you that it's small and it's certainly not 30 millimetres, but other than that, no (ts 39).
65 He agreed that Volvos have impact absorbing bumpers that can flex.
66 He examined the Volvo on 22 March 2011 and there were no visible signs of damage:
One of the assumptions made in my report was the car hadn't been repaired.
The bumper is a piece of trim. It serves no structural purpose.
I looked underneath the vehicle and I could see no visible evidence of anything untoward - bent brackets, new brackets or - - - (42).
67 In answer to a question from the magistrate he said:
So the difference between 630 and 700 is - in the bottom part of the wheel arch for a minute - is much less than 300?---Yes, that's quite correct, but for that part of the bumper of the Volvo to push the bodywork in 150 millimetres, which it would have had to do to cause this damage, that would mean that because the bottom edge of the bumper is approximately the centre line of the Hyundai's wheel, it would either have to itself have been displaced backwards by an equal distance, exposing only the top part of the bumper - in other words, the skirt would've had to have been pushed back to allow the top part to then go across the tyre, the top of the tyre.
That's based upon the bumper not having been damages?---That's, yeah, quite correct, your Honour, yes. Well, it's based on not being damaged and the likelihood that it could be damaged that much and not be a major structural damage.
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- That's assuming little or no repairs to the bumper?---Yes, your Honour, yes.
I would still have some difficulties though, because if the bumper was so severely damaged - given that it's got some reinforcement behind it and that reinforcement is below the top of the tyre, if the bumper had been so severely damaged that it and its reinforcement had to be replaced, a very large load would've had to have been applied to the tyre. Had that happened, it would have almost certainly displaced the wheel and required the suspension to be readjusted. The evidence of Mr Gifford was that that wasn't done. The evidence of the wheel alignment is that almost no adjustment was required. It followed from that that the wheel hadn't been exposed to a high-impact force. Now, because it would require a high-impact force to damage the bumper and that could only occur by the bumper contacting the wheel, and because the wheel hasn't been displaced, it follows in my view that the bumper didn't contact the wheel, or it didn't contact it with any significant force (ts 43, 44).
There's no such object on the bumper of the Volvo that could cause the crease line. The closest thing to it would have been the chrome strip, but that chrome strip in my view is totally incapable of producing that level of creasing without itself being torn off, completely torn off and destroyed (ts 45).
68 In re-examination he said that he was supplied with other written documentation, including two statements from Mr Parente. Having heard the evidence in relation to the damage to the vehicle it did not cause him to alter his conclusions.
In the absence of deformation damage to the bumper equivalent to the depth that it penetrated - that is, 150-odd millimetres - it could not have caused that damage without raising up so that the bottom of the bumper passed over the top of the tyre (ts 49).
The bumper will not flex 150 millimetres without causing damage to the bumper.
The brackets - the bumper itself would show obvious signs of contact pressure, crazing, paint scrubbed off (ts 51).
69 He was taken to the Wilkinson Suspension Centre report. There were no substantive adjustments:
It tells me that it is very unlikely that the wheel itself has been impacted (ts 53).
70 Mr Michael Bosic gave evidence that he worked closely with Mr Zohar during February 2010. Mr Zohar's appearance had not materially changed. Mr Zohar had no hair and he had never known him to have hair.
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- He always had a shaved head. Mr Zohar has not been known to be prone to anger attacks or aggression. His character is gentle, giving, just no anger whatever.
71 In cross-examination Mr Bosic was referred to an entry in his iCal diary on 24 February 2010 with a notation that he had met with or had a proposed meeting with Mr Zohar. He could not recall whether he had a meeting with Mr Zohar on 24 February.
72 Mr Mark Killmier had known Mr Zohar since 3 May 2009. Mr Killmier worked for Mr Zohar's companies as CFO and Company Secretary.
73 There was a board meeting on 24 February 2010. Mr Zohar looked as he did in court:
I've never seen David other than with a fully-shaven head (ts 60).
Did not seem unsettled on that day that I can recall.
David normally wears a suit and tie to a shareholders meeting.
I think I've probably only seen him wear a suit and tie a couple of times in the two years that I've seen him, known him, outside of an AGM or a shareholders' meeting.
Can't recall him wearing a suit and tie on 24 February 2010 (ts 61).
His character is cheerful, happy family man.
It's alleged that he in this instance effectively rammed another vehicle several times. Would that be typical of his character?---No, that's not typical of how I would see him (ts 61).
74 In cross-examination he said he did not have a clear memory of 24 February 2010. The meeting started at 4.20 pm:
I can't recall where the meeting was held. It was scheduled for 231 Adelaide Terrace. If not there, it would have been held at Lawton Gillon, 16 St George's Terrace (ts 62).
The magistrate's reasons
75 The magistrate delivered judgment on 18 April 2011. He identified as the real issue for the court whether the prosecution had proved it was the accused who caused the damage, and if so, if he did so wilfully. He noted there was no issue that Travers' car was damaged and in a place to
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- which the public have access and not in dispute that the person who damaged the car failed to stop to supply his name and address.
76 The magistrate summarised the evidence given at trial.
77 His summary of the evidence of Mr Jansen about the driver:
The driver was middle-aged, bald, short and stocky (ts 4).
78 He said the predominant feature of the driver who he saw driving the Volvo was bald but had some hair:
In a statement to police he said the driver had close-cropped hair and a tan complexion. He agreed that on 3 May 2010 he was shown a Digiboard containing 12 faces - an identification board containing 12 faces - and he could not identify the accused on that board - the accused was on that board - but he did say that photo number 12, who was not the accused, had features similar to the driver. The Digiboard became exhibit 6A, and a video of the identification process 6B. The accused is number 8 on the Digiboard (ts 5).
79 The magistrate noted that the accused denied to Constable Lassau any knowledge of damaging another car in a car park. He said he was the only person who drove his Volvo station wagon 1COV-045.
80 After summarising the evidence in detail the magistrate turned to his conclusions stating again:
The primary issue in this case is whether, on 24 February 2010, the accused was driving his motor vehicle in the car park at 1275 Hay Street, West Perth, and that that car caused the damage to the complainant's Hyundai.
81 He noted that the prosecution's case is circumstantial and correctly addressed himself to the burden and standard of proof:
I am satisfied, on the evidence of Travers, Cesca and Jansen, that the vehicle which caused damage to the vehicle of the complainant was a white Volvo station wagon (ts 11).
82 He was also satisfied from their evidence that the vehicle that caused the damage was not a 300 XZ coupe Nissan. This finding is not challenged.
83 He was satisfied that Ms Cesca recorded the number as 1COV-405 and that the accused's car was 1COV-045. He found:
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- It is clear that Ms Cesca recorded the registration number incorrectly because the number of the vehicle she recorded could not have caused the damage to the vehicle of the complainant. She did, however, get the registration number substantially correct, and it is not difficult to understand how she could have got two numbers around the wrong way, but certainly recorded, in every other respect, the registration details (ts 12).
84 He then dealt with the description of the driver of the vehicle:
Cesca described the driver of the vehicle which did the damage as 'stocky, bit (sic) eyelids, 60 to 65, not much hair; the hair he had was grey.' Cameron Jansen described the driver as 'bald, middle-aged, stocky'. In a statement to the police, he said the driver had close-dropped hair. On a Digiboard containing 12 faces, he did not identify the accused but did identify another person who, I must say, looks very like the accused as depicted both in the photo board and as appeared before me and has very similar features.
Cesca said the driver had some grey hair, and Jansen said the driver had close-cropped hair. The witnesses Bosic and Killmier said the accused, at the time, had no hair, and when the accused was in court before me he had no hair. Nevertheless, on the evidence before me, the driver of the vehicle which caused the damage looks very similar in age, build and looks to the accused as he sat before me and as depicted, as I have indicated, on the Digiboard (ts 11).
The grounds of appeal
The grounds of appeal in relation to the identification of the driver
1. The learned Magistrate erred in law in failing to warn himself of the potential unreliability of, and any particular weaknesses in, the circumstantial identification evidence that was given by the witness Jansen.
2. The learned Magistrate erred in fact in finding that the witness Jansen positively identified a person from a digiboard (exhibits 6A and 6B) as the driver of the white car.
85 No witness positively identified the appellant as the driver of the car and the magistrate understood this. He did not use any 'positive identification' by Mr Jansen. Instead he reasoned as follows:
Whist each individual fact proved by the prosecution could not prove the case against the accused beyond reasonable doubt, in my view the combination of the proven facts - namely: (1) that the vehicle was a white Volvo station wagon; (2) the registration plates had in it the letters 1COV-045; (3) the description of the driver matched the accused to a substantial extent; (4) the accused was in the vicinity on that day; (5) the
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- accused's vehicle had damage to it in the area where one would have expected to find such damage, based upon the evidence - leads, in my view, to the inevitable conclusion - and I am satisfied beyond a reasonable doubt - that the accused was the driver of the vehicle that caused the damage to the complainant's Hyundai (13).
86 In this process of reasoning he did not describe Mr Jansen's evidence as positively identifying someone but simply as 'the driver matched the accused to a substantial extent'. The magistrate's summary of Mr Jansen's evidence shows that he did not elevate the evidence to a positive identification, and sets out the weaknesses in the evidence. In the manner in which he used the evidence, it was unnecessary to give himself a specific direction as to danger or the weakness of the evidence. The magistrate also had the advantage of observing Mr Zohar in the court and forming his own impression. There was no evidence that Mr Zohar looked materially different in April 2011 from February 2010. In summarising the evidence at the beginning of his reasons, he noted that Mr Zohar had told Constable Lassau that he was the only person who drove his Volvo station wagon 1COV-045, although he did nominate a person called Ali, who Constable Lassau could not find.
87 The magistrate did not use the evidence of Mr Jansen as positive identification of Mr Zohar. While in some circumstances the need for a warning might nevertheless arise, the manner of reasoning by the magistrate and the nature of the evidence did not require a warning in this case: Festa v The Queen (2001) 208 CLR 593 [56], [57].
88 Grounds 1 and 2 are dismissed.
Ground of appeal relating to the rejection of expert evidence
Ground 3A
The learned magistrate erred in fact in concluding that the evidence of Martin Simms that the appellant's Volvo could not have caused the damage to the Hyundai was unreliable.
89 If Mr Zohar's Volvo was not physically capable of causing the damage to the Hyundai or there was a reasonable possibility that it was not capable, then the magistrate should have entertained a reasonable doubt about Mr Zohar's guilt. To do so he had to reject the evidence of Simms.
90 The magistrate noted that on 2 February 2010 the Volvo had no damage to its back bumper or rear tail light when Mr Smith took
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- photographs of it. On 8 March 2010 when Mr Parente repaired it, there was damage to the right rear bumper and tail light in an area consistent with the point of impact as described by Ms Cesca.
91 The magistrate dealt with the evidence of Mr Simms as follows:
Martin Simms gave evidence that the damage to the Hyundai could not have been caused by the Volvo, but his opinion was based on photos and they can sometimes be misleading. An example of that was his contention, during the course of evidence, that he thought the photo taken of the Hyundai on 24 February 2010, which is the day in question, indicated damage to the Hyundai had not been caused - or much of it had not been caused - on that day because he could see rust on the photos. On all the evidence before me, clearly all the damage to the Hyundai was caused on 24 February 2011 (sic) and nobody suggested otherwise.
Mr Simms did not see the Volvo of the accused before it was repaired. In fact, it seems he was never even told it had been damaged. His evidence as to the likely damage to the Volvo was contradicted to a degree by Smith and Gifford. So they are, on my view, aspects of Simms' evidence which make it unreliable (ts 12).
92 The magistrate summation of Mr Simms' evidence about rust is not accurate. What Mr Simms said was:
If you look in this whole area here, there appears to be areas where the paint has been removed almost back to the metal, and those areas appear to me to be rusty. I would need to see the digital originals. They seem to be rusted, which struck me as being somewhat curious that it would go rusty in that period of time.
Could the witness be shown exhibit 14, please.
HIS HONOUR: Are you suggesting that the damage might not have been done on the day on which the photos were taken?---The possibility that there was some pre-existing damage did occur to me, your Honour (ts 26).
93 Under cross-examination he was asked:
Getting back to this previous damage you think you saw on the i30 because of rust or whatever, did you advise defence counsel that that was your view?---No, I didn't because that was in fact a view that I didn't form until I saw the better quality photos. The photos I had were very poor quality (ts 45).
94 Despite the inaccuracy, the magistrate's conclusion on the unreliability of Mr Simms' opinion remains valid. As the magistrate accepted the evidence of Mr Travers that his vehicle was only three
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- months old and had been undamaged before the accident, then the magistrate is correct in his comment that photographs can be misleading.
95 Importantly, Mr Simms prepared his report on an erroneous assumption. The assumption was that the photographs taken of the white Volvo by police were taken at the time of the accident. No change is shown in them. This was an incorrect assumption as Mr Parente had repaired the vehicle before Constable Lassau took the photos. Mr Simms said:
Apart from that, given the description of the relative violence of the impact, the severity of the impact, based on the witnesses that I've heard, it's my view that the Volvo, as I saw it and as depicted in these photographs couldn't have done the damage to the Hyundai without sustaining more damage to itself, regardless of Volvos being superior or whatever (ts 34).
96 He had not done any tests on a Volvo V70 to measure how much the bumper will travel upwards when a car is reversing.
97 Mr Gifford would have expected to see damage to the bumper, would definitely have paint missing and maybe some indentation. He explained that being a high impact plastic it tends to pop back out again once its been hit.
98 Mr Parente, who repaired the Volvo bumper, gave evidence of an indentation and that paint had come off the bumper. He repainted the bumper where the primer had been exposed.
99 Mr Smith, a panel beater with experience of Volvo V70s had inspected Mr Zohar's Volvo prior to the accident. His evidence was if it was involved in a traffic accident involving a hard knock, you would find 'that the bumper would stay intact. It will flex in and then just come out to its original shape'.
100 Mr Simms did not inspect the Volvo immediately after the accident. He principally replied on photos taken after the Volvo had been repaired and of other people's descriptions which he had heard in court. In other words, his opinion was not formed by direct observation or experiments to test his contention about the degree to which a Volvo's body might be raised when travelling in reverse.
101 The same can be said for his opinion about the damage to Mr Travers' Hyundai. He did not inspect it. Rather, he relied on
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- photographs, some of which, by reason of his reference to possible rust, demonstrates that photographs can be misleading.
102 There was contrary evidence to that of Mr Simms as to the cause of the damage and it was open for the magistrate to reject the evidence of Mr Simms and prefer the opinions of the witnesses to the contrary. The magistrate explained his reasons for rejecting the evidence of Mr Simms and his explanation is supported by the facts. His conclusion that Mr Simms' evidence is unreliable is not glaringly improbable or contrary to compelling inferences: Fox v Percy (2003) 214 CLR 118.
103 On my review of all the evidence, transcript and exhibits, there is nothing that points persuasively to error by the magistrate in his categorisation of the evidence as unreliable.
Unreasonable verdict
Ground 3:
A miscarriage of justice was occasioned by the fact that the verdicts of guilty upon which the convictions are based was unreasonable or cannot be supported, having regard to the evidence.
Particulars
Upon the whole of the evidence it was not open to the learned Magistrate to be satisfied beyond reasonable doubt that the appellant's white Volvo was the white car that caused the damage to the complainant's car as alleged by the prosecution, or that the appellant failed to stop contrary to s 55(1) of the Road Traffic Act 1974.
104 There was direct evidence or alternative evidence by which an inference could be safely drawn that:
• The vehicle parked in bay 8 of the car park (Mr Travers' bay) was a white Volvo station wagon.
• Ms Cesca made a transcriptional error and the actual number plate of the vehicle was 1COV-045.
• Mr Zohar was registered (with his wife) as the owner of a vehicle with registration number 1COV-045. That vehicle was a white Volvo station wagon.
• Mr Zohar was the only person who drove that vehicle.
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- • The description of the driver to be given by Ms Cesca and Mr Jansen was generally consistent with, and more importantly not inconsistent with, Mr Zohar as the magistrate observed him.
• The Volvo had no damage to the rear prior to the incident.
• After the incident the Volvo had a small dent, probably the size of a tennis ball, to the rear bumper, the rear bumper moulding had dislodged itself and the rear tail light had a slight crack on the lens on the right hand side. There were a few scratch marks on the bumper where primer beneath had been exposed.
• The Hyundai tyre had scuff marks.
• Whatever hit the Hyundai ran up over the tyre causing the damage.
• There was an acceptable basis for the magistrate to reject the opinion evidence of Mr Simms as unreliable.
105 The conclusions drawn by the magistrate were open and the finding of guilt is reasonable and supported. The appeal is dismissed.
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