H v Police HC Christchurch CRI 2008-409-221
[2009] NZHC 1095
•21 August 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2008-409-000221
H
Appellant
v
POLICE
Respondent
Hearing: 17 August 2009
Counsel: K H Cook for Appellant
M N Zarifeh and C E Butchard for Respondent
Judgment: 21 August 2009
JUDGMENT OF FOGARTY J
Introduction
[1] Brougham Street is a busy southern ring-road in the city of Christchurch. It has a busy intersection with Opawa Road which feeds in traffic from the central business district travelling in a south-easterly direction towards the eastern suburbs.
[2] Just before the intersection of Opawa Road and Brougham Street is a small side street to a few warehouses called Raycroft Street. It intersects with Opawa Road just upstream of the light controlled intersection with Brougham Street, and
very pertinently for this case upstream of that part of Opawa Road which is divided
H V POLICE HC CHCH CRI 2008-409-000221 21 August 2009
into two lanes for the purpose of queuing cars at the lights. Otherwise, Opawa Road is a single lane each way.
[3] On 23 November 2007 the intersection was busy. Cars on Opawa Road waiting for the lights were backed up past Raycroft Street potentially blocking any ability to exit Raycroft Street onto Opawa Road. Mr H wanted to turn right out of Raycroft Street away from the intersection with Brougham Street and so in the opposite direction to the cars queuing at the Brougham Street lights. Seeing what he was trying to do one of the queuing vehicles, a white van, backed up to create a space in the queue through which he could pass. However, Mr H did not see that on the other side of this queue of cars were other cars moving past the static queue in the space between the queue and the centre line to access the right hand queuing lane at the lights. As he came through the gap in the queue he collided with a vehicle driven by Ms McLean.
[4] Mr H was charged with careless operation of a motor vehicle causing injury. The question was whether when executing that right hand turn he was careless. The disputed issues were whether or not Mr H was careless in not seeing Ms McLean’s vehicle; and in that context whether Ms McLean was performing an illegal manoeuvre; or was moving too quickly; or whether Mr H was moving too fast; or whether his vision was obscured by the white van yet he proceeded.
[5] The Judge found that Mr H was careless for the obligation was on him to ensure that the way was clear before he executed that turn. He was not entitled to rely on what was usually the case at that particular intersection and his past experience of making right hand turns in these conditions. He had to ensure that the way was clear. The way was not clear because a collision took place.
[6] Judge Costigan was satisfied that his carelessness was not of a minimal nature and was in effect the cause of the accident. There was then imposed a mandatory disqualification for a minimum period of six months, a fine of $300 and an order to pay Court costs of $130.
[7] Mr H appeals to set the conviction aside on the basis of the appearance of bias arising from the trial Judge’s intervention to counsel at the beginning of the defence case whereby she gave the appearance that she had closed her mind to the evidence of the defence witnesses and had predetermined the issue by accepting the witnesses for the informant and was querying why the case was being defended.
[8] To some extent Mr Cook’s argument was also contending that in fact the Judge had closed her mind to any possible merit in the defence evidence before it was called.
The apprehended bias test
[9] The Supreme Court in Saxmere Company Limited and Ors v Wool Board Disestablishment Company Limited [2009] NZSC 72 has recently confirmed the decision of the Court of Appeal in Muir v Commissioner of Inland Revenue [2007] 3
NZLR 495 (CA) bringing the New Zealand test for apparent bias in line with the
United Kingdom and Australian tests. Blanchard J reasoned:
[3] There was no disagreement before us concerning the test for apparent bias. After some semantic differences, the test in the United Kingdom and the test in Australia have become essentially the same. In Muir v Commissioner of Inland Revenue, the Court of Appeal brought New Zealand law into line. In the Australian case of Ebner v Official Trustee in Bankruptcy the leading judgment was given by Gleeson CJ and McHugh, Gummow and Hayne JJ. They stated the governing principle that, subject to qualifications relating to waiver or necessity, a Judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. As that judgment proceeds to observe, that principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal (in the present case, the Court of Appeal) be independent and impartial. Unless the judicial system is seen as independent and impartial the public will not have confidence in it and the judiciary who serve in it.
[10] I will have occasion to refer to other passages in Saxmere in the course of the reasoning. But it is convenient at this point to set out the method to be followed as contained in paragraph [62] of the judgment of the Court of Appeal in Muir:
[62] In our view, the correct inquiry is a two-stage one. First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay-observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case. This standard emphasises to the challenged judge that a belief in her own purity will not do; she must consider how others would view her conduct.
[11] It may also be noted at the outset that the argument in this case calls for a further elaboration of the first stage of the enquiry. It was necessary during argument to keep in mind the distinction between a description of the exchange between Judge Costigan and counsel for the defendant, Ms Cole, as would be understood by a practising advocate, as distinct from a description as would be understood by a fair minded lay observer.
[12] The need for this distinction was also partly because of the secondary thread of Mr Cook’s argument that Judge Costigan had actually closed her mind before the defendant’s case, and in this regard he relied on some of the phrasing of her discussions with Ms Cole which may not have been interpreted by a lay observer in the way it would be understood by Ms Cole as counsel.
The appellant’s argument for apparent bias
[13] Annexed to this judgment are pages [34]-[36] of the notes of evidence being the exchange between Judge Costigan and defence counsel, Ms Cole, at the end of the prosecution case, which is the basis for the appellant’s case.
[14] Mr Cook relies upon numerous aspects of this dialogue. Firstly, he relies on the Judge delivering what he described as a lengthy monologue after hearing only two brief sentences by counsel for the defendant. He relied on the strong language indicated by the following phrases:
With respect we have just heard evidence entirely contrary… . The witness who I found to be an excellent witness… .
There’s a clear prima facie case… .
I am rather surprised at the way the matter has proceeded.
In respect of that remark Mr Cook also relied on the very first statement the Court made before the case started:
Can I, I’m just a little bit puzzled about the status hearing certificate. You’ve indicated the defendant was present, there was a crash, there was an injury, when you say he is present, is it an issue that he was drive (sic).
In that regard Ms Cole had answered no, that the issue was whether he was driving carefully and prudently to which the Court had agreed, yes.
[15] Both counsel agreed that it became apparent at the end of the monologue to both the Judge and counsel and to a lay observer that Judge Costigan had mistakenly thought that Ms Cole was making an application of no case.
[16] Part of Mr Cook’s argument is that even while addressing what in her mind was an argument of no case the Judge had used too strong a language showing she was not going to listen to evidence to the contrary. In that regard he also relies on the passage on page 35, line 20:
… you’re suggesting something that is not consistent with the evidence that has already been given and that’s why I’m finding it very confusing to follow the way that you’re presenting matters.
[17] Mr Cook submitted that if there is any doubt as to apparent bias Judge
Costigan crossed the line in that passage.
[18] He pointed out that during the police case a witness had been cross-examined on the basis of opposing evidence to be called.
Submissions of counsel for the respondent
[19] Mr Zarifeh argued that the observer would have noted that the Judge had said “sorry” about the confusion and he interpreted the passage on page 35, lines 19-22, which Mr Cook said “crossed the line” as being the balance of what the Judge had intended to say when beginning with the word “sorry” before she had been
interrupted. Although he acknowledged that the statement of Judge Costigan also reflected that interruption.
[20] He argued that the lay observer would have viewed the whole exchange as part of the process whereby the Court and Ms Cole were sorting out what was going on at this stage, namely, it was an effort by defence counsel to make an opening rather than arguing there was no case to answer and criticisms by the Judge as to the manner by which she was doing it. He argued that the passage on page 36 from line
15 was in the same category.
[21] Mr Zarifeh also argued that the test of apparent bias in this case has to be judged in the light of the whole experience of the lay observer who has sat through the case hearing the evidence up to this point, and after this exchange, hearing the evidence called by the defence and the oral judgment which followed. Taking all that into account he submitted that a contention of apparent bias was not made out.
Analysis
[22] As part of the first stage exercise I listened to the tape recording of the exchange. Counsel had previously listened to the exchange and confirmed that the transcript was accurate. The reason I listened was to form some judgment as to the tone of Judge Costigan. It was calm and even-tempered.
[23] I also made it part of my exercise to understand thoroughly the factual circumstances of the events leading to the collision, as I have set out at the beginning of the judgment, these being circumstances as they would be understood by the lay observer. This is one of the reasons why I have set out the facts at the start of the judgment in a slightly different way than they are summarised by Judge Costigan in her oral judgment.
[24] The evidence did not come out clearly but at the end of the police case I think that picture as set out at the beginning of this judgment would be apparent to the lay observer. At the end of the prosecution case and before that exchange the lay observer would have understood clearly that Mr H was attempting a difficult
manoeuvre threading through a queue of traffic to make a right hand turn on a busy highway and that a collision occurred. There was no suggestion that Ms McLean’s car was going particularly quickly.
[25] At a minimum the lay observer watching the exchange at the end of the police case would have appreciated:
1. The Judge and counsel were at odds with one another.
2. The Judge thought that the police case was very strong.
[26] Less certain is whether the lay observer picked up on the significance of
Ms Cole’s final remark:
Yes ma’am, and I’m sure I don’t need to remind Your Honour of it has to be proven by the prosecution –
The Court
I’m fully aware of that Ms Cole.
[27] To the Judge and to any lawyers watching that was a very severe step to be taken by counsel in a Judge alone case, to remind the Judge of her basic duty. As is the way between Judge and counsel it was, to a degree, a coded statement. I think on balance the lay observer would have appreciated that Ms Cole was making some kind of complaint or exercising some kind of check over the trial Judge. In Saxmere Blanchard J said:
[5] The fair-minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision. He or she must be taken to be a non-lawyer but reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias. Lord Hope of Craighead commented in Helow v Secretary of State for the Home Department that:
before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that
the context forms an important part of the material which she must consider before passing judgment.
[6] The elaboration of the features of the objective observer is, as Kirby J remarked in Smits v Roach, a reminder to judges, the parties and the community reading their reasons that the standard that is applied is not simply the reaction of the judges to a particular complaint:
It is, as far as it can be, an objective standard: one aimed at emphasising the undesirability of idiosyncratic and personal assessments of such matters. As the cases show, in such decisions different judges can reflect different assessments and reach different conclusions. The fact that this is so should make contemporary judges aware that, ultimately, they themselves have to shoulder the responsibility of reaching conclusions on the point and giving effect to them. They cannot ultimately hide behind a fiction and pretend that it provides an entirely objective standard by which to measure the individual case.
The courts must be careful not to subvert the hypothesis by ascribing too much legal knowledge to the lay observer. To do so might mean that justice is not both done and seen to be done by a notional representative of the public. On the other hand, if the court does not impute to the observer some knowledge about how barristers and judges commonly interact it may arrive at a hypothetical opinion of a hypothetical observer which does not reflect reality.
…
[8] The observer must also be taken to understand three matters relating to the conduct of Judges. The first is that a judge is expected to be independent in decision-making and has taken the judicial oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”. …
[28] I also take into account that the lay observer keeps in mind that this is an exchange between professionals, counsel and the Judge, and that the Judge is very unlikely to have a closed mind half way through a case. In Muir, the facts were entirely different, but the Court of Appeal had occasion to find what the reasonable observer can be taken to know about a Judge. I quote relevant extracts from paragraphs [95] and [96] of that judgment:
[95] … The reasonable observer can be taken to know that the Judge has taken a judicial oath to hearken only unto the evidence. …
[96] … The informed observer will not, for instance, lightly accept that a Judge has put aside his or her professional oath, or indeed his or her professional training (for as everybody knows, a vast amount of time in litigation is taken up with sifting and weighing “facts” in evidence).
[29] Keeping these considerations in mind I think the lay observer while noting the confusion between the Judge and counsel would have noted the apology by the Judge and have seen that while the Judge was of a clear view that there was a very strong case that nonetheless the Judge was prepared to listen to evidence contrary to the evidence which had already been led, albeit with some degree of scepticism as to what might be achieved.
[30] Thereafter the case proceeded without any significant intervention by the Judge, certainly only one that Mr Cook relied on. This was a response of the Court to a line of questioning suggesting that the action of Ms McLean in moving alongside the queue of traffic to access the right hand queuing point painted on the road up ahead was an illegal manoeuvre. The Judge said in the course of dealing with an objection to cross-examination of a defence witness inter alia:
I’m just not quite sure on what premise your client or the defendant keeps indicating this was an illegal manoeuvre. It seems to be a somewhat of a fixation about that, but with all due respect Ms Tehemi gave evidence as, and I think in quite a cogent way, it’s exactly the way in which people do position themselves as they approach to get ready to make the turn and that’s what she was doing.
(Ms Tehemi was accessing the right hand queue because she intended to make a right hand turn.)
[31] So the lay observer would have seen two defence witnesses being called, the defendant and Mr Quartley and a few questions asked of them by the Court. In short, the observer would have seen the Judge hear the evidence of the defence. Last, and not least, the observer would have listened to the judgment.
[32] Now, of course, as was canvassed between myself and Mr Cook in oral argument there may be cases where the observer is so convinced half way through a hearing that the Judge is of a closed mind that the subsequent conduct would not displace that apprehension of bias. The decision of Antoun v The Queen (2006) 159
A Crim R 513 (High Court of Australia) is an illustration of that.
[33] In Antoun, the appellants had been convicted of demanding money with menaces following a trial before a Judge alone. They appealed unsuccessfully to the
Court of Criminal Appeal and on a further appeal to the High Court submitted that the trial Judge’s conduct prompted an apprehension of bias. Very briefly, the facts were that a Mr Savvas owned a nightclub at Darling Harbour in Sydney. He needed to make proper arrangements for security and that was provided by a firm unconnected to the appellants. However, he was approached by one of the appellants who offered security services and over a course of visits pressed those security services on him and then demanded $8,000 as a sum owing to the appellants for security services provided! The issue was whether or not the subsequent events amounted to demands for money with menaces. A wire was placed on Mr Savvas and a dialogue which would justice to a B movie was obtained. The trial Judge was told by counsel at the end of the Crown case that they intended to argue there was no case to answer. The relevant exchange was very simple:
Mr Steirn: Well your Honour there will be an application tomorrow for no case to answer.
His Honour: I see, well that application will be refused. So how long then will the defence case take?
Mr Steirn: How can your Honour possibly come to that view without having heard one word from either me or Mr Wilkinson?
His Honour: Because I’ve closed the Crown case, and I have just said it.
Mr Steirn: But you’ve heard not one word of any submission by either of us upon either the law or the fact.
His Honour: No, I’m simply telling you the application will be refused. I perceive what’s in the Crown case, I perceive there’s a case to answer. Whether it be answered or not is entirely for –
Mr Steirn: Might I ask your Honour to stay your Honour’s judicial hand –
His Honour: All right –
Mr Steirn: – until such time – and please let me finish. Until such time as you’ve heard submissions by both defence counsel.
His Honour: Right, now when I’ve heard those submissions will you be in a position to proceed with the defence case?
Mr Steirn: Does that mean by that comment your Honour that your Honour has already considered the position without a word of submissions by –
His Honour: I’ll consider any submission you put. I’m obliged to consider any position you put.
[34] It got worse the next day. The Judge refused to disqualify himself by reason of the exchange and in the course of refusing to disqualify himself made it clear that:
… I have a very, very firm view that as a matter of law, and I am after all in this tribunal not only the tribunal of fact but the tribunal of law, that as a matter of law an application for a no case cannot succeed in this particular trial.
And so it went on. In due course a submission of no case was put forward and rejected.
[35] So in that case it was apparent before the argument was even presented, utterly apparent, that the Judge was going to reject it.
[36] Neither counsel suggested in this case that Antoun was, on its facts, a guide to the disposal of the issues before me. However, Antoun is in my view a relevant contrast to the circumstances relied upon here.
[37] I think that Mr Zarifeh was entitled to ask the Court to take into account not only the exchange at the end of the police case but, that the evidence leading up to that exchange showed that the police case was strong. Second, that the evidence led after the exchange was listened to by the Judge. And, third, that the Judge gave a reasoned and balanced oral judgment finding the case proved, the reasons of that judgment addressing the evidence advanced by the defence.
[38] In my view it was entirely appropriate for the Judge to say “sorry” when she realised that counsel was not arguing there was no case to answer. Second, and this is to me the crux of the case, I agree with Mr Zarifeh’s characterisation of the subsequent comments by the Court, after she was interrupted in her apology. To be sure, taken grammatically there is a suggestion the Court is criticising defence counsel for intending to call evidence inconsistent with the police case. But she does go on to explain, having heard what the evidence would be, that counsel should keep in mind there is evidence contrary to the evidence defence counsel proposes to adduce. She does not say she would not listen to it. To the contrary she says:
… so perhaps we’ll leave it at that.
(Page 36, line 22)
[39] In my view these comments by the Judge dissipate any reasonable apprehension that she had a closed mind by reason of the “monologue”. Rather than exacerbating the situation, as Mr Cook argued they mitigate against the impression that could have been created had nothing more been said.
[40] Mr Cook emphasised that the test for apparent bias has a low threshold inasmuch as it is sufficient if a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide (see above Saxmere para [3] quoting the High Court of Australia in Ebner).
[41] In this respect it is important, as Mr Zarifeh emphasised, to be very careful about the context within which this judgment is made. He argued for a context of the whole case, not just a focus on the exchange between Judge Costigan and Ms Cole at the end of the police prosecution. I think he is right. When the case is considered as a whole upon the assumption that the reasonable lay observer is someone sitting through the case, I do not think there is such a real possibility.
[42] In this respect it is interesting to note that the law presumes that the fair minded lay observer will understand that Judges are entitled to and will form tentative views which they may express quite robustly in the course of a case (one of the frailties of formulating the test of apparent bias on the judgment of the reasonably informed observer is that the law defines this observer as a person having quite a sophisticated understanding of the judicial function).
[43] Numerous dicta could be quoted on this aspect of the ability to perform tentative views and express them robustly in the course of a case. This aspect of the law was not really raised in the cases of Muir and Saxmere, which were financial interest cases. The best discussion I have seen in the authorities placed before me in this case is in the various judgments of the High Court of Australia in Antoun, though the point is noted in Muir at para [63]. In Antoun the Judges discussed at
what point the line is crossed between the expression of tentative views in a forthright and strong fashion and the failure to discharge functions properly, lawfully and fairly. Kirby J said:
29A line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings. Sometimes, that line will be hard to discern. But, in this case, I agree with the other members of this Court that the trial judge crossed it.
[44] Callinan J, who wrote the principal judgment, said:
81Judges, unlike juries, are bound to give reasons for their verdicts. It may also be expected that a judge sitting alone might conduct the trial with a little less formality than if a jury were present, and might also express himself more directly in that event. Counsel too, may choose in such a case to frame both their questions and submissions differently, and to a more expeditious and expedient end in those circumstances. Judges are, unlike jurors, schooled by legal education and practice, to separate the facts from the law applicable to them, even though the latter may not be able to erase the law from the mind of the judge when he decides the facts. Judges can and do form preliminary views, sometimes quite strong ones. They should understand however that those views must not be fixed ones. From the first day of a prospective lawyer’s education, and throughout a practitioner’s and a judge’s professional life, the importance of actual and apparent fairness, and the need for actual and apparent abstention from prejudgment are repeatedly stressed. The aphorism, that justice must not only be done, but also must be seen to be done, remains true.
[45] Gleeson CJ said:
22Judges do not have to devote unlimited time to listening to unmeritorious arguments. Sometimes, a brief hearing will suffice. Judges may anticipate events at trial, and foresee lines of argument that may be developed. Here, the appellants made it clear from the outset that they hoped to be able to secure acquittal without giving evidence themselves. Perhaps the judge felt indignant about the conduct disclosed by the evidence, or about the tactics adopted by the appellants. Indignation is a natural reaction to some facts that are disclosed, or some events that occur, at a criminal trial or, for that matter, on an appeal. It should never be permitted to compromise the appearance of impartiality that is required of judges.
[46] As all the Judges note, care, of course, has to be maintained to not compromise the appearance of impartiality. This also does not mean that one can
have a closed mind but pretend that it is open. That said, on the other side of the line, it is quite permissible for a trial Judge, sitting without a jury, to indicate to counsel the evidence that is impressing him/her in quite robust terms. It is a form of judicial candour which alerts counsel to the areas of the case that need to be focussed upon if they are to succeed on behalf of their clients.
[47] When one builds into this hypothetical lay observer that understanding, then the robust remarks of Judge Costigan do not, considered in the totality of the case, raise a judgment in the mind of the lay observer that she might have closed her mind to there being any merit in the defence case so that she did not listen and consider the merit of the evidence presented by the defence.
Actual bias
[48] Mr Cook’s written submissions, in their introduction, appear to raise this as a ground:
The Judge has predetermined the issue by seemingly accepting the witnesses for the informant and, importantly, querying why the case is being defended.
[49] In fact, the bulk of his argument was directed, and quite properly so, to the argument as to a basis for the appearance of bias. In my view Mr Cook’s argument did not address adequately the authorities that I have just canvassed on permitting and indeed recognising that a trial Judge will form views in the course of the evidence which he/she may well and arguably ought to communicate to counsel. Normally this is done in a more coded fashion by Judges. However it is done, experienced trial counsel are usually not in any real doubt in the course of the case as to which parts of the evidence are impressing the Court and gaining traction for one or other of the parties. At the end of the day it is more helpful for counsel to know this in a Judge alone trial, than for the Judge to sit mute and expressionless concealing how the evidence is in fact affecting her.
[50] Considering the totality of the evidence, in my view, the appellant has not made out a case of actual predetermination. I think what the transcript records, and I heard, was a very robust expression by Judge Costigan of the strength of the police
case, but nonetheless a clear understanding of her duty to and ready acceptance of the responsibility to hearken to the evidence of the defence before making a determination.
Conclusion
[51] The appeal is dismissed.
Solicitors:
K H Cook, Christchurch, for Appellant
Raymond Donnelly & Co, Christchurch, for Respondent
DEFENCE:
MS COLE
Ma’am, it’s submitted by the defence in this matter that Mr H who acknowledges was the driver of the Subaru vehicle took all the precautions he could of. He was a reasonable and prudent driver.
THE COURT
With respect, we’ve just heard evidence entirely contrary and the Court can’t ignore what was quite cogent evidence and he is making a right hand turn. The obligation is on him to give way and to make sure the way is clear before he executes his turn. It’s a pretty straight forward manoeuvre. The witness who I found to be an excellent witness has given details of observations as has Ms Tehemi of her concerns that she was hopeful that the defendant’s vehicle would not move forward. There’s a clear prima facie case against the defendant and I think given the extent of the evidence I have to say I’m rather surprised at the way the matter has proceeded. The defendant, his obligation when turning right is to make sure that the way is clear. He could not possibly have been aware of what was on the other side of the line of traffic because he didn't stop according to the evidence of the previous witness Mr McGinty who was very clear that he observed him driving in a manner in that he himself would not have driven in because of the very relevant factor that he couldn't see what was behind that first line of traffic there and exactly what he said would happen did happen, as the other witness also feared would happen if the defendant proceeded to make his turn. You’ve already established in your cross-examination of the complainant she wasn’t speeding. You’ve put her speed at quite a modest speed which she agreed at. So there’s no element of speed or aggravation established on the part of the complainant. She was driving in a position on the roadway as the other witness was which seemed to be quite clear that the road, as she put it, unzipped and that’s the way that the line of traffic goes. The defendant would have to be aware that the possibility of other vehicles behind the immediate vehicle would have to be checked. It’s quite a common situation. The primary obligation is on him and the informant only
needs to establish that his driving was an effective cause of the accident. He has got the primary obligation, he’s turning right. The other vehicles do not have that obligation and I think there seems to be some misunderstanding on your part in that regard. If you were trying to suggest there’s no prima facie case, there is a clear prima facie case against the defendant.
MS COLE
I’m not, I’m not at all suggesting there’s not a prima facie case. I agree that there is ma’am. Sorry, I was making my opening submissions.
THE COURT
Sorry, I thought you were suggesting that there was no –
MS COLE
I beg your pardon. I didn't make that clear Your Honour. Shall I continue ma’am.
THE COURT
Again, giving evidence instead of making an opening you’re suggesting something that is not consistent with the evidence that has already been given and that’s why I’m finding it very confusing to follow the way that you're presenting matters.
MS COLE
Ma’am, I’ll be calling two witnesses. One will be the defendant and one will be another witness who I argue was in the best position to see what went on and his evidence will be contrary to the evidence of Mr McGinty who says that Mr H moved out too quickly and his evidence will also be, it was very clear there was only one line of traffic travelling south toward Brougham Street, that it was later on that that traffic went to two lanes of traffic certainly well after the intersection ma’am, and that the driver of the Honda car, Ms McLean, was travelling on the outside of the line of vehicles straddling the other side of the road which was clearly an illegal manoeuvre and in my submission was something, well an extraordinary manoeuvre, which was
something that Mr H could not really have expected despite all the careful preparation. The evidence – Mr Quartly will give evidence that he saw, he was situated behind the white van, he saw the driver of the white van signal Mr H that the way was clear, he could cross the road.
THE COURT
That quite often happens in a situation of this kind but the obligation on the defendant is still primary regardless of whether other drivers signal him so I hope he’s not relying on that.
MS COLE
No, he’s not relying on that but in regards to that ma’am it’s my submission that the –
THE COURT
Well you haven't actually given the evidence yet. I think there’s a total confusion in the way that you're presenting this and I’m not trying to be difficult but I’m finding it very hard to – you seem to have a combination of giving evidence in the course of trying to do an opening. You don’t really need to, you’ve indicated what the evidence to be called is but you also must be aware that there is evidence contrary to the evidence that you propose to adduce, so perhaps we’ll leave it at that.
MS COLE
Yes ma’am, and I’m sure I don’t need to remind Your Honour of it has to be proven by the prosecution –
THE COURT
I’m fully aware of that Ms Cole.
MS COLE
In that case I will call my first witness Mr H .
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