Criminal law - Dangerous driving causing bodily harm - Verdict of acquittal in primary court - Role of an appeal court - Proper approach in dealing with inferences drawn from findings of fact - Whether sufficient weight given to failure to observe warnings - Whether findings upon credibility can displace incontrovertible facts - Collision could not be characterised as an accident - Conviction recorded by appellate court - Appeal allowed

Criminal Appeals Act 2004, s 14

Road Traffic Act 1974 (WA), s 59A(1)(b)

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Anikin v Sierra [2004] HCA 64

Becker v Roberts (1997) 27 MVR 193

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Devries v Australian National Railways Commission (1993) 177 CLR 472

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

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Hancock v Cox (1993) 19 MVR 137

Kaighin v The Queen (1990) 1 WAR 390

Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140

Pledge v Roads and Traffic Authority [2004] HCA 13

R v Syme, Reynolds & Williams; Ex parte Page [1970] WAR 153

Van Der Laan v Warchot [2006] WASC 229

Verhoeven v Ninyette (1998) 101 A Crim R 24

Vrisakis v Australian Securities Commission (1993) 9 WAR 395

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

1 The appellant, Benjamin Murray Lucas, obtained leave to appeal against a decision given in the Magistrates' Court at Midland whereby the respondent was acquitted in respect of a charge brought pursuant to provisions of the Road Traffic Act 1974 (WA). The appeal concerns the nature of dangerous driving. It also brings into issue the proper approach to be adopted by an appeal court in dealing with inferences drawn from findings of fact made by the primary court.

2 The respondent, Valerie Iris McPherson, was charged pursuant to a prosecution notice that on 17 January 2006 at Ellenbrook she drove a motor vehicle on a road, namely, Arbor Drive, in a manner that was, having regard to all the circumstances, dangerous to the public or any person and was subsequently involved in an incident occasioning bodily harm to Douglas Peter Crawford contrary to s 59A(1)(b) of the Road Traffic Act.

3 The provision in question states that a driver commits an offence if a motor vehicle driven by the driver is involved in an incident occasioning bodily harm to another person and the driver was, at the time of the incident, driving the motor vehicle in a manner (which expression includes speed) that is, having regard to the circumstances of the case, dangerous to the public or to any person.

4 The offence the subject of the prosecution notice in the present case is known as dangerous driving causing bodily harm. Section 59A(4) provides that an accused may be convicted of alternative offences pursuant to s 61 (dangerous driving) and s 62 (careless driving).

5 The matter was brought on for hearing before Magistrate Edwards at the Magistrates' Court at Midland on 12 October 2006. The respondent was represented by counsel and entered a plea of not guilty to the charge.

6 The events giving rise to the charge arose out of a collision at the intersection of Arbor Drive and another street known as Broadway, although it was also referred to as The Boulevard. For ease of reference, as did the Magistrate, I will refer to the latter avenue throughout as Broadway. Both streets were dual carriageway streets, with the intersection in question being located in the suburb of Ellenbrook.

7 It was common ground at the hearing before me that on 17 January 2006 the respondent, Ms McPherson, was driving her Mazda hatchback sedan on Arbor Drive in an easterly direction, having just dropped off her grandchildren at their home. This was somewhere between 6.15 pm and 6.30 pm. On her approach to the intersection, she observed a warning sign advising motorists that the intersection had been modified. She said that this caused her to slow down and exercise care. I will come to the details in that regard later.

8 It was common ground that, on the respondent's approach to the intersection, there was also a sign situated on a median strip in Arbor Street at the intersection instructing motorists in Arbor Street to give way. Further, there was a broken or dotted line indicating that motorists entering the intersection from Arbor Street should give way to traffic on Broadway. In the course of her evidence, the appellant admitted that she did not see the give way sign or the dotted line.

9 The respondent entered the intersection with a view to turning right so as to drive south along Broadway. There was then a collision between the respondent's vehicle and a silver Holden Commodore sedan which was being driven by Tiffany Crawford and which was travelling in a southern direction on Broadway. This meant that Ms Crawford's vehicle was approaching the left hand side of the respondent's vehicle.

10 It was common ground at the hearing before me that there were two passengers in Ms Crawford's vehicle, namely, Douglas and Andrew Crawford. Douglas Crawford suffered bodily harm as defined in the Criminal Code (WA) as a result of the collision.

11 The prosecutor led evidence from Ms Crawford to the effect that she was driving at approximately 60 kph at the time of the collision. She said that as she was coming up through the intersection she was looking right to left but saw nothing and then something hit her vehicle. Airbags inflated. She could see "the lady's car roll just in front of me" but at the time she did not really know what had happened or that she had been hit by a car. She said that she did not see the car. She added: "I didn't see it coming from anywhere". Her son was taken in an ambulance to Princess Margaret Hospital and treated for injuries to his face and mouth.

12 Under cross-examination she acknowledged that she did not slow her vehicle. This was because she was within the speed limit and she was not subject to a give way sign. She agreed that the right front of her vehicle collided into the left passenger door of the other vehicle involved in the collision. As far as she was concerned the incident happened entirely out of the blue.

13 Jeffrey Robert Bennett gave evidence to the effect that he was travelling north in his vehicle along what he called the main street in Ellenbrook and saw a car come from the left. He said that (t/s 9):

"It didn't slow down. It went straight through a give way sign and collected a Commodore coming the other way, in the side."

14 Mr Bennett said that he observed this from a position which was probably 40 - 50 metres before the intersection. Under cross-examination he said that may be a couple of seconds elapsed between the time when he first saw the Mazda (that is; the respondent's vehicle) and the time that the Mazda first entered into the intersection. It did not appear to him that the Mazda was slowing down as it entered the intersection. He thought that it was doing about 50 - 55 kilometres per hour.

15 The prosecutor also led evidence from Cherie Angela Simpson. She said that on the day in question she was travelling on Broadway, about to turn left onto Arbor Drive, and in front of her she could see a Holden Commodore approaching as she (Ms Simpson) went to turn left into Arbor Drive. Ms Simpson saw the respondent's vehicle about to turn right onto Broadway and she then realised the two cars were going to collide. She looked over her shoulder and saw them hit, and then turned around to attend the accident scene. She was about 20 metres to the left of the intersection at the time of the collision. She saw the Mazda slowing as it entered the intersection but it did not look like it was slowing enough to stop. It appeared to her that the Commodore was approaching at what looked to be about 60 - 65 kph and was going to go straight through the intersection because it had the right of way.

16 Ms Simpson was cross-examined about various features of the landscape that might have interfered with her view. She continued to assert that she had a clear view of the respondent's vehicle because it was to her left as she turned into Arbor Drive while the respondent's Mazda was turning right into Broadway. Basically, the two vehicles passed each other.

17 Police Officer Mark Hopkins described his attendance at the scene of the collision at about 6.32 pm on the day in question. He saw two vehicles on the south east corner of the intersection being a grey Mazda and the other one being a silver Commodore. He identified the drivers of the respective vehicles. He was also taken through certain photographs. He described a give way sign positioned in Arbor Drive close to the intersection, so that it would be facing traffic on Arbor Drive as such traffic approached the intersection. He was taken through various photographs depicting the damage to the two vehicles. He agreed under cross-examination that the photographs showed essentially frontal damage to the Commodore and side damage to the respondent's Mazda.

18 Under cross-examination, Police Officer Hopkins confirmed that at the time, travelling up Arbor Drive towards the intersection, there was a give way sign on the median strip and a dotted line on the road. There was no give way sign on the left hand side of Arbor Drive. Later, after the collision, a give way sign was erected on the left hand side of Arbor Drive.

19 Police Officer Benjamin Lucas, being the appellant in these proceedings, described the investigation he undertook. Under cross-examination he agreed that in early December 2005 there had been a reconfiguration with the result that Broadway was extended so that what had previously been a T-junction became a four-way intersection. As to traffic approaching the intersection along Arbor Drive there was only one single give way sign erected in the centre traffic island or median strip as such traffic approached the intersection.

20 The respondent gave evidence to the effect that at the time of the hearing before the Magistrate she was 63 years of age and was a school principal. She had been driving for 45 years but had not committed any offences. She referred to the reconfiguration of the road layout so as to create the intersection which was in existence as at 17 January 2006.

21 The respondent said that at about 6.15 pm on that day she was driving her grey Mazda 323 hatchback in an easterly direction along Arbor Drive towards the intersection with Broadway. On the approach to the intersection there was an incline so that the base of Arbor Drive was quite a deal lower than where the intersection occurs. Moreover, there was a change in the road colour of Arbor Drive because it started off in that vicinity in a brownie colour bitumen, went into brick paving, and then became a dark bitumen as it got into the intersection.

22 The respondent said that on the day in question in coming up Arbor Drive she saw on the left hand side a large sign, black lettered with a yellow background, saying that there was a "modified intersection ahead". She assumed this meant that the road had been extended. This caused her to take more care than she would normally take at the intersection. As she approached the intersection she was travelling at about 50 kph but she slowed coming into the intersection. It was a dual carriageway and she was keeping to the left. She was going to turn right so she moved slightly to the right hand side in preparation for the turn. She said that she did not see any signage regulating the intersection. She said that the sun was getting low on the horizon. It was quite a clear day and there were quite low shadows cast across the road. She looked to the left and could not see anything coming. She looked to the right and could see a car turning into Arbor Drive and another car a long distance down on Broadway, so she knew that she was safe on that side.

23 The respondent went on to say that she looked again to the left. She could not see anything coming so she proceeded slowly out into the intersection at an estimated speed of between 30 and 40 kph. She said it was a wide intersection. As she pulled out she looked to the right because that was the first part that she was going over and there was a car on the right approaching although still a fair distance away. When she got to approximately where the median strip was, and looked to the left, a car was there. She knew that nothing could be done because she could tell that the driver had not seen her. She knew there was going to be a collision. The collision then happened. The other vehicle struck her left passenger side and pushed her in a southerly direction on Broadway until she mounted the kerb.

24 The respondent was then taken through some evidence concerning her return to the scene of the incident after the accident, on 12 April 2006, on which occasion she took various photographs of the scene. In this part of her evidence she acknowledged that there was a give way sign on the median strip on Arbor Drive although she did not see the sign at the time of the accident. She agreed that she did not see any dotted lines across the road as she approached the intersection on the day in question. By reference to the photographs taken by her, she identified certain differences in the topography although, essentially, she had tried to replicate the conditions prevailing on the day of the collision. In this part of her evidence she referred to different coloured sand on the verge at Broadway which might have made it difficult to see an oncoming car and to sun glare on the give way sign on the median strip of Arbor Drive which may have rendered it unnoticeable.

25 Under cross-examination she denied that she was failing to pay attention to her driving as she proceeded into and through the intersection. She continued to affirm that she was very attentive in going up to the intersection. She said this (t/s 48):

"But I was very attentive in going up to that intersection. I was very careful to look in all directions and I certainly would not have proceeded across that road had there been anything within my sight."

26 The respondent conceded that she did not see the give way sign. However, given that she had seen the modified intersection sign she was aware that she needed to take care in approaching the intersection with the result that she looked to the left, looked to the right, and looked to the left again.

27 The learned Magistrate gave reasons for decision on 13 October 2006, being the day after the hearing. Her Honour commenced by describing the layout of the roads and the courses being followed by the two vehicles involved in the collision. She found that at the time of the collision there was one give way sign controlling the entry of traffic from Arbor Drive into, or across, Broadway. That sign was erected just before the intersection and on the median strip. There was no give way sign on the left hand verge of Arbor Drive. The respondent, travelling on Arbor Drive was, therefore, required to give way to any traffic travelling on Broadway, such as Ms Crawford.

28 Her Honour observed that the prosecution had the burden of proving each element of the charge beyond reasonable doubt. Those elements were: first, that the respondent was the driver of a motor vehicle; second, that the respondent was driving on a road; third, that the respondent was involved in an incident; fourth, that bodily harm was caused to Douglas Crawford; fifth, that the manner of driving of the respondent was dangerous to the public or to any person, in all of the circumstances. It was this last element which was in dispute.

29 Her Honour said that the test to be applied in determining whether the accused person's driving was dangerous was an objective one. The driving must, in reality, and not speculatively, be actually, or potentially, dangerous to the public or to any person. There must be a serious breach of the proper conduct required of a driver. The seriousness of the breach must be of such quality as to make the driving intrinsically dangerous.

30 The learned Magistrate made certain findings of fact being principally that the weather was clear, the road dry and the time somewhere between 6.16 and 6.30 pm. The respondent had been a driver for 45 years and had no traffic convictions. There was a warning sign on Arbor Drive, warning motorists, such as the respondent that the intersection had been modified. The respondent was travelling at 50 kph before approaching the intersection and she slowed to about 30 or 40 kph when entering the intersection.

31 The learned Magistrate found further that there was a give way sign on the median strip of Arbor Drive on the approach to the intersection. There was a dotted white line at the intersection of Arbor Drive and Broadway signifying that the respondent should give way to traffic on Broadway. She was satisfied that the respondent looked to her left, to her right and then, entering the intersection, to her left again. Immediately before the collision the respondent saw Ms Crawford's vehicle for the first time and was unable to avoid the collision due to the proximity and speed of Ms Crawford's vehicle. Ms Crawford did not see the respondent's vehicle until after the collision. Her Honour referred also to the presence of the vehicles driven by Mr Bennett and Ms Simpson.

32 The learned Magistrate then concluded her reasons for decision in this way (t/s 5):

"The question to be answered, therefore, remains, whether on the facts as I have found them Ms McPherson drove dangerously. I have to be satisfied beyond reasonable doubt that her manner of driving was intrinsically dangerous, that is, she seriously breached the proper conduct required of a driver.

Ms McPherson approached the intersection with some degree of caution. She slowed down in her approach. She looked to her left, to her right and to her left. Why she did not see the give way sign or the dotted line is a mystery. One could speculate as to why, but the real crux of the matter is that she did not see Ms Crawford, despite looking twice to her left.

What is relevant in this respect is that Ms Crawford did not see Ms McPherson. The fact that Mr Bennett and Ms Simpson did see the vehicles, in my view, does not give any weight to the prosecution case that Ms McPherson should have seen Ms Crawford's vehicle. Mr Bennett and Ms Simpson were in different positions on the roadway to that of Ms McPherson.

In my view, the accused's conduct and manner of driving was all that would be expected of a prudent, responsible driver. The collision, in my view, cannot be attributed to the manner of driving of the accused. As Mr Scott submitted, the collision appears to have simply been an accident.

I therefore find the accused not guilty and enter a judgment of acquittal."

33 On 9 November 2006 the solicitor for the appellant lodged notice of appeal. The grounds of appeal were expressed in this way:

"1. The learned Magistrate erred in law and in fact in failing to find that the respondent (accused) had driven in a manner that was dangerous to the public or to any person when that was the only conclusion available to light of the following uncontested evidence:

(a) the respondent (accused) was required to give way;

(b) the respondent (accused) drove into the intersection without giving way; and

(c) the respondent's (accused's) vehicle collided with a vehicle which had right of way."

34 The appellant obtained leave to appeal before Blaxell J on 21 November 2006 in respect of the grounds specified in the appeal notice. I note in passing that the grounds of appeal do not suggest that the Magistrate failed to identify properly the elements of the offence of dangerous driving. There is no challenge to the primary findings of fact. The grounds of appeal focus upon the inferences to be drawn from certain facts and the findings to be made in the light of those inferences.

35 It will be useful now to look at certain statutory provisions and decided cases bearing upon an appeal of this kind and the issues before me.

36 Appeals from the Magistrates' Court are now governed by the Criminal Appeals Act 2004 (WA). By s 14 of that Act the Supreme Court may dismiss or allow the 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 applicant.

37 It is apparent from s 39 of the Criminal Appeals Act that an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.

38 A Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226.

39 In Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Ipp J observed at 448 that primary findings of fact will not ordinarily be interfered with, provided there is evidence to support those findings, and provided the appellant fails to establish that the court below has not taken proper advantage of seeing and hearing the witnesses. Nevertheless, when findings as to the primary facts are attacked, and the inferences drawn from the primary facts are said to be wrong, it remains the task of an appellate court in an appeal by way of rehearing to embark on an analysis of the evidence, documents and objective facts in order to determine the issues afresh.

40 The question on appeal will often be not whether the Court would have formed a different view, but whether the Magistrate's approach and view of the evidence was defensible: Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521.

41 The relief may take the form of remitting back to the Court below unless the Appellant Court considers that no substantial miscarriage of justice has occurred. The task is to balance the public interest in the conviction of a wrongdoer, the interests of an accused person, and the pragmatic considerations of costs and efficiency in the administration of justice. Where the error is fundamental, the interests of justice may be best served by quashing the conviction and sentence, and substituting a verdict of acquittal: Verhoeven v Ninyette (1998) 101 A Crim R 24.

42 I will say more later about the role of an appeal court and the powers available to it in a case of this kind, but first it will be useful to look at the legal principles concerning dangerous driving.

43 In Kaighin v The Queen (1990) 1 WAR 390 the Full Court reviewed the decided cases bearing upon a charge of the present kind. The Full Court made these observations at 395:

"It seems to us that the following propositions can be derived from the above authorities and a construction of s 59(1) of the Road Traffic Act:

(a) An offence is committed under s 59(1) when a person drives a motor vehicle in a manner dangerous to the public and thereby causes death or grievous bodily harm (ie there is a causal link between the dangerous driving and the death or grievous bodily harm).

(b) Negligence is not an element of dangerous driving; negligent driving is not necessarily dangerous driving; thus failure to keep a proper look out on a road on which there is no other traffic and there are no person in the vicinity is not dangerous driving.

(c) For driving to be 'dangerous' within the meaning of s 59(1) it must in reality, and not speculatively, be actually or potentially dangerous to the public or another person.

(d) A momentary lapse of attention may constitute dangerous driving.

(e) The test as to whether driving is dangerous is objective.

(f) Section 59(1) does not exclude a defence based on absence of fault, including a defence based on s 25 of the Criminal Code, or a defence based on the conduct of another person."

44 In Hancock v Cox (1993) 19 MVR 137 Scott J considered the propositions set out by the Full Court in Kaighin's case (supra) and made these observations at 141:

"As I understand the reference by the Full Court to 'fault' in proposition (f) of that passage in Kaighin's case, it is a reference to defences which otherwise would be open under the provisions of the Criminal Code. For example, the defence of sudden or extraordinary emergency or the defence of accident within the meaning of the second part of s 23. What the Full Court was there saying in my view is that if a defendant can show the true absence of fault on his part in a sense that there was a sudden or extraordinary emergency or that the dangerous situation was the result of an unforeseen and unforeseeable intervening event, then the defendant would have a defence based upon lack of fault."

45 In Van Der Laan v Warchot [2006] WASC 229 I reviewed a number of decided cases raising issues of the kind covered by the Kaighin (supra) propositions. The cases in question indicated that although the test as to whether driving is dangerous is objective, it is a test to be judged from the point of view of the defendant and what that driver knew or reasonably ought to have known of the presence of another vehicle. Topography and visibility can be relevant to the requirements of the situation and they point to what is thought to constitute commonsense applied to driving. I concluded, having regard to what was said by Murray J in Becker v Roberts (1997) 27 MVR 193 that a conclusion of dangerous driving will be drawn whenever a vehicle is being driven in such a way as to seriously depart from the way in which it ought properly to be driven in accordance with the rules of the road, so as to create at least a real potential for some other person who may be on or in the vicinity of the road to be endangered.

46 In Van Der Laan's case (supra) the appellant was convicted of dangerous driving contrary to s 59A(1)(b) of the Road Traffic Act. In that case the driver was in Ocean Road and sought to turn right into Patterson Road and proceed north. In his evidence at the hearing the appellant recalled a broken white line depicting that the person on Ocean Road was to give way. He said that he was about half way through the intersection before he saw the motorcycle rider on his right hand side, a moment or so before the collision. After referring to Kaighin's case (supra) and other decided cases I made these observations at [59]:

"The appellant's case on appeal proceeded from the premise that if there was evidence before the Court from the appellant himself that he did not see the complainant's motorbike until shortly before the collision then this permitted a finding to be made, which should have been made, that he could not see the oncoming motorcycle until it was impossible to avoid collision, and that therefore there was an absence of fault on the part of the appellant. However, it does not follow that because the appellant 'did not see' the motorcycle he 'could not see' the oncoming motorcycle. In the absence of direct evidence from the appellant in rebuttal, it was open to the Magistrate to find, as he did, that there was no impediment to visibility from the appellant's vantage point in respect of what appears from the photographs to be a straight stretch of road."

47 I went on to hold that the appellant's appeal against conviction had to be dismissed. In arriving at that conclusion I made these further observations at [61], [62]:

"61 In the circumstances, and having regard to the way in which the accident happened, it was clearly open to the learned Magistrate to infer that the appellant was at fault in commencing to enter the intersection before having satisfied himself entirely that the intersection would be clear of oncoming traffic at the time he commenced to cross the two south bound lanes. The appellant's own evidence and the nature of the topography pointed to a conclusion that the complainant was in close proximity to the intersection at the time the appellant commenced his crossing of the intersection with a view to turning right into the north bound avenue of Patterson Road.

62 To my mind, the reasoning and the outcome in Becker v Roberts (supra) weigh against the appellant's case. It was open to the Magistrate to find that the defendant was at fault in proceeding into the intersection without having taken sufficient precautions to ensure that there was no oncoming traffic about to enter the intersection. Implicit in the Magistrate's finding is that even if the evidence of the appellant were to be accepted, his failure to see an oncoming motorcycle that must have been in close proximity to the intersection was due to a lapse of attention on the part of the appellant. This allowed for a finding that he was at fault. The Magistrate's finding that it was incumbent upon the appellant to ensure that it was safe to enter, and was at fault in finding [sic failing] to do so, was in accord with the legal principles set out in the decided cases and consistent with the evidence before him."

48 I am conscious that the learned Magistrate's finding in favour of the respondent in the present case, with the result that the respondent was acquitted, depended very much upon her Honour's favourable opinion of the respondent as a credible and reliable witness. Accordingly, it becomes necessary to embark upon some further discussion about the law before returning to the facts of the matter.

49 It will now be useful to take a closer look at the role of the appeal court with respect to an appeal of this kind. Various provisions of the Criminal Appeals Act 2004 (WA) including s 14, s 39 and s 40 establish that an appeal court is to decide an appeal on the evidence that was before the primary court although it does have power to admit any other evidence. In allowing the appeal it may substitute a decision that should have been made by the primary court.

50 These provisions indicate that the appeal process is in the nature of a rehearing. The meaning of that term depends upon the statutory context but rehearing on appeal usually does not involve a completely fresh hearing by the appeal court of all the evidence: R v Syme, Reynolds & Williams; Ex parte Page [1970] WAR 153. The appeal court is obliged to give the judgment which in its opinion ought to have been given in the first instance. However, it must, of necessity, observe the natural limitations that exist in the case of any appeal court proceeding wholly or substantially on the record.

51 These limitations include the disadvantage that the appeal court has when compared with the trial Judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appeal court, reading the transcript, cannot always fully share. However, within these constraints, an appeal court is generally expected to conduct a real review of the trial and of the judicial officer's reasons. Appeal courts are not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions. As Ipp J observed in Vrisakis (supra) at 448, the Appeal Court must determine the issues afresh.

52 It has been said that in general an appeal court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge. In deciding what is the proper inference to be drawn, the appeal court will give respect and weight to the conclusion of the trial Judge but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551.

53 There have been several recent cases in which the High Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial Judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial Judge sees but the appeal court does not: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 169; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. Put shortly, it has now been held that a finding of fact by a trial Judge, based on the credibility of a witness, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the Judge's conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

54 The facts in Fox v Percy (supra) are instructive. In that case the appellant was injured when a horse she was riding came into collision with a van as it turned a corner in the road. Ambulance attendants stated that when they arrived the van was on its correct side of the road. A police officer recorded in his notebook that the van was on the correct side of the road and that there were 10 metres of skid marks immediately behind it.

55 The primary Judge accepted the accuracy of the police record and that the vehicle was on its correct side when it came to rest. However, having characterised the appellant a credible witness, he gave greater weight to her account that the collision had occurred when the respondent was driving on the wrong side of the road. He gave judgment for the appellant.

56 The High Court approved a decision by the New South Wales Court of Appeal to set aside this judgment on the grounds that the skid marks on the respondent's correct side of the road were incontrovertibly established and this was sufficient to demonstrate that the primary Judge's conclusions were erroneous.

57 Gleeson CJ, Gummow and Kirby JJ made these observations at [29]:

"However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings."

58 The same members of the High Court observed that the Court of Appeal acted properly in not requiring that there be a re-trial. It was said that a principal purpose of providing for an appeal by way of rehearing is to ensure, within the appellate process, finality of litigation. There would be some cases in which it would be desirable for another Judge to re-evaluate the truthfulness of witnesses but in the instant case, the evidence would be given in the context of the objective evidence of the skid marks. The same factual analysis would be required. The recollections of the appellant could not overcome the objective evidence that so strongly favoured the respondent's version of events. Accordingly, the appeal court acted properly in substituting its own verdict.

59 With these principles in mind, it will now be useful to look briefly at a number of decided cases in which questions have been raised as to the role of an appeal court in arriving at its own conclusions. I am conscious that these cases arose in the context of civil litigation in which a complainant is only obliged to make out his or her claim on the balance of probabilities as contrasted with the standard in criminal cases of proof beyond reasonable doubt. Nonetheless, subject to allowance being made for that important difference, the reasoning in such cases is instructive.

60 In Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140 two vehicles travelling at night in opposite directions on a straight, level road with a bitumen surface 22-feet wide, collided with each other. It appeared that the offside of each vehicle came into contact with the offside of the other vehicle as they passed each other. Both vehicles had their lights on and each driver saw the other vehicle approaching. Each said in his evidence that he was on the correct side of the road and that, as they approached each other, the other vehicle was also on its correct side. Each said that he held to his course on his correct side of the road and that the other vehicle must have swerved to its right, although neither could say that he had seen the other swerve.

61 The trial Judge was unable to say that the account given by either party was more probably correct than that given by the other. He held that neither party had established his case that the other had been negligent and dismissed both the claim and counterclaim. The High Court held that the course taken by the trial Judge was correct.

62 Windeyer J observed at 152 that if two motor vehicles collide in a public street, that fact, unexplained, must ordinarily furnish some evidence that one or other of their drivers was negligent or that both of them were. That is because vehicles do not in the ordinary course of things collide if both be carefully driven. However, he went on to say that very seldom would the proper inference from the mere fact of a collision in the centre of a road be that the drivers were equally to blame. In every accident case the speed of the vehicles, the presence or absence of other traffic, the state of the road surface and the weather, and a list of other matters all go to make up the totality of relevant circumstance which is likely to bear upon the determination of who is to blame.

"The tribunal may of course reason from the material before it, drawing all logical inferences while refraining from speculation. In particular, by comparing that which is proved to have occurred with that which according to general experience is to be expected when a particular condition has been fulfilled, it may conclude that the condition was not fulfilled in the case before it - res ipsa loquitur. By this process of reasoning many a case is decided in which the fact sought to be proved is that in a particular situation a person did not conduct himself with reasonable care and skill; but the utility of the process in the present case has been exhausted when the conclusion has been reached that there was a lack of reasonable care on the part of one or other or both of the drivers."

64 In Pledge v Roads and Traffic Authority [2004] HCA 13 the appellant's motor vehicle struck a child who had stepped on to the highway in question from a densely foliaged nature strip. The trial Judge accepted substantially unchallenged evidence that the foliage affected vision on the day of the accident. The question on the appeal to the High Court was whether the Court of Appeal of New South Wales was right to disturb an apportionment of negligence between defendants made by a trial Judge who had heard the witnesses and had the benefit of a view of the locality.

65 The High Court held that an appeal court must observe the natural limitations that exist in any appellate proceeding. While appeal courts are not excused from the task of weighing conflicting evidence, they should always bear in mind that they have neither seen nor heard the witnesses and should therefore make due allowance in this respect. The Court of Appeal had no sufficient basis for preferring what they believed the photographic evidence to show - in relation to the visual obstruction caused by the foliage - over the view of the evidence accepted by the trial Judge. Certain calculations made and relied upon by the Court of Appeal were unjustified and were dependent upon variables that were more aptly described as speculation.

66 In Anikin v Sierra [2004] HCA 64 the appellant was seriously injured when he was hit by a bus driven by the respondent bus driver on a slightly downhill section of a four-lane roadway. The roadway was normally well lit but at the time of the accident the street lights were not illuminated. The appellant was dressed entirely in dark clothing.

67 The High Court held that the New South Wales Court of Appeal had erred in disturbing the primary Judge's conclusion on the issue of negligence. It was incorrect for the Court of Appeal to conclude that there was no evidence of negligence. Far from the objective evidence giving any basis for the Court of Appeal to set aside the findings of the primary Judge concerning the evidence of the bus driver, that evidence supported the conclusion so reached. The fact that there were no skid or brake marks and that the bus did not reach a stop after the point of impact for approximately 110 metres suggested that the bus driver did not see the appellant at all, save possibly at the very last moment. This, in turn, supported the primary Judge's conclusion that there was a lack of due attention on the part of the bus driver.

68 It emerges, then, from a review of these decided cases that with respect to an appeal of the present kind, the appeal court is entitled to and obliged to assess conflicting evidence with a view to arriving at its own conclusion in accordance with the operative standard of proof (being, in the present case, proof beyond reasonable doubt). The Court is entitled to act upon inferences drawn from established facts and, in that regard, the fact that two motor vehicles have collided in a public street may furnish some evidence that one or other of the drivers was negligent. Nonetheless, the appeal court must be conscious of the natural limitations that exist in any appellate proceeding and give proper weight to the primary Judge's assessment of the credibility of the witnesses. A finding of fact based on the credibility of a witness may only be set aside upon appeal in the circumstances described in Fox v Percy (supra); that is, where incontrovertible facts demonstrate that the Judge's conclusions are erroneous or where the decision at the trial is contrary to compelling inferences in the case.

69 Let me now return to the circumstances of the present case.

70 The decided cases establish that the test as to whether driving is dangerous is objective. A momentary lapse of attention may constitute dangerous driving. The learned Magistrate in the present case had to be satisfied beyond reasonable doubt that the respondent's driving was in reality, and not speculatively, actually or potentially dangerous to the public or another person. Such a conclusion could be drawn where the respondent's vehicle was being driven in such a way as to seriously depart from the way in which it ought properly to be driven in accordance with the rules of the road so as to create a real potential for some person to be endangered and the circumstances demonstrated fault on the respondent's part.

71 To my mind, the line of reasoning set out in Van Der Laan's case (supra) applies to the present case; that is, it does not necessarily follow that because a driver did not see an approaching vehicle that such a driver could not see the vehicle. Whether the vehicle could be seen, viewed from the position of the driver alleged to be at fault, will usually depend on topography and other factors relevant to visibility. In the absence of evidence of this kind, which might explain why even a careful and attentive driver would not have seen the approaching car, the likelihood that there was momentarily a lack of sufficient care and attention is an issue that must be addressed and dealt with.

72 In the present case, the undisputed evidence before the learned Magistrate established that the respondent was driving her Mazda vehicle in an easterly direction on Arbor Drive towards the subject intersection. The intersection was controlled by a give way sign on the median strip in Arbor Road facing oncoming traffic (such as the respondent's vehicle) and by a broken white give way line painted on the surface of Arbor Road at the intersection. These features of the landscape meant that Ms Crawford had the right of way travelling south on Broadway.

73 It was not disputed that Ms Crawford was travelling within the speed limit and, having the right of way, was not under an obligation to slow down as she was entitled to assume that any vehicle entering the intersection from Arbor Road would give way to traffic on Broadway.

74 There was undisputed evidence that the respondent entered the intersection at a speed of approximately 30 to 40 kilometres per hour with a view to turning right into Broadway. There was a collision between the respondent's vehicle and Ms Crawford's vehicle in which the point of impact occurred on the left passenger side of the respondent's vehicle.

75 The respondent gave evidence that she did not see Ms Crawford's vehicle. However, it was open to the Magistrate to infer from the fact of the collision, and from the speed of the vehicles, that Ms Crawford's vehicle was approaching and in proximity to the intersection at the time the respondent commenced her entry. This inference was clearly a matter that called out for explanation. It had to be addressed in order to determine whether the respondent was at fault. To my mind, an inference of this kind, bearing in mind the incontrovertible fact that the collision occurred shortly after the respondent entered the intersection, was of sufficient weight for the Magistrate to be satisfied beyond reasonable doubt that Ms Crawford's vehicle was approaching the intersection and could be seen by the driver of a vehicle entering the intersection from Arbor Road.

76 It appears from the learned Magistrate's reasons for decision that she was of the view that the respondent approached the intersection "with some degree of caution". The Magistrate observed that "why she did not see the give way sign or the dotted line is a mystery". The Magistrate in her reasons does not directly address the question of why the respondent did not see Ms Crawford's vehicle when there was strong objective evidence before the learned Magistrate, referable to the inference mentioned earlier, that Ms Crawford's vehicle was in proximity to the intersection, and could be seen by a driver exercising reasonable care. Her Honour was prepared to say only that the "real crux of the matter" was that the respondent did not see Ms Crawford.

77 To my mind, the Magistrate's reasons for decision are inadequate. The magistrate gave insufficient weight to the respondent's failure to observe two important warnings on her approach to the intersection. The Magistrate did not deal with or address the inference mentioned earlier which indicated that the respondent had failed to observe or pay sufficient attention to Ms Crawford's car as it approached the intersection. The inference was compelling and it was reinforced to some extent by the evidence of the other two prosecution witnesses, Mr Bennett and Ms Simpson.

78 It follows from decided cases such as Fox v Percy (supra) that in the case of a compelling inference (in the nature of an incontrovertible fact) that Ms Crawford's vehicle was approaching the intersection when the respondent entered, a finding based simply upon the respondent's credibility cannot be regarded as sufficient to displace or override the opposing evidence (based upon the inference) that the respondent had failed to keep a proper look out and exercise appropriate caution before entering the intersection. The collision could not properly be characterised simply as an accident; that is, a collision as the result of an unforeseen and unforeseeable event. If the respondent had exercised proper care the possibility of a collision would have been foreseen, and the collision avoided.

79 Accordingly, I am of the view that the learned Magistrate erred in her assessment of the evidence before her in the manner contended for in the grounds of appeal. Put shortly, the respondent was required to give way but failed to do so. She collided with a vehicle which had the right of way and was close by as the respondent entered the intersection. In the absence of any finding or credible evidence that a person in the respondent's position could not be expected to see the oncoming vehicle, the Magistrate was entitled to find, and should have found, that the respondent was not sufficiently attentive to the various facts and matters bearing upon the possibility that a collision might occur and drove in a manner that was dangerous to the public. I consider that the appeal must be allowed.

80 This brings me to the question as to the appropriate form of relief. I noted in earlier discussion, particularly in discussion concerning the reasoning of the High Court in Fox v Percy (supra), that in many cases, especially where the credibility of witnesses is involved, it will be appropriate for the matter to be remitted to the Magistrates Court to be tried again. However, to my mind, the present case is not of that kind. In the end, as in Fox v Percy (supra), this is a case that depends not upon credibility, having regard to the admissions of the respondent that she did not see the warning indicia or Ms Crawford's car, but upon the analysis referable to the various undisputed facts and a compelling inference to be drawn from the fact of the collision.

81 Accordingly, in my view, this is a case in which an appeal court, in the proper exercise of the powers allowed to it by the Criminal Appeals Act, should substitute its own judgment. Accordingly, I incline to the view that in addition to the appeal being allowed, for the reasons given previously, a conviction should be recorded against the respondent in respect of the subject charge.

82 The appeal will be allowed. I will hear from the parties as to the nature of any further orders or directions to be made.