Garrett v Nicholson [1999] WASCA 32

Garrett v Nicholson [1999] WASCA 32 - WASCA 1999 case summary — Zoe

[34]

13 I shall, before referring in greater detail as to what happened after the collision, set out the appellant's account leading up to the collision. He said that he set sail at 4.20am with two crew in conditions which he described as fair, flat and calm. Visibility was good. There was no moon and it was pitch dark. He did not have radar. His automatic pilot was not in working order. He steered the vessel manually. He had the correct navigation lights. He dimmed the lights on the dashboard and had minimum light in the wheelhouse to enable him to keep a lookout. After coming out of the heads of the marina, he steered to a course of 240° and proceeded through the passage in the reef. During this time the two deckhands went down to their bunks. He then described the lookout he was keeping. He said that included having a radio on the wavelength for the area, but no messages were coming through. He came out of the marina heads with his motors at idle and he was increasing the revolutions of the motor and speed of the vessel to reach its cruising speed of 12½ knots. He described how he passed the north cardinal marker and saw its single white flashing light which would indicate he had come out of the passage through the reef. He saw the lights of two vessels north-west of his position. He identified these because each had a single white light. After passing the marker he maintained the course of 240° still increasing his speed. The collision then occurred. He said he did not see the Aida at all. He thought his speed at that time was between 10-12 knots. He said he collided approximately three metres from the stern. He said the impact of the vessel jarred him forward and threw him across the dashboard. He leant back to take hold of the gears and the throttles. He said that this was the reason for there being delay in stopping his engine and pushing the Aida to the extent he did. He said that his vessel drifted stern to stern with the Aida and he was approximately 50 metres from it. He said the glow of his stern light silhouetted the Aida. He said that the light he then saw on the Aida was a very dim glow at the back of the wheelhouse. He said it was glowing up the back wall of the wheelhouse and was not enough to see the deck. He described it as being like a numberplate light glow. He said that at that stage he could not see any navigation lights, but he could hear a man splashing around in the water.

[94]

46 The obligation remains that, if it is proposed to call evidence to contradict a prosecution witness, then the substance of the evidence to be called must be put to that witness in circumstances where it is anticipated that the defence witness will be called. There was some evidence possibly in this area that was referred to by the respondent and commented on by his Honour in the first appeal. Mr Pendlebury, in cross-examination, was asked to point out on a photograph, which had already been tendered by the prosecution, where he had placed the portable two bar fluorescent light when he left the Aida. He pointed to the top of the canopy (AB 92). This evidence was given on 9 January 1998. On the resumption of the trial on 8 June 1998 the defence called Mr Fitzsimmons who had taken a photograph of the Aida from a vessel which circled it some three hours later. This contained a good view of the canopy roof and showed no sign of the fluorescent light in the position where Mr Pendlebury said he left it nor did it show the leads from the light back to the battery. This second photograph contradicted, primarily, an answer in cross examination. It could not be said that counsel must be seen to be accepting answers in cross-examination by not asking further questions. His Honour, on appeal, saw this as contradicting the evidence-in-chief as it suggested that there was no light at all of that type on the vessel. The appellant had received a copy of the photograph shortly after it had been taken. I do not consider that it could be expected that such a photograph would be part of counsel's brief on the first day of the trial as there was nothing then to indicate it would be relevant. The question of the portable fluorescent light being brought on board as a substitute for a standard regulation light did not arise until after the trial began and could not have been anticipated when the brief was prepared. Counsel, in these circumstances could not be expected to comply with the rule. Any injustice, could still be overcome, in appropriate circumstances by re-opening the case and recalling the witness.

[125]

66 This is a loose observation in the sense that it had no bearing on the ultimate conclusions. It became the subject of one of the grounds of appeal before the single Judge. It would appear that his Worship in this passage was referring to the lights connected to the lighting system because there followed shortly thereafter his Worship's finding that the steaming light would not have been seen by the appellant because of the angle of the collision. The respondent claims that it was not raised in cross-examination and the failure to do so prevented the prosecution from developing the point that the switchboard was in a position which became flooded shortly after the collision and to which access could not be obtained. This ceased to be a live issue as his Worship considered that there was no need to pursue the question whether these lights were burning by reason of the fact that the appellant would not have been able to see them. It was however a matter on which the prosecution did lead evidence. Mr Sappelli, the investigator, produced a photo of the switchboard and fuses which he said was on the starboard side down below in the forepeak. Mr Morris said, in his evidence in chief, that he could not get to the switchboard by reason of its being under water so quickly. The possibility of the switchboard remaining in a dry area by reason of the navigation lights continuing to function was not referred to. Mr Morris, after the collision, started the engine with a view to moving. The normal navigation procedure in accord with the regulations is for these lights to be switched off when at anchor and for them to be switched on when the vessel is to be under way. The appellant's evidence that he saw no light earlier but saw the navigation lights at a time after he heard the engine start is consistent with this and does raise the suggestion that they were turned on at this later stage, this being the proper time for them to be turned on. The appellant said that he did not see them when he first approached on the starboard side but saw them when he was speaking to Mr Ricciardelli. Even if they were burning to their full arc abaft of 22.5 degrees they may not have been in sight on the initial approach to the starboard side from astern and in any event the appellant may not have at first noticed them in the emergency of obtaining help. I consider, for these reasons that it was open to his Worship to refer to the possibility that navigation lights could have been turned on after the collision particularly as the switchboard must have remained dry for the lights to continue to burn and its position had been pointed out to his Worship in response to a question by his Worship (AB 41). The learned Magistrate was at liberty to make a judgment on this question even if the matter was not referred to in cross-examination. The reference to the possibility of turning on the lights had no bearing on his ultimate finding. If, by any chance, his Worship was referring to the fluorescent light attached to the canopy, then it was obvious that that light could be turned on and off from where the men stood by removing the clamp from the battery.

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Judgment (142 paragraphs)

Garrett v Nicholson [1999] WASCA 32 (26 May 1999)

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Legislation Cited (1)

Cases Cited (16)