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

Brittingham v Williams [1932] VicLawRp 35; [1932] VLR 237

Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 59 ALJR 842

Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840

Bungaree Shire Council v Hancock (1996) 24 MVR 472

Cotton v Walker, unreported; SCt of WA; Library No 930628; 19 November 1993

Crosthwaite v Corporation of the City of Elizabeth AGC (Insurance) Ltd (1989) 51 SASR 105

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

Eastman v The Queen (1997) 76 FLR 9

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Hoskins v Repatriation Commission [1991] FCA 559; (1991) 32 FCR 443

Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378

Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349

O'Connell v Adams (1973) RTR 150

R v Birks (1990) 19 NSWLR 677

Selvanayagam v University of the West Indies [1983] 1 All ER 824

Wingate Marketing v Lewis Strauss (1994) FCR 89

1 PIDGEON J: The first question which has arisen in this appeal is whether the rule in Browne v Dunn applies in the courts of Petty Sessions and if it does, its extent and the extent of the of the obligations of counsel for the defence. The next question is whether the learned Magistrate gave adequate reasons for dismissing a charge brought against the appellant. This acquittal was set aside by a single Judge of this Court who, in turn, gave leave to the defendant to appeal to this Court.

2 The prosecution arose from a collision at sea in the early hours of the morning between a crayfishing vessel and a recreational fishing vessel. The appellant was the person in charge of the navigation of the crayfishing vessel, the Volcano. A little after 4.20am on 8 April 1997 this vessel steamed out of the marina at Two Rocks and when approximately a nautical mile out to sea collided with the "Aida", a 12.2 metre power driven vessel which had departed from the marina at about 4.30pm the previous afternoon. The person in charge of the navigation of this vessel was its owner Mr W E Morris. He had on board two friends, Mr Pendlebury and Mr Tanner as well as a dog. They pulled some craypots and, at dusk, anchored at a point approximately a nautical mile from the entrance to the marina and, during the night, fished. The vessel lay near the exit from, and on the same bearing as a channel through, the reef. The appellant's vessel struck the Aida on the starboard side approximately two to three metres from the stern. It had approached, in a straight line, at an angle of 90 degrees.

3 The appellant was charged with contravening Rule 5 of the Prevention of Collisions at Sea Regulations 1983 in failing to maintain a proper lookout so as to make a full appraisal of the risk of collision. The appellant's defence was that he was in the wheelhouse keeping a lookout on a dark moonless night and saw no lights to indicate the presence of another vessel. He was not aware of it until he struck. The prosecution claimed that the Aida was showing sufficient light to have been seen by the appellant on his approach to it. The question the lights the Aida was showing becomes of importance.

4 A vessel of the dimensions of the Aida, when at anchor, is required to exhibit, where it can best be seen, an all round white light (Rule 30 para(b) of the regulations). This light is required to have a visibility of two miles (Rule 22(b)). The vessel, when it anchored, did not exhibit such a light and would appear not to have been equipped with it. Mr Morris' evidence was that, at dusk, he turned on three of the four lights required to be exhibited if a vessel is under way and which were wired to the vessel's 24 volt lighting system. These were the masthead light and the two sidelights. The vessel did not have a stern light wired to its lighting system this being the fourth light it was required to display when under way. The masthead light, often referred to as the steaming light, is required to show an unbroken light over an arc of the horizon of 225 degrees (Rule 23 and Rule 21(a)). It must be so positioned as to show right ahead (180°) to 22.5° abaft the beam on either side of the vessel thus making the total arc of 225°.

5 The learned Magistrate found that the appellant would not have seen the steaming light and there has been no appeal from this finding. If the steaming light complied with the regulations and if it was burning, then the appellant, on the course he was taking, would have been well within its lighted arc and would have been within it until he was 15-20 meters from the Aida. However Mr Morris, in his cross examination, told His Worship that the arc of his steaming light was 180° and counsel for the prosecution accepted this figure. In his final address he told His Worship that the extent of this light was 180° and counsel for the respondent informed this court that was the position. This meant that either the steaming light did not comply with the regulations or that Mr Morris was mistaken when he indicated that its arc was only 180°. If the arc were only 180°, then the appellant, approaching the starboard side of the Aida towards the stern end, would not at any stage have been within its arc. The prosecution case was that there were other lights which could be seen by the appellant.

6 I mentioned that the specified arc of the steaming or masthead light was 225°. The remaining 135° of the whole circle is required to be shown by the stern light. It must be as near as practical to the stern and so positioned to show the 135° arc by showing 67.5° right aft on each side of the vessel. There would be some break in the complete circle by reason of the centre of the arc of the stern light being behind the centre of the arc of the masthead light. The appellant, on his approach would not have been within the arc of such a light. As I mentioned, the Aida did not have such a stern light wired to its lighting system. The two other lights required to be displayed by a vessel under way and which were wired to the Aida's lighting system were the sidelights. These are a red light on the port side and a green light on the starboard side. The port light would obviously not be visible to the appellant. These lights are required to show from right ahead (90°) to 22.5° abaft the beam (a total arc of 112.5°). The arc abaft would correspond to the arc abaft of the steaming light. It would appear to me on paper and on the assumption that these lights complied with the regulations that the appellant, for most of his course, would have been within the arc of both the steaming light and the green port sidelight. If, as his Worship found, he would not have seen the steaming light, then it appeared at the trial to have been assumed that he would not have seen the green light as their arcs, abaft the beam, correspond.

7 The way the prosecution was conducted was that, at anchor, the Aida was required to exhibit an all round light. It did so by using two lights namely the steaming light which showed 180° forward and a light Mr Morris brought on board to light the baiting table which showed 180° aft. In addition Mr Morris tied to the stern rail a lighted torch to act as the stern light which also showed aft. The essence of the prosecution case was that these two lights gave sufficient light for the vessel to have been seen by the appellant if he were keeping a proper lookout.

8 The torch which Mr Morris said he tied to the stern rail to act as the stern light had three torch batteries. Its globe was an eight inch fluorescent tube with a reflector behind it. This was brought on board and tied in position shortly before sailing. The other light Mr Morris said that he brought on board shortly before sailing was a fluorescent light consisting of two tubes, twelve inches long. It had a long cord with two alligator clips to be connected to the terminal of an accumulator battery. There was a spare 12 volt battery, not connected to the engine, and was on the floor near the dashboard. The purpose of this light was to light the table where the bait was being prepared which was on the engine cover. Mr Pendlebury said that he tied this light to the fishing rod holders at the back of the wheelhouse approximately six feet above the deck. The light could be switched off by removing one of the alligator clips from the terminal of the battery. Mr Pendlebury did not know if it had another switch in addition to that.

9 I would mention that it was a contravention of Rule 20 for a vessel at anchor to be exhibiting its masthead and sidelights. If they were exhibited, albeit wrongly, the failure of the appellant to see a light available to be seen would be, nevertheless, evidence that he was not keeping a proper lookout.

10 Weather conditions were described in the subsequent report as being "clear skies with light winds, calm seas with a little or no swell, visibility was good, sunrise 0633". The description of the collision, as given in evidence by Mr Morris, was that at about half past four in the morning, whilst he was still at anchor, he saw crayfish vessels coming out of the marina. He said that three came out first and turned northwards towards Moore River. He noticed, however, one vessel coming straight towards him. The witnesses were seeing the lights of the vessels as distinct from the vessels themselves. He said the vessel coming towards him, whose identity prior to the collision he did not know, was well lit with its navigation lights on. As it transpired it was the appellant's vessel.

11 It is common ground that the appellant's course was 240° and this would be the required course to go through the channel in the reef. The Aida was lying on the same bearing. Mr Pendlebury said it was lying parallel to the beach with its bow north-west by north. This would be consistent with its being parallel to the land which ran in the same direction. It is also common ground that the approach of the Volcano was at 90° to the Aida. Mr Morris said it did not change bearing from the time he first saw it. He described the vessel as being "about a forty footer". It is also common ground that it hit at a speed of about 10 knots.

12 Mr Morris said that he thought that the approaching vessel would veer away from him, but when it was a hundred yards away he realised they were in danger of collision. Mr Pendlebury, a much younger man, called "jump" and jumped into the water. Mr Tanner and Mr Morris remained on board. Mr Morris said that the vessel did not throttle down and struck six feet from the stern on the starboard side. He said it still did not throttle down and pushed the Aida around about 30 metres. The vessels ended up stern to stern some distance apart. The Aida was seriously holed and sunk to its gunnels. Following the collision Mr Pendlebury boarded the Aida again. Mr Morris started the engine and arranged for the anchor to be chopped. He said that the engine went for about a minute and it then cut out as it was under water. He noticed that the torch tied to the stern was missing "as we backed off". Those on board put on their life jackets and moved to the bow which was the highest part out of the water. They waited there until they and the dog were picked up by crayfish vessel, Florence Nightingale III, under command of Mr Ricciardelli. They were taken back to the marina. Mr Morris said that Mr Pendlebury lifted the fluorescent light from the rod holders and held it up to light the bow while they were being taken off.

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.

14 The appellant shone a spotlight to see if he could see the man in the water. He dropped the light and it smashed which left him only with a torch. He was shouting out to the Aida to see if those on board were all right and if the man was out of the water. It would not be safe to start his propellers with a man still in the water. They replied that they were all right. He realised his vessel was taking water in at the bow which was starting to sink and which meant he could not go forward. The bilge pumps were started. He heard the engine of the Aida start up and he thought it proceeded to move forward and he then saw that it had become dead in the water. He started his engine and reversed past the Aida. He said his vessel manoeuvred past the Aida about 20 to 30 meters on its starboard side and he still saw no navigation lights. He then saw the lights of another vessel moving nearby and he signalled this vessel with his torch. This caused the vessel, which he recognised as the Florence Nightingale III to come alongside him. He told the master of that vessel that he was afloat and directed the vessel to the Aida. It then moved to the Aida and the appellant then proceeded in reverse back into the marina. He said that when he was giving directions to the Florence Nightingale III to proceed to the Aida he noticed for the first time on the Aida the green starboard sidelight.

15 The Aida remained sunk to the gunnels, but late the following day it was lifted out of the water and placed in dry dock in the marina. An inquiry was conducted by Mr Cornedus Sappelli, a senior marine officer of the Department of Transport. He took statements from the witnesses including a record of interview from the appellant. In that record of interview the appellant said that he did not see the Aida or any lights from it_._

Petty Sessions trial and the Magistrate's reasons.

16 The complaint to which I have referred was laid and the trial commenced in the Court of Petty Sessions on 9 January 1998. The prosecution case was completed at the end of that day. The trial did not resume again until 8 and 9 June 1998 when his Worship reserved his decision. On 25 June 1998 he gave oral reasons dismissing the charge. As the main issue was whether the Aida was showing sufficient light for it to be seen by the appellant, I shall refer in more detail to the evidence relating to its lights. Mr Morris' evidence was that he switched on those navigation lights operating from the vessel's lighting system. As it was found by his Worship that these were not visible to the appellant there is no need to make further reference to them. The appeal was conducted on the basis that the prosecution was required to prove that the appellant could see the torch and the other fluorescent light. Mr Morris described how he attached the torch to the stern rail. He said he attached it at the centre so the tube was in the vertical position. He was asked about the direction the torch was pointing. He said "You can see right around it except the back of it. Right all around the front". He said the light tube was facing southerly "but you could see it from either side or in front".

17 The second light, on the prosecution case, was attached to top of the wheelhouse by Mr Pendlebury. Mr Pendlebury said it was tied to the fishing rod holders which can be seen the photograph (Exhibit M AB253). These holders are on the canopy serving as the roof of the area where the vessel is driven. This was described by Mr Pendlebury as being the back of the wheelhouse. His Worship referred to it as a canopy. The evidence was that this was about six to seven feet above the deck. The photograph in exhibit 2A shows that the canopy was forward of where the appellant struck but the evidence does not say how far forward. Mr Morris said of this light in his evidence-in-chief (AB 35)

And how much could you see?------It lights up the whole deck...

And the combination of the lights you had on the boat - what coverage did they cover?---Well, with the masthead light and this one it was brilliant. It shows light everywhere. Right around.

18 Mr Pendlebury, who was an experienced deckhand, gave evidence supporting Mr Morris in respect of the lights. After the collision he moved the light attached to the canopy. He said(AB 78):

"Once we were getting off the boat I moved it so we could see what we were doing up at the front of the boat, when we were getting transferred to the Florence Nightingale".

19 The third man on the vessel Mr Tanner was in Melbourne so he could not be called.

20 The master of the Florence Nightingale III was the final witness called by the prosecution. He gave evidence as to being contacted by the appellant and taking the men and dog off the Aida. He saw the navigation lights but he did not notice the fluorescent light.

21 Counsel for the defence, in her closing address, first referred to the direct evidence of the appellant that he was in the wheelhouse, steering the vessel and his testimony giving details of the scanning and lookout he undertook. She turned to the circumstantial evidence and said that there was, "a very hot dispute as to what lighting was on the Aida and that she would go to that in some detail". She referred to the absence of the regulation all round white light. She then made the submission that Mr Morris embellished his evidence and gave reasons why parts of it were incredible. The nature of the submission as I apprehended is that it was being submitted that Mr Morris was saying that the lights that were on the vessel gave a much brighter light than they in truth did. It was submitted, in effect, that he was not in a position to give reliable testimony whether the lights could be seen out to sea. Counsel for the complainant relied on the inferences to be made from the evidence of Mr Morris being accepted. Counsel referred to the rule in Browne v Dunn and submitted it had not been observed.

22 His Worship, some 16 days after the final submissions, gave comparatively short oral reasons. His Worship referred to Mr Morris' evidence and said: (AB229)

"Neither of the fluorescent lights was found on the "Aida". The stern light was attached by a plastic strap with the torch, and the other with a red thin nylon cord. The photos do not show the cord on the canopy near the rod holders. Morris says that the stern light just disappeared and he remembers that one of the passengers lifting the other light that was attached near the rods to give a better view at one stage and replacing it on top of the canopy. The canopy light, as I call it, was powered by a 12 volt battery on the floor in the front of the boat."

23 His Worship then gave the following reasons for reaching his conclusion. (AB230)

"The prosecution must prove the matter beyond reasonable doubt. I record that I have seen and heard both Morris, the skipper of the "Aida", and Garrett the skipper of the "Volcano", the defendant, and I take that into account in assessing their evidence.

The defendant suggests - and I find it was raised with the witness, Morris, at least, indirectly in cross-examination - was that Morris turned the lights on after the collision. I come to the conclusion that this would have been possible. The defendant is either telling me that truth that he kept a proper look-out and that he never saw the lights of the "Aida", or he is lying as to the proper look-out and that he never saw the "Aida's" lights.

I come to the conclusion he would not have seen the steaming light because of the angle of the collision. The "Aida" was pointing north and the position where the "Volcano" hit the "Aida" was about at right angles towards the stern.

What I have to decide is a pure jury decision. The only difference is I must give reasons for my decision. I was very impressed with the defendant when he gave evidence. I find that it's possible that the lights were not on the "Aida" at the time of collision, and that it's possible they were turned of [sic] after. At least I have a doubt that they were on. I reached the conclusion based on my assessment of Morris and Garrett as witnesses.

I find that the two fluorescent were probably in place on the stern and canopy but they weren't on at the time just prior to the collision. The impact of the collision, I come to the conclusion, would have given the impression that the "Volcano" didn't stop immediately. Those are my reasons and I dismiss the charge."

24 The complainant obtained leave to appeal to a single Judge on the following grounds:

"A. The learned Magistrate erred in fact and in law in dismissing the complaint in that he erred in finding that it was possible that the witness William Edwin Morris turned the lights of his vessel on after the collision ('the Finding').

(a) The learned Magistrate erred in fact by holding that the evidence supporting the Finding had 'been raised with the witness' William Edwin Morris in cross examination;

(b) The Finding was inconsistent with the evidence of William Edwin Morris where that evidence was unchallenged in cross-examination;

(c) The learned Magistrate failed to have sufficient regard to the rule in Brown v Dunn (1894) 6 R 67 by making the Finding in circumstances where the evidence supporting the Finding, or the Finding itself, was not put to the witness William Edwin Morris in cross-examination; and

(d) The Finding was inconsistent with the evidence of Lee Charles Pendlebury where that evidence was unchallenged in cross-examine.

B. The learned Magistrate erred in fact and in law in dismissing the complaint in that he failed to take into account or have regard to the evidence of the witness Lee Charles Pendlebury.

C. The learned Magistrate erred in law in failing to give adequate reasons for dismissing the complaint.

(a) failing to resolve conflict between competing bodies of evidence;

(b) failing to make findings as to the credibility of witnesses; and

(c) failing to refer to the evidence of the witness Lee Charles Pendlebury."

25 The learned Judge allowed the appeal. He examined very carefully and set out the recent Australian authority on the rule in Browne v Dunn. He concluded: (AB2aa)

"The impression I have in this case is that the prosecution was effectively ambushed by the conduct of the defendant's counsel at trial in failing to put to either Morris or Pendlebury that the fluorescent lights did not exist (and that their evidence was therefore a concoction) and then later raising in the course of the defence case, and in final submissions the proposition that the fluorescent lights were non-existent. I accept the general proposition of counsel for the respondent that the rule in Browne does not apply when a witness is on notice that his version of certain events is in dispute, but, in my view, that notice had not been sufficiently given in this case. It is, as Mahoney AJ said in Seymour (supra), a matter of impression, and the distinct impression I have is that the trial process miscarried in this case by reason of the manner in which the defence case was conducted."

26 His Honour then examined his Worship's reasons and his final conclusion was:

" In my view, the appellant is correct that the learned Magistrate erred in four material respects: (a) failing to explain how any of the conflicts in the evidence had been resolved; (b) failing to specify why the evidence of Morris had not been accepted; (c) failing to refer at all to the evidence of Pendlebury; and (d) failing to make any findings on the credibility of Morris and Pendlebury. For these reasons, and for the other reasons I have set out, the appellant has a justifiable sense of grievance (Phillip (supra)) and there has been a miscarriage of justice.

27 The actual grounds of appeal to this Court from the learned Judge's decision are themselves concise. They claim that the learned Judge erred in finding that in the trial before the learned Magistrate, the appellant breached the rule in Browne v Dunn. The second ground claims that the learned Judge erred in finding that the Magistrate had failed to give adequate reasons for his decision. The grounds, however, are accompanied by voluminous particulars which would have found a better place in submissions. I shall make no further reference to them as grounds of appeal as they were repeated in argument.

28 I proposed to deal firstly with the question whether his Worship gave adequate reasons. His Worship gave two significant and important reasons. The first was that he was very impressed with the appellant when the appellant gave evidence. The second was his view that the appellant would not have seen the steaming light. This latter finding is not the subject of appeal and was open as Mr Morris' evidence was that its arc was 180° and counsel for the prosecution adopted it. He said in his final address (AB 207):

In my submission, sir, the evidence as to lights is effectively to the effect that the masthead (steaming) light had a 180° span, the light on the rodholder (canopy) had a 180° span, and the light on the stern had a 180° span.

29 I have put in brackets the terms his Worship used to describe the same things. His Worship's attention was not directed to the fact that Rule 21(a) required the arc of the masthead light to be 225°. It was not suggested at the trial that the green light had a different arc and could be seen independently of the steaming light. The effect of his Worship's finding was that the prosecution would fail unless it proved that the appellant would have been able to see the two bar portable fluorescent light which it was claimed had been brought on board and attached to the canopy or the torch said to be attached to the stern. The first and most important reason bearing on whether this had been proved was that His Worship was very impressed with the appellant when the appellant gave evidence. If two witnesses are in conflict, then the fact that a tribunal of fact is impressed with the evidence of one of the witnesses is of itself a sufficient reason not to act on the evidence of the other witness and if that other witness is a prosecution witness, it would be sufficient to raise a reasonable doubt. Judges sometimes address juries on the basis that they may possibly decide not to act on the evidence of a particular witness because there is another witness in whom they have confidence who testifies to the contrary.

30 The element of the complaint which the prosecution was seeking to prove was that the appellant failed to maintain a proper lookout. It was seeking to prove this by inference. The prime facts relied on were that there were lights burning which could be seen by the appellant. The Magistrate's earlier finding that the steaming light could not be seen by the appellant reduced this to the fluorescent lights. This would in turn be reduced to the fluorescent light attached to the canopy. There could well be doubt as to whether the appellant was within the arc of the torch which, at most would have been an arc of 180°. The proof that the other light was burning and could be seen by the appellant was an indispensable intermediate step in the reasoning process towards the inference of guilt and must therefore be proved beyond reasonable doubt (Shepherd v R [1990] HCA 56; [1990] 170 CLR 573). The last paragraph of his Worship's reasons made it clear he had a doubt on this question and the reason for this doubt was the strength of the appellant's evidence. He said that it was possible that the lights were not on at the time of the collision and shortly after said: "At least I have a doubt that they were on". I consider that this sentence is the key. He goes on to say "I have reached that conclusion on my assessment of Morris and Garrett as witnesses. I find that the two fluorescent lights were probably in place on the stern and the canopy but I find that they weren't on at the time just prior to the collision." As the conclusion being referred to in that sentence was the conclusion that he had a doubt that the lights were on, it must follow that the reason he found that they were not burning was the doubt he had earlier expressed. The finding that the fluorescent lights themselves were "probably" in place is a further indication that a prime fact to base an inference had not been established to the required degree.

31 The question is whether the reasons are sufficient. The law relating to this question is set out by Malcolm CJ in Lloyd v Faroane [1989] WAR 154at 163. His Honour said that the reasons must be revealed to such an extent as will enable an appellate court to consider and determine whether or not the judgment is erroneous. In Pallot & Ors v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995 Owen J said that each case must depend on its own circumstances but that the reasons must show to the litigant and the appeal court why a decision was made in a particular way. His Honour said that unless it is apparent on the face of the reasons why the decision maker arrived at the conclusion which he or she did the entire process can be called into question.

32 In my view the reasons in this case do show why the decision was made and reveal both to the parties and to an appeal court how the conclusion to dismiss the charge was reached. There is sufficient present to determine whether or not the ultimate conclusion is erroneous. The reasons show that the impression the appellant made on his Worship raised a reasonable doubt as to whether to act on the evidence of the prosecution witnesses and as to whether the prosecution had proved the prime facts to the required standard.

33 I have, with respect, reached a different conclusion from that expressed by the learned Judge who heard the appeal in the first instance. His Honour considered that the Magistrate failed to explain how any of the conflicts of evidence had been resolved and failed to explain why the evidence of Mr Morris had not been accepted. I consider that His Worship did make it clear that the reason why he did not act on Mr Morris' evidence is because he had a reasonable doubt as to whether it was correct by reason of the impression the appellant's evidence had on him. There is no requirement for His Worship to say why he was impressed with that evidence. That is entirely a matter of judgment from observing the witness give evidence, comparing his evidence to other factors and often the reason why a witness makes an impression cannot be expressed in any greater detail. It is different from weighing up medical witnesses in the way referred to by Kennedy J in Stojkovski v Fitzgerald [1989] WAR 328 at 340.

34 The next area in which his Honour considered the learned Magistrate erred was in failing to refer to the evidence of Mr Pendlebury. His evidence corresponded to Mr Morris' evidence and was given from a similar point of view, namely a person on the vessel helping Mr Morris. His Worship in short reasons referred to the two principal witnesses representing the two different points of view and did not in either case refer to those witnesses whose evidence supported them and whose evidence was similar. That does not mean that he did not have that other evidence in mind. I consider that it is implicit in his Worship's reasons that if he was not acting on Mr Morris' evidence for the reasons stated he was also not acting on the evidence of Mr Pendlebury. It is clear that the doubt created by the strength of the appellant's evidence caused his Worship not to act on the evidence of the prosecution witnesses. As his Worship has made it clear why he was not acting on the evidence of the prosecution witnesses there was no requirement to make further findings on the credibility of Mr Morris and Mr Pendlebury. Unnecessary adverse findings on credibility should be avoided.

35 I consider that his Worship's reasons were not structured as well as they might have been. A possible reason contributing to this was that he was inhibited by a misunderstanding of the rule in Browne v Dunn which pervaded the trial and to which I shall shortly refer. They were sufficient to the extent that it is not open to set aside the verdict.

36 The next basis on which it is claimed that the verdict should be set aside is the claim that the defence did not comply with the rule in Browne v Dunn. It is claimed that his Worship's findings were inconsistent with the evidence of Mr Morris when that evidence was not challenged in cross-examination. It was submitted that the prosecution were "ambushed". The principal submission of the appellant is that the rule did not apply as the prosecution were on notice as the appellant's claim that he saw no light was contained in the statements he made to the initial inquiry. The respondent's counsel drew the court's attention to the case of Maines v Roy (1990) 1 WAR 508 where it was said that the rule was not applicable in proceedings before a Magistrate. The respondent submitted that case ought not be followed.

37 I consider it is very important to have in mind the scope of the rule and not to apply it in a way that leads to unnecessary and sometimes tedious cross-examination. It is essentially a rule of fairness. The modern formulation in Australia is contained in the following reasons of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16. His Honour said:

"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or other inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn."

38 Hunt J at 18 referred to the fact that there are two aspects to be considered. Firstly there is a rule of practice or procedure, based upon general principles of fairness, which is designed to achieve fairness to witnesses and a fair trial between the parties. This is the rule requiring that the nature of the case is put to the opposing witnesses. Secondly, there is a rule relating to the weight or cogency of the evidence. Hunt J referred to authority to suggest that it meant no more than that if a witness is not cross-examined in relation to a particular manner on which he or she has given evidence, then that circumstance will often be a good reason for accepting the evidence of that witness upon that matter. This aspect had earlier been referred to by Mahoney JA in Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 at 236:

"Where, in a civil case, a witness is not cross-examined, it may normally be assumed that the evidence of that witness is not in contest. Therefore, as was there decided, in such a case a party who has not cross-examined a witness will not normally be entitled to submit in address that the witness's evidence should not be accepted."

39 It is to be noted that his Honour, in that passage, referred to the position in a civil case. The question is to what extent it applies in a Court of Petty Sessions. It was apparent during the present trial that counsel for the prosecution considered that every proposition advanced by its witnesses should be considered accepted unless that particular proposition was challenged in cross-examination. We were referred to the sentence in bold in the following passage from Odgers' Pleading and Practice 7th ed. (1912) page 312 quoted by Wells J in Reid v Kerr [1974] 9 SASR 367 at 368.

"This much counsel is bound to do, when cross-examining: he must put to each of his opponent's witnesses, in turn, so much of his own case as concerns that particular witness or in which that witness had any share. Thus, if the plaintiff has deposed to a conversation with the defendant, it is the duty of the counsel for the defendant to indicate by his cross-examination how much of the plaintiff's version he accepts, and how much he disputes, and to suggest what the defendant's version will be. If he asks no question, he will be taken to accept the plaintiff's account in its entirety."

40 The first question is to what extent each aspect of the rule applies in the Court of Petty Sessions. In Maines v Roy Nicholson J said at 516:

"As was conceded by the appellant in argument, the rule in Browne v Dunn (1893) 6 R 67 (HL), making it necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings, is not applicable in proceedings before a Magistrate."

41 The rule may not have been applicable in that particular case but it would be putting it too high to say it is never applicable in proceedings before a Magistrate. If in the present case the appellant, as defendant, called, as a witness for the defence, another person on the Aida who said that Mr Morris did not have the fluorescent light attached to the battery, or disconnected the light from time to time to save the battery or in any other way contradicted Mr Morris' evidence, then clearly that ought to have been put to Mr Morris and in that sense the rule must apply in a Court of Petty Sessions. This was the situation in South Australia in Reid v Kerr. In that case the defence adduced expert testimony relating to the classification of cannabis sativa. It was held that the rule had been breached by the failure of counsel for the defence to cross-examine the expert witnesses for the prosecution upon the facts that it was proposed to establish by expert witnesses for the defence. There was a similar situation in Dayman v Simpson [1935] SASR 320. In that case, on a prosecution for driving a motor vehicle while under the influence of intoxicating liquor, the prosecution called a medical expert who gave evidence that the defendant was slightly drunk. The defendant called a medical expert to say that the symptoms were consistent with shock. Napier J (as he then was) said at 321 that the extraordinary feature of this case was that whilst the doctor called by the prosecution was giving evidence it was never suggested to him that the symptoms he was describing might have been due to causes suggested by the defence. His Honour said that it seemed to him that the case of Browne v Dunn applied to a defence of that kind. The rule applies in the circumstances I have been describing.

42 However the question arises as to what extent does that aspect of the rule stating that if questions are not asked then counsel must be taken to accept the evidence apply in Courts of Petty Sessions. The first matter to consider is that there are no pleadings in a Court of Petty Sessions and, unlike a jury trial, the defendant, normally, does not have access to depositions or the prosecution case. This means that it often would not be possible for counsel to effectively place contradicting evidence before the witness. The difficulty in complying with this aspect of the rule comes to light by considering the present case.

43 The appellant, as defendant, was required to answer a charge of failing to maintain a lookout. It could well be that a defendant, in this position, would not know if it was to be alleged whether the other vessel was at anchor or under way or the lights it was exhibiting. It is not apparent from the appeal book whether the appellant in the present case would have had knowledge to a greater extent than became apparent from the questions asked during the inquiry. He was told during his questioning by Mr Sappelli that the vessel was at anchor and, at the second interview Mr Sappelli said "I have evidence that the navigation lights and after deck light aboard the Aida were switched on. Can you account for not seeing them" to which the appellant replied "no". The lights referred to, including the after deck light, suggest standard lights working from the vessel's lighting system. It was not a reference to substitute lights brought aboard or temporary lights rigged up. The appellant would not, normally, have access to statements taken in Mr Sappelli's investigation as they are part of the prosecution brief. The question must be decided on what information a defendant normally would have as distinct from what the appellant might have had in the present case. The evidence the appellant intended to give was to describe the lookout he was in fact keeping combined with his evidence that he saw no light. The proposition that the defendant would say that he saw no lights was in fact put to Mr Morris by counsel for the defence.

44 The appellant did not know what occurred on the Aida and there was no evidence in his possession by which he could contradict the witnesses. It might be anticipated that the prosecution witnesses would testify as to standard lights with which powered vessels are equipped. There was no suggestion in the prosecution opening address to the court that the prosecution would be relying on lights of the type brought on board to perform the work of the standard lights. Can it be said that in these circumstances the appellant is accepting the veracity of the testimony by not asking questions?

45 I consider that the answer is that if the evidence is seeking to prove an element of the offence then the plea of not guilty, itself, is notice that the evidence is in contest and it cannot be said that the evidence is being accepted in the event of questions not being asked. The same must be said when the evidence is seeking to prove a fact that is an indispensable intermediate step towards the inference of guilt. This is consistent with what was said by Bray CJ in Thomas v van den Yssel [1976] 14 SASR 205 when in the context of discussing the rule he said that damages are always in issue (at 207). If counsel are not in possession of evidence contradicting the witness it would not be a requirement for counsel to say to a witness expressions to the effect "I put to you that is false". It is not a question. The witness cannot effectively respond to it and it takes the trial no further. Where it is a question of seeing if there are alternative explanations open, counsel for the defence is entitled to make such submission without necessarily asking questions on obvious areas such as batteries running down when they are supplying lights over long periods. In areas not so obvious it would be open to a court to be more hesitant if it were in an area that may well be explained by a witness if asked.

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.

How far counsel must go to comply with the rule

47 Even if the rule applied to its fullest extent I do not consider it could be said that there was a failure to comply with it in the present case. The cross-examination by counsel for the defence, Ms Saraceni, brought into question the existence of the lights and the ability of those on the Aida to give reliable evidence as to their intensity out to sea. Ms Saraceni commenced her cross-examination of Mr Morris (AB 41) by asking him questions in respect of the portable two-bar fluorescent light. She referred him to the fact that he testified that the light was in fact on at the time of the accident. She asked him who installed it and he replied that it was Mr Pendlebury. She then asked if he witnessed him installing it and the time it was switched on. She asked him why he requested Mr Pendlebury to install it. She asked the purpose of the light and ascertained that it was for lighting the baiting area. Throughout her cross-examination she asked a number of questions to show that the light was pointing to the baiting table, as distinct from shining out to sea. Although she did not refer to the specific proposition, the answers she was getting developed the point that it would be less likely for it to be seen by a vessel approaching side on where the bars would not be visible. She asked in detail how it was tied on, the rope used, the way it was tied and the knots. Later, in Mr Penlebury's cross-examination, she asked him to describe precisely how he rigged the fluorescent light to the rod holders. She asked him where he obtained the twine to which he referred and its colour.

48 This line of questioning made it clear that counsel for the defence was not accepting the proposition that this particular light was placed in its claimed position. Had the proposition been accepted the questions would have been irrelevant. Each witness was asked to describe in detail how the lights were tied on. Had there been an important difference in their respective descriptions the submission would have been open that there was a clear fabrication. The proposition in Odgers that counsel is accepting the testimony, is based on the proposition of counsel asking no questions. In this case, there were questions that could have no other purpose than to test the proposition of the light being in position.

49 Counsel for the defence then asked Mr Morris questions relating to the battery's capacity to maintain the light for a continuous period of seven to eight hours. She originally ascertained that it was a new battery. The witness told her that he had charged it the day before. She asked why was it necessary to recharge a new battery. This would be bringing into question his credibility. The fact that questions were asked in this area bring to the fore the possibility that a reasonable doubt would arise from the capacity of the battery to last the length of time. She asked if he had noticed the light dimming at all and he replied that it had not. It is not part of the rule that counsel, by not asking further questions, is accepting answers given in cross-examination. The questions are asked and it is a matter for his Worship to weigh up the credibility of the answers and one basis of doing that is to be assessing the credibility of the witness generally in respect of the whole of his evidence.

50 Counsel then asked Mr Morris questions in respect of the torch attached to the stern. She ascertained that one of its purposes was to light the fishing area at the back. She then asked a series of questions to show that Mr Morris could not judge its intensity without his being out in the water and seeing the light head-on. This would be sufficient to show that there would be difficulty in testifying as to the intensity of lights of this type when viewed only from the deck. A question of this type was not again put in respect of the other light. I would see this as being unnecessary. The point was made. There were two further areas of questioning in respect of this light which made it very clear that its very existence was in question. It was put to Mr Morris that he did not refer to a second fluorescent light in the first statement he gave to Mr Sappelli. The witness was asked to describe how tightly he had tied the torch to the rail. Ms Saraceni then put to the witness that it if was tied as tightly as that, it would not have fallen into the sea at the time of the collision having regard to the distance it was from the point of impact.

51 It is apparent that counsel for the prosecution saw the situation that the defence were alleging recent invention because in re-examination, counsel tendered a later statement made by Mr Morris in which he referred to both fluorescent lights. Such a statement would not have been admissible unless it were to rebut recent invention.

52 Mr Pendlebury was asked why he brought the two bar portable fluorescent light to the bow when there was sufficient light present. There was an obvious reply but the question itself showed that counsel was questioning his credibility and was not accepting the existence of this light. I do not consider it can be said that counsel for the defence ever accepted the proposition that the lights were in position, or that they were burning at the time of the collision, or that substitute lights could be seen out to sea. These were very much put in issue and it would not be open to say that there was an ambush. I have already mentioned that counsel did put to Mr Morris the substance of the defence, namely, that he saw no light.

53 The position in respect to the masthead light was that counsel for the defence obtained an answer from the witness that its arc was only 180 degrees. This led to the finding that if it were burning, the appellant would not have been able to see it.

54 I do not consider that in the circumstances I have outlined that there is a requirement to say to a witness in respect of an answer he gives, "I put it to you that answer is incorrect", nor is counsel required to say to a witness words to the effect, "I suggest to you that evidence is incorrect-what have you to say to that?", or "I put it to you that that is a lie". This can be offensive to a witness and is unnecessary. It is the cause of trials becoming unnecessarily longer and such questions should be discouraged by the court. They do not assist in exposing the truth or falsity of a matter and they would be very difficult for an honest witness to answer in a dispassionate way. It has increasingly become the practice for this to happen out of over-caution and not understanding the limits of the rule. This practice could arise from a misunderstanding of an expression used by Wells J in Reid v Kerr at 374 when he referred to questions where the cross-examination is "willing to wound, and yet afraid to strike". His Honour was referring to the situation where if an imputation is to be put, the full imputation must be put to enable the witness to answer it. This should not be taken too broadly and does not extend to saying that if questions are asked which suggest that the witness might be wrong in his evidence, the imputation that he is lying should be specifically put to him.

55 Much of the thrust of the cross-examination in the present case was to bring to light the possibility that there was no light which the appellant could see so as to raise a reasonable doubt as to the existence of facts to contradict the appellant's evidence. The doubt could arise by reason of there being a doubt as to whether the light existed at all, if it did exist whether it was powerful enough to be seen at sea at the time of the collision and whether it was pointing in the right direction. The cross-examination tested each of these possibilities with the aim of creating the doubt. This is a proper approach.

56 I propose to refer to this for two reasons. Firstly it explains to a degree some aspects of his Worship reasons and a possible inhibition on his part not to expand in areas one might have expected some expansion. Secondly, the misunderstandings to which I intend to refer are a common misunderstandings often leading to tedious irrelevant and unnecessary questions and unnecessary prolongation of trials.

57 Mr Morris gave evidence that on impact the engine of the Volcano did not appear to stop or slow down and that the Aida was pushed some 30 metres or so. The appellant, when he gave evidence, gave an explanation as to why his engine was not immediately stopped. He said he was thrown forward, stunned to a degree and there was a delay before he could get to the levers controlling the engine. He did not attempt in his evidence to give an estimate as to how far the vessel travelled after impact or as to how far he pushed the Aida. This was not part of his case and he did not testify as to it. He was asked the following questions in cross-examination (AB 136):

"And it is in fact the case, isn't it, that the "Aida" was pushed forward about 30 or 40 metres before you reversed the engines of your boat, isn't it?---I wouldn't say - - it's hard to say. I wouldn't have pushed them 30 to 40 metres. It was almost instantly I pulled the revs back.

Well, Mr Morris gave evidence that it was pushed forward about that distance and it wasn't contradicted by your counsel. Have you got any explanation for that?---No, I haven't. I don't quite understand. 30 to 40 metres, we wouldn't have pushed him that far.

Well, I put it to you that the reason that you didn't reverse until you travelled that distance is because at the time you hit the "Aida" you were nowhere near the controls?---I was standing at the wheel in the wheelhouse.

And I put it to you that you were not even in the cabin or the wheelhouse of your vessel at the time you collided with the "Aida"?---Yes, I was.

Isn't it the case that you were at the back of the boat away from the wheelhouse?---No, I was not at the stern of the boat.

Mr Morris' evidence was that he couldn't see anybody in the cabin of the wheelhouse as it hit and that there were lights on in it, and that evidence wasn't contradicted. How do you explain that?---I was standing in the wheelhouse at the wheel."

58 I have printed in bold type the two improper references to the fact that evidence was not contradicted. Counsel for the defence would have had no means of contradicting the evidence of Mr Morris as to how far his vessel was pushed. Mr Morris' evidence, in any event, was only an estimate. The distance travelled after the collision was not part of the defence case and counsel led no evidence on it. It could not be said, in these circumstances that she accepted the estimate. Questions asking the witness to explain why evidence was not contradicted are out of order in any event as a witness would not know of the operation of the rule and could not be expected to explain counsel's actions.

59 It was open to counsel for the prosecution to explore the proposition that the appellant was not at the helm and was allowing his vessel to steer itself. It would however be a proposition which counsel for defence would have had no notice and would not, in my view, have anticipated when cross-examining Mr Morris. One of the reasons it would not be anticipated is that it would be highly unlikely that the appellant would be risking the vessel and the opportunity to earn money from the intended catch by allowing the vessel to steer itself through a narrow channel in a reef.

60 I would refer also to the last question set out above relating to Mr Morris not seeing anyone in the wheelhouse. As counsel for the prosecution was developing a proposition that could not have been anticipated there would have been no significance if the evidence on that point were not contradicted. It was however very much challenged. The proposition advanced by Mr Morris, in his evidence in chief, was that when he saw the vessel approaching he saw no-one on the fly bridge. He then looked into the wheelhouse where there was a degree of light and he so no-one in the wheelhouse and he considered it was a ghost ship. Counsel for the defence, in cross-examination, took up the proposition that it was a ghost ship and asked questions bringing into contention his ability to see inside the wheelhouse (AB 55). She made it clear to the witness that the appellant was not steering from the fly bridge. She then asked that if his view into the cabin was a fleeting glance and whether he was looking out for people. She asked whether he was looking at the fly bridge or was looking into the cabin. The implication was he could not do both and this was the point she made in her final address.

61 There is a further area to which I shall refer demonstrating a misconception of the operation of the rule. Mr Morris in his evidence in chief, when describing the lighting of the approaching vessel, said that all its navigation lights were on and he said that there was another light "like a spotlight". He then said "There was a spotty, I thought, on the top, of his deck". Mr Pendlebury said that the approaching vessel was showing its navigation lights "and a spotlight shining down on the bow sort of into the water". The appellant was asked the following questions in cross-examination:

"Isn't it the case that you had a spotlight on the front of your vessel in addition to the navigation lights that were on?---No.

Mr Morris and Mr Pendlebury said that they saw a spotlight and weren't contradicted. Can you explain that?--The photos will show there's no spotlight. The vessel was never fitted with a spotlight to the front of the vessel."

62 While the appellant gave evidence as to using a spotlight after the collision to search the water, he gave no evidence as to whether he had one attached to the front of the vessel. It is apparent that, when cross-examining, counsel for the defence was not interested in the question whether a spotlight was attached to the front and it did not affect her case. It is essential for a cross-examination to be relevant and unnecessary questions avoided. There is no requirement to be challenging matters of this nature in cross-examination. There is a further reason why the above question was out of order. Mr Morris did not testify as to a spotlight fixed to the front of the vessel. He saw it on the deck.

Reference to the rule in the Magistrate's reasons

63 In his summing up counsel for the prosecution referred, on more than one occasion, to the proposition that the defence must be seen to have accepted evidence not challenged in cross-examination. He claimed it was not open to say that the particular lights concerned were not on the vessel. He objected to defence counsel using the word "fabrication". Counsel for the defence used this term in respect of one particular question and answer. Counsel for the prosecution also claimed that the possible inferences which could be drawn were not put to the prosecution witnesses.

64 His Worship had little authority on the application of the rule in Courts of Petty Sessions. The proper response to the submissions of counsel for the prosecution would have been that the rule was not applicable as the prosecution was using the evidence for the purpose of establishing an element of the offence and facts that were indispensable intermediate steps towards the inference of guilt. In any event, the defence had brought most things into question by the actual questions asked. As his Worship was impressed with the appellant's evidence, it would have been appropriate for His Worship to examine all possibilities as to why the particular light concerned was not burning or, if burning, may not have been visible to the appellant. It would be necessary to examine these possibilities irrespective of whether the question was raised in cross-examination. The absence of cross-examination could be a factor in evaluating certain possibilities if it could be expected that the prosecution witness would have an explanation of a type that would not normally be raised in evidence in chief.

65 It would appear however, his Worship acted on the basis that there was some restriction in his considering such matters by reason of their not being raised in cross-examination. This is apparent from the following passage in his Worship's reasons:

"The defendant suggests - and I find it was raised with the witness, Morris, at least, indirectly in cross-examination - was that Morris turned the lights on after the collision. I come to the conclusion that this would have been possible."

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.

67 There are a number of other possibilities apparent from the evidence to which his Worship did not refer and would have a bearing on whether the appellant's evidence was correct. A two bar fluorescent light of the type described is designed to shine ahead as distinct to its side. It would be a distinct possibility that when it was directed to the baiting table, it may have been directed to a degree to the starboard side. It would have been open to his Worship to refer to these possibilities as matters leading to a reasonable doubt whether or not they have been raised in cross-examination.

(1) The rule in Browne v Dunn applies in Courts of Petty Sessions to the extent of requiring counsel to put to prosecution witnesses the substance of evidence that it is proposed to lead from either the defendant or his or her witnesses on a material issue and which is different from the evidence in chief of the person being cross-examined.

(2) There is no requirement to cross-examine on matters of which the defendant or witnesses proposed to be called has no knowledge or on matters not relevant to the facts to be proved.

(3) The proposition that evidence on a particular matter is accepted in its entirety where no questions are asked has very limited application in a Court of Petty Sessions. It would not apply in respect of evidence seeking to prove an element of the offence. The plea of not guilty itself gives notice that the evidence to prove the element is in contest. This would extend to where prosecution are seeking to prove a fact that is an indispensable intermediate step towards the inference of guilt. It does not apply to matters coming within (2) above.

(4) When the defence is seeking to negate inferences it would normally be necessary to put to a prosecution witness propositions of an unusual or unexpected nature in circumstances where it can be expected that the witness may give an explanation and where it would not be expected that the witness would refer to the matter in evidence-in-chief.

68 I would allow the appeal set aside the order of this Court and I would restore the judgment of the learned Magistrate dismissing the complaint.

69 WALLWORK J: I agree with the reasons for judgment of Pidgeon J and to the orders proposed by his Honour.

70 OWEN J: I have seen the reasons for decision that Pidgeon J intends to publish. I agree with his Honour's reasons and with the orders that he proposes. I wish to add a brief comment on two matters.

71 In Sotomayar v Kelly, unreported; SCt of WA (Owen J); Library No 918871; 9 May 1991 I expressed the view that the Rule in Browne v Dunn did not apply to proceedings in the Court of Petty Sessions. I have now come to a different view and I respectfully agree with the analysis of the nature, extent and proper application of the rule contained in Pidgeon J's reasons.

72 The second matter on which I wish to comment concerns the adequacy of the reasons for decision given by the learned Magistrate. It is becoming more and more common in appellate litigation for a challenge to be made on the basis that the tribunal of fact failed to give any, or any adequate, reasons for the decision or for particular findings. I think the obligation to give reasons is often misunderstood or is applied in a manner that is hardly feasible given the realities of administering justice in this day and age. Accordingly, I will set out what I understand to be the relevant principles.

73 At common law there was (and is) a duty on a decision maker required to act judicially or quasi-judicially to give reasons for decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination. I will repeat what I said on the general question of a duty to give reasons (with which White J agreed) in Frichot v Zalmstra, unreported; FCt SCt of WA; Library No 981291; 13 May 1998 at 14:

"The authority most often cited in this regard is the dicta of Moffitt P, in Pettit v Dunkley [1971] 1 NSWLR 376 at 387-388. That passage is so well-known that I will not repeat it other than to say that it has been adopted in this court in cases such as Lloyd v Faraone [1989] WAR 154 at 163.

In Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 702 the Court indicated that in a position such as we have here the appealable error lies not in the result of the trial but in the failure to give relevant reasons in circumstances which deprive a party of an effective right of appeal conferred by statute.

To that I would add that in our judicial system, where proceedings are to be conducted in public, the duty to give reasons is an adjunct to or in some respects a part of the overall obligation to afford to litigants procedural fairness. Put in that way, in addition to securing the statutory right of appeal, the obligation to give adequate reasons is part of the fairness to a litigant who comes to the court to know why it is that he or she succeeded or has been unsuccessful. ... [T]hat does not mean that every piece of evidence, every exhibit, every word that has fallen from counsel during submissions must be alluded to expressly or even by implication in the course of giving reasons. It would neither be necessary nor feasible for an obligation of that nature to be imposed on trial courts.

It is sufficient if the reasoning process which led to a result is disclosed with sufficient certainty to enable the litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured."

74 The tribunal of fact in that case was the District Court. However, I believe the principles are equally applicable to the Court of Petty Sessions. To the authorities mentioned in that extract I would add Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, 277-281; Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531 at 539-40, 548 and Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 at 640, 647. I would also add that it is necessary to look at the reasons as a whole to see if they give the sense of what was intended in a way that achieves the results to which I have referred. It is sometimes the case that by dissecting the reasons line by line, word by word the reader loses the sense of what is conveyed by a particular passage. It is often the case that the true sense can be gleaned only by looking at the passage in the context of the whole. In this way something which appears at first glance to be a material omission may be adequately explained.

75 In this case the Magistrate's reasons could have been more happily and more expansively phrased. But in my view they disclose the essential intellectual process by which his Worship arrived at his decision. There is little that I can add to what Pidgeon J has said in this respect.