Court of Appeal (WA)|2003-04-01|Before: Templeman J

Krakouer v Durka [2003] WASCA 141 (1 April 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KRAKOUER -v- DURKA [2003] WASCA 141

Criminal law - Dangerous driving causing death - Appeal against conviction - Conviction in Petty Sessions by preferring one of two contradictory versions of accident - Finding of fabrication without basis put in issue

Official Prosecutions (Defendants' Costs) Act 1973, s 5(4)

A M Smith v The Queen [1976] WAR 97

Daniels v Burfield [1994] HCA 35; (1994) 125 ALR 33

Jiminez v The Queen (1992) 59 A Crim R 309

Kaighin v The Queen (1990) 1 WAR 390

McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Vrisakis v Australian Securities and Investments Commission (1993) 9 WAR 395

1 TEMPLEMAN J: This is an appeal against conviction on three charges, two of causing death by dangerous driving and one of causing bodily harm by dangerous driving. The charges arose out of a traffic incident on 9 March 2002.

2 The appellant, as I shall call him because he was given leave to appeal to this Court, was driving a motor vehicle near York on the night of 9 March 2002. He had with him in the car another eight people, despite the fact that it was a relatively small Lancer vehicle.

3 Sitting in the passenger seat beside him was his son. In the back of the vehicle there were three adults and one child. The adults were Dora Hayward, Rhonda Pamela Hayward and Jacqueline Ann Collard. The child was Ms Collard's son Ashley whom she was holding on her lap. None of the passengers in the rear of the car were wearing seat belts. There were three children behind the rear passenger seat, the car being a hatchback and there being some small amount of space there.

4 The accident happened about 3 kilometres east of York on the Quairading/York Road at about 12.56 am, that is, early in the morning, of 9 March 2002. It seems to be common ground that the accident occurred after the vehicle veered off the bitumen onto gravel to the left of the road on which it was travelling, then travelled back across the bitumen, leaving it on the other side, on the right-hand side, and hitting a tree or trees. As a result of the collision two of the back seat passengers, Dora Hayward and Rhonda Hayward, died, I think almost immediately.

5 The appellant was charged with five offences, the three that I have referred to, they being the two charges of causing death by dangerous driving and one of causing bodily harm to Ms Collard (who was injured in the accident) and two further charges: failing to provide a sample of blood for analysis and driving without being the holder of an appropriate valid driver's licence for that class of vehicle and while legally disentitled.

6 The appellant was convicted of all five offences by a Stipendiary Magistrate sitting at Northam. The appellant does not appeal against his conviction on the last two charges, that is, failing to provide the blood sample and driving without a licence.

7 There are two grounds of appeal, although as the matters unfolded before me today, a third ground emerged, not stated expressly, but one which appears clearly enough when one reads the Magistrate's reasons. The first ground is that the learned Magistrate erred in convicting the appellant when there was a deficiency of the evidence supporting the contention that the appellant caused the accident the subject of the charges. The second ground is that the learned Magistrate erred in convicting the appellant despite the existence of a reasonable explanation available on the evidence as to the cause of the accident, that explanation being consistent with the appellant's innocence. I have paraphrased the grounds of appeal for present purposes.

8 The trial extended over some two days and the learned Magistrate reserved his judgment, which he gave some time later.

9 There were two conflicting accounts of the events immediately before the accident occurred. They were given by eyewitnesses, being Ms Collard who was in the back of the car as I have said, and by the front seat passenger, Mr Hansen, who is the appellant's son.

10 Ms Collard is the daughter of one of the deceased women and was therefore, in that sense, not an independent witness, although of course Mr Hansen was not independent because he is the son of the appellant. However, Mr Hansen was called as a prosecution witness.

11 The evidence given by Ms Collard was essentially this: that the appellant had been driving at a speed she estimated at 100 kilometres per hour; that he had "done a snaky", as she called it: that is, executing an S-bend, on the road which resulted in his losing control of the car which travelled from the bitumen, off to the left and then back again, to the right, before hitting the tree.

12 There was evidence that Ms Collard had been drinking heavily all day and had taken amphetamines. She was also, as the Magistrate accepted I think, very antagonistic towards the appellant. She had at some stage, although she denied it, made a phone call to the appellant saying words to the effect that she wanted to see him in gaol. The learned Magistrate did not believe her denial: in other words, he accepted that she had made such a phone call.

13 The evidence of Mr Hansen, on the other hand, was that the appellant had taken evasive action to avoid a large truck or semi-trailer which was driving towards the vehicle on the wrong side of the road; that it was the taking of that evasive action by swerving off to the left which caused the loss of control, resulting ultimately in the impact with the tree.

14 There was independent evidence, not eyewitness evidence, but independent evidence, from police officers who attended the scene quite shortly after the accident. An opinion was expressed by an expert witness, a police officer Sergeant Thorpe, an accident investigator who I think had a considerable amount of experience in that field.

15 The submission was made on the part of the appellant that there was no evidence corroborating that of Ms Collard who was, it is said, a very unreliable witness for the reasons I have already mentioned.

16 The appellant's case on appeal is based on the proposition that the learned Magistrate found as a fact that it was the snaking manoeuvre by the appellant which was the immediate cause of the accident, whereas Sergeant Thorpe, the accident investigator, gave evidence which was inconsistent with snaking. He said, in substance, that had there been snaking, there would have been some movement of the gravel, some building up of the gravel, as the tyres executed the turn, whereas it was Sergeant Thorpe's evidence that the front wheels of the car were not turned but were travelling in a straight line when it drove off the bitumen to the left of the road.

17 In my view that is, with respect, a misunderstanding of the evidence. It seems to me, reviewing the evidence, that what Ms Collard said was that there was one snaking on the road, on the bitumen, and then the car went off to the left; and then the next thing that happened was that after a loss of control, the car hit the tree on the right-hand side of the road. All that is consistent with the evidence of Sergeant Thorpe.

18 Sergeant Thorpe's evidence was that the car went off the road in a straight line, the wheels not being turned, but that at some point one of the back wheels dropped into some kind of culvert, causing a loss of control so that the back of the car slewed around in a clockwise direction and then the car went across the bitumen again, obviously out of control, until it was stopped by impact with the tree. There was evidence of tree bark in the car doors or on the side of the car, confirming that the vehicle had in fact hit the tree.

19 Pausing there, if that were the end of the matter it would be open to me, under s 199 of the Justices Act, to substitute a decision which ought to have been made; that is to say, to make a finding about the way the collision occurred. But that is not the end of the matter because of the way in which the learned Magistrate approached the credibility issue which he had to resolve.

20 Clearly, if Ms Collard's account was correct, then it did not admit of any other reason for the loss of control by the appellant. I therefore return to Mr Hansen's evidence which was, as I have said, that the appellant took evasive action to avoid the semi-trailer, or truck, travelling in the opposite direction.

21 The learned Magistrate, near the commencement of his reasons at p 257 of the appeal book, letter B, said that the case called for an assessment of the evidence and the credibility of Jacqueline Collard in comparison with the evidence of the appellant and Mr Hansen. That assessment of credibility, the Magistrate, said, was crucial to the outcome.

22 The Magistrate directed himself correctly in saying he had to be satisfied beyond reasonable doubt before he could convict the appellant. A little earlier in his reasons at p 256, letter E, his Worship said:

"So this Court has to determine matters of credibility in respect of the two versions of events - which I will come to shortly - with respect to the version of events given by Jacqueline Collard, the passenger left rear seat, and the version of events given by (the appellant) and the front seat passenger."

23 I should say that the appellant did not give evidence but there was a video record of interview in which he said that he had to take evasive action to avoid the truck. Mr Hansen said the evasive action had been successful in that there had been no collision between the Lancer and the truck, whereas the appellant was unsure about that.

24 Returning to the learned Magistrate's reasons, he reviewed the evidence and went through it very thoroughly before reaching his conclusions. One of the points made by the learned Magistrate was that the appellant and Mr Hansen while in hospital had had the opportunity of concocting and therefore fabricating their evidence.

25 There were two aspects to the appellant's credibility. One was of course the version of events involving the truck and the other was the question whether the appellant had been intoxicated at the time. There was evidence that he was intoxicated in the sense that he had been drinking during the day. And when he was asked by a police officer immediately after the accident whether he had been drinking, said, "What do you fucking reckon?"

26 The Magistrate said that answer could only reasonably be interpreted as an admission by the appellant that he had been consuming alcohol. That, I think, as I have said in the course of argument, is an entirely reasonable interpretation of the answer. However, it was Mr Hansen's evidence that he had given the appellant some alcohol to calm him down immediately after the accident; that alcohol having come from a wine cask, two of which were found in the vehicle.

27 The learned Magistrate said that the truck version of events was fanciful and had been fabricated in the hospital to give an account of what had happened. Further, the Magistrate found that the evidence about the wine cask was simply incredible or unbelievable. That was because if there were only two wine casks in the car, which appeared to be the evidence, then Mr Hansen, after giving his father some wine, would have had to have put the cask back in the footwell immediately beside or in front of the dead women then in the back of the car.

28 The difficulty I have with the Magistrate's finding of fabrication is that that was never put to Mr Hansen, who of course was called as a prosecution witness. Further, the finding involved the drawing of an inference adverse to the appellant when, objectively there is an alternative inference: that Mr Hansen's evidence was true.

29 Of concern is the fact that having rejected the evidence of Mr Hansen the Magistrate said, "I therefore accept in all material respects beyond reasonable doubt the version of events given to the Court by Jacqueline Collard."

30 The difficulty with that is of course that in a case such as this it is of crucial importance that the tribunal of fact cannot choose between versions. That is to say, if there are two versions which contradict each other it is not open to the tribunal of fact to accept one version simply because it rejects the other. That, with respect, seems to me what has happened here: the learned Magistrate accepted Mr Collard's evidence because he rejected Mr Hansen's account. This is the basis for the third ground of appeal which emerged during the hearing.

31 If this had been a jury trial, the jury would have been directed that even if they did not positively accept the evidence of Michael Hansen or the appellant, they could not convict him if that evidence nevertheless raised a reasonable doubt in their minds as to his guilt: Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.

32 As I have said, that is not the way the learned Magistrate approached the issue: and that is a serious error.

33 It is of course open to me under s 199 of the Justices Act to dismiss the appeal notwithstanding that any point raised in the appeal might be decided in favour of the appellant if I consider that no substantial miscarriage of justice has occurred. It is also open to me to substitute a decision that ought to have been made by the justices.

34 I have given consideration to that course. The difficulty I have with it is that the question of credibility in this case is, I think, very much bound up with the impression made by the witnesses on the Court. That is particularly so having regard to the fact that Ms Collard was admittedly intoxicated and admittedly affected by amphetamines and was found to have a grudge against the appellant.

35 This is a serious matter. It has resulted in a term of imprisonment of 5 years being imposed on the appellant. If it was a fine of a few hundred dollars, I might well have come to the conclusion that no substantial miscarriage of justice had occurred, but I am very uneasy about allowing that conviction to stand when I think, with great respect to the learned Magistrate, he did not direct himself correctly in attempting to resolve the credibility issue. I say that, despite the fact that there was clearly evidence on which it was open to the learned Magistrate to convict. Thus the two express grounds of appeal must fail.

36 In all the circumstances it seems to me that the appropriate course is not to quash the conviction and leave the matter there, but to quash the conviction and order a retrial because, as I have said, it is a serious matter. Two people were killed as a result of this event. It is certainly in the public interest that if the appellant is guilty, he should be brought to justice but it should be done in a proper manner. I will therefore quash the conviction and order a retrial.

37 After I had delivered my judgment (of which the foregoing is an edited version) counsel for the appellant sought an order for costs, under the Official Prosecutions (Defendants' Costs) Act 1973.

38 By s 5(4) of that Act (and subject to the Act), when a defendant is successful as a result of the Appeal Court (which this is) reversing a decision of a Court of Petty Sessions:

"the Appeal Court shall make an order as to the amount of the costs in the Appeal Court and in the (Court of Petty Sessions)."

39 The amount of costs so ordered is to be fixed on the relevant scale determined under s 58W of the Legal Practitioners Act 1893.

40 I would be prepared to make orders in those terms, although there may be some contention about the extent to which the appellant should recover his costs of the appeal, given that the ground in which he has succeeded emerged only in the running.

41 It will therefore be necessary for the costs issue to be the subject of a further application. This may be brought informally, by re-listing the appeal for further consideration.

Practitioners Act 1893

Prosecutions (Defendants' Costs) Act 1973

Krakouer v Durka [2003] WASCA 141

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Krakouer v Durka [2003] WASCA 141 (1 April 2003)

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