Mitchell Gatenby v Senior Constable Ronald Duncombe

The evidence

1. The trial commenced on 20 February 2014. The first witness was Senior Constable Ward, who went to the scene of the collision with other police at about 3.30pm on 16 December 2012. The plaintiff was trapped in his vehicle (a Nissan) and, when released, taken away in an ambulance. The investigating officer was Senior Constable Duncombe. SC Ward took photographs but made no measurements. The other vehicle was an Isuzu truck, the tray of which (the constable agreed) protruded beyond the cabin by about 200mm. She was unable to say why the plaintiff was not interviewed. This was a matter for SC Duncombe to decide. A survey of the road was identified by the officer, who agreed that the positions of the vehicles depicted were possibly (perhaps meaning probably) accurate. The road was gravel, with no centre line marked.
2. Mr Kershaw, the driver of the truck, then gave evidence. He said he was driving at between 40 kph and 50 kph on the correct side of the road when, coming around a sweeping right hand bend, he saw the plaintiff's vehicle, going too fast, "well" on its wrong side of the road, "taking the corner too wide". He attempted to avoid a collision, steering left and braking hard, coming almost to a stop. The other vehicle also steered to its left and braked but continued on and struck the tray of the truck, bouncing back to its final resting position. Although the forward movement of the truck had almost stopped, it rotated sideways about a metre and a half to the edge of the road as a result of the collision. He agreed that the photographs showed the final positions of the vehicles. The tray is 2.4m wide, about 450mm wider than the cabin. The driver's son was in the vehicle also. He confirmed the evidence of his father about speed, that the vehicle was on its side of the road and the other vehicle was straddling the centre, the truck braked and swerved and was almost stationary when the collision occurred. The other vehicle slid, unable to gain traction on the gravel. The photographs accurately depicted where the vehicles ended up.
3. The plaintiff gave evidence to the effect that he was travelling on the left-hand side of the road at only 40kph to 50kph, saw dust on the road as he approached a bend, reduced speed and then saw the oncoming truck "from what I could see in the middle of the road … but that's very vague with determination of how wide the road was … there wasn't enough room for me to get past" and the next thing he remembered was waking up in hospital. In answer to the suggestion, put to him in cross-examination, that his vehicle was straddling the centre of the road, he conceded "that it was, depending on how wide the road was", he could not say one way or the other. He first said the tray of the truck was partly on the incorrect side of the road because that is the part his vehicle collided with but later stated that part of the cabin was also over the centre.
4. The defence also called Mr Colin Wingrove, a consultant transport engineer who, amongst other things, had visited the scene where he took photographs of dual wheel marks in a depression (called "wheel stop marks"), obtained dimensions of the truck from the manufacturer's website and, using other dimensions from the police photographs (which did not depict the truck's rear wheels or the wheel stop marks), marked up a survey plan of the scene (later) tendered into evidence with the final positions of the vehicles (shown to scale), that of the truck being marked relative to the wheel stop marks. The survey plan showed the road (called the trafficable area) to be 35m wide, with an additional relatively wide area comprising a shoulder on the truck's side. The wheel stop marks were .049m within the trafficable area. Although it was possible they may have been left by some other vehicle travelling along the road after the collision, they were close to where the truck's nearside dual wheels were shown to be in the photographs taken by police and were thus likely to have been caused by the truck in the collision. (The plaintiff's father gave evidence that the marks, "at the end of quite a long skid mark coming on a curve into that", were seen by him when he visited the scene on the day after the collision.) The trial was adjourned.
5. When the trial resumed, the prosecution called SC Duncombe (who had earlier been unavailable to give evidence), who was the officer in charge of the investigation. After the vehicles had been removed, he worked out (as best he could, given that the road was unmarked) the position of the centre of the road. He measured by stepping out the distances, starting from the leaf line in what was called the "gutter". He determined where the collision occurred by assuming that the truck stopped at that point. Skid marks showed sideways movement ending at the rear wheels showed the truck's rear had been deflected by about 1.5m, pushing the front towards the centre. When notionally straightened, he concluded that the point of impact was about one metre on its side of the road. He saw no signs of a skid at the front. He recalled seeing a depression but not so deep as that shown in Mr Wingrove's photograph (which he could not directly relate to the scene as he recalled it). He said he spoke to the plaintiff at the scene to see if he was OK and again later. The plaintiff told him he could not remember what happened, so he did not think it useful to take a statement from him. He did not obtain a report from an expert to attempt a reconstruction of the collision because a request would be unsuccessful where the charge in question was only one of negligent driving.
6. The defence called a Mr Maidla, who was a member of the Rural Fire Service and called to the scene. When he arrived, police and ambulance officers were already there. He observed the vehicles. He was asked - Q. Are you able to say as you're looking at the truck that you noticed some movement in the truck as you were looking - from your observations of what was on the roadway? --- A. Yes. Q. What was the movement you say you observed? --- A. The back wheels of the truck had moved sideways pushing dirt up beside the wheels. He was then taken to Mr Wingrove's photograph and said that it depicted the depression and the piled up earth that he had seen. The plaintiff's father gave evidence that he had visited the scene of the collision on the following day and also when the surveyor and Mr Wingrove inspected it. He said that the photograph (identified by Mr Maidla) depicted the depression and the dirt pile in the position he had seen it on each occasion.
7. The surveyor, Mr Veitch said he visited the scene with Mr Gatenby Snr in October 2013 to gather information for the purpose of making a survey sketch plan of the vicinity, including the position of the wheel stop mark that was pointed out to him. He marked the "crown of the road", taking it to be the centre, and measured the road width as seven metres, using as the boundary on each side the extremities of the graded trafficable area. The wheel stop mark was, as I have mentioned, measured at 049mm inside the edge of the trafficable area. In cross-examination, Mr Veitch agreed that the centre line shown on his survey was not that of the trafficked area and the line did not equally divide this area, the centre of which would be "considerably" to the left of the marked centre line, (that is to say, on the plaintiff's side of the road), probably about half a metre, though precision was difficult because the centre of the "trafficable" (I think he meant "trafficked") area constantly varied on that road.
8. When Mr Wingrove was recalled, he summarised his opinion as being that, accepting the truck's rear inside wheels ended up at the wheel stop mark, when it is notionally rotated to the correct orientation of driving on the road, a portion of the truck must have been past "the imaginary centre line of the road" as marked on the plan. However, if the centre of the road was taken to be the centre of the trafficked area, he calculated that would place the truck 300mm inside the centre. Mr Wingrove pointed out that the centre line marked on the survey used the entire width of the graded road width as distinct from the part used by traffic, he thought "cutting the corner".

Submissions and judgment in the Local Court

1. The submissions on both sides focused on where the centre line was. If the relevant area of the road was the "trafficked" area, the truck was on the correct side of the road at the point of impact and the plaintiff's vehicle was not. If the relevant area was the "trafficable" area, in the sense of the area available for traffic, the truck (accepting the survey and Mr Wingate's evidence) was on the wrong side of the road. Of course, it followed that, if the impact occurred when the truck was on the wrong side of the road, the plaintiff's vehicle was on the correct side. The prosecutor also relied on the evidence of SC Duncombe that, on his stepped out measurements, the truck was about one metre inside its side of the road at the point of impact.
2. The learned Magistrate briefly summarised the lay evidence and then dealt with the dimensions of the truck and the significance of the measurements shown on the survey and made by Mr Wingate. His Honour noted the width of the road at seven metres, giving each vehicle three and a half metres to the centre line. The truck rear nearside wheels came to rest close to half a metre inside the edge of the trafficable area. As its tray was 2.4m wide, its offside was 2.9m from the edge of the road. His Honour referred to the evidence of Mr Kershaw and his son that the plaintiff's vehicle had pushed the truck to its left (respectively) by one and a half or one metre. Accordingly, the tray of the truck must have been over the centre line: 49mm from the edge, add 1000mm from the push and an additional 2400mm as the width of the tray, so that its offside edge must have intruded past the centre line of the trafficable area by a little less than one metre. His Honour said, "I cannot be satisfied that the rear of the truck was in fact on the correct side of the road" and then referred to Mr Wingrove's evidence that the tray could be "across the centre of the road", stating, "I cannot reject that evidence".

The application for costs

1. The plaintiff's solicitor, Mr Weller sought costs, contending that the prosecution should have interviewed the plaintiff and taken a statement from him, that it was aware of Mr Wingrove's evidence but had not sought any evidence by way of response and did not call Mr Maidla, who had been at the scene and that, looking at the width of the roadway, "it's quite clear or at least there is a very significant doubt, as to whether he was on the wrong side of the road or not". These omissions meant that "the prosecutor unreasonably failed to investigate (or to investigate properly) … … [relevant matters] of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought". The measurements that showed the truck was on the wrong side of the road could and should have been obtained by the officer at the scene.
2. The prosecutor submitted that the officer who attended the scene established as best he could that the plaintiff's vehicle was one metre over the centre line at the point of collision. The fact that a later reconstruction and survey indicated this to be in error awaited trial. SC Duncombe was entitled to issue the infringement on the information available to him. The prosecution had the evidence of the Kershaws, which was to the effect that the truck was on the correct side of the centre of the road. There was therefore evidence both ways, which was for the court to weigh. This was the only way the conflict could be resolved.
3. The Magistrate's brief ex tempore reasons are somewhat obscure but, as I understand them, his Honour thought that there was ample evidence suggesting the plaintiff was negligent. It was only when the defence case "gelled" on the adjourned hearing and the link between the evidence of Mr Wingrove, the surveyor and the wheel stop mark was established, that those observations could be relied on. His Honour said - "When you put it together, it forms a picture. It is a bit like a jigsaw. In this instance, I needed all those pieces before I could see the clear picture. That clear picture then raised the doubt and Mr Gatenby has been entitled to that doubt. So, on that basis, it is a matter which I believe [was] properly brought to court and I refuse the application for costs."

The application for judicial review

1. There is no right of appeal against a decision of the Local Court refusing costs under s 213. As I have mentioned, the plaintiff invokes this Court's jurisdiction under s 69 of the Supreme Court Act to review the decision.
2. It is clear the onus was on the plaintiff to satisfy the Magistrate that one or more of the matters specified in section 214(1) of the Act was present. This is an evaluative decision which involves factual conclusions. In O'Brien v Hutchinson [2012] NSWSC 429, Beech-Jones J dismissed the plaintiff's application for review of the decision of a Local Court refusing costs. His Honour identified (at paragraphs [8]-[14]) six matters for consideration in such an application - [8] First, the formulation of jurisdictional error that I have extracted from Craig [v South Australia (1995) 184CLR; 82 A Crim R 359] involves establishing that the inferior court "misapprehended" the limits on its power. Just because the matters listed in s 214(1) have a jurisdictional quality does not mean that the role of this court is to determine whether any of them were met and, if so, conclude that there was jurisdictional error on the part of the Local Court in failing to act. The plaintiff must identify a "misapprehension" by the Local Court as to the limits on its power, not a mere disagreement with the Local Court's conclusion as to those limits. Unless the intention is clearly expressed, legislation will not be construed so as to make the jurisdiction of a court contingent upon the actual existence of a state of facts as distinct from the court's opinion or determination that the facts exist (Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 391, per Dixon J]). The deployment by the legislature of the word "satisfied" in s 214(1) puts beyond doubt that there is no such contrary intention. [9] Second, a number of aspects of s 214(1)(a)-(d) involve the exercise of a normative judgment on the part of the Local Court. For example, the Local Court must make an assessment as to whether something was "unreasonable", "improper" or that there were "exceptional circumstances". In Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 the Full Court of the Federal Court noted that conclusions on matters of "opinion or policy or taste" may be "very much a matter of opinion and thus not readily susceptible to review for error of law" (at 199G). Similarly, conclusions by the Local Court as to whether or not failure to take some particular step in the investigation process was "unreasonable" or not can be very much a matter of opinion. In such a case, the task of demonstrating a misapprehension in the Craig sense is that much more difficult. [10] Third, an erroneous construction of provisions such as ss 214(1)(a)-(d) will sometimes be apparent on the face of the lower court's reasons. If so, the existence of both an error of law and a jurisdictional error will be established. In some cases a misconstruction may only be apparent from an examination of the structure of the lower court's reasons. In other cases a party may point to a disparity between the facts as found and the lower court's conclusion as demonstrative of error. However, it must be remembered that a number of phrases in s 214(1) are not technical legal phrases but words which have a "common understanding". To demonstrate legal error in this latter type of case it would have to be demonstrated that, on the facts as found, no other conclusion was reasonably open other than that the criteria was established (Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557; Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439 at [24]-[28], per Gleeson CJ, Gummow and Callinan JJ). [11] Fourth, a relevant misapprehension is not demonstrated by pointing to a list of matters the court could have, or even should have, taken into account but did not or by pointing to matters the court did take into account, but should not have. In Craig at 180, the High Court held: … a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. [12] It is only if one took the further step of inferring that, because the inferior court took into account some irrelevant matter or failed to take into account some relevant matter, it thereby misconstrued a limit on its power would any contention based on a failure to take into account relevant considerations or taking into account irrelevant considerations suggest the existence of jurisdictional error. [13] Fifth, the failure to take into account a relevant matter or the taking into account of an irrelevant matter by an inferior court might constitute an error of law on the face of the record even if it does not constitute a jurisdictional error. However, the relevant transgression would have to be apparent on the face of the "record". It could not be demonstrated by pointing to a wider set of materials. Moreover, the relevant "matter" would have to be a factor or consideration that as a "matter of law" the lower court was required to consider, or exclude, as the case maybe. Such matters are ascertained from the legislation governing the case in question (see in the context of an administrative decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [73]-[74], per McHugh, Gummow and Hayne JJ). They are not identified by preparing a list of "facts" that it is said should have been considered but were not, or were considered but should not have been. [14] Sixth, the material placed before me included the transcript of an ex tempore judgment of the second defendant. It is well recognised that, given the prodigious workload carried by the Local Court, the transcript of such reasons are not to be construed strictly. Instead their substance is to be examined to see whether the correct test was applied (Acuthan v Coates (1986) 6 NSWLR 472 at 478-479A, per Kirby P).
3. Judgments on costs are to some degree sui generis. In Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212; 20 VR 481, Maxwell P and Kellam JA observed - [12] In the ordinary case, it is both appropriate and desirable that a costs question be decided at the conclusion of argument. Rarely will it be necessary for a judge to give detailed reasons for decision adverting to every matter debated in argument. This Court will assume, as should the parties, that every matter addressed in argument on costs has been considered. This Court will set its face against any proposition which would require judges disposing of questions of costs to give elaborate reasons.
4. The plaintiff submits that the Magistrate's judgment on the question of costs erred in a number of ways. It is submitted that it was wrong to suggest that the prosecution was asked to particularise the charges, since, it had, at all events, an obligation to give particulars. It is clear that his Honour was simply and correctly describing the procedures that the parties had adopted. There is no merit in this submission. It is also argued that his Honour's view that "there was an abundance of evidence to suggest that the [plaintiff] was negligent" was an error since it denied the plaintiff natural justice, the prosecution not having made such a submission and there had been no finding to that effect. This submission is also without merit. There was no denial of natural justice. The sufficiency of evidence for bringing the charge was obviously relevant to the issue of costs and was the subject of submissions (though not in detail), with the prosecution pointing to the "two versions of events". Nor was there cause for any earlier finding about the matter, since a summary verdict was not sought. His Honour's reference to the evidence was, plainly enough, to that of the Kershaws to the effect that the truck was on the correct side of the road. His Honour's conclusion was "obviously open on the known material" (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594, per French CJ and Kiefel J at [9]). Thirdly, it is submitted that his Honour erred in suggesting there were difficulties with the defence case. It is contended that the difficulties arose because the prosecution would not admit that the defence contentions about the point of impact and the distance the truck had moved as a result of the collision were correct. In my view, however, his Honour was simply referring to the course of the trial, in which the defence was unable, when it first went into evidence, to prove the wheel stop mark, which was an essential assumption underlying Mr Wingrove's evidence. At all events, his Honour's view that there were difficulties at this point was clearly open. Nor was the prosecution bound to make the admissions proposed. It is true that the Kershaws had referred to the metre or metre and a half that the truck had slid after being hit, but they gave no evidence as to direction. The defence assumption was that it was perpendicular to the line of the road, but this was not put to either witness. Furthermore, the distances were, clearly enough, estimates made in the panic of the moment from the inside of the vehicle and needed to be weighed against the certainty of their evidence about being on the correct side of the road. The passage complained of reveals no error of law.
5. Lastly, it was also submitted that the Magistrate had failed to consider whether the police had conducted reasonable investigations in a number of respects. Firstly, there was the failure to take a statement from the plaintiff. However, this was explained by SC Duncombe, whose evidence on the point was summarised above. Second, no statement was taken from Mr Maidla. However, since he arrived late at the scene, he could give no relevant evidence about the accident itself; SC Duncombe had obtained photographs and was able to give evidence about what he saw. Mr Maidla's evidence became necessary because of the need to identify the wheel stop mark utilized by Mr Wingrove. Third, there was no attempted reconstruction of the accident by the police. This was explained by SC Duncombe as a result of police priorities. Fourth, the police did not respond to the accident reconstruction reports served by the defence. This submission was not made to the Magistrate and, at all events, there was no evidence that the reports had been served prior to the hearing; the survey report of Mr Veitch was produced on the first day of the hearing. Otherwise, the arguments were put to the Magistrate and it should be inferred that his Honour considered them all and was not satisfied the investigations were conducted unreasonably.
6. I should mention that, at all events, the centre line of an unmarked, unpaved road is not the surveyed centre of the area which has been graded and available for traffic to use (ie, the trafficable area) but the part defined in the Dictionary of the Road Rules as "the far right side of the part of the road used by traffic travelling in the same direction as the driver" (ie, the trafficked area). This latter description was that proposed as appropriate by the prosecution, upon which basis it was conceded by Mr Wingrove that the truck would have been on its correct side of the road when the collision occurred. Be that as it may, the prosecution was entitled to argue that the relevant area was the trafficked area and, if so, the defence evidence supported that case and the guilt of the plaintiff.
7. At the hearing before me, Mr Boyd of counsel for the plaintiff conceded that his case ultimately rested on what was submitted to be mathematical proof that the truck was on the wrong side of the road, based on facts known from the beginning or, at least, from the time the Kershaws made their statements, or Mr Wingrove gave his evidence and the survey was produced. However, Mr Wingrove's opinion depended on two factors: whether the centre was of the trafficable as distinct from the trafficked portion of the roadway; and whether the truck skidded perpendicularly (as distinct from tangentially) across the road to the edge. In concluding he was unable to reject Mr Wingrove's evidence, the Magistrate implicitly decided the first in favour of the plaintiff (albeit, with respect, mistakenly), and gave the benefit of the doubt to the plaintiff as to what the calculations showed. His Honour's brief reasons in refusing to order costs in favour of the plaintiff reflected this overall approach.

Determination

1. There was no misapprehension by the Magistrate of the relevant test, nor any failure to consider relevant facts or the statutory criteria; nor was the decision unreasonable as lacking any plausible justification, or otherwise irrational or illogical. Nor was there any procedural unfairness. The conclusion that the plaintiff had not established that "the prosecutor had unreasonably failed to investigate (or to investigate properly) any relevant matter" was, to my mind, clearly open to his Honour. Indeed, in fairness I should state that the refusal of his Honour to order costs was plainly correct. Accordingly, I made the following orders - 1. The summons is dismissed. 2. The plaintiff is to pay the first defendant's costs of the proceedings.

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