Justices Act 1902, s 199(1)(b)

Ginks v Phillips, unreported; SCt of WA; Library No 930452; 20 August 1993

Jackson v Dyball (1993) 74 A Crim R 10

Shepherd v The Queen [1990] HCA 56; (1990) 97 ALR 161

1 McLURE J: The Appellant was charged that on 3 September 1999 she "drove a vehicle registered number WCE 1379 and not being instructed to the contrary by a traffic control signal, entered a road or carriageway, namely Odin Road from land abutting thereon and failed to give way to a vehicle travelling along the carriageway" contrary to regulation 606(1)(a) of the Road Traffic Code 1975 (the "Code").

2 The charge resulted from a collision between vehicles driven by the appellant and Mr N Wilson in the northbound lanes of Odin Road. The appellant pleaded not guilty to the charge. Following an earlier aborted trial, the matter was heard in the Court of Petty Sessions in Perth on 29 January 2001. The learned Magistrate found the appellant guilty and imposed a $100 fine.

3 On 9 March 2001 McKechnie J granted leave to appeal on the grounds that:

"(a) His Worship erred in law in concluding that the evidence supported a finding that the appellant failed to give way.

(b) His Worship erred in law in drawing an inference that the resultant damage to the vehicle supported the respondent's case in the absence of expert evidence to support such a finding and when the damage to Wilson's vehicle at least equally supported the [appellant's] case.

(c) His Worship failed to properly apply the onus that rested with the respondent to establish the case beyond reasonable doubt when the reasonable evidence regarding such doubt was as follows:

(i) Wilson was looking to the left at the moment of impact if the respondent's version was to be accepted.

(ii) Wilson did not notice the [appellant's] vehicle until the point of impact.

(iii) On the respondent's version, it is highly unlikely, if not impossible, that the [appellant's] vehicle could be propelled across a median strip on two lanes of highway into an oncoming car.

(iv) It was more probable that the [appellant's] vehicle had been struck from the left causing the appellant to traverse the median strip into the path of the oncoming vehicle.

(d) Even if the exhibit, being a photograph, was objectively more consistent with the evidence of Wilson than that of the appellant, the learned Magistrate erred in deciding the case on the balance of probabilities.

(e) In preferring the evidence of Wilson, as opposed to that of the [appellant] and her corroborating witness, the learned Magistrate erred by finding that the corroborating witness was 'A person committed to his daughter's account of the accident' and they have 'Obviously plenty of opportunity to have discussed what happened' when the evidence of the corroborating witness to the [appellant's] account was not challenged in that manner."

4 The appellant and respondent were largely in agreement concerning the relevant background facts. Odin Road runs north-south. It has two traffic lanes heading north and two lanes heading south. Odin Road terminates at Scarborough Beach Road.

5 There is a median strip between the northbound and southbound lanes. The median strip has breaks in it to allow turning traffic to cross over Odin Road.

6 On the eastern side of Odin Road there is a hardware store with a carpark. There is a break in the median strip opposite one exit from the carpark onto Odin Road, so that traffic may leave the carpark and turn right into the northbound lanes on Odin Road.

7 Wotan Street is a road running east-west which terminates on the west side of Odin Road.

8 At trial the break in the median strip was estimated to be varying distances from the intersection of Odin Road and Scarborough Beach Road. Wilson estimated the distance as between 75-100 metres. The appellant estimated the distance as 50 metres.

9 The accident occurred at approximately 6.30 pm, or at least some time reasonably soon before 6.50 pm when the police attended the scene. At the time of the accident, Wilson's car had on its headlights as did the appellant's car and a third vehicle driven by Humfrey, which subsequently became involved in the accident. Wilson said that traffic generally had on its lights. It was about dusk.

10 The road was wet, as it had been raining, although it was not raining at the time of the accident.

11 The appellant drove her car out of the hardware store carpark. She crossed the southbound lanes of Odin Road to reach the break in the median strip.

12 There were two inconsistent versions as to how the accident between Wilson's vehicle and the appellant's vehicle occurred. These were summarised by the Magistrate as follows:

(a) On Wilson's version, he turned left into Odin Road from Scarborough Beach Road and commenced travelling north along Odin Road. He claimed to have changed lanes from the left to right hand northbound lane about 20-30 metres before the accident occurred. He gave evidence that he was travelling at about 45-50 km/h. He said that the appellant's vehicle pulled out from the gap in the median strip opposite Wotan Street into the lane in front of him. He said that he had been checking traffic coming out of Wotan Street just prior to the accident, and that he only saw the appellant's vehicle three metres before impact occurred. When he saw her car, Wilson said that he veered to his left to avoid a collision.

(b) On the appellant's version, when she was in the gap in the median strip, there was a stationary vehicle with burning headlights at a "give way" sign from Scarborough Beach Road to Odin Road. Otherwise Odin Road was clear of traffic, for at least approximately 50 metres. The appellant said that she turned north into Odin Road. She testified that her vehicle travelled about 50 metres northwards on Odin road, when she heard a "boom" or a "bang" and her car began shaking.

13 The appellant's version was supported by her father. He was in the front passenger seat of the appellant's vehicle. The appellant's father said that on stopping at the carpark at the hardware store with a view to crossing the southbound lane to get to the middle of Odin Road, he looked "to his own side" and there was no car coming. He confirmed that there was a car at the "give way" sign for entry onto Odin Road from Scarborough Beach Road. He also said that he observed the appellant checking to the left, before proceeding north onto Odin Road. He said that the appellant's vehicle had travelled approximately 50 metres along Odin Road prior to the accident. He said that "he felt or heard" a bang on the left side of the car which caused the vehicle to leave the road.

14 However the accident occurred, after the collision the appellant's vehicle was pushed east over the median strip into the southbound lanes of Odin Road, where another car driven by Humfrey hit the appellant's vehicle. Humfrey had been travelling at about 60 km/h. Humfrey's vehicle may have hit a power pole, and Humfrey said that the appellant's vehicle did hit a power pole.

15 After the collision, Wilson's vehicle ended up on the west side of Odin Road, about 10 metres from the point of the collision. Humfrey's vehicle and the appellant's vehicle were on the eastern side of Odin Road. They were approximately opposite the position of Wilson's vehicle, but maybe a little further south.

16 Wilson's vehicle was damaged on the front right-hand side and he accepted that there was damage to the back right-hand side. The appellant's vehicle had damage to the front right and front left-hand side panel.

17 After summarising the appellant's and Wilson's version of events, the Magistrate continued:

"Now, as part of my consideration I need to look at the question of the credibility of each of the witnesses. I do so on the basis that I appreciate it's not a question, ... of simply choosing between the witnesses to say, 'Well, there's two different stories, the truth must lay somewhere, I better choose which one is telling the truth'. The situation is, of course, that Mrs Rasooli-fard doesn't have to prove anything. It's up to the prosecution to satisfy the court beyond a reasonable doubt as to each element of - - of the offence and even if it was the case that I wasn't particularly happy with the evidence of Mrs Rasooli-fard and - and/or her father that of course wouldn't be the end of the matter, I'd had to be satisfied that Mr Wilson and the other prosecution witnesses were both truthful and accurate."

18 The Magistrate then considered Wilson's evidence. He said:

"The difficulty I have with Mr Wilson's evidence in considering the matter is that it did strike me as strange that - - that he didn't or wasn't aware apparently of the Rasooli-fard vehicle at all until it was right in his path until he hit it. On his evidence he had some metreage, some 100 metres it would seem between the - - Scarborough Beach Road and where - - the collision point to assess what was going on and doesn't seem to have seen that vehicle at all emerge from the BBC Hardware and he had that strange situation, I think it's strange at least, that he wanted to check traffic - - or the traffic status of Wotan Street when he was in the right-hand lane.

Now, of course, his evidence is that he changed lanes and that has the effect, of course, of putting him into the right-hand lane and can then explain how it might be that he came to be where the position - - into a position where the collision might have occurred. Now what flows from all of that is that it is a possibility that Mr Wilson intended to change into the - - the right lane, conscious of him wanting to turn right and didn't see because he wasn't paying enough attention or was - - was generally concerned about the Wotan Street because he was in the left lane, went to change lanes and ran into the Rasooli-fard vehicle which had emerged unbeknownst to him in the right-hand lane and he - - he glanced off it and went to the other side of the road.

Now that's a speculative but a possibility on the - - on the evidence and one needs to, obviously look at those aspects when ... (indistinct) ... his evidence."

19 The Magistrate did not find the evidence of third parties to be of any assistance in determining how the collision occurred. He then referred to the evidence of the appellant. In relation to that evidence he said:

"Now, she was anxious to - - - point out to the court that she was being honest about these things and of course produced a - - a drawing or a sketch plan to show how the - - the accident happened.

Now that just didn't make a lot of sense to me in the recreation because what it meant was that when she emerged onto Odin Road, particularly when she emerged through the median strip, theoretically Mr Wilson's vehicle was nowhere to - - to be found. There was a concept where she made sure that there was no traffic coming and it was a car which by reasonable inference must have been the car being driven by Mr Wilson, it's not suggested there was any vehicle in front of Mr Wilson or any vehicle behind him or any other vehicle and the reasonable inference from her evidence is that the - - the road was completely clear.

She then tells the - - the - - or gives the account that having entered without any difficulty onto Odin Road that she's driving along for some 50 metres when suddenly there's a - - a bang from a car that she seemed to either sketch drawing recreate when you listen to her evidence, and she did clarify it under cross-examination, but her evidence-in-chief the Wilson vehicle didn't exist at all until the - - the point of collision and that struck me as curious indeed."

20 In relation to the evidence of the appellant's father the Magistrate said:

"... I found myself in a situation where of course his - - his evidence had to be interpreted and one has to be careful about making sure that one understood what was being said but he seemed to me to be basically there to ensure that the court understood that every single word that his daughter uttered about the matter was entirely true ...

... for all the world I just thought that he was a person committed to his daughter's account of the accident. There's obviously plenty of opportunity for them to have discussed what happened and I found that he didn't add anything to the - - the credibility of what was - - what was being stated."

21 The only other evidence referred to by the Magistrate was a photograph of the damage to Wilson's car (exhibit 5) which he said seemed to be more consistent with the evidence given by Wilson than the evidence given by the appellant.

22 The Magistrate concluded he was left in no reasonable doubt as to how the accident happened. He said:

"I do accept what Mr Wilson has said about the - - about the accident, and as I say I don't accept it blindly. I accept it because I think he gave the impression of a truthful witness and the evidence seems to me to be consistent with the truthful account that what he has given and the opposing evidence does seem to me to be a bit - - be a bit fanciful.

...

I think that Mrs Rasooli-fard and her father have recreated the events to say effectively that they were already on the Odin Road when they were not."

23 The Magistrate went on to make a series of factual findings consistent with the evidence given by Wilson.

24 Both parties agreed that the substance of the grounds of appeal was that the conviction recorded by the Magistrate was "unsafe and unsatisfactory". The test as to whether a verdict is unsafe and unsatisfactory was considered by the High Court in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 494. In summary, the relevant principles are:

(a) whether a verdict is unsafe or unsatisfactory is a question of fact which the Court must decide by making its own independent assessment of the evidence;

(b) the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the trier of fact to be satisfied beyond reasonable doubt that the defendant was guilty;

(c) in answering the question, the Court must not disregard, inter alia, the benefit the trier of fact has of having seen and heard the witnesses;

(d) if the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the trier of fact there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and to set aside a verdict based upon that evidence.

25 The principles in M v The Queen are applicable to a Magistrate's decision in the Court of Petty Sessions: Harvey v Matthews [1999] WASCA 58 at par [11].

26 However, an appellate court's role is limited where findings of fact are based on the credibility of a witness. In those circumstances, a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding which must stand unless it can be shown that the Judge has failed to use or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. See Devries v Australian National Railways Commission and Anor (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306; Rosenberg v Percival [2001] HCA [18]. Although these authorities concern civil cases, the principle is applicable to findings of fact made by a Judge or Magistrate sitting alone in criminal proceedings: Talbot v Lane (1994) 14 WAR 120 at 142.

27 The appellant submitted in the appeal that the verdict was unsafe and unsatisfactory because the prosecution evidence was itself insufficient to prove the case beyond reasonable doubt on the ground:

(a) that the prosecution had failed to negative beyond reasonable doubt a further alternative possibility (in addition to the versions of Wilson and the appellant) that Wilson pulled into the right-hand northbound lane of Odin Road as the appellant was executing the turn into the northbound lane from the break in the median strip ("the third version");

(b) of the Magistrate's stated difficulties with Wilson's evidence that he (Wilson):

(i) was not aware of the appellant's vehicle until it was right in his path until he hit it;

(ii) wanted to check the traffic status of Wotan Street where it intersected with the western side of Odin Road when he was in the right-hand lane;

(c) of a further difficulty with Wilson's evidence to the effect that Wilson was looking down Wotan Street just prior to the accident;

(d) that the photographic evidence was, at best, completely neutral in that it did not support any particular version of how the accident occurred.

28 The appellant also argued the verdict was unsafe and unsatisfactory on the further grounds that:

(a) the evidence of the appellant and her father should have created a reasonable doubt in the mind of the Magistrate;

(b) the Magistrate found that the appellant and her father together reconstructed events which allegation was not put to the witnesses in cross-examination.

29 The central fact in issue in the case was whether Wilson's vehicle was already in the right-hand lane of the northbound Odin Road dual carriageway at the time of the collision with the appellant's car. There is a conflict of direct testimonial evidence on this issue from Wilson on the one hand and the appellant and her father on the other. If it was proved beyond reasonable doubt that Wilson's vehicle was in the right-hand lane of Odin Road some 20 to 30 metres prior to the accident, it was common cause the charge would be made out.

30 It is clear from the Magistrate's reasons that he made a credibility-based assessment of the witnesses who gave direct testimonial evidence of how the accident occurred which assessment depended on his scrutiny of them in the witness box. Accordingly, there is no role for an appellate court absent some misdirection or misapprehension that undermines the reliability of the Magistrate's assessment of the credibility, character and personality of the witnesses (Rosenberg v Percival per McHugh J at par 28).

31 The appellant submitted that the prosecution was required, and had failed to negative beyond reasonable doubt the third version of how the accident had occurred. It was accepted that the third version had not been advanced by either party at trial. However, it was submitted in the appeal that the third version was put to Wilson in cross-examination and was thus part of the matters properly before the Court. The only relevant exchange is as follows:

"So I want to suggest to you - -?---Mm hm.

- - you had turned in - - left into Scarborough Beach Road, you were travelling north, that you sped up and tried to change lanes. Is that correct? You were going to - - your intention was to change lanes?---I changed lanes.

Yeah?---Yeah.

That in the process of changing lanes you have veered into the left hand side of - - of the defendant's vehicle. What do you say to that?---Could you give me a diagram of what you're talking about?

Well, I'm saying you were in the left lane, you were attempting to move into the right lane going north and that in doing so you veered into the left hand side of the defendant's vehicle. Do you agree with that?---No, not even close.

That by veering and colliding into the left of her vehicle you have propelled her across the median strip into the path of oncoming vehicles - -?--Not at all.

- - and that the accident could not have happened as you said?---The way I say is the only way it could happen."

32 The appellant's counsel at trial was putting the appellant's version of events albeit in terms wide enough to encompass an important common feature of the appellant's version and the third version being that the accident occurred in the course of Wilson moving from the left-hand lane into the right-hand lane of Odin Road. The issue of the third version arose for the first time during the course of the Magistrate's reasons. The Magistrate describes the third version as speculative but a possibility and I infer from the transcript of his reasons, a matter for him to consider when evaluating Wilson's evidence.

33 After referring in detail to Wilson's evidence and the Rasoolifard evidence, the Magistrate said:

"Now when I pull back from all of this as I started off to - - to say, it's up to the prosecution to satisfy the court beyond a reasonable [doubt]. It's not a question of choosing and if I thought to myself that perhaps there was a possibility that Mr Wilson had decided he was changing lanes, didn't know the Rasooli-fard vehicle was there, collided with it and has come to court to say, 'No, no, it didn't happen that way, she pulled out in front of me', then of course his evidence would be rejected on that basis or even if I had any suspicions that that might be the case."

34 Thus, the third version was raised and considered by the Magistrate. It was also explicitly rejected by the Magistrate in the above passage by his rejection of the common feature of both the appellant's version and the third version. In any event, its rejection is implicit in the Magistrate accepting Wilson's version of how the accident occurred.

35 The appellant and the respondent in their submissions on the question of whether the third version had been negatived referred to the drawing of inferences. It is the case that in determining whether a verdict is unsafe and unsatisfactory, an appellate court should inquire whether a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence: Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 502. However, in this case there was direct testimonial evidence on the central fact in issue. The Magistrate's finding on that issue was not based on inference. His acceptance of the truth and reliability of Wilson's evidence itself involved rejection of the third version.

36 In the circumstances it is unnecessary for me to decide whether the appellant was required to put the third version in issue, squarely or at all (as to which see Garrett v Nicolson [1999] WASCA 32; (1999) 21 WAR 226).

37 As to the two "difficulties" the Magistrate had with Wilson's evidence, they were identified and considered by him in the course of objectively testing that evidence. Assuming for the moment the difficulties are soundly based in the evidence, they do not undermine or otherwise render unsafe the Magistrate's credibility-based assessment of the accuracy and reliability of Wilson's evidence of being in the right-hand lane some time before the accident.

38 In any event, the Magistrate's summary of Wilson's evidence said to give rise to the difficulties is (understandably in the circumstances) not entirely accurate. Wilson's evidence in examination-in-chief was as follows:

"What happened was, I was proceeding up Odin Road, just in accordance with the speed limit, and started to signal to move into the right lane, it's two lane traffic. Once I was in the right lane I know that piece of road, there's an - - there's a road joining from the left and I glanced to the left to check that there wasn't any vehicles attempting to join the road and what happened was directly in front of me from the median strip in the middle of the road a motor vehicle pulled out straight in front of me. I was unable to avoid the vehicle, impacted the front left of that vehicle, which damaged the front right of my vehicle.

I'll just get you to hold on there. Thank you. I just wonder, behind you there's a white board ...(indistinct)... I think you had driven from one road to another road. I just wonder if you could draw that area?---Okay.

I'll just get you to come to this side if you wouldn't mind so his Worship can see what you've drawn and what you're referring to?---Okay. This is Scarborough Beach Road along here, this is Odin Road up here. There's an opening in the median strip and there is the Hardware House here where vehicles can come across, stop in the median strip and I know they can proceed across that way there. I've come up, changed lanes into the right lane and it's at this point here, or just before this point, I was checking for traffic here. There was a vehicle in the middle and then it's just come out in front of me and there's just nothing I've been able to do to avoid that vehicle. I hit it and I ended up over here after impacting it and I know that that vehicle then went backwards and there was another vehicle involved that way."

39 Wilson's evidence in cross-examination included the following:

"You looked left down Wotan?--Mm hm.

...

Why did you look left down Wotan?---Well, the way you're saying regards look left I - - I wasn't actually parallel with Wotan, I was just checking for traffic that was waiting at Wotan Street. This happened a long time before I was actually parallel to it.

...

I just want to know from you, in your evidence in-chief today did you say that you looked left down Wotan to see if any vehicles were coming?---I did.

Is your evidence now changing because I've drawn to your attention the position of the median strip gap opposite Wotan?---No.

Well, why is your evidence changing?---Because the way you're saying it it sounds like I was at Wotan looking down Wotan which just wouldn't be a good way to drive a car. I was much more - - I was referencing to the fact that I knew Wotan Street was there so I was just looking if any vehicles were waiting there as I knew the other motor vehicle was in the median strip here. This one was here, I wanted to see if anything else was coming out, as you do."

40 At the hearing of the appeal counsel for the appellant added a further criticism of Wilson's evidence which was that just prior to the accident Wilson was looking down Wotan Street. There was no such factual finding by the Magistrate and it is explained by Wilson in the extract of his evidence set out above. Thus Wilson's evidence was to the effect that he noted there was a car in the median strip, he then looked or glanced to see whether or not there was any traffic entering from Wotan Street and when he looked back the appellant has pulled out in front of him and a collision was unavoidable. With the benefit of the transcript, the perceived difficulties are not entirely substantiated. Further, there is evidence of a further break in the median strip opposite Wotan Street to allow access from that road into the southbound lanes of Odin Road. That would be a further justification for a driver in the northbound lanes of Odin Road being watchful of traffic at the Wotan Street/Odin Road intersection.

41 The Magistrate also relied on the photographic evidence of the damage to Wilson's vehicle (exhibit 5) which he said seemed to be more consistent with Wilson's evidence of how the accident occurred than with that given by the appellant. Exhibit 5 is a colour photograph of the front/right of Wilson's vehicle. The damage is localised to the right-hand side of the front of the car and the front half of the front panel on the right-hand side of the car. The damage shows the impact area to have included the right-hand side of the front of the vehicle.

42 There was an exchange during the appellant's closing address between the Magistrate and the appellant's counsel concerning the damage to Wilson's car. The Magistrate found it difficult to understand how the damage to the front right-hand side of Wilson's car had occurred if he had been simply changing from the left-hand lane to the right-hand lane unaware of the presence of the appellant's car (as distinct from deliberately swerving into the vehicle). The Magistrate explained in his reasons why he thought exhibit 5 was more consistent with Wilson's evidence:

"It seems to me that the only way that - - on Rasooli-fard the collision could have taken place is for Mr Wilson entirely inadvertent, as I was mentioning before, to the presence of the Rasooli-fard vehicle has turned fairly sharply into it and - - and at the time he was virtually, it would seem, abreast with the vehicle because as was in the drawing and as Mrs Rasooli-fard depicted on her drawing that - - the Wilson vehicle turned fairly sharply into the front of her vehicle. Now that seems to me to be a very curious scenario, even though I caution myself about the - - as I say the lack of accident expertise."

43 The evidence amply supports the Magistrate's cautious conclusion based on the damage to Wilson's evidence.

44 Accordingly, I reject the appellant's submissions that the prosecution evidence was insufficient to prove the case beyond reasonable doubt. The Magistrate correctly identified and applied the criminal onus of proof in that regard.

45 The appellant's evidence was that she drove to the gap in the median strip, looked and saw a car standing in the give way sign at the intersection of Scarborough Beach Road and Odin Road, turned into the right-hand lane of Odin Road and drove about 50 metres when she heard a "boom" and realised that something had crashed into her car from the passenger side. As a result of the accident the appellant was taken to hospital and some time after her release she prepared a map of the accident scene. The map shows the distance from Scarborough Beach Road to the gap in the median strip was 47 metres. The appellant's map also shows another gap in the median strip to allow traffic from Wotan Street west to access the southbound lanes of Odin Road.

46 In cross-examination the appellant said that when she looked left from her stationary position in the gap in the median strip, she saw the headlights on of the car stopped at the give way sign and there were no other cars between Scarborough Beach Road and where she was in the median strip. The Magistrate directed a number of questions to the appellant. The Magistrate asked her how she came to reconstruct the scene depicted in her map when on her evidence-in-chief the first thing she was aware of was the noise of Wilson's vehicle crashing into hers.

47 The appellant's evidence and that of her father was materially identical:

(a) both saw a car (inferred to be Wilson's) stopped at the give way sign at the intersection of Scarborough Beach Road and Odin Road;

(c) there were no cars on Odin Road when the appellant turned into the right-hand lane of Odin Road and proceeded north;

(d) the collision occurred approximately 50 metres from the gap in the median strip from which the appellant's car emerged;

(e) neither the appellant nor her father had any notice, however short, of any impending collision;

(f) both first became aware of the accident when they heard (or felt) the bang.

48 There are objective difficulties with the appellant's version. In effect, from a standing start, Wilson would have to cover approximately double the distance covered by the appellant's vehicle in about the same time, attempt to change lanes when almost abreast with the appellant's vehicle notwithstanding that at all material times until the collision the appellant's vehicle was in front of Wilson and then turn at a relatively sharp angle so as to produce the damage to Wilson's vehicle.

49 The Magistrate fairly describes the appellant's version as "a bit fanciful". I see no proper basis on the evidence for interfering with the Magistrate's rejection of the Rasoolifard version of how the accident happened.

50 The appellant then says the Magistrate found that the appellant and Mr Rasoolifard acted improperly by together recreating events and erred because their evidence had not been challenged on that basis.

51 In certain circumstances there may be unfairness so as to warrant appellate intervention when a court makes an adverse finding against a party (or witness) without the relevant allegations being put to the witness, particularly when the error relates to credibility and credibility is a significant issue: Rosenberg v Percival per Kirby J at [161] Callinan J at [222]; Boland v Yates [1999] HCA 64; [1999] 74 ALJR 209 at 270 - 271.

52 However, a credibility-based rejection of the evidence of a party (or witness) by a Magistrate without express prior notice to the witness is not itself an error or unfair: Walmsley v Lyon, unreported; SCt of WA (Seaman J); Library No 920661; 19 November 1992.

53 Fairness did not require that the Magistrate's conclusions concerning Mr Rasoolifard's opportunity to discuss matters with the appellant and his commitment to his daughter's account be put to the witness. The first is obvious and the second is the Magistrate's assessment of the impression created by the witness. However, those matters together with the Magistrate's subsequent finding that each of the appellant and Mr Rasoolifard recreated events to say they were already on Odin Road when they were not, leaves open an inference that they together recreated their position on Odin Road. That inference is also consistent with innocent contamination for the purpose of reconstructing events even on the issue of whether they were already on Odin Road at the time of the accident. The Magistrate makes the point. He says:

"It seems to me that given the fact that Mrs Rasooli-Fard had no idea where the - - the Wilson vehicle was is that either deliberately or even inadvertently she's recreated this accident to have herself being on the - - on Odin Road at the time it happened."

54 In any event, a decision maker is not under a duty to put adverse inferences not expressly drawn by him or her. The appellant's oral submissions on the subject included references to evidence contradicting an inference of recent invention. However, the Magistrate's reasons do not support such an inference.

55 However, if I am incorrect and the Magistrate erred in not putting relevant matters to the Rasoolifards, I consider no substantial injustice has occurred (s 199(1)(b) of the Justices Act 1902) because:

(a) of the Magistrate's credibility-based acceptance of Wilson's evidence (which was in direct conflict with the Rasoolifards);

(b) the Rasoolifards' evidence was subjected to objective analysis by the Magistrate and justifiably regarded as fanciful;

(c) even if the Rasoolifards had been given the opportunity to respond to the inference that they recreated events (or the matters on which it was based), it is difficult to see what meaningful opportunity to rebut the inference had been lost. None was identified in submissions.

56 I see no ground (as formulated in the Notice or at the hearing) to justify appellate intervention and I propose to dismiss the appeal.