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[2003] WASCA 81
Court of Appeal (WA)
2003-04-16
Miller J, McLure J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : SCARCE -v- KILLALEA [2003] WASCA 81
Justices - Whether necessary factual findings to support conviction - Whether convictions unsafe and unsatisfactory - When duty to report accident arises under s 55 of the Road Traffic Act ("RTA") - Whether reversal of onus of proof of amount of damage under s 55 RTA - Whether a request for information sufficient under s 58 of RTA - Role of McKenzie friend - Turns on own facts
Road Traffic Act 1974 (WA), s 55, s 58, s 62
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
R v Dodd (No 2) [1985] 2 Qd R 282
1 The appellant was charged with three offences under the Road Traffic Act (1974) (WA) ("Act") arising out of an incident that occurred on 16 November 2001. In particular, the appellant was charged that on:
(a) 16 November 2001 he drove a motor vehicle registered number 9HI 324 ("vehicle") on a road, namely Beach Road without due care and attention contrary to s 62 of the Act;
(b) 16 November 2001 being the driver of the vehicle in the course of the use of which on Beach Road an accident occurred, whereby damage was caused to property and not having reasonable cause for believing that damage caused did not exceed in the aggregate, an amount of $1,000, and not being disabled by personal injury himself, he failed to report such accident forthwith to the Officer in Charge of the nearest police station contrary to s 55 of the Act;
(c) 11 December 2001 being the owner of the vehicle, when required by a member of the Western Australian police force to give information which it was in his power to give, which may have led to the identification of any person who was driving or in charge or control of the said vehicle when an offence under the Act is alleged to have been committed at Beach Road, Girrawheen on 16 November 2001 failed to give such information contrary to s 58 of the Act.
2 The appellant pleaded not guilty to each charge. The trial of the charges took place before Magistrate Thobaven on 20 May 2002. The learned Magistrate found the appellant guilty of each charge and imposed fines for each offence. The appellant appeals against his convictions.
3 On 28 November 2002 Miller J granted an order for extension of time and leave to appeal. The grounds of appeal for which leave was granted are as follows:
"(a) The learned Magistrate erred in convicting the [appellant] in that there was no or not sufficient evidence to convict the [appellant] and the decision of the learned Magistrate was contrary to the evidence at trial;
Particulars
(i) There was no substantiated evidence of damage to the complainant's vehicle.
(ii) The evidence revealed the complainant to have driven without due care and attention, not the [appellant];
(iii) Police interviewed the [appellant] who admitted to being the driver of his vehicle.
(b) The learned Magistrate having given the [appellant] leave to appear through a 'Friend' denied the [appellant's] representative the right to properly conduct the proceedings, including cross examining of the respondent, leading to a miscarriage of justice.
(c) The learned Magistrate, having failed to draw any conclusions on Vital matters, nevertheless found the charges proven beyond Reasonable doubt and erred in doing so."
"Every person who drives a motor vehicle without due care and attention commits an offence."
5 Thus, the prosecution has to prove beyond reasonable doubt that the appellant drove the vehicle at the time in question without due care and attention.
"Where, in the course of the use of any vehicle on a road, an accident occurs whereby damage is caused to any property the driver or person in charge of the vehicle shall (unless disabled by personal injury himself) report the accident forthwith to the officer in charge of the nearest police station unless the driver or person in charge of the vehicle has reasonable cause for believing that the damage so caused does not exceed, in the aggregate, an amount of $1000 and the owner, in each case, of any property damaged is, then or immediately thereafter, present or represented at the place where the accident occurred."
7 At the hearing of the appeal counsel for the respondent submitted that the appellant bore the onus (legal burden) of proving that he had reasonable cause for believing that the damage did not exceed, in the aggregate, $1,000. The submission, for which no principle or authority was cited, is inconsistent with the reasons of White J in Illich v Garvey [2001] WASCA 236 at [25]. I respectfully agree with White J's conclusion. In my view, on a proper construction of s 55 of the Act, the reasonable cause element of the offence is not an exemption, exception, proviso or condition that alters the burden of proof under s 72 of the Justices Act 1902 (WA) or at common law: see Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136 at 139-140; Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519-520.
8 Thus, the prosecution has to prove beyond reasonable doubt:
(a) that the appellant was the driver or person in charge of the vehicle;
(b) in the course of the use of the vehicle on a road;
(c) an accident occurred whereby damaged was caused to any property;
(d) the appellant, not being disabled by personal injury, failed to report the accident forthwith to the officer in charge of the nearest police station;
(e) the appellant had no reasonable cause for believing that the damage so caused did not exceed, in the aggregate, an amount of $1,000; and
(f) the owner of any property damaged is, then or immediately thereafter, present or represented at the place where the accident occurred.
"Any owner of the vehicle and any person to whom for the time being the possession or control of the vehicle may be entrusted shall, if required by a member of the Police Force, give any information which it is in his power to give, which may lead to the identification of any person who was driving or who was in charge or control of the vehicle when an offence under this Act, is alleged to have been committed."
10 Thus, the prosecution has to prove beyond reasonable doubt that:
(a) that the appellant was the owner of the vehicle or a person to whom for the time being the possession or control of the vehicle was entrusted;
(b) the appellant was required by a member of the police force to give information which it was in his power to give; and
(c) which information may lead to the identification of any person who was driving or in charge or control of the vehicle when an offence under the Act is alleged to have been committed.
11 It was not in dispute that on 16 November 2001 the appellant in the course of driving the vehicle was involved in an accident with a 1997 Nissan Pulsar driven by Susan Taylor. However, the circumstances in which the accident occurred were in dispute. The only witnesses who gave evidence of the circumstances of the accident were Mrs Taylor, her daughter Rebecca who was a passenger in the car at the time of the accident, and the appellant.
12 The accident occurred at a gap in the median strip on Beach Road at the "T" junction intersection of Beach Road and Blackmore Avenue, Girrawheen. Beach Road is a dual carriageway which runs east-west. It was not disputed that the width of the gap (that is the distance between the lanes of Beach Road immediately adjacent to the median strip going in opposite directions) was insufficient to accommodate two vehicles in tandem. The intersection of Blackmore Avenue and Beach Road is on the northern side of Beach Road.
13 Mrs Taylor had crossed from Blackmore Avenue to the gap in the median strip on Beach Road with the intention of turning right into Beach Road. Mrs Taylor's evidence was that she was stationary in the gap in the median strip waiting to turn right into Beach Road when her vehicle was hit on the rear right hand side by the vehicle driven by the appellant.
14 It was not in dispute that after the collision Mrs Taylor and the appellant drove onto the grass on the median strip where they had a discussion. Her evidence was that the appellant apologised for what had occurred and told her not to report it to police because they did not want to know about anything of damage under $1000. According to Mrs Taylor, the appellant acknowledged that the back bumper of her car would have to be replaced and also said that he had a mate who could repair the damage and they exchanged telephone numbers. Mrs Taylor also recorded the registration number of the appellant's vehicle. Mrs Taylor said she contacted the appellant on Monday 19 November 2001 and he denied responsibility for the accident. On the same day Mrs Taylor completed a traffic accident report in which she nominated the damage to her vehicle as $1,300.
15 On the question of damage to the vehicle being driven by Mrs Taylor she said:
"... Well, the back bumper bar, that had to be replaced and the side of the car. It was about $1300-worth of damage.
What damage was done to the side of it?---The side of the car?
Yes?---Just it was all dented in and the back light had to be replaced and the whole back bumper.
Whereabouts was this damage on your vehicle? --- it was on the right-hand side.
On the side?--- On the side and back - - the back and the side of the car."
16 Mrs Taylor obtained the figure of $1,300 referred to in her evidence from a panel beater in Balcatta. It was not in dispute that there was little if any damage to the appellant's vehicle.
17 It was suggested to Mrs Taylor in cross-examination that approximately 100 metres to the left of the gap in the median strip there was a bend in Beach Road and that her view of oncoming traffic from her left in Beach Road was obscured by trees. Mrs Taylor agreed that there was a bend in the road but denied that trees obstructed her view of the oncoming traffic. It was also put to Mrs Taylor in cross-examination that she had commenced to move into Beach Road but stopped and reversed back into the gap in the median strip (and into the appellant's vehicle). Mrs Taylor rejected the propositions and maintained that her car was stationary.
18 Mrs Taylor's 10-year-old daughter, Rebecca gave unsworn evidence that her mother's vehicle was stationary at the relevant time and that her mother did not reverse her vehicle.
19 The appellant's evidence of the accident was as follows:
"... I proceeded down Blackmore Avenue towards the Beach Road intersection.
What happened?---I approached the stop sign, and as I stopped at the stop sign I looked for traffic, left and right, and while I was looking for traffic I noticed that the lady, Sue Taylor, was sitting in the middle of the island. I couldn't cross the intersection because she was blocking it so I had to wait for her to move before I could go into the intersection. So when she was sitting there for a while I waited, and then she proceeded to leave the intersection, at which at that time I crossed the road and I went to the right allowing traffic that was oncoming in the dual carriage way to- -if they needed to go through the lane and turn, and I moved to the right, just past the apex of the corner and stopped. Mrs Taylor was driving off at the time. I was then looking through the trees to see if I could leave the intersection and turn into the right-hand lane when I felt a small impact on the side of my car. I then pulled my vehicle up to the side of the kerb as not to obstruct traffic and I then got out of my car and instructed to Sue move her car out of the intersection, and I went over and asked if she was all right, and I walked round the car and I had a look at some damage on the back of her car, and I walked round the front of her car and noticed some damage on the front of her car, and then I said that I could fix her car, because I worked with motor vehicles and I repair them at home.... There was only a minor graze on my car and I wasn't even worried about the incident. It wasn't even an accident as far as I was concerned, it was only a minor incident. So I chose not to report it because I believed the damage to be well under $1000 since my car was hardly damaged and she had a broken tail lens and there was a little bit of damage to the side of her vehicle ... So I believe, sir, that she reversed into me. That she hesitated when she was pulling out from the traffic - - oncoming traffic coming. She has hesitated and her vehicle was sticking slightly out and she has just panicked and reversed into me and hit my corner ... as she was leaving I moved to the right so I could allow oncoming traffic to come through and she was taking off, so when the point of the impact happened I was actually looking through the trees to see if I could leave and I didn't actually see the collision, otherwise I would have tried to have avoided it..."
20 According to the appellant, Mrs Taylor reversed a metre or two. The appellant gave evidence that there was some slight panel damage down the side of his vehicle and that he believed Mrs Taylor glanced the corner of his car because his car did not move and she had scratched and broken her taillight. He continued:
"... my bumper didn't even hit her car. I'm sure - - I'm not 100 per cent sure that it didn't hit my car, but I put it to you that I don't think it hit the car. I think that our panels touched since her car was so high and my car was so low, and if I had have hit her with my bumper I believe that my bumper would have been in some disrepair, so to speak."
21 It was not in dispute that there was no damage to the steel bumper on the appellant's vehicle.
22 The appellant gave evidence that he looked at the damage to Mrs Taylor's vehicle and noticed "that with a little bit of bulk and a little bit of paint, a couple of hundred dollars and it could have been fixed". However, he conceded that he had never repaired a Nissan Pulsar before or priced the parts for a car of that type.
23 It was not in dispute that the accident occurred in daylight and there was nothing about the road condition, weather or other environmental factor that contributed to the accident.
24 After stating the legal test of what constitutes driving without due care and attention, to which no objection was taken, the Magistrate continued:
"The defendant saw the other vehicle in front of him when it was between the two concrete islands. It was in the space which had been created. The intersection is set up that a motor vehicle moves from the single lane in Blackmore to turn right at the island. Now, looking at the photographs, the intention is not to set up so as to allow two vehicles to turn right from that laneway or from there. Obviously vehicles going down Beach Road and wanting to turn right into Blackmore, there has to be a space for them in there as well, and that seems to have been accepted by all the parties in the presentation of the case.
Anyhow, the defendant has moved into the space and that's in anticipation of Mrs Taylor moving, but she was still there. Now, moving into there when the motor vehicle is still there, that in itself creates a potential for problems.
Now, Mrs Taylor says she never backed up and the daughter, although she was only ten, said the same.
...
There's no evidence of damage to either of the vehicles except a description of what happened.
At the time of reporting it, that is Mrs Taylor, said the value was about $1300, and that material emanated from the panel beater. Now, usually that would be grounds to conclude what would be reasonable estimate.
From the damage described in the case, I cannot draw a conclusion as to one version or the other ... I can't draw any conclusions one way or the other, bearing in mind that one version is that the vehicle backed and the other version is that it was hit from the rear. So I can't draw any conclusions from the damage description.
Therefore, I now have to look at the version which seems to flow well. Mrs Taylor had sufficient vision when she drove there. There was no evidence to show that a situation arose which would have caused her to back up at all, and the other part is the defendant drove into a confined area. Now, the flow of evidence is strongly in favour of the prosecution's case and I am prepared to accept it beyond reasonable doubt in respect to the careless driving charge.
As to the value and failing to report, the defendant was given a figure and he had nothing to compare it with. It was not a reasonable cause for him to believe it did not exceed the amount of $1000.
As to failing to supply information, really, the defendant is clearly misguided in that respect. The evidence speaks for itself that he didn't give the information and the charge is clearly one of failing to give that information when required.
So there is a finding on all charges of guilty."
25 The substance of the first ground of appeal is that the convictions recorded by the Magistrate are "unsafe and unsatisfactory". The test of 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 on that evidence.
26 The principles in M v The Queen (supra) apply to an appeal from the decision of a Magistrate in the Court of Petty Session: Harvey v Matthews [1999] WASCA 58 at par [11].
27 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 or her advantage, or has acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434.
28 The Magistrate stated that he had to "look at the version which seems to flow well". I considered whether that statement implied that he regarded himself as having to decide which version of events he accepted, that given by Mrs Taylor and her daughter or the appellant's version. Such an approach is erroneous. The question is not whether one version should be preferred over another: Murray v The Queen (2002) 189 ALR 40; [2002] HCA 26. The appellant does not have to prove anything. The question is whether the prosecution had proved each element of the offence beyond reasonable doubt.
29 However, I have concluded that the Magistrate did not approach the matter on the basis of a choice of versions. He expressly refers to being satisfied of the prosecution case beyond reasonable doubt. Further, his reference to which version flows well is, in context, intended to refer to the process of identifying matters that support or contradict the testimony of the witnesses. That is usually by reference to objective considerations, contemporaneous (or undisputed) facts and logical inferences: Rosenberg v Percival (supra) at 488 per Kirby J.
30 However, the Magistrate relied on facts, which were themselves in dispute without purporting to resolve the conflict of evidence. In particular, the Magistrate stated that the appellant moved into the space in anticipation of Mrs Taylor moving and that there was no evidence to show that a situation arose which would have caused her to back up. He made no reference to the appellant's evidence that Mrs Taylor's vehicle had moved from her position in the median strip or to his evidence that the road alignment and trees on the median strip had impaired her view of oncoming traffic. Based on the appellant's evidence, it is open to infer that Mrs Taylor (having moved from her position in the gap in the median strip) stopped then reversed back into the gap, hitting the appellant's stationary vehicle. Thus, there was some evidence of a situation that could have caused Mrs Taylor to reverse.
31 In this case, the Magistrate erred in failing to identify and resolve conflicts of evidence in order to make the required factual findings. Further, there is no express statement in the Magistrate's reasons that he made any findings of fact based on the credibility of the prosecution witnesses (as distinct from the credibility of their version of events). Although that may be inferred, any credibility assessment was influenced by facts which were not acknowledged to be in dispute.
32 Under s 199(3) of the Justices Act a court is not required to set aside or quash a decision because of a failure to make any necessary factual finding if the facts or evidence in substance support the decision or justify a relevant finding. I am not persuaded that there is sufficient evidence of a nature as to justify an appellate court making its own factual findings.
33 For these reasons I would uphold ground (c) of the appeal and set aside the conviction for dangerous driving. I will hear the parties on the question of whether there should be a retrial on this charge.
Duty to Report Accident - s 55 of the Act
34 The only question in issue in respect of this charge is whether the appellant had reasonable cause for believing that the damage to any property caused by the accident did not exceed, in the aggregate, an amount of $1,000.
35 The element of reasonable cause has to be satisfied at the date the offence was committed. The report must be made "forthwith". This means that the report must be made as soon as possible and subject only to delay which may be regarded as unavoidable, such as that caused by circumstances resulting from or in connection with the accident: Vigus v Mann [1961] WAR 157.
36 In this case there is no suggestion that there was any reason for unavoidable delay in making the report.
37 In his reasons, the Magistrate refers to the appellant having been given a figure. It appears the figure referred to was provided to the appellant by Officer Killalea sometime after Mrs Taylor had submitted a traffic crash report on 19 November 2001. The officer gave evidence that he advised the appellant by telephone to report the crash to police as there was over $1,000 of damage. Any breach of s 55 by the appellant would have been committed prior to the receipt of the information from the police officer. The question is whether at the time the obligation to report arose the appellant had reasonable cause for believing the damage did not exceed, in the aggregate, an amount of $1,000.
38 The Magistrate made no factual findings in relation to that issue. There is no finding as to the nature or extent of the damage to Mrs Taylor's car, an issue on which there is a conflict of evidence. The only evidence as to the cost of the damage was Mrs Taylor's hearsay evidence of a figure supplied by a panel beater in Balcatta. The damage on which the figure was based is not identified in the evidence.
39 The appellant gave evidence of his experience in repairing motor vehicles and his assessment of the damage at considerably less than $1000. The Magistrate does not deal with or make a finding regarding the appellant's evidence.
40 As there are no relevant factual findings and a conflict of evidence which has not been resolved by the Magistrate (and which cannot be resolved on appeal), the verdict on this charge should also be set aside. I will hear the parties on whether there should be a retrial on this charge.
Duty of Owner to Identify Offending Driver - s 58 of the Act
41 The evidence for the prosecution on this charge was given by Officer Killalea. Officer Killalea attended at the appellant's residence on 11 December 2001 and spoke with the appellant. Officer Killalea gave evidence that he had prepared questions to put to the appellant. His evidence was as follows:
"Okay. And do you recall what those questions were?---Off the top of my head I couldn't tell you exactly, but they would have been in regards to ownership of the vehicle, the vehicle was registered in his name, who has access to the vehicle. I - -remember saying to him that the particular incidents on the 16th of November, his vehicle was involved in a traffic crash, and who would have been driving on the day? And from the top of my head, I - - I think he refused to answer, or nominate who was driving the car, and refused to answer."
42 Officer Killalea was permitted to refer to his notes. His evidence was to the following effect:
" 'Questions to Anthony Donald Scarce. I cautioned him at the start, "You're not obliged to say anything unless you wish to do so. Whatever you say will be recorded in writing and may be given in evidence." ' And his response to that, 'I understand but won't give a statement.' First question was, 'What is your full name, address and phone number?' And his answer was, 'Anthony Donald Scarce, 8 Keal Street, Balcatta.' And his phone number was '9334 8382' which is the same as on the - - the crash report from Susan Taylor. The question - - the next question was, 'How long have you owned your Ford Escort panel van, rego 9HI 324?' The answer, 'A couple of years', and he's still the registered owner. The next question was, 'Who drives this vehicle?' The answer to that was, 'Various people. It's been on the lot for a couple of weeks. I'm not answering any questions.' I then told Mr Scarce of the traffic crash which occurred on Friday, the 16.11.01, at 3.45 pm, at Beach Road and Blackmore Avenue, Girrawheen, involving his car. And also the other vehicle is a white Nissan Pulsar, registration 1AHR 693. My question to him was, 'Were you driving and involved in this crash in your car?' And his answer to that was, 'No, I'm not answering any questions.' My next question was, 'If not you, then who drove or had use of your car on this date?' And his answer to that was, 'I'm not answering any more questions.' On the second page, my question to Mr Scarce was, 'The female driver of the other car said the driver's name was Tony or Anthony, living in Balcatta, with the phone number, 9344 8382, and the vehicle was a Ford Escort panel van, 9HI 324. She and her daughter had a good look at the driver and spoke to him.' And I said, 'Where you driving?' And his response was, 'I was not driving on that day. I'm not answering any more questions.' And at the end of that I got Scarce - - Mr Scarce to read through the contents of the notes and he agreed with them but refused to sign. So, I signed them myself and that - - that was my line of questioning to Mr Scarce on the day."
43 The appellant confirmed that Officer Killalea asked him questions some of which he answered and some of which he did not.
44 However, the evidence goes no further than establishing a request by a member of the police force for information. There is a distinction between a request and a requirement: see for example s 16(2) of the Criminal Investigation (Identifying People) Act 2002 (WA).
45 The appellant was only under an obligation to answer questions if he was required by a police officer to do so. That requires the police officer to communicate to the appellant that he is required to answer. That did not occur in this case. Accordingly, there is no evidence on which the appellant could have been convicted of the charge under s 58 of the Act and the conviction should be set aside.
46 Although it is unnecessary to deal with this ground, I do so for the sake of completeness. Mr David from the Aboriginal International Friendship Foundation purported to appear on behalf of the appellant. Mr David is not legally qualified.
47 The Magistrate permitted Mr David to act as a "McKenzie friend" to assist the appellant in presenting his case to the Court. A McKenzie friend assists a party before the court by, for example, making notes and giving suggestions or advice to the litigant in person but does not perform the role of an advocate or representative: McKenzie v McKenzie [1970] 3 All ER 1034 at 1036.
48 It is only in rare and exceptional circumstances that a McKenzie friend is permitted to address the court or otherwise take an active part in proceedings: Schagen v The Queen (1993) 8 WAR 410 at 412 per Malcom CJ.
49 Although the Magistrate permitted Mr David to assist the appellant as a McKenzie friend Mr David commenced to cross-examine Mrs Taylor. After Mr David's cross-examination had been in progress for some time, the Magistrate ruled that Mr David would not be permitted any further involvement as an advocate.
50 Insofar as the Magistrate formed the view that he had no discretion to permit Mr David to act as an advocate on behalf of the appellant, he erred in that regard. The court has a discretion to permit an agent in exceptional circumstances to take an active role in proceedings (or to withdraw permission).
51 However, it would have been a proper exercise of the Court's discretion to refuse leave for Mr David to take an active role in proceedings as there were no relevant exceptional circumstances. Accordingly, the Magistrate's error did not give rise to any procedural unfairness. This ground of appeal fails.
# Scarce
Killalea \[2003\] WASCA 81
(1999) 21 WAR 226
(1952) 86 CLR 136
(1994) 181 CLR 487
(1955) 91 CLR 512
(1993) 177 CLR 472
(1999) 160 ALR 588
(2001) 205 CLR 434
(2002) 189 ALR 40
(1993) 8 WAR 410