CWDS Justices Appeal - Section 47bRoad Traffic Act - sufficiency of proof that the appellant was the driver - statement to police - subsequent doubt by appellant - evidence of loss of memory - inconsistencies - Magistrates reasons

• question of fact - all witnesses accepted - details of accident - Appellant found lying in back seat - observations of defence witness - held conviction supported by the evidence - Appeal dismissed.

HRNG ADELAIDE, 7 February 1991 #DATE 7:2:1991 Counsel for the Appellant: Mr P.J. Humphries Solicitors for the Appellant: Reilly, Downs and Humphries Counsel for the Respondent: Ms S.E. Rogers Solicitor for the Respondent: Mr B.M. Selway

JUDGE1 LEGOE J. I propose to dismiss the appeal. I will give very brief reasons now and I reserve the right to expand upon them afterwards. 2. The appellant was convicted in the court of summary jurisdiction of a breach of s.47(b) of the Road Traffic Act. The whole point of this appeal raises the question as to whether the prosecution proved beyond reasonable doubt that he was the driver of the vehicle. 3. The charge was that on 21st February 1990 at Mount Gambier he drove a vehicle on a road, namely Elizabeth Street, while there was present in his blood the prescribed concentration of alcohol. 4. The prosecution case was very short and to the point as counsel for the appellant, Mr Humphries, has quite accurately said, there was virtually no challenge to the police evidence, there being only one police officer who actually gave evidence. The appellant gave evidence and was extensively cross-examined. He also called one witness, a Mr Widdison, who was also cross-examined. 5. The learned Special Magistrate in his reasons observed that much of the evidence was not in dispute. The findings of fact that he made were based on the undisputed evidence. He found that:- 1. On 21st February 1990 the appellant was the owner of the vehicle which was involved in a collision in Elizabeth Street at approximately 11 pm. 2. The vehicle collided with a fence and a stobie pole. The vehicle was extensively damaged and the photographs suggested it was a total writeoff. 3. Senior Constable Bartsh was the officer who gave evidence for the prosecution at the trial and had attended at the scene some time after the accident. He had asked the appellant was he the driver of the vehicle involved in the accident, to which the appellant answered "Yes". The appellant also identified the vehicle at the scene as being the one that he had driven. 4. The appellant was conveyed to the Mt. Gambier police station where he was given a breath analysis test. The appellant told Constable Bartsh that he had consumed three glasses of wine, approximately between 9 and 10 pm. He claimed that he was travelling south along Elizabeth Street when a dog ran across the road and in veering to avoid it he collided with the stobie pole. 5. Constable Markham whose report was tendered at the trial, indicated that the vehicle had been travelling north. Constable Bartsh in his observations confirmed that the indications at the accident were that the vehicle had been travelling north. This was initially disputed during the conversation at the police station, but later when these observations and marks were pointed out to him, the appellant considered that he must have been travelling in the direction of his home, that was north along Elizabeth Street. 6. There was some evidence from Constable Bartsh relating to the cuts on the appellant's feet and forehead. At some time later Constable Bartsh considered that he had not seen an actual cut on the forehead. Constable Markham's notes indicated that the cuts

were on the appellant's feet, hand and arms. He did not observe any cut on the head. 6. Finally Constable Markham noticed that the appellant's eyes were slightly red and that his speech was slow as well as his movements. 7. The issue at the trial was whether it had been proved beyond reasonable doubt that the appellant was the driver. The prosecution formulated its case as stated by the learned Special Magistrate in his reasons on the basis that although there was apparently no witness to the accident, it could be safely concluded from the whole of the evidence beyond reasonable doubt that the appellant was the driver of the vehicle. On the other hand the appellant at the hearing suggested that the evidence was insufficient to establish that fact beyond reasonable doubt, notwithstanding the appellant's admission to that effect to Constable Bartsh on the night. It was suggested that there was a possibility that some other unknown person was driving the vehicle at the time of the accident. 8. On this appeal Mr Humphries pointed out that the evidence disclosed that when Mr Widdison came out of his house shortly after the accident he had observed that the front driver's door was ajar. 9. The learned Special Magistrate in his reasons referred to the appellant's evidence which indicated that he had been at home earlier that evening, but professed to having no recollection of driving his motor vehicle prior to the accident. 10. Furthermore the learned Special Magistrate said the appellant professed to have no recollection of the accident itself. But that does not appear to accord with what the appellant said in cross-examination on p 15 when he was asked: "Did you remember there had been an accident?" and his answer was: "I remember there was an accident." The appellant accepted that he told the police officer that he was driving at the time and said that he made those admissions because he believed that he must have been the driver. 11. The learned Special Magistrate added, and Mr Humphries has not challenged this on appeal:- "He (the appellant) says his explanation to the police officer of how and why the accident occurred was concocted simply to provide an explanation for the fact of the accident." 12. The appellant apparently began to have doubts about whether he was driving the car some time later when Mr Widdison, the owner of the property whose fence had been damaged in the accident, contacted him concerning payment for that damage. A comment was made by Mr Widdison on what he had observed and as a result of that comment, the appellant said that he began to doubt that he was driving the vehicle at the time it collided with the fence and the stobie pole. 13. The learned Special Magistrate then referred to the evidence of Mr Widdison and what he observed including the fact that when he came out into the street for either the first or possibly the second time, or both, he saw three men standing on the northern side of the vehicle and approximately four to five feet from it. A comment was made by one of those men that there was someone in the back of the vehicle. Mr Widdison looked into the back of the vehicle and there saw the appellant lying on the back seat. That was about four to five minutes from the time when Mr Widdison got out of his bed, having been awoken by his wife as a result of hearing the noise from the impact. 14. It further appeared from Widdison's evidence that the appellant was confused. When asked by Mr Widdison "What happened?", he said "Where am I?". The appellant had climbed from the back seat into the front seat and got out through the front door. The appellant's thongs were retrieved from the well of the back seat and handed to the appellant because there was broken glass on the road. Mr Widdison repeated that the appellant appeared dazed and disorientated. 15. The learned Special Magistrate appears to have found all three witnesses to be satisfactory and to have acted on their evidence accordingly. However the evidence of the appellant was later qualified to some extent. The learned Special Magistrate referred to the appellant's "professed lack of memory of what occurred between approximately 9 pm. and approximately 11 pm." The appellant had no medical treatment for his injury, but some degree of confusion was indicated by the answers given to Constable Bartsh and the observations of Mr Widdison at the scene. The learned Special Magistrate was not prepared to draw any conclusion in the absence of medical evidence that the appellant was concussed to indicate the consequent loss of memory. As he put it:-
"It is equally open that they are the consequence of being involved in an accident and/or having consumed sufficient alcohol to return a blood alcohol reading of 0.157 grams of alcohol in 100 ml of blood." 16. The learned Special Magistrate concluded on the vital issue that he had to determine that the alternative possibilities put forward by the defence at the hearing were pure speculation but he correctly directed himself that there is no onus of proof upon the defence. His conclusion was that he was persuaded beyond reasonable doubt that the defendant was the driver of the vehicle. In brief his reasons were:- 1. That the appellant was the only person observed with the vehicle at any stage, more particularly immediately after the accident, and although three other men were observed in the vicinity: "There is no suggestion that one or more of them had been in the vehicle at any stage. There is no suggestion that any

other person was observed near to the scene who could have been in the defendant's vehicle at the time of the accident." Mr Humphries agrees with the accuracy of that statement by the learned Special Magistrate, but challenges the correct application of that approach when the prosecution has the onus of proving the fact beyond reasonable doubt. It is further clear that the three men had arrived at the scene relatively shortly after the accident had happened as indeed did Mr Widdison, but says Mr Humphries, there is a possibility, and the court should have entertained a reasonable doubt, that by virtue of the fact the appellant was not the driver but was in the back seat lying injured or dazed. When observed by Mr Widdison (and apparently at least one of the three men) and the fact that the driver's door was ajar was sufficient to throw doubt on that inference. In those circumstances the court was not justified in concluding that the charge had been established beyond reasonable doubt. 2. Secondly, the learned Special Magistrate observed that the appellant had admitted that he was the driver and indeed during the whole of his involvement with the police there had been no suggestion of any loss of memory. All he is saying is that at the time the defendant spoke to the police, he had said that he had been the driver. There was no suggestion of any loss of memory to the police at that time. In his evidence he had not disputed the police evidence as to what he had said to Bartsh on the night. 17. The learned Special Magistrate went on to refer to the St. John Ambulance officers who attended the scene, and a Dr Foley, who had taken the blood sample which the appellant had requested later that evening. No complaint had been made to any of those officers. The primary facts which the learned Special Magistrate therein referred to were undoubtedly correct. It seems to me that the learned Special Magistrate was entitled to take this fact into account in assessing the weight to be attached to the evidence as a whole and to the onus of proof that the prosecution bore, even though he found the appellant to be a satisfactory witness. 18. Third and fourth grounds are of far less significance and indeed Mr Humphries has properly analysed the third ground as not really being a ground to establish the prosecution case at all. The learned Special Magistrate stated, as his third ground, that: "It is well known that the occupants of motor vehicles involved in accidents, and this was seemingly a substantial impact, do get thrown about within the vehicle, and on occasions thrown from the vehicle." 19. Mr Humphries referred me to certain questions that had been put by the learned Special Magistrate to Mr Widdison after his cross-examination on p 32 of the transcript. In particular where Mr Widdison was asked was there any doubt in his mind that the appellant had been driving. Mr Widdison's answer was:- "My initial impression was that the person was under the car when I first went there, because I saw the door wide open. I thought that the person might have been thrown out of the car, under the car." When the question was repeated Mr Widdison's answer was:- "Yes, I think there is." 20. In my view the third point stated by the learned Special Magistrate was really an answer, albeit a qualified answer, based on an opinion of general knowledge, to a comment by the defence that as the appellant had been found lying injured or dazed on the back seat of the car, it's reasonably doubtful as to whether he could have driven that car. The implication from this comment being, of course, that some other unknown person had driven the car and escaped before anyone else came on the scene, leaving the appellant lying in the back seat. Although I agree with Mr Humphries that this isn't really a point to establish the prosecution case beyond reasonable doubt, I adhere to the comment that I made during argument, that the court is not required to speculate on matters which are not reasonably capable of being drawn from the evidence as a whole. The evidence as a whole, clearly establishes that the appellant had been at home earlier that evening, he had been drinking, he did remember that there was an accident when asked in cross-examination and he was obviously in the car, albeit in the back seat, when observed by Mr Widdison and apparently the other three men in the vicinity. The whole of these circumstances lead inevitably to only one proper inference from these clearly established facts. In my judgment, it is not permissible for this court, nor for the learned Special Magistrate, to speculate as to other possibilities. In my judgment, the possibility of another person having driven this car, which was involved in a very substantial impact with a stobie pole, escaping from that car uninjured, with no traces of blood and broken glass in the vicinity, is so unlikely and so remote as to remove any prospect of a reasonable or possible explanation to indicate that the appellant may not have been the driver. In my judgment, the evidence, as a whole, was proved beyond reasonable doubt. 21. The fourth ground mentioned by the learned Special Magistrate was, admittedly, of little weight and I make no further comment other than, as Mr Humphries pointed out, the fact that the appellant paid for the cost of repairing Mr Widdison's fence, was as a result of the negotiations which took place some time later at a time when the appellant clearly believed that he was the driver. 22. In my opinion there was ample evidence to support the decision. In my opinion, the appellant has failed to establish any of the grounds of appeal and, in particular, ground 1, which I have referred to in my reasons above. 23. For these reasons the appeal will be dismissed. The appellant to pay the respondent's costs of and incidental to the appeal, which I fix at $150.