Practice and procedure - Obligations of Crown prosecutor in relation to calling witnesses - Decision to call for defence - Application to re-open - Objection by defence after earlier demand witnesses be called - Refusal by Magistrate to allow - Whether miscarriage of justice

Road Traffic Act 1974, s 59, s 59A

Matter remitted for re-hearing before a different Magistrate

House v The King [1936] HCA 40; (1936) 55 CLR 499

Johnstone & Ors v Owen-Byrne & Anor [1998], unreported; SCt of WA; Library No 980192; 16 April 1998

Kaighin v The Queen (1990) 1 WAR 390

Moss v Kimber (1986) 4 MVR 380

R v Chin [1985] HCA 35; (1985) 157 CLR 671

Skubevski v R [1977] WAR 129

Whitehorn [1983] HCA 42; (1983) 152 CLR 657

Woolmington v DPP [1935] UKHL 1; [1935] AC 462

Yousseff (1990) 50 A Crim R 1

1 MILLER J: The respondent was charged in the Court of Petty Sessions, Broome that on 28 May 1999 at Broome he drove a motor vehicle (registered no 8YR650) on a road, namely Great Northern Highway, in a manner that was, having regard to all the circumstances, dangerous to the public or to any person and thereby caused the (sic) grievous bodily harm to one Darryn George Bennett. He faced an identical charge in which it was alleged that he drove the same vehicle dangerously and thereby caused bodily harm to one Darren William Kelly. The charges were preferred pursuant to the provisions of s 59 and s 59A of the Road Traffic Act 1974 respectively. To these charges the respondent pleaded not guilty and the matter came on for hearing before Mr A Bloemen SM in the Court of Petty Sessions at Broome on 8 and 9 May 2000.

2 At the conclusion of the Crown case (which the learned Magistrate refused to allow the prosecutor to re-open) a submission was made by counsel for the respondent that there was no case to answer. After hearing a submission in response from the Crown prosecutor the learned Magistrate reserved his decision for a short period and then, upon his return, upheld the submission of no case to answer in relation to each of the charges faced by the respondent and dismissed them with costs.

3 From the decision of the learned Magistrate the appellant was, on 8 June 2000, given leave to appeal on three grounds:

"(a) In determining the defence submission of no case to answer, the Learned Magistrate erred in law by failing to give application to the test required of him by, and enunciated in, Morrison v Kiwi Electrix Pty Ltd and Another [1998] WASCA 203; (1998) 19 WAR 482.

(b) In refusing an application by counsel for the Crown to re-open the prosecution case in order to call two further witnesses and in declining to call the witnesses himself, the Learned Magistrate erred in that he failed to exercise his discretion according to law.

R v Apostolides [1984] HCA 38; (1984) 154 CLR 563

(c) The Learned Magistrate made numerous findings of fact which were so against the evidence and the weight of the evidence as to demonstrate a fundamental misunderstanding of the Crown case so that the parties were thereby deprived of a fair trial according to the evidence.

(i) That the court 'heard evidence that on the evening in question a certain Steven Kelly, Bowe and Bennett were on their way to Port Hedland';

(ii) That although the Crown witnesses were 'honest and truthful' they were 'not able to give direct assistance to the court as to how the collision occurred';

(iii) that George Bennett was a back passenger in the Commodore vehicle;

(iv) That there was no evidence before the court of the conditions of visibility on the night of the collision;

(v) That there was no 'change of the high beams between the two vehicles'; and

(vi) That 'Steven Kelly was injured but not Darren Kelly'."

4 In formulating his submissions that there was no case for the respondent to answer, counsel for the respondent alerted the learned Magistrate to the fact that the proper test to be applied in relation to a no-case submission is that set out by the Full Court in Morrison v Kiwi Electrix Pty Ltd & Anor [1998] WASCA 203; (1998) 19 WAR 482. In that case Malcolm CJ (with whom Kennedy and Ipp JJ agreed) adopted the formulation of the test by King CJ in R v Bilick (1984) 36 SASR 321 at 337:

"The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be asked by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt ... Where the case is a circumstantial or partly circumstantial case and therefore depends upon inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt, of the guilt of the accused?"

5 The learned Magistrate advised counsel for the respondent that he had a copy of the decision in Morrison v Kiwi Electrix (supra) "lying on his desk" and it can therefore be taken that the correct test on a submission of no case was properly put before the learned Magistrate. Although some of the submissions of counsel for the respondent might at first glance be taken to mean that the learned Magistrate was determining whether or not the prosecution had proven beyond reasonable doubt the guilt of the defendant, those submissions need to be read in the context of the reference to the decision in Morrison v Kiwi Electrix.

6 However, when it came to delivery of his submission on the no-case submission the learned Magistrate failed to apply the proper test. His Worship said:

"Can you stand up, Mr Hughes, please. The basic questions that I must answer - and I have considered the law, I've considered the evidence and I've also considered or taken commonsense; the question I must answer is: do, I'm satisfied beyond reasonable doubt that the collision occurred by the accused driver, Robert Hughes, being on the wrong side of the road and therefore collided with the Commodore coming from the opposite direction and, two, have the Crown proved beyond reasonable doubt that the collision did not occur because of major mechanical failure.

In relation to question 1 - that is do I'm satisfied beyond reasonable doubt that the collision occurred by the accused, Robert Hughes, driving on the wrong side of the road and therefore colliding with the Commodore - I am not satisfied as required by the necessary test, beyond reasonable doubt, that the accused was driving on the wrong side of the road.

Another fact, having carefully considered all factors ... and that is why I can say I had basically sleepless night, considered all the evidence last night. I'm unable to state where both vehicles were on the highway and what their position was at the time of the collision. In relation to the second question: has the Crown proven beyond reasonable doubt that the collision did not occur because of major mechanical failure --- and again I must say that the Crown has failed in that duty. Therefore this matter of the submission made by counsel on behalf of the accused must be successful.

I now address myself to the charge of causing bodily harm to Darren William Kelly. In relation to the charge, I have not evidence before me that Darren William Kelly was injured in any accident. I have evidence before me that Steven Kelly was injured but not Darren Kelly. I'm not satisfied beyond reasonable doubt; the Crown has failed to satisfy me to the satisfactory standard that is required. Therefore this charge must fail and the submission is upheld."

On any view of it, the formulation of the test by the learned Magistrate missed the critical point. That was that his Worship was required to ask whether the evidence of the Crown taken at its highest was capable of establishing beyond reasonable doubt the guilt of the defendant. Nowhere did the learned Magistrate address himself to this issue, but rather it would seem that his Worship determined the case as if the issue was the determination of whether the defendant was guilty of the offences charged. That is, the learned Magistrate appears to have determined the ultimate question rather than the interim question of whether there was or was not a case to answer.

7 It is therefore important to consider whether there was in fact a case to answer upon the proper application of the test set out in Morrison v Kiwi Electrix. As counsel for the appellant rightly submitted, the Magistrate would have been in error in dismissing the prosecution case at the stage when the no-case submission was made if there was evidence which could be taken into account and was capable (my emphasis) of supporting a verdict of guilty: Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 214 - 5.

8 The learned Magistrate made a number of errors in the reasons he gave for allowing the no-case submission, but he also made a number of important findings. He found as a fact that one Darren Bennett was a passenger in a Holden Commodore being driven by one Kelly in a southerly direction on the Great Northern Highway south of Broome. He accepted the evidence of Bennett that he observed a vehicle approaching one kilometre away on the wrong side of the road; that the headlights on the Commodore were on "the big beam"; that there was no change of high beams between the two vehicles; that Kelly sounded the horn of the Commodore and flashed its lights at the driver of the oncoming vehicle when approximately 50 metres from it; that Kelly braked the Commodore heavily and then turned to the left just prior to the collision. The speed of the Commodore prior to the collision was said by Bennett to have been between 115 - 120kmh and at the time of impact approximately 90kmh. The learned Magistrate accepted evidence from a police officer named Wells to the effect that he examined the Holden Commodore and a Nissan Pulsar on 19 June 1999 and found the right hand front of the Commodore and the right hand front of the Pulsar to have collided head on. His Worship made reference to the fact that Wells in cross-examination had been unable to exclude that the collision may have been caused by major mechanical defect, and this evidence clearly figured largely in the learned Magistrate's ruling on the no-case submission. In dealing with the witness Bennett, the learned Magistrate included him in "all witnesses" whom he described as "basically honest and truthful".

9 Bennett testified that on the night in question he was on his way to Port Hedland, having accepted a ride in the Commodore driven by Kelly. He knew the two occupants of the Commodore as "Darren and Craig" but knew the surname of Darren to be Kelly. He was unaware of Craig's surname. According to his testimony the Commodore left Broome at about 5.30pm, travelling south on the Great Northern Highway. Darren Kelly was the driver, Craig was seated in the front passenger seat and he (Bennett) was in the rear seat behind the driver. When the vehicle left Broome at 5.30pm it was light, but it gradually became dark and as the Commodore proceeded south on the Great Northern Highway it had its headlights on. Initially the lights were on low beam but they were turned to high beam as it became darker. Bennett's evidence of the events leading to the collision was that he observed, whilst the Commodore was driving with lights on high beam, a car approaching from the opposite direction which dipped its lights indicating that the driver of the Commodore should turn from high beam to low beam. He described the dipping of lights as "flashed his lights" which led Kelly to turn to low beam but then back to high beam because of the distance the two vehicles were apart. The approaching vehicle then flashed its lights again and Kelly turned to low beam. According to Bennett the vehicle had been about a kilometre away when he first noticed it but he qualified this by saying that it was "definitely about 500m, 400m" and stated that it was definitely in "our lane, definitely". Bennett stated (without objection) that Kelly had asked the others in the vehicle whether they thought the oncoming car was in their lane and they all agreed that it was. What then happened was as follows:

"Then Darren started flashing his high beams from low to high constantly with no response, and also beeping the horn.

What do you mean no response? --- No response at all from the other driver.

No response in what sense? --- Well, absolutely no response. That's all I can really ---

Did the driver in the other car change lanes? --- No, it was coming directly for us from when we really knew that it was in our lane.

What about the speed, was it the same or did it change, when Darren was flashing --- ? --- No, the speed didn't alter from the other car. Our car, yes. We started braking instantly --- slowing down instantly.

Did the driver do anything else besides flashing the lights? --- Beeping the horn.

How was he beeping it? --- Just constantly hitting the horn off and on.

What was your vision like of the other car? --- Perfect.

You said you were in the right-hand --- that's the seat behind the driver? --- Behind the driver, yes, but I was sitting as I am now, like this. I could see perfectly.

For the transcript you're describing leaning to the left? --- Yeah, leaning to the left. I don't really like driving without seeing the road.

Did you have a clear or unclear view of the other car? --- I had a totally clear view.

Which lane was it in? --- It was definitely in our lane.

Did the other car move out of that lane? --- Not at all.

Did part of the car cross the broken white line at any time? --- No.

Did part of that car cross the solid white line at any time? --- No.

Did the speed of that car change from what you saw? --- No, sir. I don't think so.

Just keep driving straight in that lane towards you? --- Yes.

MR RAYNEY: And you've said, I think, when that was happening, the driver of your car was flashing the high beam? --- Yes. He was.

What happened then? --- The car just kept coming straight for us. Within, I'd say, 50 metres, we'd have to --- we started braking very heavily. Still no --- the other --- driving of the other car still didn't seem to do anything about the action at all or try to avoid it. So we broke quite heavily and Darren ---

MR RAYNEY: What happened as the two vehicles approached? --- The two vehicles approached. Our car broke, started breaking.

Yes? --- I don't know how long we would have been skidding for, the car.

And then what happened? --- Darren Kelly turned the car to the left just before impact.

Just before impact? --- Just before impact yes. And then, of course, we hit on our right side, the driver's side of the car.

When the collision occurred, did you hear it? --- Yes.

What happened immediately at the point of impact? --- Oh, the car spun, or flipped I think.

Where did the car you were in end up? --- On the -- down the embankment, on our lane side. But on the embankment, down the embankment.

You're pointing to your left? --- Yes, I'm pointing left."

Bennett and the other two occupants of the Commodore were able to get out of it. They all went straight to the other vehicle where they tried to get the driver out. There, Kelly spoke to the other driver. He recounted the conversation as follows:

"Did he talk to the driver? --- Yes, he did. When he first got out of the car, he --- As he was running towards the car was screaming out, 'What have you done, mate?' 'Are you all right?' 'What were you doing --- were you on the wrong side --- were you asleep? Have you been drinking?'

That's what he was saying to the other --- ? --- Yes. That's what he was saying to the other driver.

Did you hear whether the other driver replied to that? --- Yes, the other driver did reply to that.

MR RAYNEY: What did he say? --- He said, 'I'm sorry. I'm not sure what's happened --- what I did wrong or what's going on.' "

10 Bennett was suffering from an internal injury and was unable to walk. When a passing car stopped, Kelly and Craig decided to head back to Broome and although Bennett asked to go with him, he was not taken. The police arrived shortly afterwards and Bennett was taken to Broome hospital and thence to Perth where he underwent surgery at Royal Perth Hospital. Although extensively cross-examined, Bennett at no time resiled from his evidence-in-chief. When pressed about the distance the other vehicle was from the Commodore when it became apparent that something was wrong, Bennett said that it was about 400 metres but could not be exact.

11 In the face of Bennett's evidence it is difficult to understand how the learned Magistrate could have concluded on the no-case submission that he was not satisfied that the defendant (whom it was conceded was the driver of the vehicle approaching the Commodore) was driving on the wrong side of the road. Likewise, it is difficult to understand how his Worship could have concluded that he was unable to state where both vehicles were on the highway and what their position was at the time of the collision. There appeared to be uncontradicted evidence from Bennett that the vehicle approaching the Commodore was at all relevant times on the wrong side of the road and continued in a direct path on the wrong side of the roadway until the collision occurred.

12 The learned Magistrate concluded during the course of his reasons on the no-case submission that there was no evidence as to what kind of night it was when the accident occurred. He made reference to absence of any evidence about the moon or of visibility generally and made an observation that "visibility in [the] country can vary depending on moonlights and ... other matters". His Worship's comments about variables in relation to visibility in country areas appear to be observations of his own experience and if so, they were inappropriate. In any event, there was evidence before the court about the visibility on the night in question. Constable Ian Matthew Turner, who was stationed at the Broome police station, was on duty on the night of 28 May and upon receipt of a message to attend the scene of an accident 180 kilometres south of Broome on the Great Northern Highway, he travelled there. When asked what the visibility was like on the way to the scene he said that "visibility on the way to the accident was good". Bennett had himself testified that prior to the collision he had seen the approaching vehicle from a considerable distance.

13 Constable Steven Wells gave evidence that he had been in the police service for some 23 years and prior to joining the police service had been a motor mechanic for a period of 12 years. He had worked for the last 15 years as a motor vehicle examiner and was a fully qualified vehicle examiner. On 19 June 1999 he attended at the Broome police holding yard where he examined two vehicles. The first was the Holden Commodore sedan, registered no 7EX 954 and the second, the Nissan Pulsar sedan, registered no 9YR 650. He compiled a report based on his findings which revealed that both vehicles were extensively damaged consistent with a head-on collision and with the damage more pronounced on the right side of each vehicle. He expressed the opinion that the damage sustained to the vehicles was similar to what one would expect if each vehicle had been travelling at approximately 110kmh. I should mention in passing that Wells found the speedometer needle on the Commodore to be resting on the 150kmh mark but he pointed out that the needle could be physically moved to whatever setting a person wished and the broken speedometer needle was no indication that was the speed that the vehicle had been travelling at prior to the collision. When cross-examined, Wells conceded that a collision can be so severe as to disguise a major mechanical failure in a vehicle. The following exchange with counsel for the respondent occurred:

"It just occurred to me that there may well have been --- well, it's a reasonable possibility, is it not, that - and you couldn't exclude it as such - for this accident perhaps to be the result of a major mechanical failure. You couldn't exclude it as a reasonable possibility, could you? --- No, sir.

The head-on collision that my friend was describing - and you quite correctly just reminded him that this isn't really so much a head-on. Indeed, the vehicles did meet front end to front end --- ? --- Yes, sir."

It is also important to quote the following question and answer given in re-examination:

"You were asked about whether accidents or collisions may result because of some major mechanical failure to a vehicle which might not ordinarily be detected during a vehicle examination. Do you remember being asked a question about that? --- Yes, sir.

MR RAYNEY: Is there anything to indicate that that is the case with the Pulsar? --- No, sir, not on the headings that I have listed underneath that fit in with the electrical, the steering, the tyres, the brakes."

14 Counsel for the respondent referred in the course of his no-case submission to the concession of Wells that he could not exclude the reasonable possibility that the accident was caused by a major mechanical failure. This led him to suggest to the learned Magistrate that the fact of the respondent's vehicle travelling on the incorrect side of the roadway was "equally consistent with a major mechanical failure". The learned Magistrate accepted this submission and concluded that the prosecution had failed to prove beyond reasonable doubt that the collision did not occur because of major mechanical failure. This, as I have indicated, was not the test to be applied, but in any event, it was not incumbent upon the Crown to prove that the collision had not occurred because of major mechanical failure. There was no evidence that the collision had anything to do with mechanical failure. To the contrary, there was undisputed evidence from Bennett that the respondent's vehicle had approached from a considerable distance in a straight line on the wrong side of the road with the respondent flashing his lights in the course of so-doing. There was no evidence to suggest that the respondent's vehicle had swerved from the correct side of the road to the wrong side or that there was any indication that it had any mechanical fault. To the contrary, it had proceeded directly in a straight line towards the oncoming Commodore. It is not surprising that Wells was unable to exclude the fact that the collision may have been caused by "a major mechanical failure". All that he did was examine the vehicles in the aftermath of the collision, by which time they were so badly damaged that he was unable to express any view as to the condition in which they were prior to the accident (save that he found nothing to suggest that there had been any major mechanical failure to the Pulsar). The evidence of Wells must be considered in light of the evidence of Bennett. Given Bennett's evidence, there was simply no scope for the submission that some major mechanical failure on the part of the Pulsar was the cause of the collision. To the extent that the learned Magistrate took the view that the Crown was obliged to prove beyond reasonable doubt that the collision did not occur because of major mechanical failure he was, in my view, wrong.

15 The position at the end of the prosecution case therefore was that the uncontradicted evidence of Bennett established as a fact that the Nissan Pulsar had travelled for a considerable distance on the wrong side of the road and in a direct line to the point of collision. Further, it established that the driver of the Pulsar was clearly conscious and alert, as he had flashed his lights at the Commodore on more than one occasion.

16 In submission to the learned Magistrate, and before this Court, counsel for the respondent contended that the offence of dangerous driving was not absolute, and (as was put to the Magistrate) "just because a person ends up in that position doesn't automatically make them guilty - but there has to be some fault on the part of the driver which caused that danger. So there has to be some evidence of fault on the part of Mr Hughes that he drove onto the incorrect side of the road and drove there in certain circumstances". Reliance was placed upon R v Webb [1986] 2 Qd R 446 and in particular to the following passage from the judgment of Williams J at 448:

"There are two steps involved in determining that a driver should be convicted of dangerous driving. Firstly, the driving (that is what actually occurred) must be considered objectively by the tribunal of fact and be held to be dangerous. (King v Coventry [1938] HCA 31; (1938) 59 CLR 633, R v Warner [1980] Qd R 207, R v Gosney [1971] 2 QB 674). Secondly, there must be some fault on the part of the driver which caused that danger to the public. (R v Gosney, R v Warner, R v Hinz [1972] Qd R 272 and R v Smith [1976] WAR 97)."

17 In the course of the same judgment Williams J followed the following passage from the judgment of Megaw LJ in R v Gosney [1971] 2 QB 674 (at 680):

"We would state briefly what in our judgment the law was and is on this question of fault in the offence of driving in a dangerous manner. It is not an absolute offence. In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. 'Fault' certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an experienced or naturally poor driver, while straining every nerve to do the right things, falls below the standard of a competent and careful driver. Fault involves a failure, a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense, even though it be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient. The fault need not be the sole cause of the dangerous situation. It is enough if it is, looked at sensibly, a cause. Such a fault will often be sufficiently proved as an inference from the very facts of the situation."

18 The observations of Magaw LJ are important. As his Honour pointed out, "fault" does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving (my emphasis). Instead, it involves only a failure or falling below the care or skill of a competent and experienced driver in relation to the manner of driving and the relevant circumstances of the case. Thus, applied to the present case, it was unnecessary for the prosecution to prove that the respondent had deliberately, recklessly or intentionally driven on the wrong side of the road. His fault was placing his vehicle on the wrong side of the road which was not only in breach of the Road Traffic Code, but in breach of fundamental requirements of driving on a public highway.

19 In R v Webb, Williams J followed what had been said in this Court in A M Smith v R [1976] WAR 97 where (at 104) Jackson CJ said:

"Upon the appeal to the High Court in the same case, R v Coventry [1938] HCA 31; (1938) 59 CLR 633, the judgments emphasize that the question was not whether a person was indifferent to the consequences of his driving (which might be considered as recklessness) but whether the acts of the driver constituted a danger, real or potential, to the public, and that the standard was an objective one 'impersonal and universal, fixed in relation to the safety of other users of the highway', citing McCrone v Riding [1938] 1 All ER 157. The High Court added that casual behaviour and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of the provision."

20 Jackson CJ (also at 104) went on to make reference to McBride v R [1966] HCA 22; (1966) 115 CLR 44 and followed what was there said by Barwick CJ (at 49 - 50) as follows:

"Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentially in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section:"

21 These passages highlight the fact that all that the prosecution was obliged to prove in the present case for the purpose of a prima facie case was that the evidence led from the prosecution witnesses, taken at its highest, was capable of establishing beyond reasonable doubt the guilt of the accused in the sense that he drove in a manner which was objectively dangerous (real or potential) to the public and he was at fault in so doing. Prima facie he was at fault for being on the incorrect side of the road, it being unnecessary for the prosecution to prove that he put himself there deliberately, recklessly or with intention to drive on that side of the road in breach of the obligations cast upon him by the Road Traffic Code.

22 Reference might also be made to R v Hinz [1972] Qd R 272. There, (at 278) W B Campbell J stated that the civil doctrine of res ipsa loquitur does not apply to criminal cases and it is wrong to say that the mere happening of an accident gives rise to a presumption of lack of proper care and attention. However, his Honour (at 279) said:

"It can be seen that the facts in the present case distinguish it from Butler's case. In the latter case, if the magistrate had accepted the appellant's version of the accident there was a good explanation for the behaviour of the motor vehicle, and if he had not accepted it the evidence was merely left in a state where the car had left its correct side and got on to its incorrect side. From that fact alone no inference could properly be drawn, on the criminal standard of proof, that the facts of that situation were sufficient to warrant the driver had been at fault. So to conclude would be to apply the doctrine of res ipsa loquitur to a criminal case. However, in the present case the collision on a straight stretch of road in hours of daylight and the other evidence to which I have referred, if accepted by the jury, established that the appellant's motor vehicle had moved on to its incorrect side of the roadway in circumstances which, in the absence of some explanation, could justify the drawing of such an inference. There was then a prima facie case that the appellant had been guilty of the offence of dangerous driving."

23 The observations of W B Campbell J are entirely applicable to the present case. Here, on a night in conditions of clear visibility, the respondent drove a Nissan Pulsar sedan for a considerable distance on the wrong side of the Great Northern Highway as a Holden Commodore was approaching it from the north. The vehicles exchanged flashing of lights and as the Commodore neared the Pulsar the driver increased his efforts to alert the oncoming driver to the fact that he was on the wrong side of the road, but notwithstanding this, the Nissan Pulsar was driven straight ahead, remaining at all times on the wrong side of the road until the collision occurred. From that evidence, there was in my view a strong case for the respondent to answer. Had the magistrate asked the correct question, namely, whether the evidence of the prosecution taken at its highest was capable of establishing beyond reasonable doubt the guilt of the accused, the answer must have been "yes". That was because there was a prima facie case that the driving of the respondent considered objectively was dangerous and because there was evidence of fault on his part in placing his vehicle on the incorrect side of the Great Northern Highway.

24 The fact is that the learned Magistrate asked himself whether he was satisfied beyond reasonable doubt that the collision had occurred by the respondent being on the wrong side of the road and thereby colliding with the Commodore coming from the opposite direction. Surprisingly, his Worship held that he was not satisfied beyond reasonable doubt that the accused was on the wrong side of the road. That finding, applying the wrong test as it did, was nevertheless totally against the uncontradicted evidence of Bennett.

25 The learned Magistrate also made reference to the submission of counsel for the respondent that there was no evidence of bodily harm suffered by Darren William Kelly as alleged in the complaint which related to him. The learned Magistrate said in relation to that particular charge that he had no evidence before him that Darren William Kelly was injured in any accident but only evidence that a Steven Kelly was injured, not Darren Kelly. He added "I am not satisfied beyond reasonable doubt; the Crown has failed to satisfy me to the satisfactory standard that is required". Again, this was an application of an incorrect test. However, it is important to consider the evidence in relation to the allegation that Darren Kelly suffered bodily harm. Darren Kelly was not called to give evidence. I shall deal later with the circumstances in which that came about. The evidence from Bennett was, however, that he saw Darren Kelly in Royal Perth Hospital at the same time as he (Bennett) was admitted after the accident and Bennett was there for an operation on his foot. The last Bennett had seen of Darren Kelly before that was when he and Craig "decided to head back to Broome" and got a lift in a vehicle for that purpose.

26 Constable Turner gave evidence that as he approached the scene of the accident at 7.45pm he stopped a Hilux which had flashed its high beam. He became aware that there was an injured person on board being conveyed to hospital. He saw three people in the vehicle, one of whom gave his name as Steven Wade Kelly. According to Constable Turner, that was a false name and the correct name for this person was Darren William Kelly. He was with Colin Craig Bowe. He gave evidence that he was told by the person he now knows to be Darren William Kelly that he had been the driver of the Holden Commodore involved in the crash. He was given a breath test which was negative and then left to proceed on to Broome. Later, Darren William Kelly was charged with having given a false name "at the scene ... to police" and another traffic matter. He pleaded guilty.

27 There was evidence from Dr Anthony Franklin that he was on duty at the Broome Medical Clinic on the night of 28 May when at about 10pm an ambulance arrived with a patient who was introduced as Steven Kelly. Although Dr Franklin gave evidence that he was later informed this was "actually Darren Kelly" the evidence was properly objected to and was inadmissible. In any event, Dr Franklin indicated that the patient was conscious, was able to give a clear history and had physical injuries which consisted of two lacerations to his face (one running down to his nose and the other on his right upper eyelid) with swelling and bruising around the right eye and a puncture wound to the right lower leg in which about 1cm of skin was lost and around which there was considerable bruising and swelling. He also had a grossly swollen, tender and painful right foot. The foot was x-rayed but because of swelling Dr Franklin was unable to tell whether there was any fracture. The patient was treated, the foot splinted and the x-rays sent to Perth. Subsequently a report came back indicating that there were in fact fractures in the mid-foot of the patient. The patient left the hospital the following morning and the doctor was unaware of what further treatment he had. He did, however, express the opinion that the lacerations to the face and puncture wound to the right leg would at the time have caused pain and discomfort and the lacerations to the face had the potential to cause future scarring. The injury to the foot with fractures was said to have the potential to cause ongoing problems with pain and a possible limp but as the doctor had not seen the patient he was unable to comment on further progress.

28 It was against this background that the prosecution contended that there was sufficient evidence to establish a prima facie case that Darren William Kelly suffered bodily harm in the accident. The question was whether the prosecution case taken at its highest was capable of establishing beyond reasonable doubt the guilt of the accused. In my view it was. There was uncontradicted evidence that Darren Kelly had been the driver of the Commodore; that after a particularly violent accident he had travelled to Broome; that he had been interviewed by a police officer some short distance from the scene of the accident where he gave the name Steven Kelly (which was later found to be a false name and in relation to which he pleaded guilty to the offence of giving such a name); that a Steven Kelly had presented himself at the Broome hospital with injuries which were consistent with bodily harm, and that he had later been sent to Royal Perth Hospital by Bennett with a foot injury. All of this pointed in my view to a prima facie case that it was Darren William Kelly who presented himself at the Broome hospital with injuries which were consistent with bodily injury and certainly, that evidence was capable of establishing beyond reasonable doubt that Kelly had suffered bodily injury in the accident in question. The learned Magistrate was in my view therefore wrong in concluding that the no-case to answer submission in relation to the charge involving Kelly should be upheld. Again, the wrong test was applied, but in any event even with the application of the correct test, there was in my view a prima facie case.

29 It follows that in my view there is only one course open. That is to return the case to a Magistrate at Broome (or at such other venue as the parties may agree) for re-hearing.

Refusal to allow counsel for the Crown to re-open the prosecution case and call two further witnesses

30 It is strictly unnecessary for me to deal with this ground, but as considerable time was spent in relation to it at the hearing of the appeal, it is appropriate that I make some observations about what occurred at the trial and the way in which the learned Magistrate handled the situation presented before him.

31 As I have already indicated, there were three occupants of the Holden Commodore. They were Kelly, Bowe and Bennett. Only Bennett was called by the prosecution at the hearing. That was because the prosecutor had reached the view that Kelly and Bowe could not be relied upon as witnesses of truth. What the prosecutor said was that he had concluded that both Kelly and Bowe were unreliable and untrustworthy and had clearly demonstrated a preparedness to give perjured evidence in order to assist the respondent's case and in doing so to benefit financially from that course of conduct. The prosecutor stated before the learned Magistrate that he had the witnesses at court who were available to the defence should they wish to call them.

32 Counsel for the respondent expressed indignation that the prosecutor declined to call Kelly and Bowe and asked the learned Magistrate to invite the prosecutor to reconsider his decision. Counsel for the respondent pointed out that in "most exceptional circumstances" the learned Magistrate would have the right himself to call the witnesses, but stressed that the prosecutor had failed to give adequate reasons for not calling Kelly and Bowe. This led the learned Magistrate to make an invitation to the prosecutor to call the witnesses, in response to which the explanation was given by the prosecutor as to why they were not being called. When the prosecutor invited the learned Magistrate to call the witnesses himself he declined to do so and adjourned the court. On his return counsel for the respondent made this statement:

"But our position always was that the Crown should call these witnesses, put them in the box, perhaps not ask them questions but make them available for cross-examination. That's always been our position because we understood the situation had changed. But this prosecutor made the decision that he would --- did not do that and simply make them available for the defence."

33 After the learned Magistrate made some observations about the need for "fairness" and "justice" the prosecutor then announced that he would accede to the request to call the witnesses and said:

"MR RAYNEY: I hear what your Worship says and in the course of submissions and your Worship's comments and I will accede and call those witnesses. I'll need to seek leave to re-open the case because I've formally closed the case. My friend would have no objection and then I will call --- "

34 Surprisingly, counsel for the respondent then stated that he objected to this course. He said:

"MR TROWELL: The Crown has conducted this case entirely on the basis that it was not going to call them. We were formally advised by the prosecutor on Friday --- after submissions made by me orally to the Director of Public Prosecutions, the position was made quite clear to me that they would not be called by the Crown. It is now with the risk I'm sure that the prosecution feels that there might be some adverse inference drawn or at least your Worship might conclude that not having them, you are not in a position to make certain findings.

Now we have the extraordinary position - and it is extraordinary - where the Crown would now say --- would now say: oh, well, if you're going to do that, if you're going to make that --- if you're going to take that view, we'll call them. This trial is complete. All the evidence has been put in the can, so to speak, and to call them now out of order like this is just appalling. You know this --- we have been put through this entire process only now to find that the Crown's going to call them.

35 The prosecutor stressed that he was not seeking to call the two witnesses to lead evidence from them but simply "calling them to make them available for the defence", pointing out that this is what he'd been invited to do. The learned Magistrate, however, ruled against the application in the following terms:

"The court has leant backwards to assist the prosecution in every way. The prosecutor had used every angle he possibly could use and at the end he then wants to jump on the bandwagon and re-open. Like I say, I feel this court has been extremely patient. And it was to a surprise, which I clearly saw on the prosecution's face, when I read the paragraph of the High Court decision Apostoledes (sic).

Having considered the matter, having carefully heard the argument put by the prosecutor and the argument put by defence counsel, I feel that I have strictly complied with the High Court decision and that this court must keep in mind fairness, openness and justice to the defendant. In this case I cannot say that I can serve justice if I would permit the defendant --- the prosecutor to re-open their case. And their application is rejected. As I stated, I am of the opinion that I have given them the opportunity. The application is rejected."

36 The about turn by counsel for the respondent in relation to this issue was something which counsel for the respondent sought to justify in the hearing of the appeal by reference to the time that the case had taken and the fact that time was fast running out for its conclusion. However, that is a most inadequate explanation for the way in which counsel handled the matter, and one can only be critical of the course of events as it unfolded.

37 The responsibility for deciding whether a person should be called as a witness for the Crown clearly rests solely with the Crown prosecutor. He alone bears that responsibility: R v Apostilides [1984] HCA 38; (1984) 154 CLR 563. Save in the most exceptional circumstances the Judge should not himself call a person to give evidence (R v Apostilides) and in the circumstances of this case it cannot be said that the learned Magistrate erred in declining to do that. R v Kizon & Kizon (1985) 18 A Crim R 59 is a decision of this Court which underlines the established responsibility of the Crown to decide whether or not a person should be called as a witness for the Crown. As was pointed out by Wallace J in that case (at 64) the prosecution could not be called upon to put before the jury evidence which it believed to be untrue and given by men of doubtful credit. In other words, where it has strong and satisfactory reasons for doing so, the Crown prosecutor is entitled to decline to call a witness. The evidence in this case clearly established that Kelly and Bowe were unreliable witnesses. There was evidence that they had been charged with attempting to pervert the course of justice and the circumstances in which those charges were preferred went to the very heart of the proceedings before the court. In any event, the witnesses were available for the defence.

38 In his reasons for upholding the no-case submission the learned Magistrate offered trenchant criticism of the prosecutor saying:

"At the outset of the trial the prosecution, Mr Rayney, made it clear that they would not call Darren Kelly and Mr Bowe. The defendant requested that the prosecution produce those two people as witnesses. I must state here that because the two people - Kelly and Bowe - were not called to give evidence, that certainly kept in this court's opinion very vital evidence away from the court and, for that matter, in fairness and justice to the defence."

39 In my view that observation by the learned Magistrate was entirely inappropriate in light of the way in which the prosecutor had first explained the reason why he was not calling the witnesses and then when pressed to do so, had indicated that he would seek to re-open to the Crown case to call them for cross-examination by counsel for the respondent. There could have been no prejudice to the respondent by the re-opening of the case in those circumstances, and far from the prosecution keeping from the court "very vital evidence" the prosecution had ultimately offered to put that evidence before the court. The learned Magistrate's conclusions in relation to this issue indicate that there was a miscarriage of justice in the way in which he handled the proceedings and ultimately held that the prosecution was at fault in relation to the matter.

40 The third ground of appeal identifies numerous errors of fact made by the learned Magistrate. I have set them out in the grounds of appeal. These errors were made, and were more than "slips of the tongue" as counsel for the respondent sought to categorise them. As however the learned Magistrate had already erred in failing to appreciate that there was a case for the respondent to answer, and as justice had miscarried in the way in which the learned Magistrate refused to allow the Crown prosecutor the opportunity to re-open the prosecution case and call Kelly and Bowe for the defence to cross-examine, little purpose is to be served by examining the errors in detail. There is substance in the submission made on behalf of the appellant that the cumulative effect of the errors demonstrated a fundamental misunderstanding of the evidence before the court. It is sufficient to say that it is another reason why the matter should be remitted for re-hearing.

41 I would accede to the orders sought by counsel for the appellant, namely that the decision of the learned Magistrate to dismiss the two complaints should be set aside and the matter remitted for re-hearing before a different Magistrate in the Court of Petty Sessions at Broome or elsewhere if so agreed by the parties.