Harris v Griffin[2017] QDC 164

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal under the Justices Act 1886 (Qld) against a conviction for driving without due care and attention pursuant to s 83 of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM”).  The appellant was convicted and fined $750.  No action was taken with respect to his driver’s license.

2. [2]
   The appeal grounds are as follows:

1. The learned magistrate failed to have sufficient regard to the witnesses Ms M S Spicer and Mr Creighton.
2. The learned magistrate failed to give adequate reasons for not accepting the evidence of Mr Creighton, whose evidence contradicted that of all other witnesses.
3. The verdict was unreasonable and cannot be supported having regard to the evidence. Leave is sought to add Ground 3 in the appeal and the granting of leave is not challenged.

Background

3. [3]
   The incident giving rise to the charge involved a two-vehicle collision. The collision occurred on 2 July 2015 at about 7.45 am on Bribie Island Road which has one lane in each direction separated by a broken white line. The speed limit was 100 kilometres per hour. The appellant was travelling west in a Mazda utility and the second vehicle, a Pajero station wagon driven by Dane Manton, was travelling east.

4. [4]
   The collision was not contributed to by excessive speed, the mechanical condition of either vehicle, road or weather conditions.

5. [5]
   The point of collision was determined by the forensic crash unit from gouge marks on the road as being in the middle of the east bound lane.^[1]  On the Pajero there was extensive damage to the front of the vehicle to the left and the right-hand front mudguard was in “pretty good shape”.^[2]  The Mazda utility had sustained significant damage to the right-hand across the front but “certainly to the right hand front corner”.^[3]  The witness, Senior Constable Griffin opined that the collision was head-on but not exactly square-on which indicated “that the vehicles had both made a last minute turn away…which is why the left corner of the Pajero and the right corner of the Mazda utility have come together…”.^[4]

Witnesses travelling in the same direction as the Pajero drive by Mr Manton

6. [6]
   Mr Manton gave evidence that he was on his way to work in a line of cars. He said he saw a light coloured vehicle cross into his lane and strike his car. He said it hit his car in front towards the corners.^[5]  Mr Manton suffered serious injuries including multiple fractures and a brain contusion.

7. [7]
   Under cross-examination he agreed that when he gave his statement to the police he assumed the speed limit was 80 kilometres per hour when it was in fact 100 kilometres per hour.^[6]  He said he saw the utility coming “from the far, left hand side of his lane, come out, a veer and veer a sharp left – a sharp right”.^[7]  He agreed that in his statement to police he said, “the front passenger’s side of the ute…hit the driver’s side of my car”.^[8]

8. [8]
   Mrs Spicer was in the car immediately behind Mr Manton. She said she saw the Pajero “drifting”. She thought he was heading a bit over towards the centre line “I don’t think he even crossed it”.^[9]  Under cross-examination she agreed that in her statement she had said in part, “…he appeared to be drifting over in his lane towards the centre lane.  I don’t know if he actually crossed the line or not”.^[10]

Ms McGinn

9. [9]
   Ms McGinn was travelling in the second car behind Mr Manton. She described the utility. She said, “…so when I looked up I saw him swerve to the left very briefly before he swerved quite sharply to the right and hit the Pajero head on”.^[11]  She said the Pajero was in the middle of the lane driving normally.  Under cross-examination she agreed she had not mentioned in her statement that the ute veered to the left before it went right.  She accepted that her evidence in that respect might be an error. 

Vehicles travelling in the opposite direction

10. [10]
    Mr Harris gave evidence but could not recall the collision or immediately prior to it.

Mrs Walsh

11. [11]
    Mrs Walsh was in front of Mr Harris. She said she was driving along, “…I saw in my side mirror a grey ute pull out really quick as though he was going to pass me…”.^[12]  Under cross-examination she accepted that the movement of the utility “was a sharp manoeuvre… as though to quickly overtake”.^[13]  She qualified this by saying, “but I – that’s not what I think he was doing, but that’s what it looked like”.^[14]  She made no real observations of the car travelling towards her.

Ms Hardy

12. [12]
    Ms Hardy was travelling at least three cars back from Mr Manton. She noticed a utility coming towards them, “…and it suddenly swerved into our lane”.^[15]  She agreed the movement was inconsistent with an attempt to overtake.  She was adamant that there was no silver SVU behind the Pajero but she was apparently mistaken about that.

Mr Creighton

13. [13]
    Mr Creighton was travelling from Bribie Island. The utility was about 100 metres ahead of him. He had been looking at a house on his left. He noticed the white Pajero coming towards him. He said, “the two left-hand wheels were off into the gravel”.^[16]  He thought the driver was going to be driving off the road.  He described it this way, “so very momentarily, I observed it going off to the left. Then all of a sudden, it changed direction back onto the road”.^[17]  He said “the two cars hit on opposite front corners”.^[18]  He said, “…he over-corrected and he’d come back on at around about a 45 degree…across the lane”.^[19]  He said that both cars hit each other on the centre of the road.

The offence

14. [14]
    Section 83 of the TORUM provides “any person who drives a motor vehicle on a road or elsewhere without due care and attention or without reasonable consideration for other persons using the road or place is guilty of an offence”.  In his decision, the Learned Magistrate quoted and adopted the meaning from Johannsen v Zeller Ex-parte Zeller [1958] Qd R 366:

“That ‘due care and attention’ mean that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances, which circumstances are in part created by the driver. Lack of due care and attention need not amount to negligence towards another person but may be a failure to exercise that degree of care and attention that a reasonable and prudent driver would exercise in looking after his own safety”.

Onus of proof

15. [15]
    It is agreed that the onus of proof to be applied by the Magistrate was that of proof beyond reasonable doubt.

The Learned Magistrate’s decision

• He did not think anyone had tried to mislead the court.
• That within the body of the prosecution evidence there was inconsistency.
• There was some inconsistency in Mr Manton’s evidence (specifying the speed limit).
• He mentioned that Mr Manton said the impact was semi head-on and spoke about where the damage was caused.
• The magistrate did not find or comment on the fact that Mr Manton’s evidence, about the area of damage, was inconsistent with the forensic police officers.
• The magistrate repeated that he did not form the view that any witness was trying to mislead the court.
• He found that Ms Hardy was mistaken in relation to whether her car was immediately behind the Pajero.
• He found Ms Walsh had only made momentary observation in her side mirror.
• He said Ms Spicer did not give a lot of useful evidence in relation to the matter.
• He said that Mr Creighton noticed the Pajero’s wheels were in the gravel and the change in direction back onto the road.
• He found that Mr Creighton was quite forthright in his evidence.
• He found the two police witnesses to be truthful and reliable.
• He formed the view that Mr Manton “stood up to cross-examination” and that there were only “some slight areas” where he was challenged in relation to the speed limit.  He made no reference to the area of damage on the vehicles.
• Although there were inconsistencies with other witnesses “particularly the evidence of Mr Creighton,” Mr Manton’s evidence “is exactly what did occur in relation to this matter”.  He found Mr Manton’s evidence to be “quite strong and quite powerful”. 
• He found that it appeared both drivers “took some evasive action”. 
• He did accept on the evidence that any driving by Mr Manton had anything to do with the accident.
• He found that Mr Harris’ driving caused the accident.

The nature of this appeal

16. [16]
    In accordance with s 223(1) of the Justices Act 1886 (Qld), an appeal is generally “by way of rehearing on the evidence”. The appellate judge is required to make his or her own determination of the facts giving due deference and weight to the magistrate’s view.^[20]  In Tierney v Commissioner of Police [2011] QCA 327 the court said at paragraphs 53 to 54:

“In Fox v Percy the High Court made it plain that where a finding of fact depends on a view taken of conflicting testimony, it is the duty of the appellate court to conduct a ‘real review’ of the evidence; it is obliged to accord respect to the decision of the trial court and to bear in mind any advantage the trial court had in seeing and hearing the witnesses give their evidence; it is to weigh conflicting evidence and draw its own inferences and conclusions.  If after doing this, the appellate court concludes that an error has been shown, then it is entitled and obliged to exercise its powers on appeal. In appeals pursuant to s 222 of the Justices Act 1886 (Qld), this Court has consistently applied what the High Court said in Fox v Percy in deciding whether a magistrate erred in making findings of fact based on the credibility of the witnesses…”.

Verdict unreasonable

17. [17]
    In R v PAH [2008] QCA 265 at 29 – 30 the court discussed the principles relevant to such a ground,

“The relevant principles for determining whether the conviction is unsafe and unsatisfactory, to use the former terminology, are set out in M v R and MFA v R.  M v R establishes a number of propositions about the exercise by appellate courts of the powers conferred by s 668E of the Criminal Code 1899 (Qld) and like provisions.  The question which the court must ask itself is whether it thinks that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  In most cases, a doubt experienced by an appellate court will be a doubt the jury ought also have experienced.  Where a jury’s is advantaged in seeing and hearing the evidence is capable of resolving the doubt experienced by the appellate court, the court may conclude that no miscarriage of justice occurred.  Where the evidence lacks credibility for reasons which are not explicable by the manner in which the evidence was given, the reasonable doubt expressed by the court is a doubt which a reasonable jury ought to have experienced.

If the evidence on the record itself, contains discrepancies, inadequacies, is tainted, or otherwise lacks probative force in such a way to lead the court to conclude that, even allowing for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, the court is bound to act and set aside a verdict based on that evidence.  In doing so, the court is not substituting trial by the Court of Appeal for trial by jury, for the ultimate question must always be whether the court thinks that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

18. [18]
    It is accepted that this Court must give sufficient weight to the fact that the Learned Magistrate here was the tribunal of fact vested with the primary responsibility for determining guilt and innocence and I give appropriate weight to the advantage secured by the Magistrate in observing evidence adduced at trial.

19. [19]
    It is submitted by the respondent that the Magistrate was entitled to reject Mr Creighton’s evidence and prefer that of Mr Manton. Unfortunately, the Learned Magistrate did not articulate that he had rejected Mr Creighton’s evidence. It is clear that he preferred Mr Manton’s evidence to the witnesses who saw the Pajero change direction, but did not say why he did so.

20. [20]
    One of the grounds of appeal here is that the Magistrate failed to give adequate, or any reasons, for not accepting the evidence of the witness Creighton which was in conflict with the evidence of Manton. In Bawden v ACI Operations Pty Ltd [2003] QCA 293 at 29 reference was made to the judicial obligations to give reasons which were identified by Meagher JA in Beale v Government Insurance Office of New South Wales^[21] when he pointed to “avoid disabling the right of appeal, to prevent the ‘real sense of grievance’ felt by a party who does not know or understand why the decision is made; to enhance judicial accountability, provide the educative effect resulting from the exposure of the trial judge or magistrate to review in criticism and encourage consistency in decisions; and to save time for appeal courts by reducing the number of appeals and the time taken in considering appeals”.^[22]  Ultimately, the obligation may be “grounded in the notion that justice should not only be done but be seen to be done”.^[23]

21. [21]
    In Suncorp Insurance and Finance v Hill [1998] QCA 112 Williams J, with whom Fitzgerald P and Davis JA agreed, cited a passage from the judgment of the President in Cypressvale Pty Ltd v Retail Shop Leases Tribunal:

“The broad principle deducible from the cases is that the decision-maker is required to give reasons which disclose what was taken into account and in what manner, and thus whether an error has been made…there have been many attempts to elaborate; indicating for example, the need for findings of fact, usually related at least in broad terms to the evidence on which each finding is based and an explanation for the reasoning process; vague general statements or unexplained conclusions are not sufficient…”.^[24]

22. [22]
    In addition, the onus of proof here is proof beyond reasonable doubt and so is not a case of “word against word”.^[25] The proper approach is to understand that the prosecution case depended on the finder of fact accepting the evidence of the prosecution’s principal witness as true and accurate beyond reasonable doubt despite the evidence by contradictory witnesses.^[26] 

23. [23]
    In the end result, I have decided that there is little discernible reason given by the learned magistrate to rely on the evidence of Mr Manton in contradiction to the independent witnesses Spicer and Creighton who were in each of the vehicles closest to what happened. Both saw Mr Manton’s vehicle heading towards Mr Harris prior to the collision. He found both of them to be honest and did not enunciate why he failed to rely on their evidence even to the point where it may have raised a reasonable doubt.

24. [24]
    In addition, his Honour failed to place any emphasis on the fact that Mr Manton had made a significant error in relation to the point of impact between the two vehicles. As a general rule adequate reasons for judgment would refer to the evidence which was important to the determination of the matter and set out material findings of fact giving the judge’s reason for them and stating the basis on which the judge had come to prefer one body of evidence over a competing body of evidence. His Honour overlooked the contest of credibility between Mr Manton and Mr Creighton and failed to refer to the reasons for preferring Mr Manton.

Orders

1. The appeal is allowed.
2. The conviction is quashed.
3. A verdict of acquittal is entered.
4. The respondent is to pay costs of appellant, agreed between the parties or fixed in accordance with schedule 2 of the Justices Act 1886 (Qld).