Konsul v Laverty [2005] ACTSC 69 (5 August 2005)

Last Updated: 11 August 2005

MIRO DRAGO KONSUL v MICHAEL PATRICK LAVERTY

[2005] ACTSC 69 (5 August 2005)

APPEAL FROM MAGISTRATE - conviction for driving offence - conflicting evidence - no adverse finding about witness - reasonable doubt on Crown case.

Magistrates Court Act 1930, s 214

Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193

Devries v Australian National Railways Commission (1993) 177 CLR 472

Abalos v Australian Postal Commission (1990) 171 CLR 167

State Rail Authority (NSW) v Earthline Construction Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3

Sikorski v Gristsch [2002] ACTSC 55

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 62 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 5 August 2005

IN THE SUPREME COURT OF THE )

) No SCA 62 of 2004

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: MIRO DRAGO KONSUL

Appellant

AND: MICHAEL PATRICK LAVERTY

Respondent

ORDER

Judge: Connolly J

Date: 5 August 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The Magistrate's orders be set aside, and the plaintiff acquitted.

1. This is an appeal against a conviction by a Magistrate for the offence of failing to give way to an oncoming vehicle. It concerns a two-vehicle motor vehicle accident that occurred on the morning of 13 August 2003 at the T-junction of Baldwin Drive and Chuculba Crescent at Kaleen in the Australian Capital Territory. The Crown case is that the appellant failed to give way to an oncoming vehicle, driven by a Mr Piscitelli, which had been travelling in a generally easterly direction along Baldwin Drive. It is said that the appellant, who had been travelling in a generally westerly direction along Baldwin Drive, failed to give way to Mr Piscitelli by turning right from Baldwin Drive to proceed into Chuculba Crescent into the path of Mr Piscitelli. On this case the impact occurred at an angle as the appellant was turning in front of Mr Piscitelli.

2. The appellant's case was that he was proceeding in a generally westerly direction along Baldwin Drive, and says that he was stationary at a turning lane to turn right into Chuculba Crescent. He says that Mr Piscitelli skidded into his lane. On this case the impact would have been more or less front on.

3. An appeal lies to this Court from a finding of a Magistrate exercising summary jurisdiction in criminal matters pursuant to Part XI of the Magistrates Court Act 1930. Section 214(2) provides that -

In an appeal to which this section applies, the Supreme Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact

4. In determining this appeal, I am of course properly mindful of the warning repeatedly given by the High Court about the need for appellate courts to defer to a conclusion of a lower court concerning a question of the credibility of witnesses (Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193, Devries v Australian National Railways Commission (1993) 177 CLR 472, Abalos v Australian Postal Commission (1990) 171 CLR 167, State Rail Authority (NSW) v Earthline Construction Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3).

5. However, this is not to say that the appellate court may not draw its own inferences from the facts found below. In Sikorski v Gristsch [2002] ACTSC 55, Miles CJ observed at [3] that -

The Magistrate's advantage in seeing and hearing the witnesses must be given proper weight and this Court will not interfere with findings of primary fact which depend on that advantage. However, as far as inferences from the primary findings are concerned, this Court is in as good a position as the Magistrate and will not shrink from its responsibility to draw inferences for itself even though they may conflict with those drawn by the Magistrate.

6. The essence of this appeal is that the appellant says that the Magistrate could not have been satisfied, beyond reasonable doubt, as to the cause of the accident. The matter was heard by the Magistrate over a year after the incident. In her oral reasons, the learned Special Magistrate quite properly reminded herself that this was a criminal case, and that the burden of proof was on the Crown, and that the standard of proof was proof beyond reasonable doubt [AB 5].

7. There was a clear conflict in the evidence before the Magistrate. On the Crown case, the accident occurred as the appellant had failed to give way and moved from his stationary position in the turning lane into the oncoming path of Mr Piscitelli. On the appellant's case, the accident occurred as he was stationary in his turning lane, and Mr Piscitelli's car skidded into him. Mr Piscitelli gave evidence that he braked to avoid the accident, and his car went into a skid.

8. Evidence as to the point of impact was thus of central importance in what was otherwise merely a conflict of memory between two drivers 12 months after the accident.

9. There were no skid marks on the road. This was, in the scheme of things, a relatively low level incident. There were no serious injuries. Nonetheless, a police accident investigator attended, some time, probably about half an hour after the accident [AB 35]. The accident occurred on a wet morning and, accordingly, Constable Laverty, a member of the Collision Investigation and Reconstruction Team said that "there wasn't any visible tyre marks on the ground" [AB 29].

10. Constable Laverty said that he did observe "some debris" on the road surface [AB 29], but that-

It wasn't in a consistent pile, it had actually been scattered due to traffic flow being resumed. It's peak hour. And the damage - sorry, the debris was scattered in the eastbound carriage one and two of Baldwin Drive. But as I said, like usually there's other telltale signs of an exact point of impact but on this occasion there wasn't anything else visible.

11. In cross-examination Constable Laverty confirmed that there were no skid marks. It was put to him that the debris had been disturbed because of vehicles travelling over it, and he said [AB 35] -

It was disturbed, but predominantly in the westbound - eastbound carriageway, sorry.

It seems to me that this evidence does not go to establish the point of impact, and indeed when Constable Laverty was asked, "And you weren't able to say to any study or any observations you made where the point of impact was between the vehicles?", he answered, "No" [AB 35]. He confirmed that no charts or measurements were taken [AB 36].

12. It is not entirely clear from the reasons what use the learned Magistrate made of the evidence of the police officer. It was put in submissions that an inference could be drawn that the debris established the point of impact as being in the eastbound carriageway. It seems to me that this would be an inference that would be dangerous to draw. Mr Laverty said that he could not define the point of impact. He said that the debris was "predominantly" in the eastbound lane, but acknowledged that it had been disturbed by passing traffic.

13. Photographs were tendered of the two vehicles. They show extensive damage to the front of Mr Piscitelli's vehicle [AB 58] and damage to the mid point of the bull-bar of the appellant's vehicle [AB 53]. It seems to me that these photographs do not establish either way how the accident occurred.

14. The appellant gave evidence that his car was stationary and fully within his lane. He said that he had a discussion with Mr Piscitelli, and then called a friend to come to assist him after the impact. The friend gave evidence that, when he arrived, the appellant's car was stationary and fully within its proper lane. It was put to Mr Piscitelli in cross-examination, "And between the time you had the conversation and the accident Mr Konsul's vehicle was not moved until this other person arrived?" and he answered, "That's correct, yes".

15. The learned Magistrate expressly stated that she did not reject the evidence of the appellant and his friend, Mr Jurkovic [AB 12], although she made an observation that, in her view (unsupported by any medical evidence), the appellant was in a state of shock at the time of the accident. Her Worship then says that she accepts Mr Piscitelli's version of events.

16. It seems to me that this discloses an error on the part of the learned Magistrate, in that the sworn evidence of Mr Jurkovic, which she accepted as truthful, was that the appellant's car was in its correct lane when Mr Jurkovic arrived. Mr Piscitelli acknowledged that it had not been moved between the accident and Mr Jurkovic's arrival. In the absence of any expert evidence as to the point of impact, and with the police expert acknowledging that he could not draw any conclusion as to this, it seems to me that there must have been a reasonable doubt as to the appellant's guilt. While the learned Magistrate accepted Mr Piscitelli's version of events, his version was in contrast to other evidence, which she rightly did not reject. Given this, she could not, on the material before her, have been satisfied beyond reasonable doubt as to the commission of the offence.

17. This was a relatively minor motor vehicle accident, but the matter was prosecuted, and any person charged with a criminal offence is entitled to be acquitted unless and until the Crown can establish its case beyond reasonable doubt. The evidence before the Magistrate did not, in my view, allow such a finding to be made. There were essentially two versions as to how the accident occurred. This is often the case and Magistrates, Masters and Judges are called on in civil proceedings to find the cause of the accident, on the balance of probabilities. In such a case, it is open to prefer one version to another. In establishing guilt on a criminal charge, however, merely preferring one version of events to another does not establish guilt beyond reasonable doubt. The evidence here was such that there must, it seems to me, have been a reasonable doubt, and that the appellant was entitled to have been acquitted.

18. The appeal must be upheld, the decision of the Magistrate set aside, and the appellant acquitted of the charge that he on 13 August 2003 failed to give way to an oncoming vehicle. It follows that the penalty of $350 fine and costs is set aside.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 5 August 2005

Counsel for the appellant: Mr S Whybrow

Solicitor for the appellant: Hill & Rummery

Counsel for the respondent: Ms J Whitbread

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 26 July 2005

Date of judgment: 5 August 2005