Mitchell Gatenby v Senior Constable Ronald Duncombe

On 5 March 2015 the plaintiff’s summons came before me for hearing. At the conclusion of argument I indicated that, for reasons sufficiently evident from the exchanges between Bench and Bar, the summons must be dismissed. Counsel for the plaintiff, Mr Boyd, indicated (though this does not appear on the transcript) that it was not necessary to formally provide reasons. Accordingly, the summons was dismissed with costs. However, on 18 March the plaintiff’s solicitor informed me that the plaintiff wished to appeal and, accordingly, sought a judgment. This is that judgment.

The plaintiff was charged on 13 August 2013 with the offence of negligent driving (not occasioning death or grievous bodily harm) contrary to s 42(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). The charge concerned the manner of his driving, which allegedly caused a collision on Runnyford Road, Nelligen on 16 December 2012. The alleged negligence was particularised by the prosecutor as constituted by the plaintiff driving his vehicle across to the incorrect side of the road, thereby colliding with an oncoming vehicle.

On 14 April 2014 the plaintiff was acquitted. Pursuant to s 212 of the Criminal Procedure Act 1986 (NSW), counsel for the plaintiff sought an order for costs against the informant upon the basis that the prosecution failed to take a statement from the plaintiff or from a Mr Maidla (who arrived at the scene after the collision occurred) and failed to carry out investigations which, it was contended, would have shown that the plaintiff was on the correct side of the road at all relevant times or, at least, a “very significant doubt as to whether he was on the wrong side of the road or not”. The application was refused.

The plaintiff seeks an order under s 69 of the Supreme Court Act 1970 (NSW) quashing this judgment and substituting an order in his favour. It follows that a mere mistake of fact will not be sufficient to justify relief. However, if there were no evidence capable of establishing a fact in issue, that would amount to an error of law justifying relief or, if the evidence could justify only one conclusion, the failure so to conclude would likewise amount to legal error. Here, the crucial question is, in substance, whether an investigation, properly carried out, must have demonstrated that there was or might be no proper basis for the charge as particularised and, accordingly, that the failure to conduct that investigation justified an order for costs. If so, the conclusion that there was no failure to undertake a proper investigation would constitute an error of law.

Rule 132(1) of the Road Rules 2008 requires a driver on a two-way road without a dividing line or median strip to drive to the left of the centre of the road (irrelevant exceptions aside). The road does not include the shoulder (r 12(2)(b)) and the “centre of the road” is defined in the Dictionary as “the far right side of the part of the road used by traffic travelling in the same direction as the driver”.

So far as is relevant, the Criminal Procedure Act 1986 provides –

The trial commenced on 20 February 2014. The first witness was Senior Constable Ward, who went to the scene of the collision with other police at about 3.30pm on 16 December 2012. The plaintiff was trapped in his vehicle (a Nissan) and, when released, taken away in an ambulance. The investigating officer was Senior Constable Duncombe. SC Ward took photographs but made no measurements. The other vehicle was an Isuzu truck, the tray of which (the constable agreed) protruded beyond the cabin by about 200mm. She was unable to say why the plaintiff was not interviewed. This was a matter for SC Duncombe to decide. A survey of the road was identified by the officer, who agreed that the positions of the vehicles depicted were possibly (perhaps meaning probably) accurate. The road was gravel, with no centre line marked.

Mr Kershaw, the driver of the truck, then gave evidence. He said he was driving at between 40 kph and 50 kph on the correct side of the road when, coming around a sweeping right hand bend, he saw the plaintiff’s vehicle, going too fast, “well” on its wrong side of the road, “taking the corner too wide”. He attempted to avoid a collision, steering left and braking hard, coming almost to a stop. The other vehicle also steered to its left and braked but continued on and struck the tray of the truck, bouncing back to its final resting position. Although the forward movement of the truck had almost stopped, it rotated sideways about a metre and a half to the edge of the road as a result of the collision. He agreed that the photographs showed the final positions of the vehicles. The tray is 2.4m wide, about 450mm wider than the cabin. The driver’s son was in the vehicle also. He confirmed the evidence of his father about speed, that the vehicle was on its side of the road and the other vehicle was straddling the centre, the truck braked and swerved and was almost stationary when the collision occurred. The other vehicle slid, unable to gain traction on the gravel. The photographs accurately depicted where the vehicles ended up.

The plaintiff gave evidence to the effect that he was travelling on the left-hand side of the road at only 40kph to 50kph, saw dust on the road as he approached a bend, reduced speed and then saw the oncoming truck “from what I could see in the middle of the road … but that’s very vague with determination of how wide the road was … there wasn’t enough room for me to get past” and the next thing he remembered was waking up in hospital. In answer to the suggestion, put to him in cross-examination, that his vehicle was straddling the centre of the road, he conceded “that it was, depending on how wide the road was”, he could not say one way or the other. He first said the tray of the truck was partly on the incorrect side of the road because that is the part his vehicle collided with but later stated that part of the cabin was also over the centre.

The defence also called Mr Colin Wingrove, a consultant transport engineer who, amongst other things, had visited the scene where he took photographs of dual wheel marks in a depression (called “wheel stop marks”), obtained dimensions of the truck from the manufacturer’s website and, using other dimensions from the police photographs (which did not depict the truck’s rear wheels or the wheel stop marks), marked up a survey plan of the scene (later) tendered into evidence with the final positions of the vehicles (shown to scale), that of the truck being marked relative to the wheel stop marks. The survey plan showed the road (called the trafficable area) to be 35m wide, with an additional relatively wide area comprising a shoulder on the truck’s side. The wheel stop marks were .049m within the trafficable area. Although it was possible they may have been left by some other vehicle travelling along the road after the collision, they were close to where the truck’s nearside dual wheels were shown to be in the photographs taken by police and were thus likely to have been caused by the truck in the collision. (The plaintiff’s father gave evidence that the marks, “at the end of quite a long skid mark coming on a curve into that”, were seen by him when he visited the scene on the day after the collision.) The trial was adjourned.

When the trial resumed, the prosecution called SC Duncombe (who had earlier been unavailable to give evidence), who was the officer in charge of the investigation. After the vehicles had been removed, he worked out (as best he could, given that the road was unmarked) the position of the centre of the road. He measured by stepping out the distances, starting from the leaf line in what was called the “gutter”. He determined where the collision occurred by assuming that the truck stopped at that point. Skid marks showed sideways movement ending at the rear wheels showed the truck’s rear had been deflected by about 1.5m, pushing the front towards the centre. When notionally straightened, he concluded that the point of impact was about one metre on its side of the road. He saw no signs of a skid at the front. He recalled seeing a depression but not so deep as that shown in Mr Wingrove’s photograph (which he could not directly relate to the scene as he recalled it). He said he spoke to the plaintiff at the scene to see if he was OK and again later. The plaintiff told him he could not remember what happened, so he did not think it useful to take a statement from him. He did not obtain a report from an expert to attempt a reconstruction of the collision because a request would be unsuccessful where the charge in question was only one of negligent driving.

The defence called a Mr Maidla, who was a member of the Rural Fire Service and called to the scene. When he arrived, police and ambulance officers were already there. He observed the vehicles. He was asked –

The surveyor, Mr Veitch said he visited the scene with Mr Gatenby Snr in October 2013 to gather information for the purpose of making a survey sketch plan of the vicinity, including the position of the wheel stop mark that was pointed out to him. He marked the “crown of the road”, taking it to be the centre, and measured the road width as seven metres, using as the boundary on each side the extremities of the graded trafficable area. The wheel stop mark was, as I have mentioned, measured at 049mm inside the edge of the trafficable area. In cross-examination, Mr Veitch agreed that the centre line shown on his survey was not that of the trafficked area and the line did not equally divide this area, the centre of which would be “considerably” to the left of the marked centre line, (that is to say, on the plaintiff’s side of the road), probably about half a metre, though precision was difficult because the centre of the “trafficable” (I think he meant “trafficked”) area constantly varied on that road.

When Mr Wingrove was recalled, he summarised his opinion as being that, accepting the truck’s rear inside wheels ended up at the wheel stop mark, when it is notionally rotated to the correct orientation of driving on the road, a portion of the truck must have been past “the imaginary centre line of the road” as marked on the plan. However, if the centre of the road was taken to be the centre of the trafficked area, he calculated that would place the truck 300mm inside the centre. Mr Wingrove pointed out that the centre line marked on the survey used the entire width of the graded road width as distinct from the part used by traffic, he thought “cutting the corner”.

The submissions on both sides focused on where the centre line was. If the relevant area of the road was the “trafficked” area, the truck was on the correct side of the road at the point of impact and the plaintiff’s vehicle was not. If the relevant area was the “trafficable” area, in the sense of the area available for traffic, the truck (accepting the survey and Mr Wingate’s evidence) was on the wrong side of the road. Of course, it followed that, if the impact occurred when the truck was on the wrong side of the road, the plaintiff’s vehicle was on the correct side. The prosecutor also relied on the evidence of SC Duncombe that, on his stepped out measurements, the truck was about one metre inside its side of the road at the point of impact.

The learned Magistrate briefly summarised the lay evidence and then dealt with the dimensions of the truck and the significance of the measurements shown on the survey and made by Mr Wingate. His Honour noted the width of the road at seven metres, giving each vehicle three and a half metres to the centre line. The truck rear nearside wheels came to rest close to half a metre inside the edge of the trafficable area. As its tray was 2.4m wide, its offside was 2.9m from the edge of the road. His Honour referred to the evidence of Mr Kershaw and his son that the plaintiff’s vehicle had pushed the truck to its left (respectively) by one and a half or one metre. Accordingly, the tray of the truck must have been over the centre line: 49mm from the edge, add 1000mm from the push and an additional 2400mm as the width of the tray, so that its offside edge must have intruded past the centre line of the trafficable area by a little less than one metre. His Honour said, “I cannot be satisfied that the rear of the truck was in fact on the correct side of the road” and then referred to Mr Wingrove’s evidence that the tray could be “across the centre of the road”, stating, “I cannot reject that evidence”.

The plaintiff’s solicitor, Mr Weller sought costs, contending that the prosecution should have interviewed the plaintiff and taken a statement from him, that it was aware of Mr Wingrove’s evidence but had not sought any evidence by way of response and did not call Mr Maidla, who had been at the scene and that, looking at the width of the roadway, “it’s quite clear or at least there is a very significant doubt, as to whether he was on the wrong side of the road or not”. These omissions meant that “the prosecutor unreasonably failed to investigate (or to investigate properly) … … [relevant matters] of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought”. The measurements that showed the truck was on the wrong side of the road could and should have been obtained by the officer at the scene.

The prosecutor submitted that the officer who attended the scene established as best he could that the plaintiff’s vehicle was one metre over the centre line at the point of collision. The fact that a later reconstruction and survey indicated this to be in error awaited trial. SC Duncombe was entitled to issue the infringement on the information available to him. The prosecution had the evidence of the Kershaws, which was to the effect that the truck was on the correct side of the centre of the road. There was therefore evidence both ways, which was for the court to weigh. This was the only way the conflict could be resolved.

The Magistrate’s brief ex tempore reasons are somewhat obscure but, as I understand them, his Honour thought that there was ample evidence suggesting the plaintiff was negligent. It was only when the defence case “gelled” on the adjourned hearing and the link between the evidence of Mr Wingrove, the surveyor and the wheel stop mark was established, that those observations could be relied on. His Honour said –

There is no right of appeal against a decision of the Local Court refusing costs under s 213. As I have mentioned, the plaintiff invokes this Court’s jurisdiction under s 69 of the Supreme Court Act to review the decision.

It is clear the onus was on the plaintiff to satisfy the Magistrate that one or more of the matters specified in section 214(1) of the Act was present. This is an evaluative decision which involves factual conclusions. In O’Brien v Hutchinson [2012] NSWSC 429, Beech-Jones J dismissed the plaintiff’s application for review of the decision of a Local Court refusing costs. His Honour identified (at paragraphs [8]–[14]) six matters for consideration in such an application –

Judgments on costs are to some degree sui generis. In Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212; 20 VR 481, Maxwell P and Kellam JA observed –

The plaintiff submits that the Magistrate’s judgment on the question of costs erred in a number of ways. It is submitted that it was wrong to suggest that the prosecution was asked to particularise the charges, since, it had, at all events, an obligation to give particulars. It is clear that his Honour was simply and correctly describing the procedures that the parties had adopted. There is no merit in this submission. It is also argued that his Honour’s view that “there was an abundance of evidence to suggest that the [plaintiff] was negligent” was an error since it denied the plaintiff natural justice, the prosecution not having made such a submission and there had been no finding to that effect. This submission is also without merit. There was no denial of natural justice. The sufficiency of evidence for bringing the charge was obviously relevant to the issue of costs and was the subject of submissions (though not in detail), with the prosecution pointing to the “two versions of events”. Nor was there cause for any earlier finding about the matter, since a summary verdict was not sought. His Honour’s reference to the evidence was, plainly enough, to that of the Kershaws to the effect that the truck was on the correct side of the road. His Honour’s conclusion was “obviously open on the known material” (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594, per French CJ and Kiefel J at [9]). Thirdly, it is submitted that his Honour erred in suggesting there were difficulties with the defence case. It is contended that the difficulties arose because the prosecution would not admit that the defence contentions about the point of impact and the distance the truck had moved as a result of the collision were correct. In my view, however, his Honour was simply referring to the course of the trial, in which the defence was unable, when it first went into evidence, to prove the wheel stop mark, which was an essential assumption underlying Mr Wingrove’s evidence. At all events, his Honour’s view that there were difficulties at this point was clearly open. Nor was the prosecution bound to make the admissions proposed. It is true that the Kershaws had referred to the metre or metre and a half that the truck had slid after being hit, but they gave no evidence as to direction. The defence assumption was that it was perpendicular to the line of the road, but this was not put to either witness. Furthermore, the distances were, clearly enough, estimates made in the panic of the moment from the inside of the vehicle and needed to be weighed against the certainty of their evidence about being on the correct side of the road. The passage complained of reveals no error of law.

Lastly, it was also submitted that the Magistrate had failed to consider whether the police had conducted reasonable investigations in a number of respects. Firstly, there was the failure to take a statement from the plaintiff. However, this was explained by SC Duncombe, whose evidence on the point was summarised above. Second, no statement was taken from Mr Maidla. However, since he arrived late at the scene, he could give no relevant evidence about the accident itself; SC Duncombe had obtained photographs and was able to give evidence about what he saw. Mr Maidla’s evidence became necessary because of the need to identify the wheel stop mark utilized by Mr Wingrove. Third, there was no attempted reconstruction of the accident by the police. This was explained by SC Duncombe as a result of police priorities. Fourth, the police did not respond to the accident reconstruction reports served by the defence. This submission was not made to the Magistrate and, at all events, there was no evidence that the reports had been served prior to the hearing; the survey report of Mr Veitch was produced on the first day of the hearing. Otherwise, the arguments were put to the Magistrate and it should be inferred that his Honour considered them all and was not satisfied the investigations were conducted unreasonably.

I should mention that, at all events, the centre line of an unmarked, unpaved road is not the surveyed centre of the area which has been graded and available for traffic to use (ie, the trafficable area) but the part defined in the Dictionary of the Road Rules as “the far right side of the part of the road used by traffic travelling in the same direction as the driver” (ie, the trafficked area). This latter description was that proposed as appropriate by the prosecution, upon which basis it was conceded by Mr Wingrove that the truck would have been on its correct side of the road when the collision occurred. Be that as it may, the prosecution was entitled to argue that the relevant area was the trafficked area and, if so, the defence evidence supported that case and the guilt of the plaintiff.

At the hearing before me, Mr Boyd of counsel for the plaintiff conceded that his case ultimately rested on what was submitted to be mathematical proof that the truck was on the wrong side of the road, based on facts known from the beginning or, at least, from the time the Kershaws made their statements, or Mr Wingrove gave his evidence and the survey was produced. However, Mr Wingrove’s opinion depended on two factors: whether the centre was of the trafficable as distinct from the trafficked portion of the roadway; and whether the truck skidded perpendicularly (as distinct from tangentially) across the road to the edge. In concluding he was unable to reject Mr Wingrove’s evidence, the Magistrate implicitly decided the first in favour of the plaintiff (albeit, with respect, mistakenly), and gave the benefit of the doubt to the plaintiff as to what the calculations showed. His Honour’s brief reasons in refusing to order costs in favour of the plaintiff reflected this overall approach.

There was no misapprehension by the Magistrate of the relevant test, nor any failure to consider relevant facts or the statutory criteria; nor was the decision unreasonable as lacking any plausible justification, or otherwise irrational or illogical. Nor was there any procedural unfairness. The conclusion that the plaintiff had not established that “the prosecutor had unreasonably failed to investigate (or to investigate properly) any relevant matter” was, to my mind, clearly open to his Honour. Indeed, in fairness I should state that the refusal of his Honour to order costs was plainly correct. Accordingly, I made the following orders –