Aitken v Police No. Scciv-03-2

AITKEN v POLICE
[2003] SASC 22
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against his conviction in the Magistrates Court sitting at Mount Barker on a charge of driving without due care. The particulars of the charge alleged in the complaint are that on 27 September 2001 at Lobethal the appellant drove a motor vehicle on a road, namely Ridge Road, without due care, contrary to s 45 of the Road Traffic Act 1961.
The trial magistrate gave ex tempore reasons for judgment, following which he recorded a conviction without penalty.
In his notice of appeal, the appellant complains that the decision was “against the evidence and against the weight of the evidence”.
The charge arose out of an accident which occurred while the appellant was driving a Nissan Pintara sedan motor car on a country road, namely Ridge Road, at Lobethal.
The appellant had been working at the Lobethal abattoirs. He had the use of the vehicle, which he had borrowed for the day. With him in the vehicle were two other employees from the abattoirs, Heath Connor and Darryl Bradfield. The three of them left the abattoirs in the car at about 3.45 pm. It was a fine, clear day. They intended to drive to Murray Bridge, travelling at first along Ridge Road, with the intention of picking up the freeway. The appellant was not familiar with the road.
At the location of the accident, Ridge Road runs roughly north and south. The appellant was travelling south. The bitumen was dry. Ridge Road is about two kilometres long. The carriageway is divided by a single white line. The accident occurred about one kilometre from the abattoirs.
Approaching the accident scene, the road rises to the crest of a hill and then plunges down a steep decline. As he came over the crest of the hill, the appellant lost control of the vehicle which began to fishtail. It eventually skewed off into a tree on the side of the road.
The two passengers, Mr Connor and Mr Bradfield, managed to get out of the vehicle. They suffered relatively minor injuries. The appellant, however, was trapped for a time in the driver’s seat until he was extricated when help came. He suffered a fractured right finger, a punctured left lung and a brain injury. His last memory is driving out of the abattoirs. He has no further recollection of events until waking up in hospital.
At the hearing, the prosecutor called one of the two passengers, Mr Bradfield, and the police officer, Senior Constable Palmer, who attended at the scene from the Woodside Police Station.
Mr Bradfield estimated the speed of the vehicle at about 50 kilometres per hour before the appellant lost control. He had a sensation of the vehicle lifting slightly. In his evidence in-chief, he put it this way:
“A.The whole car lifted up. It wasn’t the rear, the wheels were on the ground, but no weight on the ground to keep it stable.
Q.And you believed, as a consequence of that, the car started to fishtail.
A.Yes.
Q.How many times do you believe it fishtailed.
A.Three.
Q.What stopped the fishtailing.
A.It spun 180 degrees and came down the hill backwards.
Q.And then -
A.It slid into the tree, across the road, into the grass and into the tree.”
Mr Bradfield had about eight years driving experience before the accident. He said that he did not think that the vehicle was speeding before the accident, but it picked up speed when it began to fishtail. He described the road as one of the steepest bitumen roads which he had travelled on. He said that he was taken by surprise as they topped the crest. He thought that the appellant applied the brakes as the vehicle topped the crest. He described the application of the brakes as “hard breaking”, but he was sure that the wheels did not lock.
Senior Constable Palmer made some measurements and observations. The width of the road was about six paces. He saw skid marks which he attributed to the appellant’s car. The skid marks commenced at the top of the hill and led down to the position where the car had come to rest. Having regard to the nature and position of the skid marks, he concluded that the appellant had “locked up his brakes and rolled down the hill”.
As Mr Stokes, who appeared for the appellant, pointed out on the hearing of the appeal, Senior Constable Palmer admitted in cross-examination that he was not an expert in such matters. It follows, therefore, that his opinion that he could safely conclude from the nature of the skid marks that the car’s brakes were locked is perhaps questionable.
At the conclusion of the prosecution case, counsel for the appellant made a submission of no case to answer, which was rejected by the magistrate.
The appellant then gave evidence. As I have indicated, he had no recollection of the immediate circumstances of the accident. He described the vehicle as “in good running order”. He went on to agree that there was “nothing to indicate that there was anything wrong with the vehicle”. He could give no explanation for the accident.
The trial magistrate’s conclusions as to the appellant’s manner of driving appear from the following passage in his reasons for judgment:
“It is clear from his evidence that Mr Aitken was driving on a piece of road that he was not previously familiar with. It was completely new to him. They were going along a piece of road that was windy and I am satisfied, from Senior Constable Palmer’s evidence, somewhat undulating just prior to the crest and that in real terms, I am satisfied on the evidence before me, that Mr Aitken came upon and over the crest without appreciating absolutely the situation.
In coming over the crest, I am satisfied that as a result of his manner of driving, there was an impression that the vehicle was partly or totally airborne and that his response to that - and I do so on the evidence of Mr Bradfield I make it clear - that he braked and in doing so, precipitated the circumstances where the vehicle then fishtailed on three occasions, spun around 180 degrees, ultimately sliding from the bitumen surface across the dirt verge, across the grass nearby and striking a tree.”
He went on a little later to say:
“I am satisfied it has resulted in a situation of Mr Aitken failing to exercise, in these circumstances, on a strange piece of road, the particular features, the standard of care, that one would have expect of a reasonably prudent driver in those circumstances and I am, therefore, satisfied that the offence has been made out.”
In his very comprehensive argument, Mr Stokes on behalf of the appellant made a number of points. He contended that there was no evidence of excessive speed, the evidence of the speed being that it was of the order of 50 kilometres per hour. He submitted that the evidence did not establish that the wheels left the ground, and indeed, Mr Bradfield did not suggest that they did do so, but rather that the elevation of the vehicle was in the suspension, the wheels remaining on the ground.
Mr Stokes further argued that one could not exclude the possibility that there was a latent defect in the vehicle which caused the accident.
He submitted that one could not exclude the possibility that the accident occurred due to a very minor departure from the appropriate standard of driving which would not necessarily justify a finding that there was a failure to exercise due care.
As to the question of a latent defect, the fact remains that the appellant in his evidence expressed the view that there was nothing wrong with the vehicle and the trial magistrate was entitled to rely on that as evidence that the vehicle, on the face of it, was roadworthy.
As to the question of what inferences might properly be drawn from the circumstances of the accident, it seems to me, as I put to Mr Stokes in argument, that there will occasionally be cases where the precise reason why an accident has occurred cannot be fully explained on the evidence, but nonetheless, one would be entitled to draw the inference that it is the sort of accident which would not normally occur without a failure to exercise due care.
In my opinion, this is one such case. Although one might speculate as to the precise reason why there was a loss of control, having regard to the circumstances in which the accident occurred, in my view, the appellant’s loss of control is clearly indicative of a failure to exercise due care in the manner of driving.
In reaching that view, I have assessed the evidence for myself but, I must say, I see no reason to disagree with the findings of the trial magistrate and the reasoning which he expresses to support those findings.
In my opinion, the appellant was properly convicted of the charge of driving without due care.
The appeal is dismissed.
[FOLLOWING DISCUSSION RE COSTS]
PERRY J: There is no order as to costs.

[2003] SASC 22

30 January 2003